Criminal Procedure — plea withdrawal — ineffective assistance — jurisdiction

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — plea withdrawal — ineffective assistance — jurisdiction

Juan M. Rodriguez-Faustino appeals the order denying his motion seeking to withdraw his 2006 guilty plea to misdemeanor possession of cocaine, the sentence for which he has completed. He contends that his trial attorney was ineffective for telling him that he would not be deported for this conviction because he has recently discovered that this conviction is preventing him from becoming a naturalized citizen. He claims that he did not bring this motion pursuant to Wis. Stat. § 974.06 (2011-12), as the trial court construed it; instead, he submits that his motion is “akin to a motion to withdraw a guilty plea pursuant to [Wis. Stat. §] 971.08(2)” and that he should be allowed to withdraw his plea. Rodriguez-Faustino argues that because his motion alleges sufficient facts which, if true, would entitle him to the relief requested, the trial court erred in denying the motion without a hearing.

This court agrees with the trial court that it has no jurisdiction over this matter as: (1) Rodriguez-Faustino is no longer in custody, and thus, he cannot pursue this motion under Wis. Stat. § 974.06; and (2) the time limits for appealing this conviction pursuant to Wis. Stat. § 809.30 have long since expired. In addition, because Rodriguez-Faustino has cited no case law supporting his novel theory that a defendant relying upon his attorney’s advice concerning immigration issues is entitled to the same remedy as that when a court fails to advise a defendant as mandated by Wis. Stat. § 971.08(1), this court declines to address it. ¶3 Inasmuch as the trial court determined that it lacked jurisdiction, the motion should have been dismissed, not denied, and the matter will be remanded to effect this result. See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 334, 240 N.W.2d 635 (1976). This opinion will not be published.

2012AP2777 State v. Rodriguez-Faustino

Dist I, Milwaukee County, Konkol, J., Curley, P.J.

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Weber, Gregory M., Madison; O’Byrne, Karine E., Milwaukee