Opinion · Wisconsin Supreme Court
State v. Andres Romero-Georgana
State v. Andres Romero-Georgana, 360 Wis. 2d 522 (Wis. 2014)
- Type
- Opinion
- Court
- Wisconsin Supreme Court
- Jurisdiction
- Wisconsin
- Date
- 2014-07-23
- Topic
- general
adopting “clearly stronger” standard for claims of ineffective assistance of postconviction counsel | discussing standards for analyzing claim of ineffective assistance on § 974.02 motion | to show appellate counsel was deficient in not raising a claim, defendant must demonstrate that unraised claim is clearly stronger than those actually raised on direct review | to newly raise issues that could have been raised on direct appeal in a motion for post-conviction relief, a petitioner must “show that a particular nonfrivolous issue was clearly stronger than issues” that were presented on direct appeal | to newly raise issues that could have been raised on direct appeal in a motion for postconviction relief, a petitioner must “show that a particular nonfrivolous issue was clearly stronger than issues” that were presented on direct appeal | “[C]ases should be decided on the narrowest possible ground[.]” | court of appeals need not address undeveloped arguments
Citator
- Cited by
- 70 opinions
2014 WI 83
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP55
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Andres Romero-Georgana,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 347 Wis. 2d 549
,830 N.W.2d 722
(Ct. App. 2013 – Unpublished)
OPINION FILED: July 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 3, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Kendall M. Kelley
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Sara Kelton Brelie and Byron C. Lichstein, and law student
Diana Eisenberg, and Frank J. Remington Center, University of
Wisconsin Law School, Madison. Oral argument by Sara Kelton
Brelie.
For the plaintiff-respondent, the cause was argued by
William L. Gansner, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
May 19
2014 WI 83
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP55
(L.C. No. 2006CF379)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 23, 2014
Andres Romero-Georgana,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals.1 The issue
presented has been framed by the defendant as whether the
defendant is "entitled to an evidentiary hearing based on his
Wis. Stat. § 974.06
motion alleging ineffective assistance of
postconviction counsel for failing to raise a strong argument
for plea withdrawal[.]"
1
State v. Romero-Georgana, No. 2012AP55, unpublished slip
op. (Wis. Ct. App. Mar. 19, 2013).
No. 2012AP55
¶2 This somewhat innocuous statement of the issue
requires the court to conduct a wide-ranging discussion of
postconviction procedure before it determines whether the
defendant's Wis. Stat. § 974.06
(2011-12)2 motion provides a
sufficient reason for failing to bring his present claims in an
earlier postconviction proceeding and whether the § 974.06
motion alleges sufficient facts that, if true, would entitle the
defendant to relief. As is often the case, the procedural
history is crucial to the court's conclusions.
¶3 We conclude the following.
¶4 First, a defendant who alleges in a § 974.06 motion
that his postconviction counsel was ineffective for failing to
bring certain viable claims must demonstrate that the claims he
wishes to bring are clearly stronger than the claims
postconviction counsel actually brought. See State v. Starks,
2013 WI 69, ¶6
,349 Wis. 2d 274
,833 N.W.2d 146
. However, in
evaluating the comparative strength of the claims, reviewing
courts should consider any objectives or preferences that the
defendant conveyed to his attorney. A claim's strength may be
bolstered if a defendant directed his attorney to pursue it.
¶5 Second, the defendant has not offered a sufficient
reason in his third postconviction motion for failing to raise
his § 974.06 claim in his second postconviction motion. Without
a sufficient reason, a defendant may not bring a claim in a
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2012AP55
§ 974.06 motion if that claim "could have been raised in a
previously filed sec. 974.02 motion and/or on direct appeal."
State v. Escalona-Naranjo, 185 Wis. 2d 168, 173
,517 N.W.2d 157
(1994). Consequently, the defendant's claim is barred.
¶6 Third, even if the § 974.06 motion were not barred on
"sufficient reason" grounds, the motion does not allege
sufficient facts that, if true, would entitle the defendant to
relief. The defendant failed to allege that the plea withdrawal
claim was clearly stronger than the resentencing claim. He does
not specifically state which postconviction attorney was
ineffective and instead makes an ambiguous reference to
"postconviction counsel." The motion then focuses almost
exclusively on trial counsel and does not provide facts
regarding postconviction counsel's performance. Consequently,
the defendant's motion falls far short of what is required, and
the circuit court properly determined that he is not entitled to
an evidentiary hearing.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶7 On April 7, 2006, the State filed a complaint charging
Andres Romero-Georgana (Romero-Georgana) with first-degree
sexual assault of a child under the age of 13 contrary to Wis. Stat. § 948.02
(1) (2005-06). The complaint alleged that Romero-
Georgana had sexual contact with the seven-year-old daughter of
the woman with whom he was in a relationship. On May 17, 2006,
assistant state public defender Carrie LaPlant (Attorney
LaPlant) was appointed to represent Romero-Georgana. On May 26,
2006, Romero-Georgana waived his right to a preliminary
3
No. 2012AP55
examination, and an information repeating the charge in the
complaint was filed that day. On June 23, 2006, Romero-Georgana
entered a plea of not guilty before Brown County Circuit Judge
J.D. McKay. At this arraignment, Judge McKay scheduled the case
for trial and informed Romero-Georgana, "If you're not a citizen
of this country, a conviction could lead to your deportation."3
¶8 On October 20, 2006, Romero-Georgana completed an
English and Spanish Plea Questionnaire/Waiver of Rights form in
which he pled no contest to first-degree sexual assault of a
child. As part of the plea agreement, the State agreed not to
file any additional charges against the defendant and agreed not
to make any specific sentencing recommendation. At a plea
hearing on November 17, 2006, Romero-Georgana entered a no-
contest plea with the aid of an interpreter. The court accepted
Romero-Georgana's plea and found him guilty of first-degree
sexual assault of a child under the age of 13.
¶9 At the plea hearing, the circuit court failed to
advise Romero-Georgana that he could be deported as a result of
his plea, as required by Wis. Sat. § 971.08(1)(c) (2005-06).
The pertinent portion of the statute provides that before
accepting a plea of guilty or no contest, the 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
3
There was an interpreter assisting at the arraignment.
4
No. 2012AP55
from admission to this country or the denial of
naturalization, under federal law."
Wis. Stat. § 971.08
(1)(c) (2005-06).
¶10 Romero-Georgana's plea came more than four years after
this court decided State v. Douangmala, 2002 WI 62
,253 Wis. 2d 173
,646 N.W.2d 1
, a case in which this court emphasized the importance of the statutory requirement to advise the defendant about possible deportation as well as the statutory remedy of plea withdrawal. SeeWis. Stat. § 971.08
(2) (2005-
06).
¶11 On January 19, 2007, Judge McKay sentenced Romero-
Georgana to 12 years of initial confinement and four years of
extended supervision. At the sentencing hearing, Attorney
LaPlant stated: "We fully expect that as soon as he is released
from custody, whenever that may be, that he will be deported
back to Mexico. And he does want that to happen. He does want
to return home as soon as he can."
¶12 Unfortunately, in sentencing Romero-Georgana, the
court failed to consider the sentencing guidelines on the record
as was then required by Wis. Stat. § 973.017
(2)(a) (2007-08). See State v. Grady,2007 WI 81
,302 Wis. 2d 80
,734 N.W.2d 364
.
The remedy for failure to comply with § 973.017(2)(a) (2007-08)
was resentencing.
¶13 After judgment of conviction was filed on January 23,
2007, Romero-Georgana filed a notice of intent to pursue
postconviction relief, and he requested appointment of
postconviction counsel. Assistant state public defender Suzanne
5
No. 2012AP55
Hagopian (Attorney Hagopian) was appointed to represent Romero-
Georgana in postconviction and appellate proceedings.
¶14 Several weeks later, on March 20, 2007, the U.S.
Department of Justice Immigration and Naturalization Service
(INS) sent an Immigration Detainer——Notice of Action form to
Dodge Correctional Institution where Romero-Georgana was serving
his sentence. The form advised the institution that INS had
started an investigation to determine whether Romero-Georgana
was subject to deportation and required that INS be notified at
least 30 days before Romero-Georgana was released.
A. First Postconviction Motion and Appeal
¶15 On June 11, 2007, Attorney Hagopian filed a motion for
extension of time to file a postconviction motion or notice of
appeal. In the motion, Attorney Hagopian stated that she had
met with Romero-Georgana and, with the help of an interpreter,
discussed two possible postconviction claims: one regarding the
validity of the no-contest plea and the other for resentencing
based on the court's failure to go through the sentencing
guidelines on the record.
¶16 On July 20, 2007, Romero-Georgana filed a
postconviction motion pursuant to Wis. Stat. § (Rule)
809.30(2)(h) (2007-08) seeking resentencing or sentence
modification in the alternative. The postconviction motion
alleged that the sentencing court failed to consider the
relevant sentencing guidelines, as required under Wis. Stat. § 973.017
(2)(a) (2007-08) and Grady,302 Wis. 2d 80
, which had
6
No. 2012AP55
been decided less than a month earlier. The motion did not
mention any defect in the plea colloquy.
