State v. Ortiz-Mondragon
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Defendant, who came to the United States from Mexico in 1997, pleaded no contest to substantial battery as an act of domestic abuse. After Defendant completed his jail sentence Immigration and Customs Enforcement commenced removal proceedings against him. Defendant subsequently filed a postconviction motion to withdraw his no-contest plea to substantial battery on grounds of ineffective assistance of counsel. Specifically, Defendant alleged that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation. The circuit court denied Defendant’s motion to withdraw his plea. The Supreme Court affirmed, holding that Defendant was not entitled to withdraw his no-contest plea to substantial battery because his trial counsel did not perform deficiently.
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2015 WI 73 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP2435-CR State of Wisconsin, Plaintiff-Respondent, v. Fernando Ortiz-Mondragon, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 358 Wis. 2d 423, 856 N.W.2d 339) (Ct. App. 2014 – Published) PDC No: 2014 WI App 114 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 9, 2015 April 21, 2015 Circuit Brown Donald R. Zuidmulder BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion Filed.) NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs by Michelle L. Velasquez, assistant state public defender, and oral argument by Michelle L. Velasquez. For the plaintiff-respondent, the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. An amicus curiae brief was filed by Barbara Graham on behalf of the Catholic Charities Legal Services for Immigrants, Milwaukee. 2015 WI 73 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP2435-CR (L.C. No. 2012CF1101) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 9, 2015 v. Diane M. Fremgen Clerk of Supreme Court Fernando Ortiz-Mondragon, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. This is a review of a published decision of the court of appeals,1 which affirmed the Brown County Circuit Court's2 judgment of conviction and order denying Fernando Ortiz-Mondragon's ("Ortiz-Mondragon") post- conviction motion to withdraw his no-contest plea to substantial battery as an act of domestic abuse.3 1 State v. Ortiz-Mondragon, Wis. 2d 423, 856 N.W.2d 339. 2 3 2014 WI App 114, 358 The Honorable Donald R. Zuidmulder presided. Some documents in the record spell the defendant's name as Fernando Ortiz-Mondragen. No. ¶2 2013AP2435-CR Ortiz-Mondragon argues that the circuit court erred by denying his motion to withdraw his plea. He argues that he should on be allowed to withdraw his plea the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla the Supreme Court held that "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges immigration consequences." 369 (2010). "But when may carry a risk of adverse Padilla v. Kentucky, 559 U.S. 356, the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Id. ¶3 Specifically, Ortiz-Mondragon argues that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation and permanent exclusion from the United States. immigration consequences were substantial battery a under federal was immigration clear "crime law, He and argues certain involving thereby moral that because his turpitude" rendering automatically deportable and permanently inadmissible.4 4 these him Ortiz- We recognize that an alien could be "deportable" if "convicted of a crime of domestic violence." 8 U.S.C. § 1227(a)(2)(E)(i). However, whether an alien will actually be deported because of such a conviction is far from certain. We do not address this issue because it was not raised, briefed, or argued by any of the parties in the case at issue. See Aurora Consol. Health Care v. LIRC, 2012 WI 49, ¶43 n.7, 340 (continued) 2 No. Mondragon further deficiently by argues failing to that his trial research or 2013AP2435-CR counsel consider immigration consequences of the plea agreement. performed the possible He argues that this deficient performance prejudiced him because he would have insisted on going to trial had he known that his plea to substantial battery would subject him to mandatory deportation and permanent exclusion from the United States. He reasons that, because he has lived, worked, and raised a family in the United States since 1997, he would have sought a plea agreement that avoided these immigration consequences. If he were unable to secure such a plea agreement, he argues that he would have gone to trial to leave open the possibility of remaining in the United States. ¶4 The State argues that the circuit court correctly denied Ortiz-Mondragon's motion to withdraw his plea. The State argues that trial counsel's performance was not deficient. The State contends that, because federal law is not succinct and straightforward consequences correct of advice with respect to Ortiz-Mondragon's under Padilla when the possible plea, trial he advised immigration counsel gave Ortiz-Mondragon that the "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Specifically, the State contends that federal immigration law does not clearly and succinctly provide that Wis. 2d 367, 814 N.W.2d 824 (declining to address arguments not raised before this court). 3 No. Ortiz-Mondragon's conviction for substantial constitute a crime involving moral turpitude. 2013AP2435-CR battery would The State further argues that, if we determine that trial counsel's performance was deficient, we should remand the matter to the circuit court for an evidentiary hearing on the issue of whether the deficiency prejudiced Ortiz-Mondragon. ¶5 We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive Specifically, his ineffective trial counsel assistance did not of perform counsel. deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that battery constituted a crime attorney "need[ed] [to] do Ortiz-Mondragon's involving no more moral than substantial turpitude, advise [him] his that pending criminal charges may carry a risk of adverse immigration consequences." trial attorney See Padilla, 559 U.S. at 369. satisfied that requirement Ortiz-Mondragon's by conveying the information contained in the plea questionnaire and waiver of rights form——namely, that Ortiz-Mondragon's "plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." Counsel's advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c) (2011-12).5 5 In addition, Ortiz-Mondragon's This statute provides: Before the court accepts a plea of guilty or no contest, it shall . . . [a]ddress the defendant personally and advise the defendant as follows: "If (continued) 4 No. 2013AP2435-CR trial attorney did not perform deficiently by failing to further research the immigration consequences of the plea agreement. Because Ortiz-Mondragon failed to prove deficient performance, we do not consider the issue of prejudice. I. FACTUAL AND PROCEDURAL BACKGROUND ¶6 Mexico. In 1997 Ortiz-Mondragon came to the United States from In 2002 he moved agricultural industry. to Wisconsin to work in the He has four children, all of whom are United States citizens and reside in Wisconsin. ¶7 complaint battery, On September charging contrary imprisonment, 14, 2012, the to contrary Wis. to Stat. Wis. filed with: Ortiz-Mondragon State (1) § 940.19(2); Stat. § 940.30; a criminal substantial (2) (3) false felony intimidation of a victim, contrary to Wis. Stat. § 940.45(1); (4) criminal damage to property, contrary to Wis. Stat. § 943.01(1); and (5) disorderly conduct, contrary to Wis. Stat. § 947.01(1). Each count under Wis. Stat. § 968.075. included a domestic abuse enhancer All of the counts stemmed from one incident that occurred on September 12, 2012. 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) (2011-12). All subsequent references to the Wisconsin Statutes are to the 2011-12 version unless otherwise indicated. 5 No. ¶8 2013AP2435-CR According to the complaint, Ortiz-Mondragon violently attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of his children. Ortiz-Mondragon became enraged because J.S. was talking to a male neighbor on the phone. Ortiz-Mondragon jumped on top of J.S. while she was talking on the phone in bed. the room with them. neck and began Their two young children were in Ortiz-Mondragon put his hands around J.S.'s squeezing. J.S. had trouble breathing thought that Ortiz-Mondragon was going to kill her. and When J.S. managed to get off of the bed and tried to leave the bedroom, Ortiz-Mondragon punched her in the face and mouth and hit her in the back of the head. J.S.'s head bled profusely. Mondragon also broke J.S.'s phone in half. Ortiz- When J.S. later sought treatment for her injuries, a wound on her face required five staples. ¶9 On September 24, 2012, Ortiz-Mondragon waived his right to a preliminary examination and was bound over for trial. That same day, the State filed an information that contained the same five charges as the complaint. ¶10 On November 15, 2012, the State made a plea offer to Ortiz-Mondragon. to substantial disorderly State If Ortiz-Mondragon pled guilty or no contest battery, conduct, would dismiss imprisonment charges. all and criminal with a read-in damage domestic the to abuse property, and enhancer, intimidation and the false The State would recommend three years of probation and four months in jail as a condition of probation. 6 No. ¶11 On November 27, 2012, the circuit court held a plea and sentencing hearing. Singh 2013AP2435-CR ("Attorney Ortiz-Mondragon's attorney, Raj Kumar Singh"), informed the court that recently made a plea offer to the defendant. the State Attorney Singh stated that he had "presented" the State's plea offer to OrtizMondragon, "given him paperwork to use to study it, given him information to use in counseling, and [Ortiz-Mondragon] has just now confirmed that now he's made his final decision. He would like to take the offer." ¶12 Attorney Singh then handed a plea questionnaire and waiver of rights form, along with "some other papers," to the circuit court. Ortiz-Mondragon had signed the plea questionnaire and waiver of rights form, which stated, inter alia: "I understand that if I am not a citizen of the United States, my plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." and waiver affirmation: Attorney Singh had signed the plea questionnaire of rights "I am form the immediately attorney for the below the following defendant. I have discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently. . . . " ¶13 Ortiz-Mondragon then stated that he wished to plead no contest to three counts pursuant to the plea agreement. circuit court then informed him consequences of his pleas. 