PUBLISHED OPINION
Case No.: 94-2396
†Petition for
review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SAUL R. LOPEZ,
Defendant-Appellant.†
Submitted on Briefs: August 22, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 6, 1995
Opinion Filed: September 6, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If "Special", JUDGE: Dennis J. Flynn
so indicate)
JUDGES: Anderson,
P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of Donald
T. Lang, assistant state public defender.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Maureen McGlynn Flanagan, assistant
attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 6, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2396-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SAUL R. LOPEZ,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
BROWN, J. Saul
R. Lopez, a citizen of Mexico, pled no contest to a charge of first-degree
reckless injury. However, he was not
advised by the trial court that his no contest plea could result in his
deportation from the United States as is required by § 971.08(1)(c), Stats.
Lopez later sought to withdraw his plea due to this omission. The trial court acknowledged the error but,
after hearing testimony from Lopez's trial counsel that Lopez knew of the
potential for deportation, found the error harmless. Lopez admits that State v. Chavez, 175 Wis.2d 366,
371, 498 N.W.2d 887, 889 (Ct. App. 1993), and State v. Issa, 186
Wis.2d 199, 519 N.W.2d 741 (Ct. App. 1994), allow a trial court to go outside
the plea hearing record and determine the error to be harmless. However, he claims that State v.
Baeza, 174 Wis.2d 118, 496 N.W.2d 233 (Ct. App. 1993), expressly
conflicts with Chavez and Issa and asks us to
reconcile the conflict in his favor. We
reject Lopez's assertions that the cases are irreconcilable. The procedure employed by the trial court
was sound and we affirm.
Lopez was born and
raised in Mexico City, Mexico. He came
to the United States sometime in 1988 and moved to Racine approximately a year
and a half later. Lopez was charged
with first-degree reckless injury while armed with a dangerous weapon and was
bound over for trial after a preliminary hearing. At his arraignment, the trial court was informed that Lopez was
not a citizen of the United States.
Subsequently, Lopez pleaded no contest to the crime as charged. At no time during the plea hearing did the
trial court follow the mandate of § 971.08(1)(c), Stats., which states that the trial court shall:
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.”
Lopez
was eventually sentenced to twelve years in prison.
Thereafter, Lopez filed
a motion seeking to withdraw his plea, claiming that the trial court erred in
failing to address him as required under § 971.08(1)(c), Stats.
He contended that the sole remedy for the failure was provided in §
971.08(2), which states as follows:
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.
There
was no dispute that Lopez was conclusively presumed to be deportable.
The State admitted there
was error, but sought to overcome the deficient plea hearing record by
introducing testimony from Lopez's former trial counsel that prior to the plea
hearing he had warned Lopez of the potential deportation consequences of his
plea. Lopez objected to the State's
attempt to use information from outside the plea hearing record and argued that
the plain language of § 971.08(2), Stats.,
and this court's decision in Baeza required that review of his
claim be restricted to the record made at the plea hearing. The trial court disagreed and permitted
trial counsel to testify concerning his conversations with Lopez.
Trial counsel testified
that he met with Lopez for about an hour on a Sunday prior to the plea
hearing. During the meeting, Lopez was
advised of the possibility that he might be deported if he were to enter a no
contest plea to the charge. Trial
counsel also testified that he went over the plea questionnaire line by line
with Lopez, including the paragraph that warns the accused about the
possibility of deportation. Trial
counsel averred that he read the questionnaire out loud in Spanish and Lopez
initialed each line as they went along.
At the conclusion of the
testimony, the trial court acknowledged that it erred in failing to advise
Lopez of the potential deportation consequences of his plea. The trial court found, however, that Lopez
had nonetheless entered his plea with an understanding of the potential for
deportation based upon trial counsel's testimony and the plea
questionnaire. Lopez then appealed to
this court.
The focus of Lopez's
complaint is that the trial court permitted the State to elicit postconviction
testimony from his trial counsel. Lopez
argues that the State may not supplement the defective plea hearing language
because to do so would violate the plain language of § 971.08(2), Stats., and this court's decision in Baeza. The State responds that the statute does not
prohibit the procedure employed by the trial court and, in fact, two decisions
of this court after Baeza explicitly validate the procedure. The issue is therefore one of law because it
involves the construction of a statute and prior decisions of this court. See State v. Hufford, 186
Wis.2d 461, 464, 522 N.W.2d 26, 27 (Ct. App. 1994).
Lopez argues that
permitting the State to belatedly supplement the plea hearing record renders
the unique, specific remedy adopted by the legislature in § 971.08(2), Stats., mere surplusage. He concedes that we can read the very
argument he now makes to have been expressly rejected in Chavez,
and later in Issa, but counters that the Chavez and
Issa opinions are themselves contrary to our Baeza
decision, which in Lopez's view upholds his understanding of the statute.