¶17 On August 23, 2007, the circuit court held a hearing
and denied Romero-Georgana's postconviction motion. Attorney
Hagopian filed a notice of appeal on August 29, 2007.
¶18 On April 22, 2008, the court of appeals issued an
order reversing the judgment and remanding the case for
resentencing because Judge McKay failed to consider the
sentencing guidelines on the record. State v. Romero-Georgana,
No. 2007AP2042-CR, unpublished order (Wis. Ct. App. Apr. 22,
2008). Soon after the court of appeals issued its decision,
Attorney Hagopian sent Romero-Georgana a letter explaining the
decision and informing him of his right to judicial
substitution. Several weeks later, Attorney Hagopian spoke to
Romero-Georgana on the phone and discussed judicial
substitution. With the help of an interpreter, Attorney
Hagopian told Romero-Georgana that he should discuss judicial
substitution with the attorney who would represent him at
resentencing.
¶19 Assistant state public defender William FitzGerald
(Attorney FitzGerald) was appointed to represent Romero-Georgana
at resentencing. Attorney FitzGerald received a letter from
Romero-Georgana on May 29, 2008, stating that Romero-Georgana
wanted to substitute his judge. On May 30, 2008, Attorney
FitzGerald filed a motion requesting a judicial substitution. A
judicial assignment order was filed on June 6, 2008, in which
7
No. 2012AP55
Brown County Circuit Judge Kendall M. Kelley was substituted for
Judge McKay.
¶20 On October 1, 2008, Judge Kelley held a resentencing
hearing, and, based in part on a recommendation in the
presentence investigation, sentenced Romero-Georgana to 20 years
of initial confinement and eight years of extended supervision.
A revised judgment of conviction for first-degree sexual assault
of a child under the age of 13 was filed on October 2, 2008. On
the same day, Attorney FitzGerald filed Romero-Georgana's notice
of intent to pursue postconviction relief.
B. Second Postconviction Motion and Appeal
¶21 Attorney Tajara S. Dommershausen (Attorney
Dommershausen) represented Romero-Georgana in postconviction and
appellate proceedings. On March 24, 2009, she filed a Wis. Stat. § 974.02
(2009-10)4 postconviction motion on behalf of
Romero-Georgana. The motion alleged that Attorney Hagopian had
provided ineffective assistance of counsel for failing to inform
4
Wisconsin Stat. § 974.02(1) (2009-10) states:
A motion for postconviction relief other than
under s. 974.06 or 974.07(2) by the defendant in a
criminal case shall be made in the time and manner
provided in s. 809.30. An appeal by the defendant in
a criminal case from a judgment of conviction or from
an order denying a postconviction motion or from both
shall be taken in the time and manner provided in ss.
808.04(3) and 809.30. An appeal of an order or
judgment on habeas corpus remanding to custody a
prisoner committed for trial under s. 970.03 shall be
taken under ss. 808.03(2) and 809.50, with notice to
the attorney general and the district attorney and
opportunity for them to be heard.
8
No. 2012AP55
Romero-Georgana that on resentencing, Judge McKay would not be
able to increase his sentence (absent a new factor) but if Judge
McKay were substituted, the new judge could impose a longer
sentence without having to justify the increase in time. The
postconviction motion did not allege that Attorney Hagopian was
ineffective for failing to move for plea withdrawal.
¶22 On June 5, 2009, Judge Kelley held a hearing on the
postconviction motion and determined that neither Attorney
Hagopian nor Attorney FitzGerald was ineffective in advising
Romero-Georgana about judicial substitution. Judge Kelley
issued a written order denying the postconviction motion on July
15, 2009. Attorney Dommershausen filed a notice of appeal on
July 21, 2009.
¶23 On November 19, 2009, Attorney Dommershausen filed a
notice of no-merit appeal pursuant to Wis. Stat. § (Rule)
809.30(2)(a) (2009-10), and she filed a no-merit report on March
2, 2010. After considering the no-merit report, the court of
appeals affirmed the circuit court's judgment in a decision
filed on September 9, 2010.
¶24 In its decision, the court of appeals mentioned that
Romero-Georgana had filed a response5 to Attorney Dommershausen's
no-merit report in which he "raise[d] an issue regarding his
initial no contest plea." The court of appeals limited its
review to the resentencing issue and determined that because
5
Romero-Georgana's response to Attorney Dommershausen's no-
merit report is not in the record.
9
No. 2012AP55
Romero-Georgana did not raise the issue relating to the no-
contest plea in his initial appeal, he forfeited that claim.
Romero-Georgana petitioned this court for review, which we
denied in an order filed December 8, 2010.
C. Third Postconviction Motion and Appeal
¶25 On September 2, 2011, Romero-Georgana filed a pro se
motion under Wis. Stat. § 974.06
. In the § 974.06 motion,
Romero-Georgana stated that he is a Mexican native and is not a
citizen of the United States. He alleged that "[p]ostconviction
counsel was ineffective for failing to raise the issue that the
circuit court failed to comply with the statutory mandate when
it did not address Romero-Georgana personally to advise him in
the words set forth in Wis. Stat. 971.08(1)(c) of the
deportation consequences of his no contest plea . . . ." The
§ 974.06 motion alleged that when Romero-Georgana completed the
plea questionnaire, he did not fully understand what he was
signing because of his poor English, inadequate interpreters,
and Attorney LaPlant's failure to advise him of the deportation
risk. Romero-Georgana alleged that he would have pled not
guilty had he known that he could be deported.
¶26 The Wis. Stat. § 974.06
motion also alleged that
"[p]ostconviction counsel was ineffective for failing to raise a
claim of ineffective assistance of trial counsel for failing to
fully explain the deportation consequences of his no contest
plea . . . ."6 Romero-Georgana attached an Immigration Detainer—
6
Romero-Georgana concedes in his brief that he cannot
prevail on this claim and has therefore abandoned it.
10
No. 2012AP55
—Notice of Action that indicated that an investigation had been
initiated to determine whether Romero-Georgana was subject to
deportation.
¶27 In a decision and order filed on December 22, 2011,
Judge Kelley denied Romero-Georgana's § 974.06 motion. The
circuit court concluded that the § 974.06 motion did not contain
sufficient factual allegations to entitle Romero-Georgana to a
hearing. The court stated: "Although Romero-Georgana's
allegations of the ineffectiveness of trial counsel are relevant
to the analysis, he limits his argument to what happened on the
trial level. For the Court to analyze postconviction
ineffectiveness, it needs facts pertaining to why postconviction
counsel was ineffective." Therefore, the court determined that
Romero-Georgana was not entitled to an evidentiary hearing.
¶28 On January 9, 2012, Romero-Georgana filed a notice of
appeal from his judgments of conviction and from the order
denying his § 974.06 motion. In a per curiam decision, the
court of appeals affirmed the circuit court's order denying
Romero-Georgana's § 974.06 motion without a hearing. State v.
Romero-Georgana, No. 2012AP55, unpublished slip op., ¶1 (Wis.
Ct. App. Mar. 19, 2013). The court of appeals determined that
Romero-Georgana's § 974.06 motion contained only bare-bones
assertions and did not demonstrate why the plea withdrawal claim
was clearly stronger than the claims raised by Attorney
11
No. 2012AP55
Hagopian.7 Id., ¶¶5-6. Furthermore, the court concluded that
Romero-Georgana's § 974.06 motion did not explain why the
Escalona-Naranjo bar against successive postconviction motions
did not apply. Id., ¶7.
¶29 Romero-Georgana petitioned this court for review,
which we granted on December 19, 2013.
II. STANDARD OF REVIEW
¶30 Whether a Wis. Stat. § 974.06
motion alleges a sufficient reason for failing to bring available claims earlier is a question of law subject to de novo review. State v. Kletzien,2011 WI App 22, ¶¶9, 16
,331 Wis. 2d 640
,794 N.W.2d 920
. Similarly, whether a § 974.06 motion alleges sufficient facts to require a hearing is a question of law that this court reviews de novo. State v. Balliette,2011 WI 79, ¶18
,336 Wis. 2d 358
,805 N.W.2d 334
. If the motion does allege sufficient facts, "the circuit court must hold an evidentiary hearing." State v. John Allen,2004 WI 106, ¶9
,274 Wis. 2d 568
,682 N.W.2d 433
(citations omitted). "However, if
the motion does not raise facts sufficient to entitle the movant
to relief, or presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not
entitled to relief, the circuit court has the discretion to
7
The court of appeals did not address the appeals of the
judgments of conviction and stated, "Because an appeal from an
order under Wis. Stat. § 974.06
is not governed by Wis. Stat.
[§ (Rule)] 809.30, the judgment of conviction is not the subject
of this appeal." State v. Romero-Georgana, No. 2012AP55,
unpublished slip op., ¶1 n.1 (Wis. Ct. App. Mar. 19, 2013).
12
No. 2012AP55
grant or deny a hearing." Id. (citations omitted). We review
the circuit court's discretionary decision to grant or deny a
hearing under the erroneous exercise of discretion standard.