7 of the possible The immigration No. 2013AP2435-CR THE COURT: All right. The law requires I address you now and advise you of the following: If you're not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law. . . . These are collateral consequences to [sic] on top of whatever I sentence you to. Do you understand that? THE DEFENDANT: Yes. THE COURT: All right. offer me these pleas then? THE DEFENDANT: ¶14 Do you still wish to Yes. The circuit court then confirmed that Ortiz-Mondragon and his attorney had discussed the plea questionnaire and waiver of rights form, which contained a warning about possible immigration consequences of a conviction. THE COURT: All right. In my right hand I have a plea-questionnaire-and-waiver-of-rights form. I have the standard jury instruction for the charge of substantial battery with intent to cause bodily harm as well as the elements of criminal damage and disorderly conduct. Do you see all these documents? THE DEFENDANT: THE COURT: Did you sign the plea questionnaire? THE DEFENDANT: THE COURT: over carefully? Yes. Yes. Before you signed it, did you read it THE DEFENDANT: Yes. THE COURT: And while you were going over all these documents, did you have an opportunity to fully discuss it with your attorney, Mr. Singh? THE DEFENDANT: Yes. 8 No. THE COURT: And are representation thus far? THE DEFENDANT: ¶15 The court defendant's pleas intelligently incorporate satisfied with his Yes. concluded: today entered in you 2013AP2435-CR to on support waiver-of-rights form." be the of "I'm the I find the voluntarily, freely, record that going to and have made. I'll plea-questionnaire-and- The court then determined that "[t]he facts do support his pleas" and "adjudge[d] him guilty today of substantial battery and criminal damage to property and disorderly conduct." ¶16 The State then explained that, pursuant to a joint recommendation, it was going to recommend "three years' probation with four months' jail and other standard conditions of probation." the The State explained that it had "consulted with victim," Ortiz-Mondragon committed a "fairly offense," and he had no prior criminal record. violent The State also noted that although Ortiz-Mondragon "was on an immigration hold at the . . . initial appearance," he was not "on any other type of hold at all." ¶17 The victim of Ortiz-Mondragon's domestic abuse, J.S., then spoke to the court. She stated that she would like for the felony battery charge to be reduced to a misdemeanor. J.S. stated that Ortiz-Mondragon has two children with her and also has two other children, and they "were trying to keep them here in the states, but if he ends up with a felony charge, that's not going to happen." The court 9 informed J.S. that Ortiz- No. 2013AP2435-CR Mondragon had just been found guilty of a felony. J.S. then stated that probation and four months in jail were "fine" with her. ¶18 Attorney Singh then asked the court to grant Ortiz- Mondragon sentence credit, which the court granted. then asked Attorney Immigration and stated, think "I Singh Customs there whether Ortiz-Mondragon hold.6 Enforcement is, but The court the has Attorney information I an Singh get is secondhand." ¶19 Ortiz-Mondragon then apologized for his behavior and stated that he "never had a problem like this before." ¶20 The court then proceeded to sentence Ortiz-Mondragon. It stated that its sentence would be based on "the protection of the public, punishment of the defendant, rehabilitative needs, and other factors." it received a joint recommendation and the defendant's The court noted that that it "defer[s] a little bit to [the State's] judgment" in "these kinds of cases because [the State] handle[s] so many of them . . . ." The court then discussed the "great impact parents' behaviors have on their children" and encouraged Ortiz-Mondragon better job of being a parent and an adult." to "do a The court then adopted the joint recommendation, withheld sentence on all three counts, placed Ortiz-Mondragon on probation for three years, and 6 The United States Immigration and Customs Enforcement is a component of the United States Department of Homeland Security. 10 No. 2013AP2435-CR sentenced him to four months in the county jail as a condition of probation. ¶21 J.S. then asked the court if Ortiz-Mondragon will "be let go" after his jail sentence. The court stated that he would be let go "if the immigration doesn't put a hold on him. If the immigration people put a hold on him, that's a federal issue. Our officers have nothing to do with that." ¶22 After Ortiz-Mondragon completed his jail sentence,7 Immigration and Customs Enforcement took him into custody and commenced removal proceedings against him. He agreed to a voluntary departure to avoid a deportation on his record.8 ¶23 On September postconviction substantial counsel. motion battery In the on 17, to 2013, withdraw grounds motion, of Ortiz-Mondragon filed his plea to assistance of no-contest ineffective Ortiz-Mondragon argued that a his 7 The record does not indicate exactly when Ortiz-Mondragon was released from jail. At the plea and sentencing hearing on November 27, 2012, the circuit court sentenced Ortiz-Mondragon to four months in jail and granted him 76 days of sentence credit. Accordingly, he seems to have been released from jail in early or mid-January 2013. 8 Ortiz-Mondragon's motion to withdraw his plea discusses these events but does not indicate when they took place. The record contains a letter from Immigration and Customs Enforcement ("ICE"), which was filed with the Brown County Circuit Court on December 12, 2012. This letter requested that the circuit court forward to ICE certified copies of the complaint, information, judgment and commitment order for this case. The letter stated that these documents would help ICE "in its efforts to expeditiously remove alien criminals from the United States." Under "charge(s)," the letter stated "940.19(2) Substantial Battery——Intend Bodily Harm." 11 No. 2013AP2435-CR substantial battery as an act of domestic abuse was a "crime involving thereby permanent moral turpitude" rendering him exclusion under subject from federal immigration mandatory United the to States. law, deportation He argued and that these consequences of his substantial battery conviction were clear and that under Padilla his attorney performed deficiently in failing to inform him of these consequences. further argued that this deficiency Ortiz-Mondragon prejudiced him. He contended that, had he known the immigration consequences of this conviction, he would have sought a different plea agreement or would have insisted on going to trial in order to preserve the possibility of remaining in or returning to the United States to be with his family. ¶24 On October 29, 2013, the circuit court issued a written order denying Ortiz-Mondragon's motion without a Machner hearing.9 counsel The court first held that Ortiz-Mondragon's "trial was unequivocal consequences not required advice of his to provide regarding plea because 9 the the [Ortiz-Mondragon] with immigration-related law elucidating the See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). "[T]he circuit court has the discretion to deny the postconviction motion without a Machner hearing 'if the motion fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.'" State v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280, 717 N.W.2d 111 (emphasis added in Roberson) (quoting State v. Curtis, 218 Wis. 2d 550, 555 n. 3, 582 N.W.2d 409 (Ct. App. 1998)). 12 No. 2013AP2435-CR consequences is not succinct and straightforward." The court reasoned that "a 'crime involving moral turpitude' is a broad, rather than specific, classification of crimes," and Ortiz- Mondragon failed to prove that his substantial battery was a crime involving moral turpitude. Quoting Padilla, 559 U.S. at 369, the circuit court stated that, "[b]ecause the law is not succinct and straightforward, [Ortiz-Mondragon's] counsel 'need do no more than advise [Ortiz-Mondragon] that pending criminal charges may carry a risk of adverse immigration consequences.'" Ortiz-Mondragon "does not assert that trial counsel did not so advise him, and the record affirmatively establishes that trial counsel did so advise him." ¶25 The circuit court discussed the immigration warnings and advice that Ortiz-Mondragon received. In particular, the court noted that Ortiz-Mondragon "acknowledges that he was given equivocal immigration warnings by both the Court, as required by [Wis. Stat. Rights §] 971.08, form." The and court the also Plea noted Questionnaire/Waiver that, at the plea of and sentencing hearing, "[Ortiz-Mondragon] confirmed with the Court that he read [the plea questionnaire] over carefully before signing it and had the opportunity to fully discuss it with his attorney." The court further noted that Attorney Singh signed the plea questionnaire form under a statement affirming that he discussed that form with Ortiz-Mondragon and that Mondragon understood the form and the plea agreement. concluded that Specifically, Attorney the Singh court did not concluded 13 perform that Ortiz- The court deficiently. "[u]nder the No. 2013AP2435-CR circumstances, [Ortiz-Mondragon] has not stated sufficient facts which entitle him to a hearing on his postconviction motion. The facts, counsel did Mondragon] regarding as alleged, not with the demonstrate perform that deficiently equivocal, rather immigration-related [Ortiz-Mondragon's] by than providing [Ortiz- unequivocal, consequences of advice his plea." The court did not address the issue of prejudice. ¶26 circuit On October 7, 2014, the court of appeals affirmed the court's order withdraw his plea. denying Ortiz-Mondragon's motion to The court of appeals explained that Ortiz- Mondragon "has not identified clear authority indicating any of the crimes to which he pled were crimes of moral turpitude." State v. Ortiz-Mondragon, 2014 WI App 114, ¶13, 358 Wis. 2d 423, 856 N.W.2d 339. The court of appeals reasoned that "[i]f an attorney must search federal court and unfamiliar administrative board decisions from around the country to identify a category of elements that together constitute crimes of moral turpitude, and then determine whether a charged crime fits that category, then the law is not 'succinct, clear, and explicit.'" (quoting Padilla, 559 U.S. at 368). Id., ¶12 It concluded that "Ortiz– Mondragon's attorney did not perform deficiently by failing to unequivocally deportation inform and him permanent that his plea would inadmissibility." Id., result ¶13. in The court of appeals did not address the issue of prejudice. ¶27 On November 6, 2014, Ortiz-Mondragon filed a petition for review, which we granted on December 18, 2014. II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW 14 No. ¶28 2013AP2435-CR "In general 'a circuit court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.'" State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1, 843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation marks omitted). In contrast, "the general rule [is] that a defendant seeking to withdraw a guilty or no contest plea after sentencing must prove manifest injustice by clear and convincing evidence." 819 State v. Negrete, 2012 WI 92, ¶29, 343 Wis. 2d 1, N.W.2d 749 (emphasis of added) counsel (citations is one type omitted). Ineffective assistance of manifest injustice. State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 829 N.W.2d 482. ¶29 after "The clear and convincing standard for plea withdrawal sentencing, which is higher than the 'fair and just' standard before sentencing, 'reflects the State's interest in the finality of convictions, and reflects the fact that the presumption of innocence no longer exists.'" Id., ¶48 (quoting State Wis. 2d 492, v. Cross, N.W.2d 64). 2010 WI 70, ¶42, 326 786 "The higher burden 'is a deterrent to defendants testing the waters for possible punishments.'" Id. (quoting State v. Nawrocke, 193 Wis. 2d 373, 379–80, 534 N.W.2d 624 (Ct. App. 1995)). not rise to "Disappointment in the eventual punishment does the level of a manifest (citing Nawrocke, 193 Wis. 2d at 379). 15 injustice." Id., ¶49 No. ¶30 2013AP2435-CR "A claim of ineffective assistance of counsel is a mixed question of fact and law." State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted). "We will uphold the circuit court's findings of fact unless they are clearly erroneous." Id. (citation omitted). "Findings of fact include 'the circumstances of the case and the counsel's conduct and strategy.'" 