State v. Fernando Ortiz-Mondragon
Opinions
[8]*8ANNETTE KINGSLAND ZIEGLER, J.
¶ 1. This is a review of a published decision of the court of appeals,1 which affirmed the Brown County Circuit Court's2 judgment of conviction and order denying Fernando Ortiz-Mondragon's ("Ortiz-Mondragon") post-conviction motion to withdraw his no-contest plea to substantial battery as an act of domestic abuse.3
¶ 2. Ortiz-Mondragon argues that the circuit court erred by denying his motion to withdraw his plea. He argues that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla the Supreme Court held that "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla v. Kentucky, 559 U.S. 356, 369 (2010). "But when the deportation consequence is truly clear,. . . the duty to give correct advice is equally clear." Id.
¶ 3. Specifically, Ortiz-Mondragon argues that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation and permanent exclusion from the United States. He argues that these immigration consequences were clear and certain because his substantial battery was a "crime involving moral turpitude" under federal immigration law, thereby rendering him automatically deportable and perma[9]*9nently inadmissible.4 Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to research or consider the possible immigration consequences of the plea agreement. He argues that this deficient performance prejudiced him because he would have insisted on going to trial had he known that his plea to substantial battery would subject him to mandatory deportation and permanent exclusion from the United States. He reasons that, because he has lived, worked, and raised a family in the United States since 1997, he would have sought a plea agreement that avoided these immigration consequences. If he were unable to secure such a plea agreement, he argues that he would have gone to trial to leave open the possibility of remaining in the United States.
¶ 4. The State argues that the circuit court correctly denied Ortiz-Mondragon's motion to withdraw his plea. The State argues that trial counsel's performance was not deficient. The State contends that, because federal law is not succinct and straightforward with respect to the possible immigration consequences of Ortiz-Mondragon's plea, trial counsel gave correct advice under Padilla when he advised OrtizMondragon that the "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Specifically, the State contends that federal immigration law does not [10]*10clearly and succinctly provide that Ortiz-Mondragon's conviction for substantial battery would constitute a crime involving moral turpitude. The State further argues that, if we determine that trial counsel's performance was deficient, we should remand the matter to the circuit court for an evidentiary hearing on the issue of whether the deficiency prejudiced OrtizMondragon.
¶ 5. We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that Ortiz-Mondragon's substantial battery constituted a crime involving moral turpitude, his attorney "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." See Padilla, 559 U.S. at 369. Ortiz-Mondragon's trial attorney satisfied that requirement by conveying the information contained in the plea questionnaire and waiver of rights form— namely, that Ortiz-Mondragon's "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Counsel's advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c) (2011-12).5 In [11]*11addition, Ortiz-Mondragon's trial attorney did not perform deficiently by failing to further research the immigration consequences of the plea agreement. Because Ortiz-Mondragon failed to prove deficient performance, we do not consider the issue of prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 6. In 1997 Ortiz-Mondragon came to the United States from Mexico. In 2002 he moved to Wisconsin to work in the agricultural industry. He has four children, all of whom are United States citizens and reside in Wisconsin.
¶ 7. On September 14, 2012, the State filed a criminal complaint charging Ortiz-Mondragon with: (1) substantial battery, contrary to Wis. Stat. § 940.19(2); (2) false imprisonment, contrary to Wis. Stat. § 940.30; (3) felony intimidation of a victim, contrary to Wis. Stat. § 940.45(1); (4) criminal damage to property, contrary to Wis. Stat. § 943.01(1); and (5) disorderly conduct, contrary to Wis. Stat. § 947.01(1). Each count included a domestic abuse enhancer under Wis. Stat. § 968.075. All of the counts stemmed from one incident that occurred on September 12, 2012.
¶ 8. According to the complaint, Ortiz-Mondragon violently attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of his children. Ortiz-Mondragon became enraged because J.S. was talking to a male neighbor on the phone. Ortiz-Mondragon jumped on top of J.S. while she was talking on the phone in bed. Their two young children were in the room with them. Ortiz-Mondragon put his [12]*12hands around J.S.'s neck and began squeezing. J.S. had trouble breathing and thought that Ortiz-Mondragon was going to kill her. When J.S. managed to get off of the bed and tried to leave the bedroom, Ortiz-Mondragon punched her in the face and mouth and hit her in the back of the head. J.S.'s head bled profusely. OrtizMondragon also broke J.S.'s phone in half. When J.S. later sought treatment for her injuries, a wound on her face required five staples.
¶ 9. On September 24, 2012, Ortiz-Mondragon waived his right to a preliminary examination and was bound over for trial.
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[8]*8ANNETTE KINGSLAND ZIEGLER, J.
¶ 1. This is a review of a published decision of the court of appeals,1 which affirmed the Brown County Circuit Court's2 judgment of conviction and order denying Fernando Ortiz-Mondragon's ("Ortiz-Mondragon") post-conviction motion to withdraw his no-contest plea to substantial battery as an act of domestic abuse.3
¶ 2. Ortiz-Mondragon argues that the circuit court erred by denying his motion to withdraw his plea. He argues that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla the Supreme Court held that "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla v. Kentucky, 559 U.S. 356, 369 (2010). "But when the deportation consequence is truly clear,. . . the duty to give correct advice is equally clear." Id.
¶ 3. Specifically, Ortiz-Mondragon argues that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation and permanent exclusion from the United States. He argues that these immigration consequences were clear and certain because his substantial battery was a "crime involving moral turpitude" under federal immigration law, thereby rendering him automatically deportable and perma[9]*9nently inadmissible.4 Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to research or consider the possible immigration consequences of the plea agreement. He argues that this deficient performance prejudiced him because he would have insisted on going to trial had he known that his plea to substantial battery would subject him to mandatory deportation and permanent exclusion from the United States. He reasons that, because he has lived, worked, and raised a family in the United States since 1997, he would have sought a plea agreement that avoided these immigration consequences. If he were unable to secure such a plea agreement, he argues that he would have gone to trial to leave open the possibility of remaining in the United States.
¶ 4. The State argues that the circuit court correctly denied Ortiz-Mondragon's motion to withdraw his plea. The State argues that trial counsel's performance was not deficient. The State contends that, because federal law is not succinct and straightforward with respect to the possible immigration consequences of Ortiz-Mondragon's plea, trial counsel gave correct advice under Padilla when he advised OrtizMondragon that the "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Specifically, the State contends that federal immigration law does not [10]*10clearly and succinctly provide that Ortiz-Mondragon's conviction for substantial battery would constitute a crime involving moral turpitude. The State further argues that, if we determine that trial counsel's performance was deficient, we should remand the matter to the circuit court for an evidentiary hearing on the issue of whether the deficiency prejudiced OrtizMondragon.
