State v. Ortiz-Mondragon

364 Wis.2d 1

866 N.W.2d 717

2015 WI 73

STATE of Wisconsin, Plaintiff–Respondent,

v.Fernando ORTIZ–MONDRAGON, Defendant–Appellant–Petitioner.

No. 2013AP2435–CR.

Supreme Court of Wisconsin.

Argued April 21, 2015.

Decided July 9, 2015.

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 curie brief was filed by Barbara Graham on behalf of the Catholic Charities Legal Services for Immigrants, Milwaukee.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 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

¶ 2 Ortiz–Mondragon argues that the circuit court erred by denying his motion to withdraw his plea. He argues that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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 may carry a risk of adverse immigration consequences." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). "But when 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. He argues that these immigration consequences were clear and certain because his substantial battery was a "crime involving moral turpitude" under federal immigration law, thereby rendering him automatically deportable and permanentlyinadmissible.

#FN;B0044

¶ 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 with respect to the possible immigration consequences of Ortiz–Mondragon's plea, trial counsel gave correct advice under Padilla when he advised 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 Ortiz–Mondragon's conviction for substantial battery would constitute a crime involving moral turpitude. 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 ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not "succinct, clear, and explicit" in providing that Ortiz–Mondragon's substantial battery constituted a crime involving moral turpitude, his attorney "need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences." See Padilla, 559 U.S. at 369, 130 S.Ct. 1473. Ortiz–Mondragon's trial attorney satisfied that requirement 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 In addition, Ortiz–Mondragon's 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 In 1997 Ortiz–Mondragon came to the United States from Mexico. In 2002 he moved to Wisconsin to work in the agricultural industry. He has four children, all of whom are United States citizens and reside in Wisconsin.

¶ 7 On September 14, 2012, the State filed a criminal complaint charging Ortiz–Mondragon with: (1) substantial battery, contrary to Wis. Stat. § 940.19(2) ; (2) false imprisonment, contrary to Wis. Stat. § 940.30 ; (3) 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 included a domestic abuse enhancer under Wis. Stat. § 968.075. All of the counts stemmed from one incident that occurred on September 12, 2012.

¶ 8 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. Their two young children were in the room with them. Ortiz–Mondragon put his hands around J.S.'s neck and began squeezing. J.S. had trouble breathing and thought that Ortiz–Mondragon was going to kill her. 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. Ortiz–Mondragon also broke J.S.'s phone in half. 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. If Ortiz–Mondragon pled guilty or no contest to substantial battery, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer, the State would dismiss and read-in the intimidation and false imprisonment charges. The State would recommend three years of probation and four months in jail as a condition of probation.

¶ 11 On November 27, 2012, the circuit court held a plea and sentencing hearing. Ortiz–Mondragon's attorney, Raj Kumar Singh ("Attorney Singh"), informed the court that the State recently made a plea offer to the defendant. Attorney Singh stated that he had "presented" the State's plea offer to Ortiz–Mondragon, "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." Attorney Singh had signed the plea questionnaire and waiver of rights form immediately below the following affirmation: "I am the attorney for the 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. The circuit court then informed him of the possible immigration consequences of his pleas.

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. Do you still wish to offer me these pleas then?

THE DEFENDANT: Yes.

¶ 14 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: Yes.

THE COURT: Did you sign the plea questionnaire?

THE DEFENDANT: Yes.

THE COURT: Before you signed it, did you read it over carefully?

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.

THE COURT: And are you satisfied with his representation thus far?

THE DEFENDANT: Yes.

¶ 15 The court concluded: "I'm going to find the defendant's pleas today to be freely, voluntarily, and intelligently...