Id.
III. DISCUSSION
¶31 Much of this court's time is devoted to cases
involving postconviction claims that are filed after a
defendant's appeal is over. These claims require the court to
apply fundamental principles of postconviction review, including
the principle that finality is important in the criminal justice
system. Accordingly, not every mistake will justify relief.
¶32 Wisconsin Stat. § 974.06 "was 'designed to replace
habeas corpus as the primary method in which a defendant can
attack his conviction after the time for appeal has expired.'"
Escalona-Naranjo, 185 Wis. 2d at 176
(quoting Howard B. Eisenberg, Post-Conviction Remedies in the 1970's,56 Marq. L. Rev. 69
, 79 (1972)). Section 974.06 provides a mechanism for correcting errors when: (1) the sentence violated the United States or Wisconsin Constitution; (2) the court lacked jurisdiction to impose the sentence; or (3) the sentence exceeded the maximum or was "otherwise subject to collateral attack."Wis. Stat. § 974.06
(1); see Balliette,336 Wis. 2d 358, ¶34
. A defendant may file a § 974.06 motion at any time "[a]fter the time for appeal or postconviction remedy provided in s. 974.02 has expired."Wis. Stat. § 974.06
(1)-(2).
However, the following caveat applies:
13
No. 2012AP55
All grounds for relief available to a person
under this section must be raised in his or her
original, supplemental or amended motion. Any ground
finally adjudicated or not so raised, or knowingly,
voluntarily and intelligently waived in the proceeding
that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief
may not be the basis for a subsequent motion, unless
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately
raised in the original, supplemental or amended
motion.
Wis. Stat. § 974.06
(4) (emphasis added).
¶33 Wisconsin Stat. § 974.06(4) promotes finality and
efficiency by requiring defendants to bring all available claims
in a single proceeding unless there exists a sufficient reason
for not raising some claims in that initial proceeding.
Escalona-Naranjo, 185 Wis. 2d at 185-86
; see State v. Aaron Allen,2010 WI 89, ¶40
,328 Wis. 2d 1
,786 N.W.2d 124
(citation
omitted) ("The purpose behind Wis. Stat. § 974.06
is to avoid
successive motions for relief by requiring a defendant to raise
all grounds for relief in one motion.").
¶34 Thus, without a sufficient reason, a movant may not
bring a claim in a § 974.06 motion if it "could have been raised
in a previously filed sec. 974.02 motion and/or on direct
appeal." See Escalona-Naranjo, 185 Wis. 2d at 173
.
¶35 A defendant need not provide a "sufficient reason" for
a claim cognizable under Wis. Stat. § 974.06
if the defendant did not file a motion underWis. Stat. § 974.02
or a direct appeal. State v. Lo,2003 WI 107
, ¶44 n.11,264 Wis. 2d 1
,665 N.W.2d 756
; Loop v. State,65 Wis. 2d 499
,222 N.W.2d 694
(1974). But if the defendant did file a motion under § 974.02
14
No. 2012AP55
or a direct appeal or a previous motion under § 974.06, the
defendant is barred from making a claim that could have been
raised previously unless he shows a sufficient reason for not
making the claim earlier. Lo, 264 Wis. 2d 1, ¶44
.
¶36 In some instances, ineffective assistance of
postconviction counsel may be a sufficient reason for failing to
raise an available claim in an earlier motion or on direct
appeal. Aaron Allen, 328 Wis. 2d 1, ¶85
; see Balliette,336 Wis. 2d 358, ¶62
. If the defendant sufficiently alleges ineffective assistance of postconviction counsel as the reason for failing to raise an issue earlier, "[t]he trial court can perform the necessary factfinding function and directly rule on the sufficiency of the reason." Aaron Allen,328 Wis. 2d 1, ¶85
(brackets in original) (quoting State ex rel. Rothering v. McCaughtry,205 Wis. 2d 675, 682
,556 N.W.2d 136
(Ct. App. 1996)
). Conversely, if the defendant fails to allege why and how his
postconviction counsel was constitutionally ineffective——that
is, if the defendant asserts a mere conclusory allegation that
his counsel was ineffective——his "reason" is not sufficient.
¶37 To move beyond the initial prerequisites of Wis. Stat. § 974.06
(4) and Escalona-Naranjo, and to adequately raise a claim for relief, a defendant must allege "sufficient material facts——e.g., who, what, where, when, why, and how——that, if true, would entitle [the defendant] to the relief he seeks." John Allen,274 Wis. 2d 568, ¶2
; see Balliette,336 Wis. 2d 358, ¶¶58-60
; State v. Bentley,201 Wis. 2d 303, 314-18
, 548
15
No. 2012AP55
N.W.2d 50 (1996). If he does so, the defendant is normally
entitled to an evidentiary hearing.
¶38 In sum, because Romero-Georgana's § 974.06 motion
alleges that his postconviction counsel provided ineffective
assistance, he must allege facts that support every facet of his
claim and that, if true, would entitle him to relief.
A. Ineffective Assistance of Postconviction Counsel
¶39 The Sixth and Fourteenth Amendments to the United
States Constitution guarantee criminal defendants the right to
effective assistance of counsel. Balliette, 336 Wis. 2d 358, ¶21
. To state a claim for ineffective assistance of counsel, the defendant must demonstrate: (1) that his counsel's performance was deficient; and (2) that the deficient performance was prejudicial. Strickland v. Washington,466 U.S. 668, 687
(1984).
¶40 To prove deficiency, "the defendant must show that
counsel's representation fell below an objective standard of
reasonableness." Id. at 688
. The defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id. at 689
.
¶41 To prove prejudice, the defendant must show "that
counsel's errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable." Id. at 687
.
The prejudice inquiry asks whether "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A
16
No. 2012AP55
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694
.8
¶42 Romero-Georgana's motion alleges that he received
ineffective assistance of postconviction counsel because
postconviction counsel failed to bring a claim that Romero-
Georgana now wishes to assert. This allegation is different
from an allegation that postconviction counsel did not comply
with the defendant's requests or instructions after trial or
that postconviction counsel failed to bring any claims at all.
Romero-Georgana acknowledges that his postconviction counsel
brought claims; he contends now that postconviction counsel
brought the wrong claims.
¶43 An allegation that postconviction counsel failed to
bring a claim that should have been brought is an allegation
that counsel's performance was constitutionally deficient, that
it fell below the services required by an objective standard of
reasonableness under prevailing professional norms. Strickland,
466 U.S. at 687-88
. How does a reviewing court evaluate such an
allegation?
¶44 In Starks, 349 Wis. 2d 274
, the court faced a situation in which postconviction counsel failed to file any post-trial motions, including aWis. Stat. § 974.02
motion, in
the circuit court but made numerous arguments on appeal. Id.,
¶4. When postconviction counsel's performance was subsequently
8
The Strickland analysis and the presumption of effective
assistance apply to postconviction counsel. State v. Balliette,
2011 WI 79, ¶28
,336 Wis. 2d 358
,805 N.W.2d 334
.
17
No. 2012AP55
attacked, this court disregarded counsel's nonperformance in the
circuit court and instead evaluated his performance as
"appellate counsel." Id.
¶45 Starks adopted a "clearly stronger" standard in
evaluating the performance of "appellate counsel." Id., ¶6.
That is, the court adopted the "clearly stronger" pleading
standard for the deficiency prong of the Strickland test in
Wisconsin for criminal defendants alleging in a habeas petition
that they received ineffective assistance of appellate counsel
due to counsel's failure to raise an issue. Stated differently,
the court said that "the defendant must show that 'a particular
nonfrivolous issue was clearly stronger than issues that counsel
did present.'" Id., ¶59 (quoting Smith v. Robbins, 528 U.S. 259, 288
(2000)); see Gray v. Greer,800 F.2d 644, 646
(7th Cir.
1986) ("Generally, only when ignored issues are clearly stronger
than those presented, will the presumption of effective
assistance of counsel be overcome.").
¶46 We think this "clearly stronger" standard is equally
appropriate in evaluating the alleged deficiency in an
attorney's performance as postconviction counsel when
postconviction counsel is accused of ineffective assistance on
account of his failure to raise certain material issues before
the circuit court. The "clearly stronger" standard is
appropriate when postconviction counsel raised other issues
before the circuit court, thereby making it possible to compare
the arguments now proposed against the arguments previously
made. However, the clearly stronger standard may not be
18
No. 2012AP55
adequate when counsel has valid reasons for choosing one set of
arguments over another. These reasons may include the
preferences, even the directives, of the defendant.
¶47 Turning to Romero-Georgana's § 974.06 motion, we first
consider whether Romero-Georgana provided a sufficient reason
for failing to bring his claims in his earlier postconviction
motions. See Escalona-Naranjo, 185 Wis. 2d at 181-85
. We then
consider the allegations of ineffective assistance of
postconviction counsel to determine whether Romero-Georgana has
alleged sufficient facts that, if true, would entitle him to
relief.
B. Sufficient Reason
¶48 Romero-Georgana acknowledges that he must allege a
sufficient reason for failing to raise his § 974.06 claim
earlier. He correctly states that ineffective assistance of
counsel may, in some cases, provide the requisite sufficient
reason. From there, however, his argument veers off course.