¶ 5. We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that Ortiz-Mondragon's substantial battery constituted a crime involving moral turpitude, his attorney "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." See Padilla, 559 U.S. at 369. Ortiz-Mondragon's trial attorney satisfied that requirement by conveying the information contained in the plea questionnaire and waiver of rights form— namely, that Ortiz-Mondragon's "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Counsel's advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c) (2011-12).5 In [11]*11addition, Ortiz-Mondragon's trial attorney did not perform deficiently by failing to further research the immigration consequences of the plea agreement. Because Ortiz-Mondragon failed to prove deficient performance, we do not consider the issue of prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 6. In 1997 Ortiz-Mondragon came to the United States from Mexico. In 2002 he moved to Wisconsin to work in the agricultural industry. He has four children, all of whom are United States citizens and reside in Wisconsin.
¶ 7. On September 14, 2012, the State filed a criminal complaint charging Ortiz-Mondragon with: (1) substantial battery, contrary to Wis. Stat. § 940.19(2); (2) false imprisonment, contrary to Wis. Stat. § 940.30; (3) felony intimidation of a victim, contrary to Wis. Stat. § 940.45(1); (4) criminal damage to property, contrary to Wis. Stat. § 943.01(1); and (5) disorderly conduct, contrary to Wis. Stat. § 947.01(1). Each count included a domestic abuse enhancer under Wis. Stat. § 968.075. All of the counts stemmed from one incident that occurred on September 12, 2012.
¶ 8. According to the complaint, Ortiz-Mondragon violently attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of his children. Ortiz-Mondragon became enraged because J.S. was talking to a male neighbor on the phone. Ortiz-Mondragon jumped on top of J.S. while she was talking on the phone in bed. Their two young children were in the room with them. Ortiz-Mondragon put his [12]*12hands around J.S.'s neck and began squeezing. J.S. had trouble breathing and thought that Ortiz-Mondragon was going to kill her. When J.S. managed to get off of the bed and tried to leave the bedroom, Ortiz-Mondragon punched her in the face and mouth and hit her in the back of the head. J.S.'s head bled profusely. OrtizMondragon also broke J.S.'s phone in half. When J.S. later sought treatment for her injuries, a wound on her face required five staples.
¶ 9. On September 24, 2012, Ortiz-Mondragon waived his right to a preliminary examination and was bound over for trial. That same day, the State filed an information that contained the same five charges as the complaint.
¶ 10. On November 15, 2012, the State made a plea offer to Ortiz-Mondragon. If Ortiz-Mondragon pled guilty or no contest to substantial battery, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer, the State would dismiss and read-in the intimidation and false imprisonment charges. The State would recommend three years of probation and four months in jail as a condition of probation.
¶ 11. On November 27, 2012, the circuit court held a plea and sentencing hearing. Ortiz-Mondragon's attorney, Raj Kumar Singh ("Attorney Singh"), informed the court that the State recently made a plea offer to the defendant. Attorney Singh stated that he had "presented" the State's plea offer to OrtizMondragon, "given him paperwork to use to study it, given him information to use in counseling, and [OrtizMondragon] has just now confirmed that now he's made his final decision. He would like to take the offer."
[13]*13¶ 12. Attorney Singh then handed a plea questionnaire and waiver of rights form, along with "some other papers," to the circuit court. Ortiz-Mondragon had signed the plea questionnaire and waiver of rights form, which stated, inter alia: "I understand that if I am not a citizen of the United States, my plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Attorney Singh had signed the plea questionnaire and waiver of rights form immediately below the following affirmation: "I am the attorney for the defendant. I have discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently. ..."
¶ 13. Ortiz-Mondragon then stated that he wished to plead no contest to three counts pursuant to the plea agreement. The circuit court then informed him of the possible immigration consequences of his pleas.
THE COURT: All right. The law requires I address you now and advise you of the following: If you're not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law. . . .
These are collateral consequences to [sic] on top of whatever I sentence you to. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Do you still wish to offer me these pleas then?
THE DEFENDANT: Yes.
[14]*14¶ 14. The circuit court then confirmed that OrtizMondragon and his attorney had discussed the plea questionnaire and waiver of rights form, which contained a warning about possible immigration consequences of a conviction.
THE COURT: All right. In my right hand I have a plea-questionnaire-and-waiver-of-rights form. I have the standard jury instruction for the charge of substantial battery with intent to cause bodily harm as well as the elements of criminal damage and disorderly conduct. Do you see all these documents?
THE DEFENDANT: Yes.
THE COURT: Did you sign the plea questionnaire?
THE DEFENDANT: Yes.
THE COURT: Before you signed it, did you read it over carefully?
THE DEFENDANT: Yes.
THE COURT: And while you were going over all these documents, did you have an opportunity to fully discuss it with your attorney, Mr. Singh?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied with his representation thus far?
THE DEFENDANT: Yes.
¶ 15. The court concluded: "I'm going to find the defendant's pleas today to be freely, voluntarily, and intelligently entered on the record I have made. I'll incorporate in support of that the plea-questionnaire- and-waiver-of-rights form." The court then determined that "[t]he facts do support his pleas" and "adjudge[d] him guilty today of substantial battery and criminal damage to property and disorderly conduct."
[15]*15¶ 16. The State then explained that, pursuant to a joint recommendation, it was going to recommend "three years' probation with four months' jail and other standard conditions of probation." The State explained that it had "consulted with the victim," OrtizMondragon committed a "fairly violent offense," and he had no prior criminal record. The State also noted that although Ortiz-Mondragon "was on an immigration hold at the . .. initial appearance," he was not "on any other type of hold at all."
¶ 17. The victim of Ortiz-Mondragon's domestic abuse, J.S., then spoke to the court. She stated that she would like for the felony battery charge to be reduced to a misdemeanor. J.S. stated that OrtizMondragon has two children with her and also has two other children, and they "were trying to keep them here in the states, but if he ends up with a felony charge, that's not going to happen." The court informed J.S. that Ortiz-Mondragon had just been found guilty of a felony. J.S. then stated that probation and four months in jail were "fine" with her.