Following is a
capsulization of Lopez's contention: §
971.08(2), Stats., provides the
sole remedy for violation of the deportation colloquy required under §
971.08(1)(c). The sole determinant of
whether there has been a violation of the deportation colloquy is the plea
hearing record itself. This is clear
from the plain reading of the statute which looks solely to the plea hearing
record. The State may not, therefore,
use any evidence outside the plea hearing record to show other means by which
the accused gained knowledge of potential deportation consequences. Use of testimony outside the plea hearing
record is “Bangert style” evidence, first set forth in State
v. Bangert, 131 Wis.2d 246, 281-83, 389 N.W.2d 12, 29-30 (1986). The Baeza court expressly
rejected use of “Bangert style” evidence in its decision. See Baeza, 174 Wis.2d
at 125-26, 496 N.W.2d at 236.
Therefore, any “Bangert style” evidence brought under the
guise of a harmless error analysis is contrary to Baeza. To the extent that Chavez and Issa
can be read to allow what Baeza clearly does not allow, the cases
are irreconcilable and we should reaffirm our holding in Baeza.
This panel of the court
wrote Baeza and we know what we said. We did not say what Lopez claims we said. Baeza's claim had to do with burden
shifting. It was Baeza's idea that when
a judge omits giving a deportation colloquy, the defendant has two alternative
remedies. See Baeza,
174 Wis.2d at 123, 496 N.W.2d at 235.
The defendant can seek the remedy outlined in § 971.08(2), Stats., which requires withdrawal of
the plea upon a showing that deportation is “likely.” See Baeza, 174 Wis.2d at 123, 496 N.W.2d at
235. Alternatively, the defendant can
make a prima facie case under § 971.08(1)(c).
Then, just like a Bangert analysis, the burden shifts to
the State to prove that the omission did not occur. See Baeza, 174 Wis.2d at 123, 496 N.W.2d at
235. If the State fails in its burden,
the defendant may be allowed to withdraw his or her plea without having to
prove that deportation is “likely,” an element that the defendant would
otherwise have to prove using the remedy provided in § 971.08(2). See Baeza, 174 Wis.2d
at 123, 496 N.W.2d at 235. The alternative
remedy theory was undoubtedly presented to this court because the likelihood of
Baeza's deportation was a close question in that case.
We wrote that the burden
shifting announced in Bangert was not meant to apply to
violations of § 971.08(1)(c), Stats. See Baeza, 174 Wis.2d
at 127, 496 N.W.2d at 236. We held that
a defendant's only alternative is to seek withdrawal of the plea pursuant to §
971.08(2). Our reference to Bangert
had nothing to do with whether evidence outside the plea hearing record can be
admitted at a postconviction hearing to determine whether the omission of a
deportation colloquy was harmless. In
fact, we never addressed harmless error or whether a harmless error analysis
was even appropriate. Frankly, the issue
was never before us.
The issue was
before the Chavez and Issa courts. In Chavez, in particular, the
defendant argued that there can be no harmless error analysis because the
statute provides no such avenue. See
Chavez, 175 Wis.2d at 369-70, 498 N.W.2d at 888. The Chavez court held that the
statute was ambiguous, looked to the legislative history, found that the
statute was designed to protect those who “unwittingly” plead no contest or
guilty without knowing the deportation potential, and that if a defendant knows
of the potential even though not given the statutory colloquy, the error can be
harmless. See id.
at 370-71, 498 N.W.2d at 888-89.
Regarding what evidence may be used to show harmless error, the Chavez
court observed that the record showed Chavez's awareness of the likelihood of
deportation when he entered his plea.
The court then wrote: “Chavez concedes that the state may generally
overcome a failure to comply with the plea requirements of sec. 971.08(1) by
showing evidence that the defendant knew and understood the necessary
information to render his plea voluntary and knowing.” Chavez, 175 Wis.2d at 369, 498
N.W.2d at 888 (citing Bangert, 131 Wis.2d at 274, 384 N.W.2d at
26).
In our view, the Chavez
court not only sanctioned the harmless error analysis, but allowed evidence
outside the plea hearing record as was first recognized in Bangert. Our decision in Baeza never
reached that issue. Our discussion of Bangert
was solely in relation to Baeza's argument, not in relation to whether evidence
outside the plea hearing record may be used to show harmless error. In fact, the only similarity between Baeza,
Chavez and Issa is that the name “Bangert” was
prominently displayed. The Baeza,
Chavez and Issa decisions are in every way compatible and
in no way irreconcilable.
Here, the trial court
employed the procedure accepted in Chavez and the finding of
harmless error is affirmed.
By the Court.—Judgment
and order affirmed.