Romero-Georgana implies that his § 974.06 motion alleges a
sufficient reason for failing to bring the claims earlier
because the motion alleges that his postconviction counsel
19
No. 2012AP55
(Attorney Hagopian)9 was ineffective in failing to raise a claim
for plea withdrawal pursuant to Wis. Stat. § 971.08
(2). At this
point, Romero-Georgana focuses on the wrong attorney.
¶49 There were three postconviction motions in this case:
(1) a postconviction motion filed pursuant to Wis. Stat.
§ (Rule) 809.30(2)(h) (2007-08) by Attorney Hagopian; (2) a Wis. Stat. § 974.02
(2009-10) motion filed by Attorney Dommershausen;
and (3) a § 974.06 motion filed pro se by Romero-Georgana.
¶50 Attorney Hagopian's alleged ineffective assistance in
filing the first postconviction motion might have been a
sufficient reason for failing to bring the plea withdrawal
claim. It might not. In any event, although Attorney
Hagopian's alleged ineffective assistance is an underlying claim
in the present Wis. Stat. § 974.06
motion, it does not explain
or provide a sufficient reason for Attorney Dommershausen's
failure in the second postconviction motion to argue that
Attorney Hagopian was ineffective for failing to seek plea
withdrawal in the first postconviction motion.
9
Romero-Georgana's Wis. Stat. § 974.06
motion does not
specify which of his two postconviction attorneys provided
ineffective assistance. Thus, we are uncertain as to where we
should direct our analysis——a good indication that the motion
contains fatal flaws. Because Romero-Georgana's brief focuses
on Attorney Hagopian, we assume, for the purpose of addressing
Romero-Georgana's arguments, that he intended to allege in his
§ 974.06 motion that Attorney Hagopian provided ineffective
assistance of counsel as the underlying claim. However, in our
analysis of the motion itself, we note that the reference to
"postconviction counsel" is ambiguous and renders his motion
insufficient.
20
No. 2012AP55
¶51 These are not onerous demands. Romero-Georgana was
required to allege two instances of ineffective assistance of
postconviction counsel because his attorneys filed two prior
postconviction motions that did not raise the issue now
presented.10 Moreover, the Brown County Circuit Court granted
Romero-Georgana two evidentiary hearings on these motions——and
he was present at both hearings——but the issue now presented was
never brought up. In sum, Romero-Georgana was required to
allege——in his third postconviction motion——that (1) Attorney
Dommershausen was constitutionally ineffective in the second
postconviction motion for failing to raise a claim about
Attorney Hagopian's ineffectiveness for failing to bring a plea
withdrawal claim in the first postconviction motion; and (2)
Attorney Hagopian was constitutionally ineffective in the first
postconviction motion for failing to raise the plea withdrawal
claim.
¶52 The first required allegations (against Attorney
Dommershausen), if properly pleaded, might provide the requisite
sufficient reason for failing to bring the claim earlier. The
10
Romero-Georgana must provide a sufficient reason for
failing to bring the claims he now wishes to raise in an earlier
postconviction proceeding. Because he offers no reason, and the
only claims in his § 974.06 motion are for ineffective
assistance of counsel, we assume that if he were to offer a
sufficient reason, it would be Attorney Dommershausen's alleged
ineffective assistance. It is possible that he had other
reasons, but none were advanced. Thus, when we say Romero-
Georgana was required to allege ineffective assistance of
Attorney Dommershausen as a sufficient reason for failing to
bring his claims earlier, we say that because we can see no
other reason for failing to bring the present claim earlier.
21
No. 2012AP55
second required allegations (against Attorney Hagopian), if
properly pleaded, might provide grounds for relief. However,
the required allegations have not been properly pleaded. The
single statement in Romero-Georgana's present § 974.06 motion
that "[p]ostconviction counsel was ineffective for failing to
raise the issue that the circuit court failed to comply with the
statutory mandate when it did not address Romero-Georgana
personally to advise him in the words set forth in Wis. Stat.
971.08(1)(c) of the deportation consequences of his no contest
plea . . . " is ambiguous and plainly deficient because it
refers to only one attorney ("Postconviction counsel was") and
does not even identify that attorney. Moreover, the statement
is conclusory inasmuch as both attorneys made other arguments.
¶53 When a defendant has two attorneys that share the
classification of "postconviction counsel," a general reference
to "postconviction counsel" is not enough. Romero-Georgana's
third postconviction motion was bound to fail if it did not
allege and explain why his second postconviction motion did not
make the claim he now seeks to make. Attorney Dommershausen is
simply not mentioned. Since the § 974.06 motion does not offer
a sufficient reason for failing to bring the current claim in
the second postconviction motion, Romero-Georgana's motion is
barred under § 974.06(4) and Escalona-Naranjo.
¶54 Having concluded that Romero-Georgana is barred from
raising his current claims, we need not go any further.
However, we will discuss briefly the insufficiency of Romero-
22
No. 2012AP55
Georgana's § 974.06 motion to provide guidance for future
movants.
C. Sufficiency of Romero-Georgana's Allegations of Ineffective
Assistance of Postconviction Counsel
¶55 Romero-Georgana faced an unusually complicated
situation when he filed the third postconviction motion. His
objective was to withdraw his plea of no contest and vacate the
judgment against him on grounds that the circuit court made an
error in the plea colloquy and that he is likely to be deported
because of his conviction. This would have been a simple
Bangert11-type motion if it had been filed shortly after Romero-
Georgana's sentencing in January 2007. When he filed his pro se
motion on September 2, 2011, however, he was required to justify
the delay in making his claim. In this case, the strongest
potential justification appears to be the alleged ineffective
assistance of Attorney Dommershausen for failing to complain
about the alleged ineffective assistance of Attorney Hagopian in
raising Romero-Georgana's statutory right to withdraw his plea.
¶56 Because Romero-Georgana's claim is one of ineffective
assistance of counsel, he was required to sufficiently allege
that each attorney provided deficient representation and that
each attorney's deficient performance prejudiced him.
Strickland, 466 U.S. at 687
.
11
State v. Bangert, 131 Wis. 2d 246
,389 N.W.2d 12
(1986).
23
No. 2012AP55
¶57 In making his ineffective assistance of counsel
claims,12 Romero-Georgana had some difficult facts to overcome.
First, as part of the plea deal, the State agreed not to bring
additional charges against Romero-Georgana even though the
complaint suggested that there were numerous occasions in which
he committed sexual offenses against the victim. Thus, if
Romero-Georgana had gone to trial after successful plea
withdrawal, the State would have been free to bring additional
charges. Second, Romero-Georgana's trial counsel stated at the
initial sentencing that Romero-Georgana was eager to be
deported, which conflicts with Romero-Georgana's current
contention that he would not have entered a plea if he knew it
could lead to deportation. Third, Attorney Hagopian said in a
motion to the court that she discussed a potential claim
regarding the validity of the no-contest plea, which suggests
that she talked to Romero-Georgana about seeking plea
withdrawal. Finally, Attorney Hagopian gave a valid reason for
bringing the resentencing claim when she stated at the
evidentiary hearing for the second postconviction motion that
she thought, based on the sentencing guidelines, Romero-Georgana
12
Although our analysis in this section focuses on the
sufficiency of the underlying ineffective assistance of counsel
claim against Attorney Hagopian, it applies also to the
sufficient reason requirement. As discussed above, because
Romero-Georgana did not offer any reason for failing to bring
his present claim in his second postconviction motion, he did
not adequately provide a sufficient reason for raising his claim
of ineffective assistance of postconviction counsel in a
§ 974.06 motion.
24
No. 2012AP55
would receive a shorter sentence at resentencing. In light of
this factual backdrop, we turn to the motion to assess its
sufficiency.
1. Deficient Performance
¶58 The clearly stronger standard applies to the
deficiency prong of each required allegation of ineffective
assistance of counsel in this case. Thus, to demonstrate that
Attorney Hagopian's representation was deficient, Romero-
Georgana was required to show that the plea withdrawal claim was
clearly stronger than the resentencing claim. See Starks, 349 Wis. 2d 274, ¶59
. He was required do so by alleging "sufficient material facts——e.g., who, what, where, when, why, and how—— that, if true, would entitle him to the relief he seeks." John Allen,274 Wis. 2d 568, ¶2
. The five "w's" and one "h"
sometimes run together, but a sufficient motion will answer all
six questions.
¶59 Romero-Georgana has failed to allege "who" his claim
is about because his assertion ambiguously refers to a single
"[p]ostconviction counsel." Although the motion indicates that
Attorneys Hagopian and Dommershausen did represent Romero-
Georgana, it does not specify whose conduct is at issue.
Instead, the motion focuses on the wrong stage of the proceeding
and discusses facts regarding trial counsel's alleged
ineffectiveness. If Romero-Georgana wanted to make allegations
against Attorney Hagopian, he should have done so specifically
in his motion by stating that "Attorney Hagopian was
ineffective" rather than ambiguously claiming that
25
No. 2012AP55
"[p]ostconviction counsel was ineffective . . . ." As the
motion is written, it does not sufficiently state "who" provided
ineffective assistance.