264 Id. (quoting State v. Thiel, 2003 WI 111, ¶21, Wis. 2d 571, "Moreover, this 665 N.W.2d 305) court will not (quotation exclude the marks omitted). circuit court's articulated assessments of credibility and demeanor, unless they are clearly ¶23). erroneous." Id. (citing Thiel, 264 Wis. 2d 57, "However, the ultimate determination of whether counsel's assistance was ineffective is a question of law, which we review de novo." Id. III. ANALYSIS ¶31 "Both the United States Constitution and the Wisconsin Constitution counsel." guarantee Carter, 324 criminal defendants Wis. 2d 640, amend. VI; Wis. Const. art. I, § 7). ¶20 the (citing right U.S. to Const. "The United States Supreme Court has recognized that 'the right to counsel is the right to the effective assistance of counsel.'" v. Washington, 466 U.S. 668, 686 Id. (quoting Strickland (1984)) (quotation marks omitted). ¶32 "Whether a convicted defendant received assistance of counsel is a two-part inquiry." Strickland, 466 U.S. at 687). that counsel's performance ineffective Id., ¶21 (citing "First, the defendant must prove was 16 deficient." Id. (citing No. 2013AP2435-CR Strickland, 466 U.S. at 687). "Second, if counsel's performance was must deficient, the defendant prejudiced the defense." 687). To succeed on prove that the deficiency Id. (citing Strickland, 466 U.S. at a claim of ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice. defendant Id. (citing Strickland, 466 U.S. at 687). fails to prove deficient performance, a If a reviewing court need not consider whether the defendant was prejudiced. See id., ¶36; Wis. 2d 582, State 629 v. Franklin, N.W.2d 289 2001 (citing WI 104, Strickland, ¶13, 466 U.S. 245 at 697). ¶33 The regarding Supreme deportation Court is in not Padilla held categorically "that removed ambit of the Sixth Amendment right to counsel." advice from the Id. at 366. The Court explained that the scope of counsel's duty to provide advice regarding deportation depends on whether the immigration consequences of straightforward. a conviction are clear, succinct, and It explained that counsel's duty to provide advice regarding deportation "is more limited" in "situations in which the deportation unclear or uncertain." law is not succinct consequences Id. at 369. and of a particular plea are Specifically, "[w]hen the straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges immigration consequences." may carry a risk Id. (emphases added). of adverse "But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." 17 Id. No. ¶34 The Court in Padilla held that 2013AP2435-CR defense counsel performed deficiently by incorrectly advising the defendant that he would not be deported upon conviction. Court reasoned that statute are removal consequence (citing 8 Padilla's removal "the succinct, U.S.C. plea clear, for of and Padilla's the explicit easily his be counsel "The determined deportation Padilla provide. is defining was Id. the at 368 consequences from reading presumptively of the mandatory, Id. at 369. In order to determine whether Ortiz-Mondragon's trial performed advice in The immigration conviction." and his counsel's advice was incorrect." ¶35 relevant § 1227(a)(2)(B)(i)). could statute, terms Id. at 368-69. deficiently, required we must first Ortiz-Mondragon's determine trial attorney what to To that end, we will determine whether immigration law succinct, clear, and explicit such that Ortiz-Mondragon's trial attorney should have discovered that Ortiz-Mondragon would be deported and excluded because his substantial battery was a crime involving moral turpitude. Second, we will determine whether Ortiz-Mondragon's trial attorney performed deficiently under Padilla by giving inadequate advice and failing to further research the immigration consequences of the plea agreement. Because we conclude that Ortiz-Mondragon's trial attorney did not perform deficiently, we do not address prejudice. A. Is Immigration Law Succinct, Clear, and Explicit that Ortiz-Mondragon's Substantial Battery Was a Crime Involving Moral Turpitude? 18 No. ¶36 The relevant statutes immigration 2013AP2435-CR authorize deportation and exclusion of an alien who is convicted of a "crime involving turpitude."10 moral Under certain circumstances, "[a]ny alien who . . . is convicted of a crime involving moral turpitude . . . is § 1227(a)(2)(A)(i). deportable." U.S.C. Any such alien "shall, upon the order of the Attorney General, be removed . . . ." (intro.). 8 8 U.S.C. § 1227(a) The Attorney General may not "cancel removal" of an alien who is "inadmissible or deportable" due to a conviction for a crime involving § 1229b(b)(1)(C). moral turpitude. See 8 U.S.C. Further, an alien is "ineligible to receive visas and ineligible to be admitted to the United States" if "convicted of . . . a crime involving moral turpitude . . . ." 8 U.S.C. § 1182(a)(2)(A)(i)(I). ¶37 includes However, those the Immigration statutory provisions, involving moral turpitude." at 377-78 (Alito, J., and Nationality does not Act, define which "crime See Padilla, 559 U.S. at 361; id. concurring). The Regulations also does not define that term. Code of Federal Garcia v. State, 425 S.W.3d 248, 260 (Tenn. 2013) ("[A] crime involving moral turpitude is nowhere defined in the [Immigration and Nationality] Act or in the Code of Federal Regulations."). The Immigration and Nationality Act does not even list examples of crimes involving moral turpitude. 10 Lopez-Penaloza v. State, 804 "The term 'alien' means any person not a citizen national of the United States." 8 U.S.C. § 1101(a)(3). 19 or No. N.W.2d 537, 544 (Iowa Ct. App. 2011) ("The 2013AP2435-CR [Immigration and Nationality Act] does not define the term 'moral turpitude' or list [crimes involving moral turpitude]."). ¶38 Thus, because the term "crime involving moral turpitude" is undefined in the immigration statutes, we will consider case law that defines this term. We need to determine whether immigration law is succinct, clear, and explicit such that Ortiz-Mondragon's discover that the involving moral effect. Because succinct, clear, counsel was substantial turpitude we and and battery advise conclude explicit deficient that in for offense failing was a Ortiz-Mondragon immigration this case, to crime to that law is not counsel was not deficient for not giving further immigration advice to OrtizMondragon. succinct, cases In order clear, wherein and the to explain explicit subject how in of this the immigration case, dispute we law is will was not discuss whether a particular crime qualified as a crime involving moral turpitude. One important difference between the cases we will discuss and the case at issue is that the analysis in those cases concerned appeals from actual deportation proceedings. The dispute in those cases was not whether counsel was ineffective for failing to discover and then advise that a specific crime involved moral turpitude. ¶39 Even the case law that analyzes whether a crime qualified as a crime involving moral turpitude for purposes of deportation often uses terms of generality, not specifics. "[T]he phrase 'crime involving moral turpitude' is notoriously 20 No. 2013AP2435-CR baffling . . . ." Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008)." "As a general rule, a crime involves 'moral turpitude' if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general." In re Sanudo, 23 I. & N. added); Dec. 968, 970 (BIA 2006) Garcia-Meza, 516 F.3d at 536. (emphasis see also The term "crime involving moral turpitude" "generally refers to acts that are per se morally reprehensible and intrinsically wrong." In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (emphasis added) (citing Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006)). The United States Court of Appeals for the Seventh Circuit has "put [its] own gloss on the term," "stating that crimes of moral turpitude are usually serious crimes (in terms of the magnitude of the loss they cause or the indignation in the public they arouse) that are committed (emphasis deliberately." added). themselves, the Thus, issue of Garcia-Meza, even what in 516 F.3d deportation constitutes a at 536 proceedings crime involving moral turpitude is frequently litigated as it is often less than clear. ¶40 of the Even in deportation proceeding cases where the subject litigation involving moral is whether turpitude, a crime "[n]either qualifies the as seriousness a crime of the underlying offense nor the severity of the punishment imposed is determinative of whether a crime involves moral turpitude." Solon, 24 I. & N. Dec. at 240 (citing In re Serna, 20 I. & N. Dec. 579, 581 (BIA 1992)). "[A]t 21 least in the context of No. assault crimes, a finding of moral turpitude 2013AP2435-CR involves an assessment of both the state of mind and the level of harm required to complete the offense." Id. at 243. "Thus, intentional conduct resulting in a meaningful level of harm, which must be more than mere considered morally turpitudinous." ¶41 offensive moral problematic be Id. (emphasis added). turpitude" to ascertain is not defined, whether a (Alito, J., concurring) it is particular qualify as a crime involving moral turpitude. 378 may In addition to the fact that the amorphous term "crime involving at touching, ("As even crime more would Padilla, 559 U.S. has been widely acknowledged, determining whether a particular crime is . . . a 'crime task."). involving moral turpitude [(CIMT)]' is not an easy Even courts confronted with analyzing crimes involving moral turpitude in deportation proceedings are not uniform in their analysis of whether a crime qualified as a crime involving moral turpitude. two-step test Five federal circuit courts of appeals apply a consisting of a "modified categorical approach."11 "categorical approach" and Two other circuits follow a three-step test for determining whether a crime qualifies as a 11 See Silva-Trevino v. Holder, 742 F.3d 197, 200 & n.1 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907, 911-16 (9th Cir. 2013) (amended opinion); Prudencio v. Holder, 669 F.3d 472, 480-84 (4th Cir. 2012); Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1307-11 (11th Cir. 2011); Jean-Louis v. Att'y Gen. of United States, 582 F.3d 462, 472-82 (3d Cir. 2009). 22 No. crime involving moral turpitude.12 2013AP2435-CR In the wake of Descamps v. United States, how federal courts will determine whether a crime qualifies as a crime involving moral turpitude is unclear. See Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 282 (2013) (holding modified "that categorical defendant was elements"); approach convicted id. categorical sentencing at approach, may not apply the the crime of which the when has 2288-89 courts a single, indivisible (holding that under court may rely a set the of modified on "only facts . . . constituting elements of the offense," rather than "rely[ing] on its own finding about a non-elemental fact"). Thus, relevant immigration law is far from succinct, clear, and explicit as to what constitutes a crime involving moral turpitude. See State v. Telford, 22 A.3d 43, 49-50 (N.J. App. Div. (holding 2011) that immigration law was not succinct, clear, and explicit because of a circuit split "surrounding the type of analysis that would be undertaken by the tribunals charged with determining whether a noncitizen has committed an aggravated felony"). 12 See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010). For a discussion of the categorical approach and modified categorical approach, see Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 2281-82 (2013). For a discussion of the two- and three-step tests, see In re Silva-Trevino, 26 I. & N. Dec. 550, 550-51 (A.G. 2015); Maria Theresa BaldiniPotermin, Defending Non-Citizens in Illinois, Indiana, and Wisconsin 3-5 to 3-9 (2009), available at https://www.immigrantjustice.org/defendersmanual. 23 No. ¶42 Attorney whether 2013AP2435-CR In addition to that circuit split, the United States General a turpitude. crime has added will to the qualify as complexity a crime of determining involving moral In 2008 the United States Attorney General adopted the three-step test for the Board of Immigration Appeals.13 re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). In However, on April 10, 2015, the Attorney General issued an opinion vacating his In re Silva-Trevino opinion in its entirety. In re Silva- Trevino, 26 I. & N. Dec. 550, 550, 554 (A.G. 2015). That 2015 opinion seemingly leaves unresolved how the Board of Immigration Appeals should determine whether a crime will qualify as a crime involving moral turpitude. That opinion stated that the Board may address, in this case and other cases as appropriate, the following issues: 1. How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the Act; 2. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been "convicted of . . . a crime involving moral turpitude" . . . . Id., 26 I. & N. Dec. at 553. ¶43 In consequences her of comprehensive convictions, guide Maria on Theresa the immigration Baldini-Potermin wrote in 2009 that "[t]he current state of the case law for 13 The Board of Immigration Appeals is an administrative appellate body within the United States Department of Justice. 24 No. crimes involving flux . . . ." Citizens moral Maria in turpitude Theresa Illinois, is presently Baldini-Potermin, Indiana, and in 2013AP2435-CR a state Defending Wisconsin 3-5 of Non- (2009), available at https://www.immigrantjustice.org/defendersmanual. ¶44 Recognizing this lack of clarity, the State argues that, "[w]hile Ortiz-Mondragon's conviction may well qualify as a crime of moral turpitude, that conclusion is not 'clear and certain' or 'succinct and straightforward.'" The State notes that case law has held that domestic battery is not necessarily a crime involving moral turpitude. The State argues that the relevant case law and the circuit split regarding the two- or three-step test "illustrate the complexity of deciphering whether a given offense is a crime involving moral turpitude." Thus, because Ortiz-Mondragon's conviction does not clearly constitute a crime involving moral turpitude, the State contends "that Ortiz-Mondragon's trial attorney was required to do no more than advise him that his plea 'may carry a risk of adverse immigration consequences.'" ¶45 Padilla, 559 U.S. at 369. Despite the lack of any clear guidance by statute or jurisprudence regarding whether a particular crime qualifies as a crime involving moral turpitude, Ortiz-Mondragon argues that federal that law his is "succinct" substantial and battery "straightforward" was a crime in providing involving moral turpitude such that his counsel should have given him different advice. He contends that "[s]ome crimes, such as substantial battery, domestic abuse, are universally involving moral turpitude] . . . ." 25 treated as [crimes In both of his briefs to No. this court, he provides string cites to several according to him, support that conclusion.14 2013AP2435-CR cases that, He argues that this court can determine that his substantial battery was a crime involving moral turpitude simply by looking at Wis. Stat. § 940.19(2) and the case law addressing "similar offenses." ¶46 For example, Ortiz-Mondragon relies on two spousal abuse deportation cases arising from California: Grageda v. U.S. I.N.S., 12 F.3d 919 (9th Cir. 1993), superseded by statute on other grounds, and In re Tran, 21 I. & N. Dec. 291 (BIA 1996). In Grageda the Ninth Circuit held "that spousal abuse under [California Penal Code] section 273.5(a) is a crime of moral turpitude." of Grageda, 12 F.3d at 922. Immigration concluded California turpitude." Appeals "that Penal any Code expanded violation In In re Tran the Board the of constitutes holding section a crime in 273.5(a) involving In re Tran, 21 I. & N. Dec. at 294. 14 Grageda of and the moral However, the Ortiz-Mondragon also relies on publications that do not have the force of law. For example, he cites to the Immigrant Defense Project's Immigration Consequences of Convictions Summary Checklist, which states that crimes involving moral turpitude "includ[e]" "[c]rimes in which bodily harm is caused or threatened by an intentional act, or serious bodily harm is caused or threatened by a reckless act . . . ." However, that checklist does not cite to legal authority for that proposition and does not state that such crimes necessarily are crimes involving moral turpitude. To the contrary, such crimes may be considered crimes involving moral turpitude. See In re Solon, 24 I. & N. Dec. 239, 243 (BIA 2007) ("[I]ntentional conduct resulting in a meaningful level of harm, which must be more than mere offensive touching, may be considered morally turpitudinous."). 26 No. 2013AP2435-CR Ninth Circuit in Grageda explained that its holding was limited to spousal abuse and did not include abuse of a cohabitant.15 Grageda, 12 F.3d at 921-22 n.1. ¶47 In a subsequent decision, the Ninth Circuit recognized the narrow holding of Grageda and concluded that a "conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is not categorically Morales-Garcia 2009).16 v. a Holder, involving 567 F.3d moral 1058, turpitude]." 1064-67 (9th Cir. In Morales-Garcia the Ninth Circuit expressly declined to follow In re Tran. unclear [crime whether abuse Id. at 1066 & n.4. of a cohabitant, in Accordingly, it is violation of Cal. 15 The Ninth Circuit's holding in Grageda may be limited to spousal abuse that willfully causes a "traumatic condition." See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th Cir. 2009) (quoting Grageda v. U.S. I.N.S., 12 F.3d 919, 922 (9th Cir. 1993)) (internal quotation marks omitted) ("In Grageda, for example, we held that 'when a person willfully beats his or her spouse severely enough to cause a traumatic condition, he or she has committed an act of baseness or depravity contrary to accepted moral standards.'"). Ortiz-Mondragon does not discuss whether substantial battery under Wis. Stat. § 940.19(2) involves the willful infliction of a traumatic condition. 16 In Morales-Garcia the Ninth Circuit held that abuse of a cohabitant is not necessarily a crime involving moral turpitude because not all cohabitants "are committed to, trust, or depend upon each other." Morales-Garcia, 567 F.3d at 1066. If cohabitants are not committed to such a relationship, then their status as cohabitants does not transform a battery offense into a crime involving moral turpitude. See id. But if cohabitants are committed to such a relationship, then their status as cohabitants "may transform" a battery offense into a crime involving moral turpitude. See id. at 1065 ("Otherwise nonmorally turpitudinous conduct targeted at a victim with whom the defendant has a special relationship may transform a crime into one involving moral turpitude."). 27 No. 2013AP2435-CR Penal Code § 273.5(a), is a crime involving moral turpitude. In the present case, Ortiz-Mondragon was convicted for battering his cohabiting girlfriend, not a spouse. ¶48 Furthermore, conviction was statute. Ortiz-Mondragon's under Because a the Wisconsin cases substantial statute, cited by not a battery California Ortiz-Mondragon do not discuss whether substantial battery under Wis. Stat. § 940.19(2) is a crime succinctly, involving clearly, moral and turpitude, explicitly those demonstrate cases that do not Ortiz- Mondragon's substantial battery under § 940.19(2) was a crime involving moral turpitude. (holding that immigration straightforward" partly See Garcia, 425 S.W.3d at 260-61 law was because not the "clear, defendant succinct, "provided and no federal judicial or administrative decision considering whether the Tennessee offenses to which he pleaded guilty amount to crimes involving moral turpitude, although the [defendant] has cited court decisions jurisdictions as crimes Grageda In re and explicitly classifying involving Tran demonstrate do not that abuse moral offenses in turpitude"). succinctly, Ortiz-Mondragon's clearly, other Thus, and substantial battery was a crime involving moral turpitude. ¶49 Ortiz-Mondragon also relies on cases in which courts held that aggravated assault of a peace officer and aggravated child abuse were crimes that qualified as crimes involving moral turpitude. See In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988) (aggravated assault of peace officer); Garcia v. Attorney Gen. of United States, 329 F.3d 1217, 1222 (11th Cir. 2003) 28 No. (aggravated child abuse). However, as 2013AP2435-CR Morales-Garcia demonstrates, it is not safe to assume that Ortiz-Mondragon's substantial battery of his cohabiting girlfriend is necessarily a crime involving moral turpitude simply because aggravated assault of a peace officer and aggravated child abuse qualify as crimes involving moral turpitude. at 1064-67 (holding that See Morales-Garcia, 567 F.3d abuse of a cohabitant is not necessarily a crime involving moral turpitude, although spousal abuse contrary to California law necessarily is). ¶50 As the Board of Immigration Appeals has explained, "it has often been found that moral turpitude necessarily inheres in assault and battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as deserving of special partner . . . ." added) protection, such as . . . a domestic Sanudo, 23 I. & N. Dec. at 971-72 (emphasis do not categorically qualify as a crime involving moral turpitude. See id. (citations Rather, "a omitted). However, case-by-case approach such has crimes been employed to decide whether battery (or assault and battery) offenses involve moral turpitude." Id. at 971. Thus, the State's argument that, "[w]hile Ortiz-Mondragon's conviction crime moral that of turpitude, may conclusion well is qualify not as 'clear a and certain' or 'succinct and straightforward,'" is correct.17 17 Ortiz-Mondragon argues that if the case law on which he relies does not succinctly, clearly, and explicitly indicate that his substantial battery was a crime involving moral turpitude, then this court should look to his record of conviction, including the criminal complaint and plea hearing (continued) 29 No. ¶51 federal 2013AP2435-CR Based on the foregoing discussion, we conclude that immigration explicitly provide law that does not succinctly, Ortiz-Mondragon's clearly, substantial and battery was a crime involving moral turpitude such that his counsel's advice should have been different. The methodology for determining whether a crime qualifies as a crime involving moral turpitude varies by jurisdiction and is in a "state of flux." transcript. In other words, he argues that this court should proceed to the second step of the two- or three-step test for determining whether a crime qualified as a crime involving moral turpitude. However, when determining whether a crime qualifies as a crime involving moral turpitude, a court looks to a record of conviction only if the statute of conviction is "divisible"—— that is, only if the statute "includes some offenses which involve moral turpitude and some which do not." In re Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) (citations omitted) ("Only where the statute under which the respondent was convicted includes some offenses which involve moral turpitude and some which do not do we look to the record of conviction . . . ."). Because Ortiz-Mondragon does not argue that Wis. Stat. § 940.19(2) is divisible, his record of conviction will not help to determine whether his substantial battery qualified as a crime involving moral turpitude. Further, Ortiz-Mondragon does not explain how the relevant immigration law would be succinct, clear, and explicit if one must consult a record of conviction under the two- or three-step test in order to determine whether a crime qualified as a crime involving moral turpitude. See State v. Telford, 22 A.3d 43, 50 (N.J. App. Div. 2011) (stating that an attorney "would be hardpressed to provide any clear advice regarding the deportation consequences of a guilty plea" if the immigration advice could "turn on the precise wording of the indictment"). See also Garcia v. State, 425 S.W.3d 248, 260-61 (Tenn. 2013) (holding that immigration law did not succinctly, clearly, and explicitly provide that the defendant's conviction qualified as a crime involving moral turpitude); Lopez-Penaloza v. State, 804 N.W.2d 537, 545-46 (Iowa Ct. App. 2011) (same). 