¶ 18. Attorney Singh then asked the court to grant Ortiz-Mondragon sentence credit, which the court granted. The court then asked Attorney Singh whether Ortiz-Mondragon has an Immigration and Customs Enforcement hold.6 Attorney Singh stated, "I think there is, but the information I get is secondhand."
¶ 19. Ortiz-Mondragon then apologized for his behavior and stated that he "never had a problem like this before."
[16]*16¶ 20. The court then proceeded to sentence OrtizMondragon. It stated that its sentence would be based on "the protection of the public, punishment of the defendant, the defendant's rehabilitative needs, and other factors." The court noted that it received a joint recommendation and that it "defer[s] a little bit to [the State's] judgment" in "these kinds of cases because [the State] handle[s] so many of them . . . ." The court then discussed the "great impact parents' behaviors have on their children" and encouraged Ortiz-Mondragon to "do a better job of being a parent and an adult." The court then adopted the joint recommendation, withheld sentence on all three counts, placed OrtizMondragon on probation for three years, and sentenced him to four months in the county jail as a condition of probation.
¶ 21. J.S. then asked the court if OrtizMondragon will "be let go" after his jail sentence. The court stated that he would be let go "if the immigration doesn't put a hold on him. If the immigration people put a hold on him, that's a federal issue. Our officers have nothing to do with that."
¶ 22. After Ortiz-Mondragon completed his jail sentence,7 Immigration and Customs Enforcement took him into custody and commenced removal proceedings against him. He agreed to a voluntary departure to avoid a deportation on his record.8
[17]*17¶ 23. On September 17, 2013, Ortiz-Mondragon filed a postconviction motion to withdraw his no-contest plea to substantial battery on grounds of ineffective assistance of counsel. In the motion, OrtizMondragon argued that his substantial battery as an act of domestic abuse was a "crime involving moral turpitude" under federal immigration law, thereby rendering him subject to mandatory deportation and permanent exclusion from the United States. He argued that these consequences of his substantial battery conviction were clear and that under Padilla his attorney performed deficiently in failing to inform him of these consequences. Ortiz-Mondragon further argued that this deficiency prejudiced him. He contended that, had he known the immigration consequences of this conviction, he would have sought a different plea agreement or would have insisted on going to trial in order to preserve the possibility of remaining in or returning to the United States to be with his family.
¶ 24. On October 9, 2013, the circuit court issued a written order denying Ortiz-Mondragon's motion without a Machner hearing.9 The court first held that [18]*18Ortiz-Mondragon's "trial counsel was not required to provide [Ortiz-Mondragon] with unequivocal advice regarding the immigration-related consequences of his plea because the law elucidating the consequences is not succinct and straightforward." The court reasoned that "a 'crime involving moral turpitude' is a broad, rather than specific, classification of crimes," and Ortiz-Mondragon failed to prove that his substantial battery was a crime involving moral turpitude. Quoting Padilla, 559 U.S. at 369, the circuit court stated that, "[b]ecause the law is not succinct and straightforward, [Ortiz-Mondragon's] counsel 'need do no more than advise [Ortiz-Mondragon] that pending criminal charges may carry a risk of adverse immigration consequences.'" Ortiz-Mondragon "does not assert that trial counsel did not so advise him, and the record affirmatively establishes that trial counsel did so advise him."
¶ 25. The circuit court discussed the immigration warnings and advice that Ortiz-Mondragon received. In particular, the court noted that Ortiz-Mondragon "acknowledges that he was given equivocal immigration warnings by both the Court, as required by [Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of Rights form." The court also noted that, at the plea and sentencing hearing, "[Ortiz-Mondragon] confirmed with the Court that he read [the plea questionnaire] over carefully before signing it and had the opportunity to fully discuss it with his attorney." The court further noted that Attorney Singh signed the plea [19]*19questionnaire form under a statement affirming that he discussed that form with Ortiz-Mondragon and that Ortiz-Mondragon understood the form and the plea agreement. The court concluded that Attorney Singh did not perform deficiently. Specifically, the court concluded that "[u]nder the circumstances, [OrtizMondragon] has not stated sufficient facts which entitle him to a hearing on his postconviction motion. The facts, as alleged, demonstrate that [Ortiz-Mondragon's] counsel did not perform deficiently by providing [OrtizMondragon] with equivocal, rather than unequivocal, advice regarding the immigration-related consequences of his plea." The court did not address the issue of prejudice.
¶ 26. On October 7, 2014, the court of appeals affirmed the circuit court's order denying OrtizMondragon's motion to withdraw his plea. The court of appeals explained that Ortiz-Mondragon "has not identified clear authority indicating any of the crimes to which he pled were crimes of moral turpitude." State v. Ortiz-Mondragon, 2014 WI App 114, ¶ 13, 358 Wis. 2d 423, 856 N.W.2d 339. The court of appeals reasoned that "[i]f an attorney must search federal court and unfamiliar administrative board decisions from around the country to identify a category of elements that together constitute crimes of moral turpitude, and then determine whether a charged crime fits that category, then the law is not 'succinct, clear, and explicit.'" Id., ¶ 12 (quoting Padilla, 559 U.S. at 368). It concluded that "Ortiz-Mondragon's attorney did not perform deficiently by failing to unequivocally inform him that his plea would result in deportation and permanent inadmissibility." Id., ¶ 13. The court of appeals did not address the issue of prejudice.
[20]*20¶ 27. On November 6, 2014, Ortiz-Mondragon filed a petition for review, which we granted on December 18, 2014.
II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW
¶ 28. "In general 'a circuit court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.'" State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis. 2d 1, 843 N.W.2d 390 (alteration added in Lopez)emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation marks omitted). In contrast, "the general rule [is] that a defendant seeking to withdraw a guilty or no contest plea after sentencing must prove manifest injustice by clear and convincing evidence." State v. Negrete, 2012 WI 92, ¶ 29, 343 Wis. 2d 1, 819 N.W.2d 749 (emphasis added) (citations omitted). Ineffective assistance of counsel is one type of manifest injustice. State v. Taylor, 2013 WI 34, ¶ 49, 347 Wis. 2d 30, 829 N.W.2d 482.
¶ 29. "The clear and convincing standard for plea withdrawal after sentencing, which is higher than the 'fair and just' standard before sentencing, 'reflects the State's interest in the finality of convictions, and reflects the fact that the presumption of innocence no longer exists.'" Id., ¶ 48 (quoting State v. Cross, 2010 WI 70, ¶ 42, 326 Wis. 2d 492, 786 N.W.2d 64). "The higher burden 'is a deterrent to defendants testing the waters for possible punishments.'" Id. (quoting State v. Nawrocke, 193 Wis. 2d 373, 379-80, 534 N.W.2d 624 [21]*21(Ct. App. 1995)). "Disappointment in the eventual punishment does not rise to the level of a manifest injustice." Id., ¶ 49 (citing Nawrocke, 193 Wis. 2d at 379).