¶60 The § 974.06 motion does allege broadly "what" conduct
provides the basis for the ineffective assistance claim when it
states, "Postconviction counsel was ineffective for failing to
raise the issue that the circuit court failed to comply with the
statutory mandate when it did not address Romero-Georgana
personally to advise him . . . of the deportation consequences
of his no contest plea." However, it does not tell the court
what Attorney Hagopian did that made her failure to raise the
plea withdrawal claim ineffective. Did she act contrary to his
directive? Did she fail to advise him?
¶61 Furthermore, Romero-Georgana's § 974.06 motion does
not sufficiently allege "where" or "when" the ineffective
assistance occurred. It is unclear whether his allegations
focus on the first postconviction proceeding or the second.
¶62 Similarly, the motion does not say "why" Attorney
Hagopian was ineffective. The mere fact that Attorney Hagopian
did not pursue a plea withdrawal claim does not demonstrate
ineffectiveness because she could have had, and presumably did
have, good reasons for not pursuing plea withdrawal. For
example, Romero-Georgana could have told her to bring a claim
for resentencing after Attorney Hagopian advised him of his
options. Or, as the record suggests, Romero-Georgana might have
wanted to be deported, and Attorney Hagopian believed he would
receive less time on resentencing. We will not assume
26
No. 2012AP55
ineffective assistance from a conclusory assertion; Romero-
Georgana must say why the claim he wanted raised was clearly
stronger than the claims actually raised. His motion is devoid
of any such explanation.
¶63 Finally, because Romero-Georgana's motion contains
only conclusory allegations and almost no facts relating to the
relevant postconviction counsel, he has not demonstrated "how"
he would prove his claims at an evidentiary hearing. Does he
have copies or records of communications with his postconviction
counsel to support his claim? Who would testify on his behalf?
Blanket assertions of ineffective assistance are not sufficient
to alert the court or opposing counsel how the defendant will
prove his claim at a hearing, especially when the record
contains facts that refute the crux of the defendant's argument.
¶64 In sum, defendants must allege sufficient facts in
their § 974.06 motions so that reviewing courts do not grant
frivolous hearings. We will not read into the § 974.06 motion
allegations that are not within the four corners of the motion.
Therefore, Romero-Georgana has failed to sufficiently allege
that Attorney Hagopian was deficient.
¶65 Because we have determined that the § 974.06 motion
does not allege sufficient facts to demonstrate that
postconviction counsel was deficient, we do not need to consider
whether the motion sufficiently alleged prejudice. However, we
consider prejudice briefly to provide guidance for future
movants.
2. Prejudice
27
No. 2012AP55
¶66 To demonstrate prejudice, Romero-Georgana's motion
must show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694
. Romero-Georgana alleges in his § 974.06 motion that postconviction counsel was ineffective for failing to argue that the circuit court did not comply withWis. Stat. § 971.08
(1)(c) (2005-06) at the plea hearing. The plea hearing transcript is clear that the circuit court failed to advise Romero-Georgana of the deportation risk as required byWis. Stat. § 971.08
. Thus,
Romero-Georgana likely could have withdrawn his plea if he had
timely brought a § 971.08(2) motion.13
13
Wisconsin Stat. § 971.08(2) provides in relevant part:
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.
In his brief, Romero-Georgana discusses the standards for
pleading under Wis. Stat. § 971.08
(2) at length. However, because this case falls underWis. Stat. § 974.06
, the plea withdrawal claim underWis. Stat. § 971.08
is relevant only to the question of prejudice in the context of Romero-Georgana's ineffective assistance claim against Attorney Hagopian. The State responded to Romero-Georgana's argument relating to § 971.08 by stating that "a response by the State to——and this court's consideration of——Argument section I of Romero- Georgana's brief is unnecessary. Had Romero-Georgana pursued aWis. Stat. § 971.08
(2) claim in a timely manner, he might well
have prevailed on it."
28
No. 2012AP55
¶67 However, the motion at issue is not a Wis. Stat. § 971.08
(2) motion. In fact, at oral argument, Romero- Georgana's counsel explicitly stated that Romero-Georgana was arguing this case as aWis. Stat. § 974.06
motion. Counsel
said, "This court's order granting review specifically asked us
to stay within the arguments made in the petition for review,
and that did not include an argument that this case should be
decided as a 971.08(2) motion by itself."14 Therefore, because
14
Justice Bradley asked at oral argument, "Why does
971.08(2) have to be a 974.06 motion at all?" Romero-Georgana's
counsel responded:
I believe that it could have been raised as a
straight 971.08(2) motion. As this court knows we
were appointed . . . after the petition for review was
filed and the case had been decided up to that point
under 974.06 and we believe that our client is
entitled to relief on that basis, and so that's how
we've construed the motion and argued it.
Chief Justice Abrahamson continued Justice Bradley's line
of questioning and suggested that Romero-Georgana could have
pursued an argument based on Wis. Stat. § 971.08
. The Chief Justice then asked, "But you didn't take that position?" Romero-Georgana's counsel responded, "It's true your honor. We did not." Thus, despite being prodded at oral argument, Romero- Georgana was clear: he is not asking this court to construe hisWis. Stat. § 974.06
motion as aWis. Stat. § 971.08
(2) motion. Indeed, such a request would appear improper under the facts of this case and in light of the history of § 971.08(2). In the 1981-82 version of the Wisconsin Statutes, § 971.08(2) contained a time limit that stated, "The court shall not permit the withdrawal of a plea of guilty or no contest later than 120 days after conviction."Wis. Stat. § 971.08
(2) (1981-82). The 120-
day time limit was repealed in 1983 Wis. Act 219. A judicial
council note explained:
Section 971.08(2), stats., providing a 120-day
time limit for withdrawing a guilty plea or a plea of
no contest after conviction, is repealed as
29
No. 2012AP55
Romero-Georgana never brought a Wis. Stat. § 971.08
(2) motion or argued for plea withdrawal in previous postconviction motions, he must attempt to resuscitate that claim in the presentWis. Stat. § 974.06
motion.
¶68 A proper allegation of prejudice would state that
Romero-Georgana would have told Attorney Hagopian to pursue the
unnecessary. Withdrawal of a guilty plea or plea of
no contest may be sought by postconviction motion
under s. 809.30(1)(f), stats., or under s. 974.06,
stats.
Judicial Council Note, 1983 Wis. Act 219, § 43. The Judicial
Council Note suggests that, in general, the proper method for
raising § 971.08 plea withdrawal claims after conviction is
through a motion under Wis. Stat. § (Rule) 809.30, Wis. Stat. § 974.02
, orWis. Stat. § 974.06
.
In the present case, the notice that INS had started an
investigation to determine whether Romero-Georgana was subject
to deportation was dated March 20, 2007——four months before
Attorney Hagopian filed the first postconviction motion. In
addition, the petitioner's brief demonstrates that Romero-
Georgana's Final Administrative Removal Order from the
Department of Homeland Security was dated October 22, 2007, and
he appears to have received it on November 5, 2007——almost a
year and a half before he filed his second postconviction
motion. When a defendant has notice that he is likely to be
deported and subsequently brings postconviction claims unrelated
to Wis. Stat. § 971.08
(2), we think it would be unwise to allow him to bring his claim as a § 971.08(2) motion at a later time, although he may be able to bring his claim as aWis. Stat. § 974.06
motion if he has a sufficient reason for the delay. Removing all time constraints on aWis. Stat. § 971.08
(2) motion would frustrate judicial efficiency by encouraging defendants to delay bringing those motions. In the absence of a time limit, if a defendant were indifferent to deportation or wanted to be deported, the defendant would have incentive to keep a § 971.08(2) motion in his back pocket while pursuing relief on other grounds. However, that issue is not before us. In this case, we need only address Romero-Georgana's motion underWis. Stat. § 974.06
because that is the motion he brought.
30
No. 2012AP55
plea withdrawal claim if she had advised him that it was an
option because he wanted to avoid deportation. That allegation
would demonstrate that there is a reasonable probability that
the proceedings would have been different if Attorney Hagopian
had provided effective assistance of counsel. In the absence of
that allegation, the § 974.06 motion alleges only that Romero-
Georgana would not have pled had Attorney LaPlant informed him
of the deportation consequences of his plea. Thus, the
prejudice allegation is at the wrong stage of the proceeding.
This is a subtle point, and we might have given Romero-Georgana,
a pro se defendant, the benefit of the doubt had the rest of his
§ 974.06 motion been adequate. Because he did not allege a
sufficient reason for raising his current claim earlier and
because he did not sufficiently allege Attorney Hagopian's
deficient performance, we do not need to determine whether he
was prejudiced.
