2016 WI 4

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP678, 2014AP679 & 2014AP680

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Melisa Valadez,

 Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

(No Cites)

OPINION FILED: January 28, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 6, 2015

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Walworth

JUDGE: David M. Reddy

JUSTICES:

CONCUR & DISSENT: Ziegler, J. joined by Gableman, J.

DISSENTED: Prosser, J. joined by Roggensack, C.J.

NOT PARTICIPATING: R. Bradley, J. 

ATTORNEYS:

For the defendant-appellant, there were briefs by David 

Ziemer, Glendale, and Marc E. Christopher and Christopher Law 

Office, LLC, Milwaukee and oral argument by Marc E. Christopher.

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.
2016 WI 4

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP678, 2014AP679 & 2014AP680

(L.C. No. 2005CF83, 2005CM257 & 2004CM245)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Melisa Valadez,

 Defendant-Appellant.

FILED

JAN 28, 2016

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from an order of the Circuit Court for Walworth 

County, David M. Reddy, Judge. Reversed and remanded. 

¶1 SHIRLEY S. ABRAHAMSON, J. This case involves the 

intersection of Wisconsin criminal law and federal immigration 

law.1

 

1 For general primers on various aspects of the intersection 

of criminal law and immigration law, see Margaret Colgate Love, 

Jenny Roberts & Cecelia Klingele, Collateral Consequences of 

Criminal Convictions: Law, Policy and Practice §§ 2:46-:60 

(2013 ed.); Dan Kesselbrenner, Lory D. Rosenberg & Maria 

Baldini-Potermin, Immigration Law & Crimes (2015 ed.).

(continued)
Nos. 2014AP678, 2014AP679 & 2014AP680 

2

¶2 This is an appeal from an order of the Circuit Court 

for Walworth County, David M. Reddy, Judge. The circuit court 

denied the motion of the defendant, Melisa Valadez, to withdraw 

her guilty pleas. 

¶3 Ms. Valadez's motion to withdraw her guilty pleas is 

based on Wis. Stat. § 971.08(2) (2011-12).2 Before we examine 

§ 971.08(2), we examine § 971.08(1)(c). Wisconsin Stat. 

§ 971.08(1)(c) requires that before a circuit court accepts a 

plea of guilty or no contest, the circuit court 

"shall . . . [a]ddress the defendant personally and advise the 

defendant as follows: 'If you are not a citizen of the United 

States of America, you are advised that a plea of guilty or no 

contest for the offense with which you are charged may result in 

deportation, the exclusion from admission to this country or the 

denial of naturalization, under federal law.'" 

¶4 The circuit court's colloquies with Ms. Valadez did 

not adhere to this statute. Judge John R. Race and Judge Robert

J. Kennedy presided over the criminal proceedings in which Ms. 

Valadez entered guilty pleas. Neither of the circuit courts 

 

For information supplied by the federal agency responsible 

for naturalization, see U.S. Customs & Immig. Serv., Citizenship 

Through Naturalization, http://www.uscis.gov/uscitizenship/citizenship-through-naturalization. For information 

regarding prosecutorial discretion in deportation cases, see 

U.S. Immigration and Customs Enforcement, Immigration Action, 

https://www.ice.gov/immigrationAction. 

2 All subsequent references to the Wisconsin Statutes are to 

the 2011—12 version unless otherwise indicated.
Nos. 2014AP678, 2014AP679 & 2014AP680 

3

advised Ms. Valadez of the immigration consequences of a guilty 

plea as required by Wis. Stat. § 971.08(1)(c). 

¶5 If a circuit court fails to advise a defendant of the 

immigration consequences (as required by Wis. Stat. 

§ 971.08(1)(c)) and if the defendant shows that the plea is 

"likely" to result in the defendant's deportation,3 exclusion 

from admission to this country, or denial of naturalization, the 

circuit court must ("shall") permit withdrawal of the plea and 

permit the defendant to enter another plea. 

¶6 Section 971.08(2) provides as follows:

(2) If a court fails to advise a defendant as required 

by sub. (1)(c) and a defendant later shows that the 

plea is likely to result in the defendant's 

deportation, exclusion from admission to this country 

or denial of naturalization, the court on the 

defendant's motion shall vacate any applicable 

judgment against the defendant and permit the 

defendant to withdraw the plea and enter another plea. 

This subsection does not limit the ability to withdraw 

a plea of guilty or no contest on any other grounds.

¶7 The court of appeals certified the instant case to 

this court pursuant to Wis. Stat. § (Rule) 809.61.

¶8 The appeal presents two questions:

1. Did Melisa Valadez's motion to withdraw her pleas of 

guilty satisfy the "likely" statutory criterion in 

Wis. Stat. § 971.08(2) for mandatory vacation of the 

judgments of conviction, that is, did she show that 

 

3 Federal statutes refer to deportation as "removal." See

Padilla v. Kentucky, 559 U.S. 356, 364 n.6 (2010). We use the 

terms "removal" and "deportation" interchangeably.
Nos. 2014AP678, 2014AP679 & 2014AP680 

4

her guilty pleas were "likely" to result in her 

exclusion from admission to this country?4 

2. Is there a time limit for a defendant to file a 

motion to withdraw a plea based on Wis. Stat. 