30 No. 2013AP2435-CR Baldini-Potermin, supra, 3-5; Telford, 22 A.3d at 49-50 (holding that a federal circuit split made the relevant immigration law not succinct, clear, and explicit). The cases that Ortiz- Mondragon cites fail to provide a succinct, clear, and explicit answer as to whether Ortiz-Mondragon's substantial qualified as a crime involving moral turpitude. battery Accordingly, his trial counsel "need[ed] [to] do no more than advise [him] that pending criminal charges consider whether his of adverse Padilla, 559 U.S. at 369. immigration consequences." may We now counsel carry performed a risk deficiently under Padilla. B. Whether Ortiz-Mondragon's Trial Counsel Performed Deficiently ¶52 must "To demonstrate deficient performance, the defendant show objective that his counsel's standard circumstances." of representation reasonableness' Carter, 324 'fell considering Wis. 2d 640, ¶22 below all an the (quoting Strickland, 466 U.S. at 688). "In evaluating the reasonableness of this counsel's deferential.'" performance, Id. (quoting court Strickland, must 466 be U.S. 'highly at 689). "Counsel enjoys a 'strong presumption' that his conduct 'falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 689). "Indeed, counsel's performance very need constitutionally not be perfect, adequate." nor Id. Wis. 2d 571, ¶19). 31 even (citing good, Thiel, to be 264 No. ¶53 Ortiz-Mondragon argues that his 2013AP2435-CR trial counsel, Attorney Singh, performed deficiently by failing to advise him that his conviction for substantial battery would necessarily result in his United deportation States. and permanent Ortiz-Mondragon exclusion concedes that from "the the circuit [court] found that the record affirmatively demonstrated that Mr. Ortiz-Mondragon received advice about the immigration consequences of his plea in the form of the general warnings contained in the plea questionnaire form as well as the circuit court's statutory warnings." However, he argues that the circuit court's statutory warning and the plea questionnaire are "insufficient" "substitute[s] for the advice of counsel." ¶54 Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to research the relevant immigration law and Ortiz-Mondragon's immigration status. argues that "the record contains no evidence that He defense counsel investigated Mr. Ortiz-Mondragon's immigration status or relevant law." He contends that "[e]ven when a more general warning is warranted, counsel must reasonably investigate the potential immigration consequences in light of the particular facts of the case because counsel cannot determine the clarity of a consequence without some investigation and research." He further argues that "[c]ounsel's failure to inform a defendant of the adverse immigration consequences when legal research would show that the crimes at issue involved moral turpitude for immigration purposes falls below reasonableness." 32 an objective standard of No. ¶55 The State argues that, the because 2013AP2435-CR immigration consequences of the plea agreement were not succinct, clear, and explict, "Ortiz-Mondragon's trial attorney was required to do no more than advise him that his plea 'may carry a risk of adverse immigration consequences.'" Padilla, 559 U.S. at 369. The State contends that "[t]he court should also uphold the circuit court's finding that Ortiz-Mondragon did, in fact, receive such a warning." Mondragon's The State argument does that not his separately attorney address failed to Ortiz- adequately research his immigration status or the immigration consequences of the plea agreement. ¶56 We will first determine whether Ortiz-Mondragon's trial counsel, Attorney Singh, performed deficiently by giving incorrect advice. performed We will next determine whether Attorney Singh deficiently by failing to adequately research the immigration consequences of the plea agreement. ¶57 The record in the circuit court demonstrates that Ortiz-Mondragon knowingly, intelligently, and voluntarily made no-contest pleas to the subject charges. The record further demonstrates that he knew he faced a risk of deportation and exclusion if battery. Not he entered only serious known Customs does concerns Enforcement discussed this bargain, signed intelligently, record regarding with a no-contest the hold, case and a but reveal 33 pled in there the were and Ortiz-Mondragon the questionnaire, voluntarily substantial Immigration that, accepted to that ongoing despite counsel, plea an plea and State's plea knowingly, circuit court. No. 2013AP2435-CR Specifically, his counsel, Attorney Singh, had "presented" the State's plea offer to him, "given him paperwork to use to study it, [and] given him information to use in counseling . . . ." Attorney Singh and the plea questionnaire both informed OrtizMondragon that exclusion of the "plea admission could to result this in country, naturalization under federal law." deportation, or the the denial of The circuit court advised Ortiz-Mondragon: "If you're not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law." Ortiz-Mondragon's girlfriend stated that he and she were trying to keep their family together "in the states, but if he ends up with a felony charge, that's not going to happen." Ortiz-Mondragon himself stated that he carefully read the plea questionnaire and discussed it with his attorney before he signed it. Ortiz-Mondragon also stated that he understood the circuit court's immigration warning and wished to enter his no-contest pleas. All of these factors militate against the arguments that Ortiz-Mondragon makes today. ¶58 Moreover, when Ortiz-Mondragon filed a motion to withdraw his plea and request a Machner hearing, the circuit court correctly hearing. concluded that his motion did not warrant a While it is a defendant's burden to demonstrate that he is entitled to a Machner hearing by alleging sufficient facts to raise concluded a question that of fact, Ortiz-Mondragon's warrant a Machner hearing. the circuit proffer was court correctly insufficient to In fact, the circuit court concluded 34 No. that, "[u]nder the circumstances, 2013AP2435-CR [Ortiz-Mondragon] has not stated sufficient facts which entitle him to a hearing on his postconviction motion. [Ortiz-Mondragon's] providing The facts, as alleged, demonstrate that counsel did [Ortiz-Mondragon] unequivocal, consequences advice of his not regarding plea." It deficiently equivocal, with perform rather the is by than immigration-related well-established that a "circuit court has the discretion to deny the postconviction motion without a Machner hearing 'if the motion fails to allege sufficient facts conclusory to raise allegations, a question or if of fact, the record presents only conclusively demonstrates that the defendant is not entitled to relief.'" State v. Roberson, N.W.2d 111 Curtis, (emphasis 218 2006 WI added Wis. 2d 550, 80, in 555 ¶43, 292 Roberson) n. 3, 582 Wis. 2d 280, (quoting N.W.2d 409 State (Ct. 717 v. App. 1998)). ¶59 In its order denying Ortiz-Mondragon's request for a Machner hearing and his motion to withdraw his plea, the circuit court found that "the record affirmatively establishes that trial counsel did so advise him" that "'pending criminal charges may carry a risk of adverse immigration consequences.'" finding is not clearly erroneous.18 18 This The court noted that Ortiz- "Facts which are stated in a trial court's memorandum decision will be accorded the same weight as if they had been contained in formal findings." Lambert v. Wrensch, 135 Wis. 2d 105, 114-15, 399 N.W.2d 369 (1987) (citing Hochguertel v. San Felippo, 78 Wis. 2d 70, 86, 253 N.W.2d 526 (1977)). 35 No. Mondragon warnings conceded by both "that the he was Court, given as equivocal required by 2013AP2435-CR immigration [Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of Rights form." The circuit court also noted that, at the plea and sentencing hearing, "[Ortiz-Mondragon] confirmed with the [c]ourt that he read [the plea questionnaire] over carefully before signing it and had the opportunity to fully discuss it with his attorney." The circuit court further noted that Attorney Singh signed the plea questionnaire, thereby affirming that he discussed it with Ortiz-Mondragon and that he believed Ortiz-Mondragon understood it and the plea agreement. ¶60 The immigration advice that Ortiz-Mondragon received stands in stark contrast to the incorrect immigration advice that was given in Padilla. In contrast to the present case, the immigration law in Padilla was "succinct, clear, and explicit" in providing that Padilla's conviction made him "eligible for deportation." attorney was Padilla, required 559 to do U.S. at 368. more than Thus, advise him Padilla's that his conviction may carry a risk of adverse immigration consequences. Id. at 369. But "Padilla's counsel provided him false assurance that his conviction would not result in his removal from this country." 369. Id. at 368. That "advice was incorrect." Id. at By contrast, the advice that Ortiz-Mondragon received was correct. ¶61 In fact, had Attorney Singh given the immigration advice that Ortiz-Mondragon argues he should have given, he may well have given incorrect advice. 36 Because federal immigration No. 2013AP2435-CR law does not succinctly, clearly, and explicitly provide that Ortiz-Mondragon's substantial battery was a crime involving moral turpitude, it may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that the immigration authorities would determine that his substantial battery was a crime involving moral turpitude. Accordingly, it also may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that he would be deportable and inadmissible to the United States on grounds of moral turpitude if convicted of substantial battery. ¶62 We note that incorrect advice that a plea will result in deportation or exclusion, like incorrect advice that a plea will not result in deportation or exclusion, could impact an alien defendant's misinformation beneficial decisionmaking. might plea offer encourage and could cause a defendant former defendant subject him kind of to reject a or herself to The latter kind of misinformation to immigration consequences. a thereby significantly more exposure. The be surprised with the actual Counsel should give accurate advice. Counsel should avoid overstating or understating the possible immigration consequences of a conviction. Ortiz-Mondragon's position, if adopted, would require more of an attorney than is required under Padilla because it is not succinct, clear, and explicit that Ortiz-Mondragon's substantial battery is a crime involving moral turpitude.19 19 Case law demonstrates 37 that even if immigration (continued) No. ¶63 In sum, we conclude that 2013AP2435-CR Ortiz-Mondragon's trial counsel did not perform deficiently by advising him that the plea agreement "could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law." That warning was correct and adequate under Padilla because it informed Ortiz-Mondragon that a conviction may carry a risk of adverse immigration consequences. ¶64 We turn briefly to Ortiz-Mondragon's argument that his attorney performed deficiently by failing to perform an adequate amount of research. the record contains Ortiz-Mondragon's law. For Contrary to Ortiz-Mondragon's assertion, evidence immigration example, at the that Attorney status plea and and Singh relevant sentencing researched immigration hearing, the circuit court asked Ortiz-Mondragon's attorney, Attorney Singh, whether Ortiz-Mondragon Enforcement hold. but the Singh Further, at informed the the an Immigration and Customs Attorney Singh stated that "I think there is, information Attorney had had I conducted plea court get and that he is secondhand," some research sentencing had indicating into hearing, "presented" the matter. Attorney the that State's Singh plea proceedings were commenced against Ortiz-Mondragon for the substantial battery being a crime involving moral turpitude, whether his substantial battery would qualify as a deportable offense could be, and likely would be, contested in those proceedings. See Abdelqadar v. Gonzales, 413 F.3d 668, 673-74 (7th Cir. 2005) (holding that an alien was not deportable under 8 U.S.C. § 1227(a)(2)(A)(i) because his crime involving moral turpitude occurred more than five years after he initially entered the United States). 