State v. Hou Erik Vang, 2010 WI App 118; for Vang: John L. Sesini; BiC; Resp.; Reply
¶1 Hou Vang appeals an order denying his motion to withdraw his no contest pleas to second-degree sexual assault of a child and felony bail jumping. Vang argues WIS. STAT. §§ 971.08(1)(c), (2)[1] entitle him to withdraw his pleas because, although the circuit court provided the statutory deportation warning at his arraignment, it failed to give the warning at the plea hearing. We agree and reverse.
In other words, the mandatory caution about deportation must be given at the plea hearing; a warning given at some prior time, even if otherwise accurate, doesn’t comply with the statutory mandate on plea-taking. The court also reiterates the need to “state[] the deportation warning as prescribed by statute” ; the trial judge failed to do so in the precise terminology required, ¶15. And the court rejects, in no uncertain tones, the idea a defendant may waive this procedure:
¶14 In any case, we hold that, at the plea hearing, defendants may neither waive nor forfeit their right to plea withdrawal pursuant to WIS. STAT. § 971.08(2). Indeed, the State mischaracterizes the issue when it argues Vang waived his right to the warning. The duty set forth in WIS. STAT. § 971.08(1)(c) is imposed solely on the circuit court. A defendant’s action or inaction cannot alter that duty. Section 971.08(2) provides for a specific remedy when a defendant “later shows that the plea is likely to result in the defendant’s deportation ….” The statute anticipates that the motion to vacate the judgment and withdraw the plea will be submitted following a qualifying event in the future and reserves the right to defendants who demonstrate they have suffered the particular harm.
Interestingly, this does not appear to be a direct appeal. Vang filed his postconviction motion nearly 4 years after sentencing. The State doesn’t argue the nature of the relief mechanism, nor does the court discuss it. Vang doesn’t seem to be in custody under the sentence, which at first blush would throw him outside § 974.06 appeal, but perhaps he is in custody after all because he’s facing removal under the conviction (¶3). If that’s correct, then it would give the decision greater impact than the somewhat obvious conclusion that § 971.08(2) prescribes procedure at and not before the plea hearing.
I have a current case where this case, involving a plea that lacked the judge’s colloquy about deportation, is cited as controlling. The problem with my case is the client is from Somalia, already serving a prison sentence for an unrelated OMVWI 5. The State moves to vacate a DAGP to an OMVWOC, based in the OMVWI 5 conviction. Upon reading the actual plea hearing on the DAGP to the OMVWOC, it is clear, and the Judge and DA all agree the deportation language is missing, but the Judge won’t let client withdraw his plea, because there is no deportation isue yet, and the Judge basicall says come back to Court when the Feds threaten to deport. I basically told the Judge, a conviction for stealing a car is clearly deportable, and once the INS/ICE folks get there hands on the client, his ability to communicate and find a Wisconsin Attorney to come back to Chippewa County and argue his right to withdraw his plea to the OMVWOC, might be too little too late to stop deportation. The Judge basically said too bad, that this Vang case controls at the present time.
Anyone have any ideas? this plea withdrawal after the ICE folks get involved seems like a remedy with good intentions, but full of a lot of traps for the unwary. My experience with ICE is people picked up from local jails, get brought to Chicago, and their ability to communicate and get an attorney is limited.