¶ 30. "A claim of ineffective assistance of counsel is a mixed question of fact and law." State v. Carter, 2010 WI 40, ¶ 19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted). "We will uphold the circuit court's findings of fact unless they are clearly erroneous." Id. (citation omitted). "Findings of fact include 'the circumstances of the case and the counsel's conduct and strategy.'" Id. (quoting State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis. 2d 571, 665 N.W.2d 305) (quotation marks omitted). "Moreover, this court will not exclude the circuit court's articulated assessments of credibility and demeanor, unless they are clearly erroneous." Id. (citing Thiel, 264 Wis. 2d 57, ¶ 23). "However, the ultimate determination of whether counsel's assistance was ineffective is a question of law, which we review de novo." Id.
III. ANALYSIS
¶ 31. "Both the United States Constitution and the Wisconsin Constitution guarantee criminal defendants the right to counsel." Carter, 324 Wis. 2d 640, ¶ 20 (citing U.S. Const. amend. VI; Wis. Const. art. I, § 7). "The United States Supreme Court has recognized that 'the right to counsel is the right to the effective assistance of counsel.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)) (quotation marks omitted).
[22]*22¶ 32. "Whether a convicted defendant received ineffective assistance of counsel is a two-part inquiry." Id., ¶ 21 (citing Strickland, 466 U.S. at 687). "First, the defendant must prove that counsel's performance was deficient." Id. (citing Strickland, 466 U.S. at 687). "Second, if counsel's performance was deficient, the defendant must prove that the deficiency prejudiced the defense." Id. (citing Strickland, 466 U.S. at 687). To succeed on a claim of ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice. Id. (citing Strickland, 466 U.S. at 687). If a defendant fails to prove deficient performance, a reviewing court need not consider whether the defendant was prejudiced. See id., ¶ 36; State v. Franklin, 2001 WI 104, ¶ 13, 245 Wis. 2d 582, 629 N.W.2d 289 (citing Strickland, 466 U.S. at 697).
¶ 33. The Supreme Court in Padilla held "that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Id. at 366. The Court explained that the scope of counsel's duty to provide advice regarding deportation depends on whether the immigration consequences of a conviction are clear, succinct, and straightforward. It explained that counsel's duty to provide advice regarding deportation "is more limited" in "situations in which the deportation consequences of a particular plea are unclear or uncertain." Id. at 369. Specifically, "[w]hen the law is not succinct and straightforward ... , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. (emphases added). "But when the deportation consequence is truly clear,. .. the duty to give correct advice is equally clear." Id.
[23]*23¶ 34. The Court in Padilla held that defense counsel performed deficiently by incorrectly advising the defendant that he would not be deported upon conviction. Id. at 368-69. The Court reasoned that "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." Id. at 368 (citing 8 U.S.C. § 1227(a)(2)(B)(i)). "The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect." Id. at 369.
¶ 35. In order to determine whether OrtizMondragon's trial counsel performed deficiently, we must first determine what advice Padilla required Ortiz-Mondragon's trial attorney to provide. To that end, we will determine whether immigration law is succinct, clear, and explicit such that OrtizMondragon's trial attorney should have discovered that Ortiz-Mondragon would be deported and excluded because his substantial battery was a crime involving moral turpitude. Second, we will determine whether Ortiz-Mondragon's trial attorney performed deficiently under Padilla by giving inadequate advice and failing to further research the immigration consequences of the plea agreement. Because we conclude that OrtizMondragon's trial attorney did not perform deficiently, we do not address prejudice.
A. Is Immigration Law Succinct, Clear, and Explicit that Ortiz-Mondragon's Substantial Battery Was a Crime Involving Moral Turpitude?
¶ 36. The relevant immigration statutes authorize deportation and exclusion of an alien who is convicted of a "crime involving moral turpitude."10 [24]*24Under certain circumstances, "[a]ny alien who ... is convicted of a crime involving moral turpitude ... is deportable." 8 U.S.C. § 1227(a)(2)(A)(i). Any such alien "shall, upon the order of the Attorney General, be removed . ..." 8 U.S.C. § 1227(a) (intro.). The Attorney General may not "cancel removal" of an alien who is "inadmissible or deportable" due to a conviction for a crime involving moral turpitude. See 8 U.S.C. § 1229b(b)(1)(C). Further, an alien is "ineligible to receive visas and ineligible to be admitted to the United States" if "convicted of. . . a crime involving moral turpitude . ..." 8 U.S.C. § 1182(a)(2)(A)(i)(I).
¶ 37. However, the Immigration and Nationality Act, which includes those statutory provisions, does not define "crime involving moral turpitude." See Padilla, 559 U.S. at 361; id. at 377-78 (Alito, J., concurring). The Code of Federal Regulations also does not define that term. Garcia v. State, 425 S.W.3d 248, 260 (Tenn. 2013) ("[A] crime involving moral turpitude is nowhere defined in the [Immigration and Nationality] Act or in the Code of Federal Regulations."). The Immigration and Nationality Act does not even list examples of crimes involving moral turpitude. Lopez-Penaloza v. State, 804 N.W.2d 537, 544 (Iowa Ct. App. 2011) ("The [Immigration and Nationality Act] does not define the term 'moral turpitude' or list [crimes involving moral turpitude].").
¶ 38. Thus, because the term "crime involving moral turpitude" is undefined in the immigration statutes, we will consider case law that defines this term. We need to determine whether immigration law is succinct, clear, and explicit such that OrtizMondragon's counsel was deficient for failing to discover that the substantial battery offense was a crime involving moral turpitude and advise Ortiz-Mondragon to [25]*25that effect. Because we conclude that immigration law is not succinct, clear, and explicit in this case, counsel was not deficient for not giving further immigration advice to Ortiz-Mondragon. In order to explain how immigration law is not succinct, clear, and explicit in this case, we will discuss cases wherein the subject of the dispute was whether a particular crime qualified as a crime involving moral turpitude. One important difference between the cases we will discuss and the case at issue is that the analysis in those cases concerned appeals from actual deportation proceedings. The dispute in those cases was not whether counsel was ineffective for failing to discover and then advise that a specific crime involved moral turpitude.