¶69 Although we liberally construe filings by pro se
litigants, bin-Rilla v. Israel, 113 Wis. 2d 514, 520
,335 N.W.2d 384
(1983), there is a limit to our lenience. A
reviewing court might avert its eyes from the flaws on the
peripheries, but it will not ignore obvious insufficiencies at
the center of a motion. Romero-Georgana has failed to
sufficiently allege that Attorney Dommershausen was ineffective
for failing to raise the ineffectiveness of Attorney Hagopian in
the second postconviction motion. He has failed to sufficiently
allege that Attorney Hagopian was ineffective for failing to
31
No. 2012AP55
raise the issue of plea withdrawal in the first postconviction
motion.
¶70 When proceedings arrive at the Wis. Stat. § 974.06
stage, the defendant's case has been heard; he has been
represented by counsel; sometimes he has filed previous
postconviction motions. He has progressed through proceedings
designed to facilitate justice and finality. Thus, any claim of
error must point particularly to the facts surrounding the
alleged constitutional or jurisdictional flaws that supposedly
vitiated the goals of the judicial system. Romero-Georgana's
§ 974.06 motion falls far short of what is required.
D. Circuit Court's Exercise of Discretion
¶71 Because Romero-Georgana's motion is barred under
Escalona-Naranjo and Wis. Stat. § 974.06
(4) and because he has
failed to sufficiently allege facts that, if true, would entitle
him to relief, the circuit court's decision to deny Romero-
Georgana's § 974.06 motion without a hearing was not an
erroneous exercise of discretion.
IV. CONCLUSION
¶72 We conclude the following.
¶73 First, a defendant who alleges in a § 974.06 motion
that his postconviction counsel was ineffective for failing to
bring certain viable claims must demonstrate that the claims he
wishes to bring are clearly stronger than the claims
postconviction counsel actually brought. See Starks, 349 Wis. 2d 274, ¶6
. However, in evaluating the comparative
strength of the claims, reviewing courts should consider any
32
No. 2012AP55
objectives or preferences that the defendant conveyed to his
attorney. A claim's strength may be bolstered if a defendant
directed his attorney to pursue it.
¶74 Second, the defendant has not offered a sufficient
reason for failing to raise his § 974.06 claim in his second
postconviction motion. Without a sufficient reason, a defendant
may not bring a claim in a § 974.06 motion if that claim "could
have been raised in a previously filed sec. 974.02 motion and/or
on direct appeal." Escalona-Naranjo, 185 Wis. 2d at 173
.
Consequently, the defendant's claim is barred.
¶75 Third, even if the § 974.06 motion were not barred,
the motion does not allege sufficient facts that, if true, would
entitle the defendant to relief. The defendant failed to allege
that the plea withdrawal claim was clearly stronger than the
resentencing claim. He does not specifically state which
postconviction attorney was ineffective and instead makes an
ambiguous reference to "postconviction counsel." The motion
then focuses almost exclusively on trial counsel and does not
provide facts regarding postconviction counsel's performance.
Consequently, the defendant's motion falls far short of what is
required, and the circuit court properly determined that he is
not entitled to an evidentiary hearing.
By the Court.—The decision of the court of appeals is
affirmed.
33
No. 2012AP55-CR.awb
¶76 ANN WALSH BRADLEY, J. (dissenting). As a circuit
court judge, I handled thousands of cases. Many of those cases
dealt with imposing consequences and holding people accountable.
They were required to follow the law.
¶77 Additionally, as a supreme court justice, I have
reviewed thousands of cases which have imposed consequences and
held people accountable. They were required to follow the law.
¶78 Those experiences inform how I approach this case. I
come to this case with what should be the unremarkable
observation that circuit court judges and supreme court justices
should be held to follow the law.
¶79 The law clearly requires judges to "personally" advise
defendants of deportation consequences when entering a guilty
plea. With unusual emphasis underscoring the requirement, the
legislature actually sets forth the explicit wording, detailing
what the judge is to say. Judges are to:
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."
Wis. Stat. § 971.08
(1)(c).
¶80 The legislature mandates the remedy of plea withdrawal
if the judge fails to personally explain deportation
consequences. If the prerequisites are met, the statute does
not provide for a remedy of "maybe plea withdrawal" or "plea
withdrawal upon compliance with a maze of conditions." Rather,
1
No. 2012AP55-CR.awb
the law clearly provides that the court "shall vacate" the
judgment and "permit the defendant to withdraw the plea."
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.
Wis. Stat. § 971.08
(2).
¶81 Here the circuit court judge failed to follow the law.
He did not give the deportation warning as mandated.
¶82 And the majority of the supreme court fails to follow
the law. Instead of following the clear remedy of plea
withdrawal set forth in the statute, the majority engrafts all
sorts of conditions onto the statute. One need almost be a
"Philadelphia lawyer" to follow the byzantine maze of added
conditions that the majority embraces.
¶83 The consequence of the majority opinion is
unfortunate. It is not a mere error of law but an error that
affects life and liberty.
¶84 For this defendant and others similarly situated, the
majority appears to erase from the statutory text the
legislatively mandated remedy. In reaching its conclusion, the
majority ignores the express language of the statute, the
purpose behind Wis. Stat. § 971.08
, and our case law
interpreting it.
2
No. 2012AP55-CR.awb
¶85 Because I conclude that Wis. Stat. § 971.08
means what
it says and that we are required to follow it, I respectfully
dissent.
I
¶86 This case involves a non-citizen defendant who did not
receive the required deportation warning.1 Paramount to the
analysis is the language of the statute.
¶87 Wisconsin Stat. § 971.08(2) provides that if a court
has failed to personally inform a defendant that a plea may
result in deportation, and it is later shown that the plea is
likely to result in deportation, "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." (Emphasis supplied.)
¶88 Rather than follow the dictates of the statute, the
majority imposes the restraints of Wis. Stat. § 974.06
and State v. Escalona-Naranjo,185 Wis. 2d 168
,517 N.W.2d 157
(1994),
without questioning whether they apply. In superimposing
§ 974.06 and Escalona-Naranjo onto the clear words of the
statute, the majority rewrites the statute for the defendant and
others similarly situated. Now they are required to meet a
1
Wisconsin's non-citizens include people who have lawful
permanent resident status (a "green card"), refugees and asylees
and certain legal nonimmigrants (including those on student,
work, or some other temporary visas). In addition, as of 2010,
Wisconsin is home to an estimated 100,000 undocumented
immigrants. Jeffrey S. Passel & D'Vera Cohn, "Unauthorized
Immigrant Population: National and State Trends, 2010" (Feb. 1,
2011), available at http://www.pewhispanic.org/files/
reports/133.pdf.
3
No. 2012AP55-CR.awb
multitude of conditions that cannot be found anywhere in the
statute.
¶89 In essence, the majority's response to the clear
legislative mandate is as follows:
OK, we shall vacate and permit plea withdrawal, but only if
the defendant alleges that second postconviction counsel
"was constitutionally ineffective in the second
postconviction motion for failing to raise a claim about
[first postconviction counsel's] ineffectiveness for
failing to bring a plea withdrawal claim in the first
postconviction motion." Majority op., ¶51.
OK, we shall vacate and permit plea withdrawal, but only if
defendant alleges that [first postconviction counsel] "was
constitutionally ineffective in the first postconviction
motion for failing to raise the plea withdrawal claim."
Id., ¶51.
OK, we shall vacate and permit plea withdrawal, but only if
the defendant alleges "why and how his postconviction
counsel was constitutionally ineffective." Id., ¶36.
OK, we shall vacate and permit plea withdrawal, but only if
the defendant shows "sufficient reason" for not bringing
the claim in an earlier motion or appeal. Id., ¶34.
4
No. 2012AP55-CR.awb
OK, we shall vacate and permit plea withdrawal, but only if
the defendant demonstrates that the claim now made is
"clearly stronger" than previously made claims.2 Id., ¶46.
OK, we shall vacate and permit plea withdrawal, but only if
the defendant alleges "sufficient material facts——e.g.,
who, what, where, when, why, and how"——that if true would
entitle the defendant to the relief sought. Id., ¶37.
¶90 Nothing in Wis. Stat. § 971.08
(2) requires a defendant to bring a motion to withdraw under the auspices ofWis. Stat. § 974.06
. Nothing inWis. Stat. § 971.08
(2) indicates that a motion to withdraw can be brought under another statute. Indeed, courts have repeatedly considered motions to withdraw underWis. Stat. § 971.08
(2) without reference to Wis. Stat.
2
In its analysis, the majority extends the "clearly
stronger" standard from State v. Starks, 2013 WI 69
,349 Wis. 2d 274
,833 N.W.2d 146
. Majority op., ¶¶45-46. As I explained in my dissent to Starks, the "clearly stronger" standard is too rigid and cannot practically be applied in many situations. Starks,349 Wis. 2d 274, ¶¶94, 98-102
(Bradley, J., dissenting). The standard runs counter to United States Supreme Court precedent, which has declined to adopt bright-line standards for evaluating deficiency. Cullen v. Pinholster,131 S. Ct. 1388, 1406
(2011). Further, it is inconsistent with Strickland v. Washington,466 U.S. 668, 695
(1984), which requires an
evaluation of the reasonableness of an attorney's performance
under the totality of the circumstances.
