COURT OF APPEALS DECISION DATED AND FILED April 14, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Rogelio Medrano, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Rogelio Medrano appeals an order of the circuit court denying his third motion to vacate his conviction and withdraw his plea to one count of possession with the intent to deliver twenty-five to one hundred grams of cocaine. Medrano asserts he is entitled to withdraw his plea because the court failed to properly advise him of the possible immigration consequences of his plea, as required by Wis. Stat. § 971.08(1)(c).[1] The court denied the motion, stating that the law on which Medrano relied was not retroactively applicable to his case and, in any event, his motion was precluded. We agree with the circuit court and affirm.
¶2 Medrano, a Mexican national, entered his guilty plea on June 24, 1991. He signed a plea questionnaire and waiver of rights form. Paragraph 12 of the form states:
Deportation: If I am not a citizen of the United States of America, I know that upon a plea of guilty or no contest and a finding of guilty by the Court for the offense(s) for which I am charged in the criminal complaint or information, I may be deported, excluded from admission to this country, or denied naturalization under federal law.
During the plea colloquy, Medrano acknowledged that his attorney had gone over the form with him in English and Spanish. Medrano also acknowledged that he understood the form. The court did not personally advise Medrano of the possible deportation consequences, but it did accept his plea and adjudicated him guilty. Medrano received an eighteen-month prison sentence and did not appeal.
¶3 On June 10, 1992, Medrano moved to vacate the judgment of
conviction and withdraw his plea. He
alleged that because the court had failed to follow Wis. Stat. § 971.08(1)(c) and immigration officials had
begun deportation proceedings against him, § 971.08(2) entitled him to
plea withdrawal.[2] The State argued that the plea questionnaire,
which advised Medrano of the deportation consequences and which Medrano had
signed and acknowledged, adequately provided the statutory warnings.
¶4 Medrano re-entered the
¶5 On February 11, 2008, Medrano filed his third and present motion. This time, he submitted an affidavit swearing he was unaware of his plea’s consequences. He asserted that harmless error analysis applied to his situation and because the affidavit sufficiently demonstrated prejudice, withdrawal was necessary. He also argued that under newer case law, the plea questionnaire alone was insufficient to meet the Wis. Stat. § 971.08(1)(c) personal admonition requirement. The court denied the motion because it concluded the cited case law was not retroactive and, further, the issue had been decided twice before.[4] Medrano now appeals.
¶6 Resolution of this case requires a brief overview of the case
law relating to plea withdrawal when there is a Wis. Stat. § 971.08(1)(c) violation by the circuit
court. Prior to 1993, we essentially
permitted circuit courts to rely on plea questionnaire forms to advise defendants
of the rights they were surrendering by entering a plea. See Moederndorfer,
141
¶7 In 1993, we addressed the import of the Wis. Stat. § 971.08(2) language
directing that a court “shall” vacate a conviction and permit plea withdrawal
if the court has failed to personally give the deportation warning. State v. Chavez, 175
¶8 A defendant who seeks to withdraw a guilty plea because a
circuit court failed to follow mandated plea procedures must make a prima facie showing of that
failure. State v. Bangert, 131
¶9 In 2002, the harmless error standard was ruled inapplicable;
if the circuit court failed to personally give the Wis. Stat. § 971.08(1)(c) admonition, and if the defendant
could show the plea was likely to result in deportation, the circuit court was required
to vacate the conviction and permit plea withdrawal. State v. Douangmala, 2002 WI 62,
¶46, 253
¶10 Medrano attempted to invoke Issa, arguing the plea questionnaire alone was insufficient to show he had been properly advised of the possible deportation consequences of his plea. The circuit court concluded that Issa could not provide Medrano with relief. It determined that the Lagundoye analysis, which determined Douangmala was a non-retroactive rule of procedure, would likewise apply to Issa’s holding about plea questionnaires, rendering that case’s application prospective only. Further, the court concluded, because Issa did not provide relief, the motion for withdrawal was barred by the law of the case, or issue preclusion.[5]
¶11 We agree with the circuit court here that Medrano’s current
motion is barred by issue preclusion, although we conclude preclusion applies
regardless of whether Issa should apply retroactively. “The doctrine of issue preclusion forecloses
relitigation of an issue that was [actually] litigated in a previous proceeding
involving the same parties or their privies.”
Masko v. City of Madison, 2003 WI App 124, ¶4, 265
¶12 Here, the parties to the three motions are the same and the issue of law is unchanged. Further, the second motion was already denied as precluded. However, at no point did Medrano challenge that determination. We will not permit him to relitigate the issue now.[6]
¶13 Additionally, Medrano does not appear to directly challenge the
circuit court’s application of Lagundoye to Issa. Instead, he argues that Lagundoye was wrong to
deem Douangmala
to be procedural instead of substantive.
He places particular emphasis on the fact that Douangmala was
unanimously decided and Lagundoye was not. This court cannot revise supreme court holdings. Cook v. Cook, 208
By the Court.—Order affirmed.
This opinion shall not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Wisconsin Stat. § 971.08 states, in relevant part:
(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
….
(c) Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”
[2] Wisconsin Stat. § 971.08(2) states:
If a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
[3] The judgment roll indicates the motion was denied. However, there is no hearing transcript or written order in the Record.
[4] The
court initially denied the motion because it appeared the Department of
Homeland Security was seeking to deport Medrano based on illegal re-entry into
the
[5] The
circuit court discussed whether Medrano’s claims were procedurally barred by State
v. Escalona-Naranjo, 185
[6] Interestingly,
Issa
was decided over fourteen years before Medrano sought relief based on the
case.