¶ 39. Even the case law that analyzes whether a crime qualified as a crime involving moral turpitude for purposes of deportation often uses terms of generality, not specifics. "[T]he phrase 'crime involving moral turpitude' is notoriously baffling. . . ." Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008)." "As a general rule, a crime involves 'moral turpitude' if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." In re Sanudo, 23 I. & N. Dec. 968, 970 (BIA 2006) (emphasis added); see also Garcia-Meza, 516 F.3d at 536. The term "crime involving moral turpitude" "generally refers to acts that are per se morally reprehensible and intrinsically wrong." In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (emphasis added) (citing Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006)). The United States Court of Appeals for the Seventh Circuit has "put [its] own gloss on the term," "stating that crimes of moral turpitude are usually serious crimes (in terms [26]*26of the magnitude of the loss they cause or the indignation in the public they arouse) that are committed deliberately." Garcia-Meza, 516 F.3d at 536 (emphasis added). Thus, even in deportation proceedings themselves, the issue of what constitutes a crime involving moral turpitude is frequently litigated as it is often less than clear.
¶ 40. Even in deportation proceeding cases where the subject of the litigation is whether a crime qualifies as a crime involving moral turpitude, " [n] either the seriousness of the underlying offense nor the severity of the punishment imposed is determinative of whether a crime involves moral turpitude." Solon, 24 I. & N. Dec. at 240 (citing In re Serna, 20 I. & N. Dec. 579, 581 (BIA 1992)). "[A]t least in the context of assault crimes, a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense." Id. at 243. "Thus, intentional conduct resulting in a meaningful level of harm, which must be more than mere offensive touching, may be considered morally turpitudinous." Id. (emphasis added).
¶ 41. In addition to the fact that the amorphous term "crime involving moral turpitude" is not defined, it is even more problematic to ascertain whether a particular crime would qualify as a crime involving moral turpitude. Padilla, 559 U.S. at 378 (Alito, J., concurring) ("As has been widely acknowledged, determining whether a particular crime is . . . a 'crime involving moral turpitude [(CIMT)]' is not an easy task."). Even courts confronted with analyzing crimes involving moral turpitude in deportation proceedings are not uniform in their analysis of whether a crime qualified as a crime involving moral turpitude. Five [27]*27federal circuit courts of appeals apply a two-step test consisting of a "categorical approach" and "modified categorical approach."11 Two other circuits follow a three-step test for determining whether a crime qualifies as a crime involving moral turpitude.12 In the wake of Descamps v. United States, how federal courts will determine whether a crime qualifies as a crime involving moral turpitude is unclear. See Descamps v. United States, 570 U.S._, 133 S. Ct. 2276, 282 (2013) (holding "that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements"); id. at 2288-89 (holding that under the modified categorical approach, a court may rely on "only facts . . . constituting elements of the offense," rather than "rely[ing] on its own finding about a non-elemental fact"). Thus, relevant immigration law is far from succinct, clear, and explicit as to what constitutes a crime involving moral turpitude. See State v. Telford, 22 A.3d 43, 49-50 (N.J. App. Div. 2011) (holding that immigration law was not succinct, clear, [28]*28and explicit because of a circuit split "surrounding the type of analysis that would be undertaken by the tribunals charged with determining whether a noncitizen has committed an aggravated felony").
¶ 42. In addition to that circuit split, the United States Attorney General has added to the complexity of determining whether a crime will qualify as a crime involving moral turpitude. In 2008 the United States Attorney General adopted the three-step test for the Board of Immigration Appeals.13 In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). However, on April 10, 2015, the Attorney General issued an opinion vacating his In re Silva-Trevino opinion in its entirety. In re Silva-Trevino, 26 I. & N. Dec. 550, 550, 554 (A.G. 2015). That 2015 opinion seemingly leaves unresolved how the Board of Immigration Appeals should determine whether a crime will qualify as a crime involving moral turpitude. That opinion stated that
the Board may address, in this case and other cases as appropriate, the following issues:
1. How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the [Immigration and Nationality] Act;
2. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been "convicted of. . . a crime involving moral turpitude" ....
Id., 26 I. & N. Dec. at 553.
I 43. In her comprehensive guide on the immigration consequences of convictions, Maria Theresa [29]*29Baldini-Potermin wrote in 2009 that "[t]he current state of the case law for crimes involving moral turpitude is presently in a state of flux . . . Maria Theresa Baldini-Potermin, Defending Non-Citizens in Illinois, Indiana, and Wisconsin 3-5 (2009), available at https://www.immigrantjustice.org/defendersmanual.
¶ 44. Recognizing this lack of clarity, the State argues that, "[w]hile Ortiz-Mondragon's conviction may well qualify as a crime of moral turpitude, that conclusion is not 'clear and certain' or 'succinct and straightforward.' " The State notes that case law has held that domestic battery is not necessarily a crime involving moral turpitude. The State argues that the relevant case law and the circuit split regarding the two- or three-step test "illustrate the complexity of deciphering whether a given offense is a crime involving moral turpitude." Thus, because Ortiz-Mondragon's conviction does not clearly constitute a crime involving moral turpitude, the State contends "that Ortiz-Mondragon's trial attorney was required to do no more than advise him that his plea 'may carry a risk of adverse immigration consequences.'" Padilla, 559 U.S. at 369.
¶ 45. Despite the lack of any clear guidance by statute or jurisprudence regarding whether a particular crime qualifies as a crime involving moral turpitude, Ortiz-Mondragon argues that federal law is "succinct" and "straightforward" in providing that his substantial battery was a crime involving moral turpitude such that his counsel should have given him different advice. He contends that "[s]ome crimes, such as substantial battery, domestic abuse, are universally treated as [crimes involving moral turpitude] . ..." In both of his briefs to this court, he provides string cites to several cases that, according to him, support that [30]*30conclusion.14 He argues that this court can determine that his substantial battery was a crime involving moral turpitude simply by looking at Wis. Stat. § 940.19(2) and the case law addressing "similar offenses."
