State v. Villegas

2018 WI App 9, 908 N.W.2d 198, 380 Wis. 2d 246
CourtCourt of Appeals of Wisconsin
DecidedJanuary 31, 2018
DocketAppeal No. 2015AP2162-CR
StatusPublished
Cited by11 cases

This text of 2018 WI App 9 (State v. Villegas) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Villegas, 2018 WI App 9, 908 N.W.2d 198, 380 Wis. 2d 246 (Wis. Ct. App. 2018).

Opinion

HAGEDORN, J.

*251¶ 1 Marcos Rosas Villegas (Villegas)1 is an illegal immigrant who was brought to the United States from Mexico as a young child. When he was sixteen, he and two others broke into a home brandishing weapons, tied up the occupants, and robbed them. The State filed a delinquency petition charging him with armed robbery party to a crime (PTAC) and three other related offenses. The State also filed, and the court granted, a petition to waive Villegas into adult court. Villegas subsequently pled guilty to armed robbery PTAC.

¶ 2 Villegas sought postconviction relief and was denied. On appeal, he challenges both the juvenile and adult court proceedings. He challenges the juvenile waiver proceedings as both an erroneous exercise of *252discretion generally, and on the grounds that his counsel provided ineffective assistance. He further maintains that he should be able to withdraw his guilty plea in adult *202court because the plea colloquy was defective and on the basis that he received ineffective assistance of counsel there as well. His plea withdrawal argument is premised largely on the rationale that his attorney failed to inform him that his plea would render him inadmissible to the United States and ineligible for Deferred Action for Childhood Arrivals (DACA).

¶ 3 We affirm. Villegas has failed to show that the plea colloquy was defective. Villegas' attorney also did not perform deficiently when he failed to counsel Villegas about DACA and correctly warned Villegas that inadmissibility was a likely result of the plea. Because his guilty plea was valid, Villegas' challenges to the juvenile waiver proceedings-neither of which are offered as separate grounds for plea withdrawal-are forfeited under the guilty plea waiver rule.

BACKGROUND

¶ 4 Villegas is an illegal immigrant who was brought to the United States when he was five years old. In November 2012, the State filed a delinquency petition accusing Villegas of armed robbery, burglary, and two counts of false imprisonment. Villegas was sixteen at the time of the alleged conduct. The petition set forth the following.

¶ 5 Villegas and two others knocked on the door of an apartment. When a woman, S.A., answered, they pushed their way into the apartment demanding money and marijuana. Two of the housebreakers *253wielded knives.2 Villegas and his cohorts proceeded to restrain S.A. and another woman by duct taping their hands behind their backs and told them to "stay still" or they would "get hurt." During all of this, S.A.'s two young children were home and in the bedroom. One of the occupants of the apartment was apparently in on the plot; he had arrived earlier to "make things look like they were cool." The accomplice was restrained with duct tape as well. Eventually, the assailants left, stealing an unspecified amount of money and a gaming system.

¶ 6 In light of the seriousness of the offense, the State petitioned the juvenile court to waive its jurisdiction, which Villegas' attorney vigorously opposed. Following a hearing, the juvenile court found that retaining jurisdiction was contrary to the best interests of the community and Villegas. Accordingly, it granted the petition, and Villegas was charged as an adult.

¶ 7 Villegas reached an agreement with the State and pled guilty to armed robbery PTAC; the other charges were dismissed and read in at sentencing. Before entering the plea, the circuit court engaged Villegas in a colloquy to ensure he understood the agreement and the rights he was giving up. The court explained that armed robbery was "a very serious felony" and carried a potential punishment of forty years in prison. Although there would be a presentence investigation and a sentencing recommendation, the court warned that it was not bound by that recommendation. Villegas indicated that he understood the nature of the offense, the possible punishment, and that the court was not bound by any sentencing recommendation.

*254¶ 8 The court proceeded to outline that Villegas was giving up his right to a trial, including the associated rights of assistance of counsel during the trial, forcing the State to meet its burden of proof, cross-examining the State's witnesses, and calling his own witnesses. Villegas indicated *203that he understood. The court also asked whether Villegas had any questions about the plea questionnaire, and Villegas indicated he did not. The court then cautioned that "if you are not a citizen of the United States you are advised that a plea of guilty ... may result in your deportation, the exclusion from admission to this country or even denial of naturalization under federal law." The court followed up and asked Villegas if he understood that Immigration and Customs Enforcement "may look into this case"; Villegas indicated he did. Finally, the court asked Villegas if he understood the factual basis for the charge; Villegas said yes. The court did ask two questions concerning the agreement itself that required clarification by Villegas' attorney-Robert Kennedy.

THE COURT: Do you have any plea agreement other than the court will order a presentence investigation-called a PSI-and that both sides would be free to argue. Do you know anything else that you have been offered?
MR. KENNEDY: Your Honor, I don't think he understands you, but in any case the agreement that was just stated today by myself is that, the sole agreement, the only agreement you know of?
THE DEFENDANT: Yes, sir.
THE COURT: When you leave here do you expect that there will be other concessions?
MR. KENNEDY: I don't know if he understands that either. Do you think that they are going to offer or *255make any other promises to you or give you any other things other than what we have agreed to?
THE DEFENDANT: No, sir.

Nowhere else in the colloquy did Villegas or his attorney indicate that he did not understand the proceedings. Based on its examination, the court found that Villegas "has freely and voluntarily tendered his plea with knowledge of the factual basis." After Villegas was sentenced, Immigration and Customs Enforcement issued a Notice of Intent to Issue a Final Administrative Removal Order, which provided that Villegas would be deported upon completing his sentence.

¶ 9 Villegas brought a postconviction motion requesting he be allowed to withdraw his plea. He maintained that the circuit court's plea colloquy was defective, he did not understand the colloquy and was pressured into signing the plea questionnaire, and his counsel rendered ineffective assistance leading up to the plea. The motion also sought reversal of the waiver into adult court on the grounds that the juvenile court erroneously exercised its discretion by waiving jurisdiction and that his counsel performed ineffectively in fighting the petition.

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Cite This Page — Counsel Stack

Bluebook (online)
2018 WI App 9, 908 N.W.2d 198, 380 Wis. 2d 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-villegas-wisctapp-2018.