Although the "clearly stronger" is one factor to consider
in applying Strickland, it is not the test. There are many
situations in which the standard will prove unworkable. This
case is one of those situations. Given that it appears the
defendant would have been successful in both the resentencing
motion and the Wis. Stat. § 971.08
(2) motion, a court cannot
determine whether his postconviction representation was
deficient without considering whether she adequately informed
Romero-Georgana of his options and what, if anything, Romero-
Georgana asked her to do on his behalf.
5
No. 2012AP55-CR.awb
§ 974.06. See, e.g., State v. Negrete, 2012 WI 92
,343 Wis. 2d 1
,819 N.W.2d 749
; State v. Douangmala,2002 WI 62
,253 Wis. 2d 173
,646 N.W.2d 1
; State v. Vang,2010 WI App 118
,328 Wis. 2d 251
,789 N.W.2d 115
; State v. Bedolla,2006 WI App 154
,295 Wis. 2d 410
,720 N.W.2d 158
.
¶91 The apparent reason the majority incorporates the
§ 974.06 and the Escalona-Naranjo standard is because it
considers the defendant's motion untimely under Wis. Stat. § 971.08
(2). Majority op., ¶66. Yet, unlike the other statutory procedures for postconviction motions,Wis. Stat. § 971.08
(2) imposes no time limitations. See, e.g.,Wis. Stat. §§ 809.30
and 974.02 (requiring defendant to file notice of
appeal or motion seeking postconviction relief within 60 days
after service of transcript or court record).
¶92 It is impractical to expect a defendant to move timely
to withdraw a plea on a ground for which he would have no
knowledge. As explained in Vang, 328 Wis. 2d 251, ¶14
, "[t]he
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."
¶93 Notably, the qualifying event, notice of deportation,
will often be long after the timeframes for filing for
postconviction relief under Wis. Stat. §§ 974.02
and 809.30 have
expired. One commentator observed, "it often takes more than a
decade for the INS (now ICE) to initiate deportation
proceedings." Cody Harris, Comment, A Problem of Proof: How
6
No. 2012AP55-CR.awb
Routine Destruction of Court Records Routinely Destroys a
Statutory Remedy, 59 Stan. L. Rev. 1791
, 1805 (2007).3 Thus, the majority's suggestion that Romero-Georgana's motion would be untimely underWis. Stat. § 971.08
(2) is supported neither by
practicality nor by the text of the statute.
II
¶94 The majority's failure to honor the statutory language
undermines not only the legislative intent as expressed by the
clear words of the statute, but also the important purpose
behind Wis. Stat. § 971.08
. When passed in 1985, it was
intended to serve as a safeguard, ensuring that a non-citizen
defendant not unwittingly plead guilty because he was unaware of
the significant potential consequences of deportation.4 The
3
The majority attempts to justify its timeliness argument
by referencing in a footnote the legislative history of Wis. Stat. § 971.08
. Majority op., ¶67 n.14. It observes that in 1983 the statute was amended to eliminate a 120-day time limit for filing motions to withdraw underWis. Stat. § 971.08
(1) because those claims could be brought underWis. Stat. §§ 809.30
, 974.02, or 974.06. Contrary to the majority's suggestion, the 1983 amendment provides no illumination to our analysis because it predates the enactment of the currentWis. Stat. § 971.08
(2). It was not until 1985 that the legislature
mandated the deportation warning along with its required remedy.
As discussed above, its very language suggests that no time
limit was intended.
4
The drafting files to Wis. Stat. § 971.08
note that the
enactment of similar legislation in other states "go[es] a long
way to alleviate the hardship and unfairness involved when an
alien unwittingly pleads guilty or nolo contendere to a charge
without being informed of the immigration consequences of such a
plea." Drafting files, 1985 Wis. Act 252, on file with the Wis.
Legislative Reference Bureau.
7
No. 2012AP55-CR.awb
landscape of immigration policy and practice has changed
dramatically over the ensuing years making the need for
safeguards even more pronounced.5
¶95 Currently, non-citizens are being deported in record
numbers.6 Reportedly, in the last eight years nearly two million
people were deported. Of those, "[t]wenty percent——or about
394,000——of the cases involved people convicted of serious
crimes, including drug-related offenses." Others may have
committed only minor infractions, including traffic violations.7
"Even long-term lawful permanent residents who have lived much
of their lives in the United States are subject to immigration
detention and deportation as a consequence of criminal arrest
and conviction." Allegra M. McLeod, The U.S. Criminal-
Immigration Convergence and Its Possible Undoing, 49 Am. Crim. L. Rev. 105
, 113 (2012).
¶96 Commenting on the change in the immigration landscape,
the United States Supreme Court observed how the changes have
exacerbated the importance for non-citizens to be aware of the
deportation consequences when entering a guilty plea:
5
The changes in the legal landscape are discussed in
Vivian Chang, Where Do We Go from Here: Plea Colloquy Warnings
and Immigration Consequences Post-Padilla, 45 U. Mich. J.L. Reform 189
, 193 (2011).
6
DHS Office of Immigration Statistics Annual Report:
"Immigration Enforcement Actions: 2012," available at
http://www.dhs.gov/sites/default/files/publications/ois_enforcem
ent_ar_2012_1.pdf.
7
Ginger Thompson, More Deportations Follow Minor Crimes,
Records Show, New York Times, Apr. 6, 2014.
8
No. 2012AP55-CR.awb
The importance of accurate legal advice for non-
citizens accused of crimes has never been more
important. . . . [D]eportation is an integral part——
indeed, sometimes the most important part——of the
penalty that may be imposed on non-citizen defendants
who plead guilty to specified crimes.
Padilla v. Kentucky, 559 U.S. 356, 364
(2010).
¶97 The Padilla court focused on the obligation of a
defense attorney under the Sixth Amendment to advise non-
citizens about potential deportation consequences that arise
from criminal convictions. Id.
It determined that the absence of such advice may be the basis for a claim of ineffective assistance of counsel.Id. at 360
.8 It did not, however,
address the obligation of the court when presiding over the plea
of a non-citizen in a criminal proceeding.
¶98 In its first published post-Padilla decision, the
Wisconsin Court of Appeals also referenced the severe
consequences of deportation. State v. Mendez, 2014 WI App 57
,
___ Wis. 2d ___, ___ N.W.2d ___. Describing the defendant, it
noted that Mendez came to this country in 1997 when he was
fourteen years old and never returned to Mexico. Id., ¶3. He
is married to a United States citizen and together they have a
four-year-old child who is a United States citizen. The court
8
The court observed:
Immigration law can be complex, and it is a legal
specialty of its own. Some members of the bar who
represent clients facing criminal charges, in either
state or federal court or both, may not be well versed
in it. . . . But when the deportation consequence is
truly clear, as it was in this case, the duty to give
correct advice is equally clear.
Padilla, 559 U.S. at 369
.
9
No. 2012AP55-CR.awb
observed that "despite the benefit of a great reduction in the
length of the potential prison sentence, a rational non-citizen
defendant might have rejected a plea bargain and risked trial
for the chance at avoiding deportation." Id., ¶16. Like
Padilla, the Mendez court focused on the ineffective assistance
of counsel claim and did not discuss the duty of a circuit court
when accepting a guilty plea.
¶99 The importance of deportation warnings and the duty of
a judge to give them was addressed recently by the New York
Court of Appeals. People v. Peque, 3 N.E.3d 617
(2013). It
commented that under contemporary law, a non-citizen's removal
upon a felony conviction "is practically inevitable," and
described this as an "enormous penalty upon non-citizen
convicts," with wide-ranging consequences for life and liberty:
After being removed from the country, the defendant
rarely, if ever, has further in-person contact with
any family members remaining in America. Additionally,
deportation effectively strips the defendant of any
employment he or she had in this country, thus
depriving the defendant and his or her family of
critical financial support.
Id. at 630-32
. Accordingly, it determined that a court was required to inform a defendant of the possible deportation consequences of entering a guilty plea.Id. at 635
.
¶100 Several states have legislation like Wisconsin's
affirmatively requiring courts to take an active role in
informing defendants of the possible deportation consequences of
entering a guilty plea. See, e.g., Cal. Penal Code Ann.
§ 1016.5; Conn. Gen. Stat. § 54
-1j;D.C. Code § 16-713
; Fla. Rule Crim. Proc. 3.172(c)(8);Ga. Code Ann. § 17-7-93
(c); Haw.
10
No. 2012AP55-CR.awb
Rev. Stat. Ann. § 802E-2; Iowa Rule Crim. Proc. 2.8(2)(b)(3);
Mass. Gen. Laws, ch. 278, § 29D; Minn. Rule Crim. Proc. 15.01;
Mont. Code Ann. § 46-12-210
;N.Y. Crim. Proc. Law Ann. § 220.50
(7); N.C. Gen. Stat. Ann. § 15A-1022;Ohio Rev. Code Ann. § 2943.031
; Ore. Rev. Stat. § 135.385; R.I. Gen. Laws § 12- 12-22; Tex. Code Crim. Proc. Ann., art. 26.13(a)(4); Vt. Stat. Ann., tit. 13, § 6565(c)(1);Wash. Rev. Code § 10.40.200
.