¶ 46. For example, Ortiz-Mondragon relies on two spousal abuse deportation cases arising from California: Grageda v. U.S. I.N.S., 12 F.3d 919 (9th Cir. 1993), superseded by statute on other grounds, and In re Tran, 21 I. & N. Dec. 291 (BIA 1996). In Grageda the Ninth Circuit held "that spousal abuse under [California Penal Code] section 273.5(a) is a crime of moral turpitude." Grageda, 12 F.3d at 922. In In re Tran the Board of Immigration Appeals expanded the holding in Grageda and concluded "that any violation of section 273.5(a) of the California Penal Code constitutes a crime involving moral turpitude." In re Tran, 21 I. & N. Dec. at 294. However, the Ninth Circuit in Grageda explained that its holding was limited to spousal abuse and did not include abuse of a cohabitant.15 Grageda, 12 F.3d at 921-22 n.1.
[31]*31¶ 47. In a subsequent decision, the Ninth Circuit recognized the narrow holding of Grageda and concluded that a "conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is not categorically a [crime involving moral turpitude]." Morales-Garcia v. Holder, 567 F.3d 1058, 1064-67 (9th Cir. 2009).16 In Morales-Garcia the Ninth Circuit expressly declined to follow In re Tran. Id. at 1066 & n.4. Accordingly, it is unclear whether abuse of a cohabitant, in violation of Cal. Penal Code § 273.5(a), is a crime involving moral turpitude. In the present case, Ortiz-Mondragon was convicted for battering his cohabiting girlfriend, not a spouse.
¶ 48. Furthermore, Ortiz-Mondragon's substantial battery conviction was under a Wisconsin statute, not a California statute. Because the cases cited by [32]*32Ortiz-Mondragon do not discuss whether substantial battery under Wis. Stat. § 940.19(2) is a crime involving moral turpitude, those cases do not succinctly, clearly, and explicitly demonstrate that Ortiz-Mondragon's substantial battery under § 940.19(2) was a crime involving moral turpitude. See Garcia, 425 S.W.3d at 260-61 (holding that immigration law was not "clear, succinct, and straightforward" partly because the defendant "provided no federal judicial or administrative decision considering whether the Tennessee offenses to which he pleaded guilty amount to crimes involving moral turpitude, although the [defendant] has cited court decisions classifying abuse offenses in other jurisdictions as crimes involving moral turpitude"). Thus, Grageda and In re Tran do not succinctly, clearly, and explicitly demonstrate that Ortiz-Mondragon's substantial battery was a crime involving moral turpitude.
¶ 49. Ortiz-Mondragon also relies on cases in which courts held that aggravated assault of a peace officer and aggravated child abuse were crimes that qualified as crimes involving moral turpitude. See In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988) (aggravated assault of peace officer); Garcia v. Attorney Gen. of United States, 329 F.3d 1217, 1222 (11th Cir. 2003) (aggravated child abuse). However, as Morales-Garcia demonstrates, it is not safe to assume that OrtizMondragon's substantial battery of his cohabiting girlfriend is necessarily a crime involving moral turpitude simply because aggravated assault of a peace officer and aggravated child abuse qualify as crimes involving moral turpitude. See Morales-Garcia, 567 F.3d at 1064-67 (holding that abuse of a cohabitant is not necessarily a crime involving moral turpitude, although spousal abuse contrary to California law necessarily is).
[33]*33¶ 50. As the Board of Immigration Appeals has explained, "it has often been found that moral turpitude necessarily inheres in assault and battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as deserving of special protection, such as ... a domestic partner .. .." Sanudo, 23 I. & N. Dec. at 971-72 (emphasis added) (citations omitted). However, such crimes do not categorically qualify as a crime involving moral turpitude. See id. Rather, "a case-by-case approach has been employed to decide whether battery (or assault and battery) offenses involve moral turpitude." Id. at 971. Thus, the State's argument that, "[w]hile Ortiz-Mondragon's conviction may well qualify as a crime of moral turpitude, that conclusion is not 'clear and certain' or 'succinct and straightforward,'" is correct.17
[34]*34¶ 51. Based on the foregoing discussion, we conclude that federal immigration law does not succinctly, clearly, and explicitly provide that OrtizMondragon's substantial battery was a crime involving moral turpitude such that his counsel's advice should have been different. The methodology for determining whether a crime qualifies as a crime involving moral turpitude varies by jurisdiction and is in a "state of flux." Baldini-Potermin, supra, 3-5; Telford, 22 A.3d at 49-50 (holding that a federal circuit split made the relevant immigration law not succinct, clear, and explicit). The cases that OrtizMondragon cites fail to provide a succinct, clear, and explicit answer as to whether Ortiz-Mondragon's substantial battery qualified as a crime involving moral turpitude. Accordingly, his trial counsel "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369. We now consider whether his counsel performed deficiently under Padilla.
[35]*35B. Whether Ortiz-Mondragon's Trial Counsel Performed Deficiently
¶ 52. "To demonstrate deficient performance, the defendant must show that his counsel's representation 'fell below an objective standard of reasonableness' considering all the circumstances." Carter, 324 Wis. 2d 640, ¶ 22 (quoting Strickland, 466 U.S. at 688). "In evaluating the reasonableness of counsel's performance, this court must be 'highly deferential.'" Id. (quoting Strickland, 466 U.S. at 689). "Counsel enjoys a 'strong presumption' that his conduct 'falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689). "Indeed, counsel's performance need not be perfect, nor even very good, to be constitutionally adequate." Id. (citing Thiel, 264 Wis. 2d 571, ¶ 19).
¶ 53. Ortiz-Mondragon argues that his trial counsel, Attorney Singh, performed deficiently by failing to advise him that his conviction for substantial battery would necessarily result in his deportation and permanent exclusion from the United States. OrtizMondragon concedes that "the circuit [court] found that the record affirmatively demonstrated that Mr. Ortiz-Mondragon received advice about the immigration consequences of his plea in the form of the general warnings contained in the plea questionnaire form as well as the circuit court's statutory warnings." However, he argues that the circuit court's statutory warning and the plea questionnaire are "insufficient" "substitute [s] for the advice of counsel."
¶ 54. Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to re[36]*36search the relevant immigration law and OrtizMondragon's immigration status. He argues that "the record contains no evidence that defense counsel investigated Mr. Ortiz-Mondragon's immigration status or relevant law." He contends that "[e]ven when a more general warning is warranted, counsel must reasonably investigate the potential immigration consequences in light of the particular facts of the case because counsel cannot determine the clarity of a consequence without some investigation and research." He further argues that "Counsel's failure to inform a defendant of the adverse immigration consequences when legal research would show that the crimes at issue involved moral turpitude for immigration purposes falls below an objective standard of reasonableness."
