MADISON—The Wisconsin Supreme Court Tuesday reinstated a Wisconsin Dells man’s guilty pleas by reversing an appeals decision which had dismissed the pleas because of a defective deportation warning.
The state’s high court concluded that whatever deficiencies were in the warnings Columbia County Circuit Judge Alan White gave Jose Alberto Reyes Fuerte in 2014 about possibly being deported were harmless error and would be upheld.
The 5-2 opinion overturned a prior ruling and shut off a remedy to defendants facing deportation when the warning a judge gives omits some immigration consequences.
Fuerte, 41, was in the country illegally after immigrating from Mexico after age 18, settling in Wisconsin and having two children. He was arrested in 2012 on the OWI and eluding charges and deportation proceedings were initiated.
Before pleading guilty to the misdemeanor charges, White told Fuerte that his convictions could result in his possible deportation and could be denied re-entry in to the country.
Fuerte’s attorney was bilingual and through an interpreter Fuerte said he was aware of the immigration consequences of his plea. The plea questionnaire Fuerte signed was written in English and Spanish also acknowledged that he understood the deportation possibility he faced.
Under immigration law, deportation proceedings can be cancelled if an individual has not been convicted of a crime of moral turpitude. At his plea hearing, it was unclear if Fuerte was pleading guilty to a crime of moral turpitude.
In June 2014, Fuerte was sentenced to three years supervised release with six months in jail. Months later, a federal appeals court included that Fuerte’s convictions were within the definition of a crime of moral turpitude and he no longer had a defense to being deported.
Fuerte sought to withdraw his guilty pleas, saying White had not advised him that he would lose his defense against deportation if he pleaded guilty and it also denied his chances of becoming a naturalized citizen. White denied Fuerte’s request saying any error made was harmless as he substantially compiled with requirements under state law.
Fuerte appealed and the District IV Court of Appeals found that warnings White gave Fuerte did not comply with state law. Among other findings, that court concluded that White used “resident” instead of “citizen” which it found to have sustainably different legal definitions under federal immigration law.
The court ordered the case returned to White but the state appealed the decision to the Wisconsin Supreme Court.
The court’s majority upheld White’s warnings finding that any error was harmless to Fuerte.
The court found that two statutes governing plea warnings were in conflict and “harmonized” them in the Fuerte case.
In deciding Fuerte’s case, the court overturned the Douangmala decision which allowed a defendant to withdraw their guilty plea upon proof that it would result in their deportation. No exceptions are made for harmless error. In doing so, it reinstated three other decisions invalidated by Douangmala restoring their use as precedent in future cases.
The court’s majority reasoned that federal courts now use the harmless error test to analyze faulty guilty pleas when the defendant was only told of the potential immigration consequences he faced.
“(White) made two errors in its immigration advisement: completely omitting any mention of denial of naturalization and using the term ‘resident’ instead of ‘citizen.’ We hold both errors were harmless,” Justice Michael Gableman wrote in the 24-page opinion.
In a dissent joined by Justice Ann Walsh Bradley, Justice Shirley Abrahamson wrote that it was wrong to overturn Douangmala which was unanimously decided and unchallenged for 15 years. Also, the implications in the Fuerte opinion reach “far beyond the present case…. affecting future petitions for plea withdrawal.”
A call to Fuerte’s appeals attorney, Ben Crouse, for comment on the opinion and Fuerte’s deportation status was not returned before deadline.