¶101 This court has acknowledged that "by enacting Wis. Stat. § 971.08
(1)(c) & (2), Wisconsin codified the protections contemplated in Padilla, but placed the duty to warn on the circuit court, rather than solely on the attorney." Negrete,343 Wis. 2d 1
, ¶33 n.12. By circumventing the remedy set forth inWis. Stat. § 971.08
(2), the majority minimizes the judge's
duty and undermines the purpose of the statute.
III
¶102 Our precedent interpreting the statute has strictly
held circuit courts to the requirements in Wis. Stat. § 971.08
. In State v. Douangmala, this court determined thatWis. Stat. § 971.08
(2) means what it expressly states: if the defendant makes the required showing, "the circuit court 'shall' vacate the judgment and shall permit the defendant to withdraw the plea."253 Wis. 2d 173, ¶31
. The court explained that "[t]he word 'shall' in a statute is presumed to be mandatory unless a different construction is necessary to carry out the legislature's clear intent. Nothing inWis. Stat. § 971.08
points to a different interpretation of the word 'shall' than an interpretation that the word signifies a mandatory act."Id.
11
No. 2012AP55-CR.awb
¶103 Similarly, in Negrete, 343 Wis. 2d 1, ¶23
, this court explained that the procedures required byWis. Stat. § 971.08
(2) are clear. All the defendant is required to show in order to withdraw a plea are the two elements enumerated inWis. Stat. § 971.08
(2):
To employ Wis. Stat. § 971.08
(2) to withdraw his plea,
however, the defendant's motion must first allege two
facts: (1) that the circuit court "fail[ed] to advise
[the] defendant [of the deportation consequences of
the defendant's plea] as required by [§
971.08(1)(c)]"; and (2) that the defendant's "plea is
likely to result in the defendant's deportation,
exclusion from admission to this country[,] or denial
of naturalization."
Id., ¶23 (quoting Wis. Stat. § 971.08
(2)).
¶104 Here, Romero-Georgana has shown what Negrete requires.
He was not given the mandatory warning by the circuit court that
a guilty plea could lead to his deportation and that he is now
facing deportation. Under the governing statute, Wis. Stat. § 971.08
(2), that is all that Romero-Georgana needed to show in order to withdraw his plea. Douangmala,253 Wis. 2d 173, ¶31
.
¶105 I acknowledge that Romero-Georgana's pro se motion was
on a form for Wis. Stat. § 974.06
motions. Perhaps this is why the majority was misled. However, the only citation toWis. Stat. § 974.06
is in the form's preprinted labels on the first
and second pages. Neither the text of the motion nor the
attached affidavit makes any reference to a § 974.06 motion.
Even the majority recognizes that "Romero-Georgana likely could
have withdrawn his plea if he had timely brought a § 971.08(2)
motion." Majority op., ¶66.
12
No. 2012AP55-CR.awb
¶106 Nothing in Wis. Stat. § 971.08
(2) or our precedent permits a reviewing court to ignore the circuit court's duty because of the defendant's failure to correctly label the motion. A defendant's action or inaction cannot alter the duty of the court underWis. Stat. § 971.08
(1)(c). Vang,328 Wis. 2d 251, ¶14
. Furthermore, under our precedent, Romero-Georgana's
confusion in selecting the wrong label does not serve as a bar
to his claim.
¶107 Wisconsin courts have a well-settled policy of
liberally construing the pro se pleadings of prisoners to
determine whether they contain a cause of action. State v.
Love, 2005 WI 116
, ¶29 n.10,284 Wis. 2d 111
,700 N.W.2d 62
(quoting State ex rel. Terry v. Traeger,60 Wis. 2d 490, 496
,211 N.W.2d 4
(1973)) ("[W]e must follow a liberal policy in
judging the sufficiency of pro se complaints filed by unlettered
and indigent prisoners."); State ex rel. L'Minggio v. Gamble,
2003 WI 82, ¶16
,263 Wis. 2d 55
,667 N.W.2d 1
("At the outset,
we note that it is well-settled that pro se complaints are to be
liberally construed to determine if the complaint states any
facts that can give rise to a cause of action."); Lewis v.
Sullivan, 188 Wis. 2d 157, 164
,524 N.W.2d 630
(1994) ("[P]ro se
complaints of prisoners must be construed liberally in
determining whether the stated facts give rise to a cause of
action.").
¶108 This court has explicitly instructed courts to look
to the contents of a pleading, not its label, to determine if
the prisoner is entitled to relief:
13
No. 2012AP55-CR.awb
We re-emphasize today what we have said previously. A
court presented with a prisoner's pro se document
seeking relief must look to the facts stated in the
document to determine whether the petitioner may be
entitled to any relief if the facts alleged are
proved. Neither a trial nor an appellate court should
deny a prisoner's pleading based on its label rather
than on its allegations. If necessary the court
should relabel the prisoner's pleading and proceed
from there.
bin-Rilla v. Israel, 113 Wis. 2d 514, 521
,335 N.W.2d 384
(1983)
(emphasis supplied).
¶109 In this case, Romero-Georgana filed his motion without
the assistance of an attorney. The contents of the motion and
attached affidavit relate to the circuit court's failure to
inform him of the possible deportation consequences of his plea
and the fact that he is now facing deportation.9 The only
9
The motion states:
Romero-Georgana is a native of Mexico and is not a
citizen of the United States of America. Romero-
Georgana contends that the trial court failed to
advise him that if he pleas no contest he may be
deported.
Romero-Georgana pled no contest to one count of first
degree sexual assault of a child. Romero-Georgana did
through the use of the Plea Questionnaire/Waiver of
Rights form verify that he did understand the question
regarding deportation. However, Romero-Georgana
contends that at the time he completed the Plea
Questionnaire/Waiver of Rights Form that he did not
fully understand what he was initialing due to his
limited English skills, poor quality of interpreters
being employed by his attorney at the time, and the
failure of counsel to advise him of the consequences.
Romero-Georgana contends that had he known he would be
deported upon entering the no contest plea he would
have instead entered a plea of not guilty and went to
trial.
At no time did the court during the plea colloquy
(Plea Hearing Transcripts dated November 17, 2006,
14
No. 2012AP55-CR.awb
citation to Wis. Stat. § 974.06
in the motion is in its pre-
printed labels.
¶110 In an apparent attempt to deflect from the circuit
court's and this court's failure to follow the clear statutory
language, the majority lays blame on the back of the defendant
who filed pro se the motion and the petition for review. It
quotes in both text and footnote the comment of Romero-
Georgana's attorney who was appointed after the petition for
review was granted and who felt constrained by the order
granting the petition which she interpreted as precluding her
from raising a § 971.08(2) issue. Majority op., ¶67 and n.14.10
¶111 It is not the defendant's fault that the circuit court
failed to give the statutorily mandated deportation warning.
Wisconsin Stat § 971.08(1)(c) expressly provides that it is the
duty of the circuit court to give it.
pages 2-4) advise Romero-Georgana of the deportation
consequences of his entering a plea of no contest.
Again, Romero-Georgana contends he would not have
entered a plea of no contest had he fully understood
he would have been deported.
To verify that Romero-Georgana is indeed facing
deportation back to his native land of Mexico he
submits the Immigration Detainer-Notice of Action Form
File #A097-838-176, dated March 20, 2007. (Exhibit 1)
10
At oral argument Romero-Georgana's attorney stated "[a]s
this court knows we were appointed . . . after the petition for
review was filed and the case had been decided up to that point
under 974.06." The attorney further stated "[t]his court's
order granting review specifically asked us to stay within the
arguments made in the petition for review, and that did not
include an argument that this case should be decided as a
971.08(2) motion by itself."
15
No. 2012AP55-CR.awb
¶112 It is not the fault of the attorney appointed after
the petition for review was granted that this court fails to
follow the remedy mandated by the clear statutory language.
Wisconsin Stat. § 971.08(2) expressly provides that if the
preconditions are met, the remedy is "shall vacate . . . and
permit the defendant to withdraw the plea . . . ."
¶113 A defendant's action or inaction does not relieve the
circuit court of its duty to give the deportation warning. Nor
does an attorney's action or inaction give license to this court
to rewrite the words of a statute or circumvent the clearly
mandated legislative remedy.
IV
¶114 I conclude that the language of Wis. Stat. § 971.08
(2) is clear. If a defendant shows that the court did not advise him of the possible deportation consequences of a plea and that the defendant is likely to be deported as a result of his plea, the court "shall" vacate the sentence.Wis. Stat. § 971.08
(2).
¶115 The statute includes no requirement that the defendant
follow Wis. Stat. § 974.06
to obtain such relief. Its directive to the courts is mandatory and should be strictly construed. Accordingly, because the circuit court did not inform Romero- Georgana of the possible deportation consequences of his plea and he is now facing deportation,Wis. Stat. § 971.08
(2)
requires that he be permitted to withdraw his plea.
¶116 For the reasons set forth above, I respectfully
dissent.
16
No. 2012AP55-CR.awb
¶117 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
17
No. 2012AP55-CR.awb
1