38 No. 2013AP2435-CR offer to Ortiz-Mondragon, "given him paperwork to use to study it, [and] given him information to use in counseling . . . ." Immediately thereafter, Attorney Singh handed a signed plea questionnaire and waiver of rights form, along with "some other papers," to the court. ¶65 Because the record provides evidence that Ortiz- Mondragon's attorney did some level of research regarding the immigration consequences of the plea agreement, we turn now to Ortiz-Mondragon's argument that his attorney was deficient for failing to perform additional research. that additional research would Ortiz-Mondragon argues have revealed that his substantial battery is a crime involving moral turpitude. OrtizMondragon relies on Commonwealth v. Balthazar, 16 N.E.3d 1143 (Mass. App. Ct. 2014), and Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 428024 (S.D. Ind. Feb. 4, 2013). ¶66 In Balthazar the defendant moved to withdraw his guilty pleas to larceny and malicious destruction of property after the Immigration deportation proceedings convictions. n.3 (Mass. and Naturalization against him as Service a result began of the Commonwealth v. Balthazar, 16 N.E.3d 1143, 1145 & App. Ct. 2014). He alleged that he received ineffective assistance of counsel when his attorney told him that he would not be reduced to misdemeanors. Appeals Court held deported because the Id. at 1145, 1147. that, "[a]s legal charges had been The Massachusetts research would have indicated that the crimes were ones involving moral turpitude, we must conclude . . . that counsel's 39 failure to inform the No. 2013AP2435-CR defendant that pleading guilty to the charges would subject him to presumptively mandatory deportation fell below an objective standard of reasonableness." ¶67 Id. at 1147-48. In Montes-Flores the defendant pled guilty to making a material false statement in violation of 18 U.S.C. § 1001(a)(2). Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 428024, at *1-2 (S.D. Ind. Feb. 4, 2013). Prior to the plea, her attorney "'told her that it was possible that she could face deportation but that it will be up to the immigration judge to decide.'" Id. at *3. defendant's The federal district court granted the post-sentencing motion to withdraw grounds of ineffective assistance of counsel. The court held that the attorney's her plea on Id. at *2, *4-5. immigration advice was deficient because, "[w]hile crimes of 'moral turpitude' are not specifically defined in the statute, the Seventh Circuit has repeatedly violation held of turpitude.'" that [18 Id. '[t]here U.S.C. at *4 §] can 1001 is (emphases be no a crime added) question that involving (internal a moral citation omitted) (quoting Ghani v. Holder, 557 F.3d 836, 840 (7th Cir. 2009)) (citing Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir. 2010)). Thus, "counsel's failure to inform Montes–Flores that a conviction under § 1001 would result in presumptively mandatory deportation was objectively unreasonable." Id. at *5. The court further held that the deficient performance prejudiced the defendant. ¶68 Id. at *6. Balthazar and Montes-Flores are distinguishable. Unlike in those cases, additional research in the present case 40 No. would not have revealed that the crime at qualified as a crime involving moral turpitude. Attorney Singh performed additional advice would not have changed. immigration provide law that does not research, presents succinctly, Ortiz-Mondragon's a far different Balthazar and Montes-Flores. issue clearly Thus, even had his immigration As we explained earlier, federal clearly, substantial necessarily a crime involving moral turpitude. clarity 2013AP2435-CR situation and explicitly battery is This lack of than that in Unlike the defendant in Montes- Flores, Ortiz-Mondragon has not shown that the Seventh Circuit has "repeatedly held" that there can be "no question" that his conviction was for a crime involving moral turpitude.20 20 See Although not cited by Ortiz-Mondragon, we recognize that in some Seventh Circuit deportation cases the defendant conceded that his domestic battery qualified as a crime involving moral turpitude. See Coyomani-Cielo v. Holder, 758 F.3d 908, 910-11 (7th Cir. 2014) (noting that, after an immigration judge determined that the defendant was removable because his domestic battery "qualifies as a [crime involving moral turpitude]" and "'an aggravated felony,'" the defendant argued that "he is subject [to removal] only" for committing a crime involving moral turpitude but that "he might be eligible for cancellation of removal"); Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir. 2011) (noting that the defendant "denied that he committed an aggravated felony or a crime of domestic violence, but conceded that he was removable as an alien convicted of two crimes involving moral turpitude"); Benaouicha v. Holder, 600 F.3d 795, 798 (7th Cir. 2010) (noting that the defendant "conceded that he is deportable under [8 U.S.C. §] 1227(a)(2)(A)(i) for having been convicted of a crime of moral turpitude"). The Seventh Circuit in those cases did not hold that the domestic battery crimes at issue qualified as crimes involving moral turpitude. Further, the defendants in those cases were convicted for domestic battery under Illinois and Indiana statutes, not Wis. Stat. § 940.19(2). Thus, those cases do not succinctly, clearly, and explicitly demonstrate that Ortiz-Mondragon's substantial (continued) 41 No. Montes-Flores, court did research 2013 not WL make Attorney 428024, specific Singh at *4. Although findings performed with and 2013AP2435-CR the respect which circuit to what paperwork he provided to the court and Ortiz-Mondragon, we can infer that the circuit court implicitly found that Attorney Singh performed an adequate amount of research. See State v. Hubanks, 173 Wis. 2d 1, 27, 496 N.W.2d 96 (Ct. App. 1992) (citation omitted) ("The [circuit] court found that Hubanks had not been denied effective assistance of counsel. Although the [circuit] court did not make specific findings of fact, we may assume on appeal that such findings of fact were made implicitly in favor of its decision."). Accordingly, unlike defense counsel in Balthazar and Montes-Flores, Attorney Singh was not deficient for failing to perform additional legal research, which would not have changed his immigration advice. ¶69 We conclude that the immigration advice that Attorney Singh provided to Ortiz-Mondragon was sufficient under Padilla. Because the law is not "succinct, clear, and explicit" with respect to whether Ortiz-Mondragon's substantial battery was a crime involving moral turpitude, his trial counsel "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369 (emphases added). requirement by advising Ortiz-Mondragon that See Counsel met that the "plea could battery under § 940.19(2) was a crime involving moral turpitude. See supra ¶48. 42 No. result in deportation, the exclusion of 2013AP2435-CR admission to this country, or the denial of naturalization under federal law." See Garcia, 425 S.W.3d at 260-61 (holding that, because the defendant's crimes did not clearly qualify as crimes involving moral turpitude, counsel gave adequate advice by stating that the guilty pleas "might or might not have an adverse affect on his ability to return legally to the United States"); LopezPenaloza, 804 N.W.2d at 546 (holding that, because the defendant's crime did not clearly qualify as a crime involving moral turpitude, counsel gave adequate advice by stating "'that a criminal conviction, deferred judgment, or deferred sentence may affect [her] status under federal immigration laws'"). IV. CONCLUSION ¶70 We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive Specifically, his ineffective trial counsel assistance did not of perform counsel. deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that battery constituted a crime attorney "need[ed] [to] do Ortiz-Mondragon's involving no more moral than substantial turpitude, advise [him] his that pending criminal charges may carry a risk of adverse immigration consequences." trial attorney See Padilla, 559 U.S. at 369. satisfied that requirement Ortiz-Mondragon's by conveying the information contained in the plea questionnaire and waiver of rights form——namely, that Ortiz-Mondragon's "plea could result in deportation, the exclusion of admission to this country, or 43 No. the denial of naturalization under federal law." 2013AP2435-CR Counsel's advice was correct, not deficient, and was consistent with Wis. Stat. § 971.08(1)(c). In attorney did not perform research the immigration addition, deficiently consequences Ortiz-Mondragon's by of failing the plea to trial further agreement. Because Ortiz-Mondragon failed to prove deficient performance, we do not consider the issue of prejudice. By the Court.—The decision affirmed. 44 of the court of appeals is No. ¶71 ANN represents criminal WALSH yet law BRADLEY, another with the J. example This (dissenting). of federal 2013AP2435-CR.awb the case of state intersection immigration law. It likewise offers another example of why the mantra of the bar and bench alike should be: read the relevant statute. ¶72 Had the attorney merely read the governing statute, he would have discovered that the crime to which Ortiz-Mondragon pled made him deportable. involving moral subsection Aside from the subsection on crimes turpitude clearly (CIMTs), rendering duty to Padilla statute noncitizens conviction of domestic violence. ¶73 the has another deportable for a 8 U.S.C § 1227(a)(2)(E)(i). Because the consequence of a conviction is clear, the give v. accurate Kentucky, immigration 559 U.S. advice 356, is 368 likewise (2010) clear. ("when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear."). ¶74 relevant Nevertheless, domestic the abuse majority subsection essentially of the ignores statute and the the attorney's apparent failure to read it, and engages in a lengthy discussion specific of CIMTs. crime at controlling federal Rather issue than qualifies precedent, it focusing as focuses a on CIMT instead whether the under the on whether there is a clear definition of "crime of moral turpitude" and a consistent application of the judicial circuits. 1 concept across the federal No. ¶75 Because the circuit court denied 2013AP2435-CR.awb Ortiz-Mondragon's motion for postconviction relief without a hearing, it is hard to know the extent of the information the attorney provided and his basis determine for the it. The merits of record the is wholly claim. The insufficient majority, to however, purports to perform this task, concluding that Ortiz-Mondragon's claim must fail. ¶76 Padilla's requirement that attorneys inform their clients of the immigration consequences of entering a plea was not a mere suggestion. It set the standard performance under the Sixth Amendment. conclude that Ortiz-Mondragon's claim for attorney Unlike the majority, I of a Padilla violation cannot be so quickly brushed aside. ¶77 Because the consequence of deportation is clear under the subsection on domestic abuse (8 U.S.C. § 1227(a)(2)(E)(i)), the duty under the Sixth Amendment to give correct advice is likewise clear. Given that no hearing was held, it is impossible to know the nature and extent of the advice given to the defendant. Without a developed record, it is also impossible to determine whether there was a violation of the defendant's counsel. Sixth Amendment right to effective assistance of Accordingly, I would remand to the circuit court for a Machner hearing.1 1 In State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979), the court of appeals determined that when a defendant raises an ineffective assistance of counsel claim a hearing is necessary to obtain trial counsel's testimony. These hearings have become known as "Machner hearings." 