¶ 55. The State argues that, because the immigration consequences of the plea agreement were not succinct, clear, and explicit, "Ortiz-Mondragon's trial attorney was required to do no more than advise him that his plea 'may carry a risk of adverse immigration consequences.'" Padilla, 559 U.S. at 369. The State contends that "[t]he court should also uphold the circuit court's finding that Ortiz-Mondragon did, in fact, receive such a warning." The State does not separately address Ortiz-Mondragon's argument that his attorney failed to adequately research his immigration status or the immigration consequences of the plea agreement.
¶ 56. We will first determine whether OrtizMondragon's trial counsel, Attorney Singh, performed deficiently by giving incorrect advice. We will next determine whether Attorney Singh performed deficiently by failing to adequately research the immigration consequences of the plea agreement.
[37]*37¶ 57. The record in the circuit court demonstrates that Ortiz-Mondragon knowingly, intelligently, and voluntarily made no-contest pleas to the subject charges. The record further demonstrates that he knew he faced a risk of deportation and exclusion if he entered a no-contest plea to substantial battery. Not only does the record reveal that there were serious known concerns regarding an ongoing Immigration and Customs Enforcement hold, but despite that, Ortiz-Mondragon discussed this case with counsel, accepted the State's plea bargain, signed a plea questionnaire, and knowingly, intelligently, and voluntarily pled in the circuit court. Specifically, his counsel, Attorney Singh, had "presented" the State's plea offer to him, "given him paperwork to use to study it, [and] given him information to use in counseling . . . ." Attorney Singh and the plea questionnaire both informed Ortiz-Mondragon that the "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." The circuit court advised Ortiz-Mondragon: "If you're not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law." Ortiz-Mondragon's girlfriend stated that he and she were trying to keep their family together "in the states, but if he ends up with a felony charge, that's not going to happen." Ortiz-Mondragon himself stated that he carefully read the plea questionnaire and discussed it with his attorney before he signed it. Ortiz-Mondragon also stated that he understood the circuit court's immigration warning and wished to enter his no-contest pleas. All of these factors militate against the arguments that Ortiz-Mondragon makes today.
[38]*38¶ 58. Moreover, when Ortiz-Mondragon filed a motion to withdraw his plea and request a Machner hearing, the circuit court correctly concluded that his motion did not warrant a hearing. While it is a defendant's burden to demonstrate that he is entitled to a Machner hearing by alleging sufficient facts to raise a question of fact, the circuit court correctly concluded that Ortiz-Mondragon's proffer was insufficient to warrant a Machner hearing. In fact, the circuit court concluded that, "[u]nder the circumstances, [Ortiz-Mondragon] has not stated sufficient facts which entitle him to a hearing on his postconviction motion. The facts, as alleged, demonstrate that [OrtizMondragon's] counsel did not perform deficiently by providing [Ortiz-Mondragon] with equivocal, rather than unequivocal, advice regarding the immigration-related consequences of his plea." It is well-established that a "circuit court has the discretion to deny the postconviction motion without a Machner hearing 'if the motion fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.'" State v. Roberson, 2006 WI 80, ¶ 43, 292 Wis. 2d 280, 717 N.W.2d 111 (emphasis added in Roberson) (quoting State v. Curtis, 218 Wis. 2d 550, 555 n. 3, 582 N.W.2d 409 (Ct. App. 1998)).
¶ 59. In its order denying Ortiz-Mondragon's request for a Machner hearing and his motion to withdraw his plea, the circuit court found that "the record affirmatively establishes that trial counsel did so advise him" that" 'pending criminal charges may carry a risk of adverse immigration consequences.'" This find[39]*39ing is not clearly erroneous.18 The court noted that Ortiz-Mondragon conceded "that he was given equivocal immigration warnings by both the Court, as required by [Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of Rights form." The circuit court also noted that, at the plea and sentencing hearing, "[Ortiz-Mondragon] confirmed with the [c]ourt that he read [the plea questionnaire] over carefully before signing it and had the opportunity to fully discuss it with his attorney." The circuit court further noted that Attorney Singh signed the plea questionnaire, thereby affirming that he discussed it with Ortiz-Mondragon and that he believed OrtizMondragon understood it and the plea agreement.
¶ 60. The immigration advice that OrtizMondragon received stands in stark contrast to the incorrect immigration advice that was given in Padilla. In contrast to the present case, the immigration law in Padilla was "succinct, clear, and explicit" in providing that Padilla's conviction made him "eligible for deportation." Padilla, 559 U.S. at 368. Thus, Padilla's attorney was required to do more than advise him that his conviction may carry a risk of adverse immigration consequences. Id. at 369. But "Padilla's counsel provided him false assurance that his conviction would not result in his removal from this country." Id. at 368. That "advice was incorrect." Id. at 369. By contrast, the advice that Ortiz-Mondragon received was correct.
¶ 61. In fact, had Attorney Singh given the immigration advice that Ortiz-Mondragon argues he [40]*40should have given, he may well have given incorrect advice. Because federal immigration law does not succinctly, clearly, and explicitly provide that OrtizMondragon's substantial battery was a crime involving moral turpitude, it may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that the immigration authorities would determine that his substantial battery was a crime involving moral turpitude. Accordingly, it also may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that he would be deportable and inadmissible to the United States on grounds of moral turpitude if convicted of substantial battery.
¶ 62. We note that incorrect advice that a plea will result in deportation or exclusion, like incorrect advice that a plea will not result in deportation or exclusion, could impact an alien defendant's decision-making. The former kind of misinformation might encourage a defendant to reject a beneficial plea offer and thereby subject him or herself to significantly more exposure. The latter kind of misinformation could cause a defendant to be surprised with the actual immigration consequences. Counsel should give accurate advice. Counsel should avoid overstating or understating the possible immigration consequences of a conviction. Ortiz-Mondragon's position, if adopted, would require more of an attorney than is required under Padilla because it is not succinct, clear, and explicit that Ortiz-Mondragon's substantial battery is a crime involving moral turpitude.19
[41]*41¶ 63. In sum, we conclude that Ortiz-Mondragon's trial counsel did not perform deficiently by advising him that the plea agreement "could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." That warning was correct and adequate under Padilla because it informed Ortiz-Mondragon that a conviction may carry a risk of adverse immigration consequences.
