State v. Negrete

2012 WI 92, 819 N.W.2d 749, 343 Wis. 2d 1
CourtWisconsin Supreme Court
DecidedJuly 12, 2012
DocketNo. 2010AP1702
StatusPublished
Cited by44 cases

This text of 2012 WI 92 (State v. Negrete) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Negrete, 2012 WI 92, 819 N.W.2d 749, 343 Wis. 2d 1 (Wis. 2012).

Opinions

PATIENCE DRAKE ROGGENSACK, J.

¶ 1. This is a review of an unpublished decision of the court of appeals, which affirmed the circuit court's denial of Abraham Negrete's postconviction motion to withdraw a guilty plea.1 The plea at issue was entered in 1992, and no transcript of the plea hearing is available. The sole issue on review is whether Negrete was entitled to an evidentiary hearing on his plea withdrawal motion under Wis. Stat. § 971.08(2) (2009-10).2 Resolution of this issue turns on the pleading requirements of a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2). Section 971.08(2) provides that a defendant has a statutory right to withdraw a guilty or no contest plea upon proving that: (1) the circuit court failed to personally advise the defendant of the potential deportation consequences of the plea; and (2) the plea is likely to result in one of the enumerated immigration consequences.

[8]*8¶ 2. In support of his motion, Negrete stated in an affidavit that he "do[es] not recall" whether the plea-accepting court advised him of the potential deportation consequences of his plea.3 Negrete's affidavit also states that he is now subject to deportation proceedings. However, Negrete's plea questionnaire indicates that he was advised of the immigration consequences prior to making his plea.

¶ 3. We conclude that Negrete's allegations are insufficient to warrant an evidentiary hearing. Where a defendant seeks to withdraw a guilty plea under Wis. Stat. § 971.08(2), but there is no transcript of the plea hearing, the pleading requirements for such motions are those set forth in State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). Under the applicable Bentley-type standard, Negrete's affidavit has not alleged sufficient facts that, if true, would entitle him to withdraw his guilty plea. Specifically, Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea. In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences. Therefore, Negrete's motion to withdraw his guilty plea under § 971.08(2) was properly denied.

I. BACKGROUND

¶ 4. In April 1992, Abraham Negrete pleaded guilty to one count of second-degree sexual assault of a person under the age of 16 years, in violation of Wis. [9]*9Stat. § 948.02(2) (1991-92). As a result, Negrete was sentenced to 18 months of probation and ordered to pay restitution. After serving his probation and paying restitution, Negrete was discharged in April 1994.

¶ 5. On March 10, 2010, nearly 18 years after his conviction, Negrete moved to withdraw his guilty plea for the 1992 sexual assault charge. The motion was based on Wis. Stat. § 971.08(2),4 which allows a defendant to withdraw a guilty or no contest plea where a plea-accepting court fails to personally advise the defendant of the potential immigration consequences of the plea,5 and that plea is likely to result in an adverse immigration consequence listed in § 971.08(2). Negrete's motion alleged that when accepting Negrete's plea, the court "did not inform" him of the potential immigration consequences of his plea, and that Negrete is now "the subject of deportation proceedings."

[10]*10¶ 6. Whereas Negrete's motion affirmatively-stated that the court "did not inform Negrete" of the potential immigration consequences, his affidavit filed in support of the motion was equivocal. His affidavit stated, "I do not recall the court, or my lawyer, ever telling me of [the potential immigration consequences] of the plea." Negrete also averred that he had not understood the potential immigration consequences of his plea, and that had he known, he would not have entered the guilty plea.

¶ 7. At the time of his conviction in 1992, Negrete indicated that he did not intend to seek postconviction relief; accordingly, no transcript of the plea hearing was created from the court reporter's notes. Moreover, Negrete's attorney for the 1992 offense has died, and the presiding judge in that case, the Honorable Leo F. Schlaefer, has retired. Negrete stated in his motion to withdraw his plea that, if given the opportunity, he would testify that he was not warned on the record at the time he entered his plea.

¶ 8. In the circuit court, Negrete's argument for plea withdrawal relied largely on this court's decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, which rejected the harmless error approach when a defendant seeks to withdraw a plea under Wis. Stat. § 971.08(2). Id., ¶ 46. Under the harmless error approach, a defendant alleging error under § 971.08(2) would not have been allowed to withdraw his plea if the State could show that the defendant was otherwise aware of the likely immigration consequences of his plea. See State v. Chavez, 175 Wis. 2d 366, 368-71, 498 N.W.2d 887 (Ct. App. 1993).

¶ 9. In response to Negrete's motion, the State emphasized that, at the time of Negrete's plea, motions to withdraw under Wis. Stat. § 971.08(2) were subject [11]*11to the harmless error approach established in Chavez. Id. The State relied on our decision in State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526, which provided that Douangmala's repudiation of the harmless error approach was not retroactively applicable because Douangmala's holding was a new rule of criminal procedure, and such rules are not applied to cases that were final before the rule's issuance. Id., ¶ 2. Because Negrete's case was final long before our decision in Douangmala, the State argued, harmless error applied to Negrete's motion.

¶ 10. In support of its argument that any error was harmless, the State primarily relied on Negrete's "Request to Enter Plea and Waiver of Rights" form ("plea questionnaire"), which Negrete submitted to the court at the time of his 1992 plea. That form includes numerous statements to which a pleading defendant must agree before entering a plea. Most statements include an adjacent blank space where a defendant must place his initials to indicate his understanding of the statement. The statement relevant to our discussion here, paragraph 20 of the plea questionnaire, provides in language substantially similar to the statutory warning in Wis. Stat. § 971.08(l)(c):

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Bluebook (online)
2012 WI 92, 819 N.W.2d 749, 343 Wis. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-negrete-wis-2012.