2 No. 2013AP2435-CR.awb I ¶78 The majority ignores that had defense counsel done the bare minimum amount of research and merely read the governing statute, he would have discovered that the crime to which OrtizMondragon pled made him deportable. Aside from the subsection on CIMTs, the statute has another subsection clearly rendering noncitizens deportable for a conviction of domestic violence: 8 U.S.C. § 1227(a)(2)(E)(i). ¶79 In language that is clear and succinct, that subsection provides that any noncitizen who at any time after admission is convicted of a crime of domestic violence is deportable: Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added). ¶80 The subsection further details what qualifies crime of domestic violence: For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any 3 as a No. State, Indian government. tribal government, or 2013AP2435-CR.awb unit of local 8 U.S.C. § 1227(a)(2)(E)(i).2 ¶81 If there is any doubt about the plain meaning of the subsection of the statute, it is put to rest decision by the United States Supreme Court. by a recent In Mellouli v. Lynch, 135 S. Ct. 1980, 1990 n.11 (June 1, 2015), the Court described the subsection as "specif[ying] subjects an alien to removal." the conduct that See also id. at 1992 (Thomas, J. dissenting) (describing § 1227(a)(2)(E)(i) as "making removable '[a]ny alien who . . . is convicted of a crime of domestic violence,' where 'the term "crime of domestic violence" means any crime of violence . . . committed by' a person with a specified family relationship with the victim"). ¶82 This is in accord with prior circuit court decisions. See, e.g., Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015) (noncitizen rendered removable due to his domestic violence conviction); Florez v. Holder, 779 F.3d 207, 209 (2d Cir. 2015) ("8 U.S.C. § 1227(a)(2)(E)(i), [] makes any alien removable if, 2 Section 16 of title 18 defines "crime of violence" as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16. 4 No. 2013AP2435-CR.awb 'at any time after admission,' the alien 'is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.'"); GonzalezGonzalez v. Ashcroft, 390 F.3d 649, 650 (9th Cir. 2004) ("§ 1227 is titled 'Deportable aliens' and 'Domestic Violence' is listed as an offense under § 1227(a)(2), which lists criminal grounds of deportation."); Csekinek v. INS, 391 F.3d 819, 826-827 (6th Cir. 2004) (observing that 8 U.S.C. § 1227(a)(2)(E)(i) "renders deportable any alien convicted of a domestic violence offense after entry into the United States.").3 ¶83 conviction U.S.C. Like a conviction renders § 1229b(b). for noncitizens In a CIMT, ineligible relevant part, it a domestic for violence relief provides under that 8 "The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—— . . . has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title." § 1229b(b)(1). 8 U.S.C. Both CIMTs and crimes of domestic violence are listed in 8 U.S.C. § 1227(a)(2). 3 Notably, although deportation for CIMTs is limited to CIMTs "committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j)) after the date of admission," 8 U.S.C. § 1227(a)(2)(A)(i)(I), a conviction for a crime of domestic violence is not so limited. 8 U.S.C. § 1227(a)(2)(E)(i) states that a crime of domestic violence occurring at "any time after admission" will render a noncitizen deportable. 5 No. ¶84 2013AP2435-CR.awb Fundamental to the practice of law is being familiar with the relevant statutes. Failure to do so constitutes a quintessential example of deficient performance. Alabama, 134 S. Ct. 1081, 1089 (2014) See Hinton v. ("[a]n attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland."). ¶85 Reading the governing statutes is required by the prevailing professional norms which, under Strickland, set the standards for deficient performance. 466 U.S. 668, performance 688 (1984) remains ("[t]he simply Strickland v. Washington, proper measure reasonableness of under attorney prevailing professional norms."). For example, Standard 4-6.3(d) of the ABA Standards for Criminal Justice, Prosecution and Defense Functions (4th ed. 2015), states that "[d]efense counsel should investigate law, and and be knowledgeable alternatives, outcomes, . . . about collateral sentencing procedures, consequences and likely and advise the client on these topics before permitting the client to enter a negotiated disposition." ¶86 Criminal attorneys about Likewise, Justice, to Standard Pleas investigate pleas. The 14-3.2 of the of the Guilty (3d law before commentary advises ABA ed. Standards 1999), advising that for requires defendants because the immigration consequence of a guilty plea may well be a client's greatest priority, "counsel should be familiar with the basic immigration consequences that flow 6 from different types of No. 2013AP2435-CR.awb guilty pleas, and should keep this in mind in investigating law and fact and advising the client." ¶87 Id. at 127. Here, had defense counsel read the governing statute he would have been able to provide Ortiz-Mondragon with more than a general warning.4 Nevertheless, the majority attempts to circumvent this problem by simply dismissing the domestic abuse subsection in a footnote. It ignores not only the clear language of the subsection but also Padilla's clear directive: attorneys must advice . . . ." "provide [their] client[s] with available Padilla, 559 U.S. at 371. II ¶88 Rather than discussing the plain language of the domestic abuse subsection or focusing on whether the crime at issue renders Ortiz-Mondragon deportable, the majority takes a different approach. It discusses the lack of definition of CIMTs in the immigration statute, that other courts have deemed the term "crime involving moral turpitude" ambiguous, and that 4 The majority's determination that defense counsel did adequate research is highly speculative. It refers to defense counsel's statement that "the information I get is secondhand," his statement that he had given Ortiz-Mondragon "paperwork," and that he handed the signed plea questionnaire and waiver of rights form, along with "some other papers," to the court. The majority contends that these facts are evidence that he did "some level of research." Majority op., ¶64. It then "infer[s] that the circuit court implicitly found that [defense counsel] performed an adequate amount of research." Id., ¶68. The flimsy details that the majority points to say nothing about what that research was or what the attorney knew. Without a Machner hearing, this information is unknowable. 7 No. 2013AP2435-CR.awb different circuits have different tests for determining whether a crime is a CIMT. Majority op., ¶¶37, 39, 41. Accordingly, the majority concludes that the immigration consequences were unclear and that defense counsel's performance was not deficient because he needed to do no more than tell Ortiz-Mondragon that a conviction may have negative immigration consequences. ¶89 The majority ignores, however, that this case did not require defense counsel to determine the definition of a CIMT. Rather he needed to determine only if the crime Ortiz-Mondragon faced, substantial battery qualified as a CIMT. to determine what with a domestic abuse enhancer, Further, defense counsel was not required other federal circuits would have done. Rather, he should have looked at the law in the Seventh Circuit, which governs Ortiz-Mondragon's case. ¶90 Review of removal proceedings conducted in this federal judicial circuit is performed by the Seventh Circuit Court of cases. shall Appeals and therefore its precedent governs those See 8 U.S.C. § 1252(b)(2) ("The petition for review be circuit filed in with which the the court of appeals immigration for judge the judicial completed the proceedings."). ¶91 Immigration removal proceedings for Wisconsin residents, such as Ortiz-Mondragon, are conducted in Chicago. See Executive Office for Immigration Review, Department of Justice, "EOIR Immigration Court Listing" (2015), available at www.justice.gov/eoir/immigration-court-administrative-control- 8 No. list#Chicago.5 Thus, upon completion of his 2013AP2435-CR.awb sentence Ortiz- Mondragon's removal proceeding would have occurred in Chicago and Seventh Circuit Court of Appeals precedent would govern. ¶92 A basic search of Seventh Circuit cases provides a clear answer to whether domestic battery qualifies as a CIMT. The answer is "yes." Circuit plainly In Coyomani-Cielo v. Holder, the Seventh stated that "[defendant] was convicted domestic battery, which qualifies as a CIMT . . . ." of 758 F.3d 908, 910 (7th Cir. 2014). ¶93 The majority attempts to explain away this clear statement by inaccurately asserting that it was presented as a concession by the defendant. Majority op., ¶68 n.20. It was neither a concession nor even a debatable point. Rather, the court made this statement as a clear statement of fact in its description of the background of the case. ¶94 Admittedly, Coyomani-Cielo under Illinois law. Mondragon's considered a conviction Accordingly, to determine whether Ortiz- conviction would be a CIMT, one must take the additional step of comparing the Illinois statute at issue in that case, 720 ILCS 5/12-3.2, with the Wisconsin statutes at issue, Wis. Stat. §§ 940.19(2), 968.075. ¶95 Under committed means: (1) by: the Illinois "knowingly Caus[ing] statute, without bodily harm 5 legal to any domestic battery justification family or by is any household The DOJ list of immigration courts and their assigned geographic responsibilities is published pursuant to 8 C.F.R. § 1003.11. 9 No. member; (2) Mak[ing] physical contact of an 2013AP2435-CR.awb insulting provoking nature with any family or household member."6 the Wisconsin statute, Ortiz-Mondragon was or Under convicted of "caus[ing] substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another." Wis. Stat. § 940.19(2). The domestic abuse enhancer means that the individual Ortiz-Mondragon inflicted harm on was "his or her spouse or former spouse, . . . or formerly resided or a child in common." ¶96 . . . an adult with whom [he] resides an adult with whom the person has Wis. Stat. § 968.075. The statutes reveal that a Wisconsin conviction for substantial battery with a domestic abuse enhancer necessarily would qualify as domestic battery under Illinois law. Thus, the crime for which Ortiz-Mondragon was convicted should likewise be deemed a CIMT. ¶97 Other Seventh Circuit precedent is in accord. In Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008), the court 6 Illinois including: defines "family or household member" spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in Section 12-4.4a of this Code. 720 ILCS 5/12-0.1 10 as No. considered whether aggravated qualified as a CIMT. moral turpitude magnitude of are the battery of a 2013AP2435-CR.awb police officer The court observed that "crimes involving usually loss serious they cause crimes or the (in terms of the indignation in the public they arouse) that are committed deliberately." 536. Id. at It commented that precedent has "emphasized the bodily harm requirement in concluding that the serious enough to be turpitudinous." referred to precedent assault crime Id. at 537. determining that was It then "moral turpitude necessarily inheres in assault and battery offenses that are defined by reference to the infliction of bodily harm upon a person whom society views as deserving of special protection, such as a child, a domestic partner, or a peace officer." In re Sanudo, 23 I.