¶ 64. We turn briefly to Ortiz-Mondragon's argument that his attorney performed deficiently by failing to perform an adequate amount of research. Contrary to Ortiz-Mondragon's assertion, the record contains evidence that Attorney Singh researched OrtizMondragon's immigration status and relevant immigration law. For example, at the plea and sentencing hearing, the circuit court asked Ortiz-Mondragon's attorney, Attorney Singh, whether Ortiz-Mondragon had an Immigration and Customs Enforcement hold. Attorney Singh stated that "I think there is, but the information I get is secondhand," indicating that Attorney Singh had conducted some research into the matter. Further, at the plea and sentencing hearing, Attorney Singh informed the court that he had "presented" the State's plea offer to Ortiz-Mondragon, "given him paperwork to use to study it, [and] given him information to use in counseling. . . ." Immediately thereafter, Attorney Singh handed a signed plea questionnaire and waiver of rights form, along with "some other papers," to the court.
[42]*42¶ 65. Because the record provides evidence that Ortiz-Mondragon's attorney did some level of research regarding the immigration consequences of the plea agreement, we turn now to Ortiz-Mondragon's argument that his attorney was deficient for failing to perform additional research. Ortiz-Mondragon argues that additional research would have revealed that his substantial battery is a crime involving moral turpitude. Ortiz-Mondragon relies on Commonwealth v. Balthazar, 16 N.E.3d 1143 (Mass. App. Ct. 2014), and Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 428024 (S.D. Ind. Feb. 4, 2013).
¶ 66. In Balthazar the defendant moved to withdraw his guilty pleas to larceny and malicious destruction of property after the Immigration and Naturalization Service began deportation proceedings against him as a result of the convictions. Commonwealth v. Balthazar, 16 N.E.3d 1143, 1145 & n.3 (Mass. App. Ct. 2014). He alleged that he received ineffective assistance of counsel when his attorney told him that he would not be deported because the charges had been reduced to misdemeanors. Id. at 1145, 1147. The Massachusetts Appeals Court held that, "[a]s legal research would have indicated that the crimes were ones involving moral turpitude, we must conclude . . . that counsel's failure to inform the defendant that pleading guilty to the charges would subject him to presumptively mandatory deportation fell below an objective standard of reasonableness." Id. at 1147-48.
¶ 67. In Montes-Flores the defendant pled guilty to making a material false statement in violation of 18 U.S.C. § 1001(a)(2). Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 428024, at *1-2 (S.D. Ind. Feb. 4, 2013). Prior to the plea, her [43]*43attorney " 'told her that it was possible that she could face deportation but that it will be up to the immigration judge to decide.'" Id. at *3. The federal district court granted the defendant's post-sentencing motion to withdraw her plea on grounds of ineffective assistance of counsel. Id. at *2, *4-5. The court held that the attorney's immigration advice was deficient because, "[w]hile crimes of'moral turpitude' are not specifically defined in the statute, the Seventh Circuit has repeatedly held that' [t]here can be no question that a violation of [18 U.S.C. §] 1001 is a crime involving moral turpitude.' " Id. at *4 (emphases added) (internal citation omitted) (quoting Ghani v. Holder, 557 F.3d 836, 840 (7th Cir. 2009)) (citing Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir. 2010)). Thus, "counsel's failure to inform Montes-Flores that a conviction under § 1001 would result in presumptively mandatory deportation was objectively unreasonable." Id. at *5. The court further held that the deficient performance prejudiced the defendant. Id. at *6.
¶ 68. Balthazar and Montes-Flores are distinguishable. Unlike in those cases, additional research in the present case would not have revealed that the crime at issue clearly qualified as a crime involving moral turpitude. Thus, even had Attorney Singh performed additional research, his immigration advice would not have changed. As we explained earlier, federal immigration law does not succinctly, clearly, and explicitly provide that Ortiz-Mondragon's substantial battery is necessarily a crime involving moral turpitude. This lack of clarity presents a far different situation than that in Balthazar and Montes-Flores. Unlike the defendant in Montes-Flores, Ortiz-Mondragon has not shown that the Seventh Circuit has "repeatedly held" that there can be "no question" that his conviction was for a crime involv[44]*44ing moral turpitude.20 See Montes-Flores, 2013 WL 428024, at *4. Although the circuit court did not make specific findings with respect to what research Attorney Singh performed and which paperwork he provided to the court and Ortiz-Mondragon, we can infer that the circuit court implicitly found that Attorney Singh performed an adequate amount of research. See State v. Hubanks, 173 Wis. 2d 1, 27, 496 N.W.2d 96 (Ct. App. 1992) (citation omitted) ("The [circuit] court found that Hubanks had not been denied effective assistance of counsel. Although the [circuit] court did not make specific findings of fact, we may assume on [45]*45appeal that such findings of fact were made implicitly in favor of its decision."). Accordingly, unlike defense counsel in Balthazar and Montes-Flores, Attorney Singh was not deficient for failing to perform additional legal research, which would not have changed his immigration advice.
¶ 69. We conclude that the immigration advice that Attorney Singh provided to Ortiz-Mondragon was sufficient under Padilla. Because the law is not "succinct, clear, and explicit" with respect to whether Ortiz-Mondragon's substantial battery was a crime involving moral turpitude, his trial counsel "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." See Padilla, 559 U.S. at 369 (emphases added). Counsel met that requirement by advising Ortiz-Mondragon that the "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." See Garcia, 425 S.W.3d at 260-61 (holding that, because the defendant's crimes did not clearly qualify as crimes involving moral turpitude, counsel gave adequate advice by stating that the guilty pleas "might or might not have an adverse [e]ffect on his ability to return legally to the United States"); Lopez-Penaloza, 804 N.W.2d at 546 (holding that, because the defendant's crime did not clearly qualify as a crime involving moral turpitude, counsel gave adequate advice by stating " 'that a criminal conviction, deferred judgment, or deferred sentence may affect [her] status under federal immigration laws'").
IV. CONCLUSION
¶ 70. We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial [46]*46battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that Ortiz-Mondragon's substantial battery constituted a crime involving moral turpitude, his attorney "needfed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." See Padilla, 559 U.S. at 369. Ortiz-Mondragon's trial attorney satisfied that requirement by conveying the information contained in the plea questionnaire and waiver of rights form— namely, that Ortiz-Mondragon's "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Counsel's advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c). In addition, Ortiz-Mondragon's trial attorney did not perform deficiently by failing to further research the immigration consequences of the plea agreement. Because OrtizMondragon failed to prove deficient performance, we do not consider the issue of prejudice.
By the Court. — The decision of the court of appeals is affirmed.
2015 WI 73 (State v. Fernando Ortiz-Mondragon) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.