State v. Marcos Rosas Villegas, 2018 WI App 9; case activity (including briefs)
This opinion resolves 2 issues worthy of publication and has already generated a petition for review (from an earlier version of the opinion, which was withdrawn and has now been replaced). According to the court of appeals, an attorney does not perform deficiently by failing to inform his client, an undocumented immigrant, that a plea would render him inadmissible to the U.S. and ineligible for DACA. Furthermore–for the first time–the court of appeals holds that the “guilty plea waiver” rule applies to claims of ineffective assistance of counsel, unless such a claim is offered as a reason to overturn the plea itself.
Villegas was brought to the United States when he was 5. At age 16, the State filed a delinquency petition charging him with armed robbery, party to a crime and 3 other related offenses. The State also successfully petitioned to waive Villegas into adult court.
Ineffective assistance of counsel. Villegas’s trial lawyer did not realize that he was an undocumented immigrant before the juvenile waiver hearing, but he did know it before the plea hearing in adult court. Counsel told Villegas that pleading guilty would “very likely” result in deportation but did not discuss the fact that the plea could prevent Villegas from ever returning to the U.S. after he was deported.
The plea colloquy was hardly a model of clarity. (¶8). Nevertheless, following State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93 and State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717, the court of appeals says defense counsel has no duty to advise his client of adverse immigration consequences when the law is not “succinct, clear and explicit.” Furthermore, counsel is not required to familiarize himself with federal immigration policies. (¶31). Nor is counsel required to advise his client about the DACA implications of pleading guilty because DACA is only a federal policy concerning the exercise of prosecutorial discretion; it confers no substantive right or path to citizenship. (¶36).
Obviously DACA is completely up in the air at the moment; it could go away completely or it could evolve into something conferring substantive rights and/or a path to citizenship. However, as Mike Tobin’s guest post Shata and Ortiz-Mondragon, explained, immigration consequences are often more important to our immigrant clients than the potential punishments are. Thus, despite SCOW’s holdings, SPD-appointed lawyers should read up on immigration law and policy in order to serve our clients effectively. Mike linked to resources for lawyers working in this area of law.
Guilty plea waiver rule. Villegas challenged the juvenile court’s decision to waive jurisdiction on the grounds that the court did not consider the proper factors and his lawyer was ineffective for failing to inquire into his immigration status and mental health before the waiver hearing. The court of appeals held that Villegas waived these arguments by virtue of his guilty plea. See State v. Milanes, 2006 WI App 259, ¶45, 297 Wis. 2d 684, 727 N.W.2d 94 (“A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations.”).
The court cites State v. Kraemer, 156 Wis. 2d 761, 457 N.W.2d 562 (Ct. App. 1990), for the notion that this rule applies to the decision to waive a juvenile to adult court. It characterizes other cases calling ineffective assistance claims an “exception” to the waiver rule as, in essence, shorthand descriptions; in the court’s view, IAC is only excused from the waiver rule where the ineffective assistance contributes to the guilty plea itself. (¶47).
Unfortunately, the court of appeals does not take a cue from the majority opinion in Arizona v. United States, 567 U.S. __ (2012), which omitted the use of “illegal” to describe a person except when quoting other sources. Justice Kennedy, writing for the majority stated: “As a general rule, it is not a crime for a removable alien to remain in the United States.”
Justice A.W. Bradley takes a similar approach: “Unless it is included in quoted text, I avoid using the term “illegal alien.” I chose to use the term ‘undocumented immigrant’ instead. Although no shorthand term may be perfect, I join the United States Supreme Court as well as other courts that use the term ‘undocumented immigrant.’ Use of this term avoids some of the problematic and pejorative connotations of alternative terms.” State v. Salas Gayton, 370 Wis. 2d 264, para. 41 n. 1 (Bradley, A.W., J., concurring) (internal citations omitted).