& N. Dec. 968, 971-72 (B.I.A. 2006). ¶98 Ultimately, the Seventh Circuit determined that battery of a police officer did not necessarily constitute a CIMT because bodily harm the as Illinois an statute element. Garcia-Meza is instructive. at issue Garcia-Meza, did 516 not F.3d include at 538. Its analysis reveals that a crime qualifies as a CIMT when it includes as an element bodily harm to a person who society recognizes as protection, such as a domestic partner. deserving of special See also Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir. 2011) (defendant conceded his domestic battery conviction constituted a CIMT); Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir. 2010) (noting defendant's concession that his conviction 11 for the battery of his wife No. constituted a conviction for conviction for substantial a CIMT).7 battery with 2013AP2435-CR.awb Ortiz-Mondragon's a domestic abuse enhancer meets these criteria. ¶99 Even if defense counsel had been unable to find and analyze the governing precedent, he could have determined that substantial battery with a domestic abuse enhancer qualified as a CIMT by consulting legal practice guides. Padilla instructs attorneys to consult guidebooks to educate themselves about the relevant immigration law: "we expected that counsel who were unaware of the discretionary relief measures would 'follo[w] the advice of numerous practice guides.'" 559 U.S. at 368. ¶100 Practice guides indicate that substantial battery with a domestic abuse enhancer qualifies as a CIMT. 7 For example, Although they are not binding, it is notable that other jurisdictions have determined that crimes comparable to substantial battery with a domestic abuse enhancer constitute CIMTs. See, e.g., Medina v. United States, 259 F.3d 220, 228 (4th Cir. 2001) ("we find it significant that Medina's crime was carried out against his former fiancée, Maria Bracho. The INS—— which is statutorily authorized to administer the immigration laws and determine what constitutes a CIMT——has, in the past several years, taken steps to assert that crimes of assault upon victims that have a 'special relationship' with the assaulter may be a CIMT."); Toutounjian v. INS, 959 F. Supp. 598, 603 (W.D.N.Y. 1997) ("Sexual or physical abuse of women or children has been almost uniformly found to involve a crime of moral turpitude."); In re Tran, 21 I. & N. Dec. 291, 292-93 (BIA 1996) (concluding that acts of violence against someone in a special relationship with the assaulter is "different from [assault] between strangers or acquaintances," and is a CIMT). The one case the majority cites as stating to the contrary, MoralesGarcia v. Holder, 567 F.3d 1058 (9th Cir. 2009), has not been followed outside of the Ninth Circuit. 12 No. Maria Baldini-Porterman's comprehensive 2013AP2435-CR.awb guide on immigration consequences conveys the same information as Garcia-Meza: Where the elements of a domestic battery offense do not require either actual infliction of serious harm or specific intent and physical injury to the victim, the offense is not categorically a crime involving moral turpitude. The willful infliction of corporal injury on a spouse, cohabitant, or parent of the offender's child in violation of California Penal Code § 273.5(a) has been found to be a crime involving moral turpitude. Maria Baldini-Porterman, Defending Non-Citizens in Illinois, Indiana and Wisconsin (Heartland Alliance's National Immigrant Justice Center 2009). ¶101 Likewise, another practice guide states: "moral turpitude has been found where the assault and battery offenses are defined by reference to the infliction of bodily harm on someone whom society views as deserving of special protection (such as a child or spouse)." Austin T. Fragomen, Jr. and Steven C. Bell, Immigration Fundamentals: A Guide to Law and Practice, § 7:2.2 at 7-32 (4th ed. 2014). ¶102 The "Immigration Consequences Crimes Summary Checklist," published by the Immigrant Defense Project (2010), provides even clearer guidance. Its list of CIMTs includes "[c]rimes in which bodily harm is caused or threatened by an intentional act . . . ." substantial unquestionably battery with meets these Ortiz-Mondragon's a domestic requirements. conviction abuse As noted for enhancer above, substantial battery is defined as "caus[ing] substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another." Wis. Stat. § 940.19(2). 13 No. 2013AP2435-CR.awb ¶103 By focusing on the difficulty of defining "crimes of moral turpitude" and the different approaches the circuit courts take in determining whether a crime is a CIMT, the majority hides the fact that a conviction for substantial battery with a domestic abuse Circuit. enhancer qualifies as a CIMT in the Seventh Whether by reading the plain language of the domestic abuse subsection of the statute or by following clear Seventh Circuit precedent, defense counsel should have discovered the immigration consequences of Ortiz-Mondragon's clear the plea would render him deportable. give correct advice is equally clear." 368. plea. It was Thus, "the duty to Padilla, 559 U.S. at Defense counsel was obligated to provide the advice that was available. Id., 371. ¶104 As explained above, the United States Supreme Court has instructed, "[t]he proper measure of attorney performance remains simply norms." reasonableness Strickland, 466 under U.S. at prevailing professional 688. In criminal representation, this "entails certain basic duties," including the "duty reasonable to make decision unnecessary." reasonable that investigations makes particular or to make a investigations Id. at 688, 691. "[A]n attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform quintessential Strickland." basic example of research on unreasonable that point performance is a under Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). ¶105 The majority conducts no inquiry into whether defense counsel's research was reasonable under professional norms, or 14 No. 2013AP2435-CR.awb whether defense counsel was ignorant on a fundamental point of law (i.e. the immigration consequences of a plea), nor could it. Without a Machner hearing the record is silent in this respect. Just as the record fails to show what warnings defense counsel provided, it also fails to show that he did adequate research into the immigration issue. III ¶106 In contrast to the majority, I would remand this case for a Machner hearing. motion claiming allegations," Such hearings are required unless the ineffectiveness "fails to allege "presents sufficient only facts conclusory to raise a question of fact," or "if the record conclusively demonstrates that the defendant is not entitled to relief." Roberson, 292 Wis. 2d 280, ¶43. ¶107 Ortiz-Mondragon's motion is quite detailed and alleges sufficient facts which, if true, show that he is entitled to relief. It details that his plea rendered him ineligible for cancellation of his removal: Mr. Ortiz-Mondragon pleaded no contest to substantial battery, domestic abuse, contrary to Wis. Stat. § 940.19(2). This is a crime involving moral turpitude. The maximum sentence for this offense is 3.5 years of imprisonment. Because the maximum period of confinement exceeds one year, Mr. Ortiz-Mondragon's conviction rendered him ineligible for cancellation of removal. It also explains that the plea prevents Ortiz-Mondragon from returning to the United States: [B]ecause of his convictions, Mr. Ortiz-Mondragon is permanently excluded from legally re-entering the United States. An individual applying for admission 15 No. to the United States crime involving §212(a)(2)(A)(i)(I). conviction involves punishment is less sentence of the court ¶108 deficient 2013AP2435-CR.awb cannot have been convicted for a moral turpitude. INA The only exception is when the a crime for which the maximum than one year, and the actual does not exceed six months. Further, the motion alleges that defense counsel was for failing "[Ortiz-Mondragon] was to advise not him properly of these advised immigration consequences of his plea." consequences: of the adverse It explains what his attorney should have told him: "counsel's advice to Mr. OrtizMondragon should have been that accepting a plea agreement in which he would plead battery-domestic abuse guilty would or no result contest in to automatic permanent exclusion from the United States." substantial removal and It then claims that his attorney failed to provide this advice: "trial counsel failed to advise him of adverse immigration consequences of his plea, specifically that the convictions mandated removal and resulted in permanent exclusion from the country once removed." ¶109 Finally, performance the prejudiced motion alleges that this deficient Ortiz-Mondragon: "Mr. Ortiz-Mondragon would have gone to trial instead of pleading no contest had he known his convictions permanently excluded." made him automatically deportable It explains that "[Ortiz-Mondragon] has already left the country and is now in Mexico. conviction, he was and unable to apply for Due to his cancellation of his removal and he is now permanently excluded from re-entering the country." "[H]ad Mr. Ortiz-Mondragon known and understood the consequences of a conviction for substantial battery, he would 16 No. 2013AP2435-CR.awb have attempted to negotiate a plea agreement that avoided the automatic and permanent consequences he now faces." ¶110 These attorney was requirements. prejudiced facts, if deficient true, because a he did that Ortiz-Mondragon's not meet the Padilla They also sufficiently allege that the deficiency Ortiz-Mondragon. establish show violation Thus, of if true, Ortiz-Mondragon's the allegations Sixth Amendment rights, entitling him to relief. ¶111 Nothing Mondragon's defense in claim. counsel the It told record does not conclusively indicate Ortiz-Mondragon rebuts what, about if the Ortiz- anything, immigration consequences of his plea. It also fails to indicate the basis for it that advice, whether was grounded in research, and whether it was reasonable under prevailing professional norms. ¶112 None of the scenarios that would preclude a Machner hearing are present. Roberson, 292 Wis. 2d 280, ¶43 (Machner hearing not required if the motion "presents only conclusory allegations," "fails to allege sufficient facts to raise a question of fact," or "if the record conclusively demonstrates that the defendant is not entitled to relief."). Accordingly, a Machner hearing is required to determine the merits of OrtizMondragon's claim. IV ¶113 must Under research Padilla, the attorneys relevant representing immigration noncitizens consequences conviction and provide that information to their clients. requirements are important protections to noncitizens. 17 of a These No. 2013AP2435-CR.awb ¶114 Each of the majority's errors removes some of that protection. By ignoring Mondragon deportable, attorneys not leaving the open that determining the reading door statutory majority the the grounds for rendering implicitly governing uninformed, immigration approves immigration inaccurate Ortizof statutes, advice. consequences of By Ortiz- Mondragon's plea are unclear because the definition of CIMT is unclear, the majority reduces the number of situations in which attorneys must provide available immigration advice. ¶115 In contrast to the majority, I believe that Padilla's requirements have teeth. immigration have consequences discovered that Had defense counsel researched the of it Ortiz-Mondragon's rendered plea, Ortiz-Mondragon he would deportable. Under Padilla, that means that defense counsel was required to convey that information to his client. Ortiz-Mondragon should have the opportunity to prove that such advice was not given and that he was prejudiced as a result. Therefore a remand is required and a Machner hearing is necessary. ¶116 For the reasons set forth above, I respectfully dissent. ¶117 I am authorized to state ABRAHAMSON joins this dissent. 18 that Justice SHIRLEY S. No. 1 2013AP2435-CR.awb
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