§ 971.08(2)?5 The court of appeals further 

inquired: "How would such a time limit fit in with 

the possible need to await actual deportation 

proceedings before moving to withdraw the plea?"

 

4 The court of appeals framed the issue as follows: "How 

definite or imminent must deportation be in order for it to be 

'likely' such that a defendant may withdraw a guilty or no 

contest plea on the basis that he or she was not informed of the 

immigration consequences at the plea colloquy?" 

The circuit court and court of appeals focused 

predominantly on deportation, although they occasionally 

referred to the other two immigration consequences——exclusion 

from admission to this country and denial of naturalization. 

We restate the issue to reflect the key arguments of the 

parties in this court. Both parties briefed the immigration 

consequence of deportation, and Ms. Valadez briefed the 

consequence of denial of naturalization. However, especially in 

oral argument, the parties focused on Ms. Valadez's likely 

exclusion from admission as the ground for withdrawing her 

pleas, not deportation or denial of naturalization. This court 

does not have to reach the issues of either deportation or 

denial of naturalization because Ms. Valadez has met the burden 

of proving that exclusion from admission is likely. 

Deportation has been addressed by this court in State v. 

Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749; State v. 

Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93; and State v. 

Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717.

5 See State v. Romero-Georgana, 2014 WI 83, ¶67 n.14, 360 

Wis. 2d 522, 849 N.W.2d 668. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

5

¶9 In response to the first question, for the reasons set 

forth, we conclude that Ms. Valadez has demonstrated that the 

circuit court did not comply with Wis. Stat. § 971.08(1)(c) and 

that her guilty pleas are "likely" to result in her exclusion 

from admission to this country. Because Ms. Valadez has shown 

that her guilty pleas are "likely" to result in her exclusion 

from admission to this country, we need not reach the question 

of whether her pleas are also "likely" to result in deportation 

or denial of naturalization. Accordingly, we reverse the order 

of the circuit court and remand the cause to the circuit court 

to vacate the judgments of conviction and to permit Ms. Valadez 

to withdraw her guilty pleas and enter new pleas. 

¶10 The court of appeals raised the second question 

because although the majority opinion in State v. RomeroGeorgana, 2014 WI 83, ¶67 n.14, 360 Wis. 2d 522, 849 N.W.2d 668, 

did not adopt a time limit on a Wis. Stat. § 971.08(2) motion, 

it strongly suggested that (at least in certain circumstances) 

there should be a time limit.6 

¶11 We do not respond to the second question. Although 

both parties discussed the time limit issue in their briefs, 

neither party argued in this court for a time limit for plea 

withdrawal under Wis. Stat. § 971.08(2), and both parties agreed 

that even if the court were to adopt a time limit, Ms. Valadez's 

motion is timely. At oral argument, the State conceded it was 

 

6 The motion in Romero-Georgana was not a Wis. Stat. 

§ 971.08(2) motion; it was a § 974.06 motion.
Nos. 2014AP678, 2014AP679 & 2014AP680 

6

not arguing for a time limit on motions under Wis. Stat. 

§ 971.08(2), and even if the court were to adopt a time limit, 

Ms. Valadez's motion was timely.7 

¶12 In Romero-Georgana, the court noted that four months 

before the defendant's postconviction motion under Wis. Stat. 

§ 974.06 was filed, the federal government had started an 

 

7 The following exchange between Justice Ann Walsh Bradley 

and the assistant attorney general representing the State is 

informative:

Justice Ann Walsh Bradley: I have a question . . . . 

As I read on page 13 of your brief going on to page 14 

it says, "like many similar defendants, Valadez did 

not pursue additional post-conviction relief beyond 

the motions underlying this consolidated appeal." 

Next sentence. "Even if she had, however, her [Wis. 

Stat. §] 971.08(2) claims should not be barred later 

because they are not yet viable." I saw that with 

some dissonance to footnote 14 in our Romero-Georgana

case. I mean——I don't think you're embracing the time 

limit suggested for a 971.08(2).

Assistant Attorney General: No, I'm not, and I don't—

—I certainly don't think it's operable here. As the 

court pointed out earlier, the defendant in RomeroGeorgana had filed several post-conviction motions 

already on notice, because he had been served with a 

detainer from Homeland Security that he was subject to 

immigration proceedings. So with knowledge of a ripe 

claim he sat on it. And that's what I think RomeroGeorgana in that footnote speaks to and that's 

certainly not what's going on here. 

Justice Ann Walsh Bradley: And you are not advocating 

that there be a time limit. Is it correct you are not 

advocating that there be a time limit imposed on 

971.08(2) claims? Is that correct?

Assistant Attorney General: Yes. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

7

investigation into the defendant's deportability.8 Nevertheless, 

the defendant in Romero-Georgana pressed forward with his Wis. 

Stat. § 974.06 motion, without bringing a Wis. Stat. § 971.08(2) 

motion, and without asking the court to construe the Wis. Stat. 

§ 974.06 motion as a Wis. Stat. § 971.08(2) motion.9 

¶13 Under those circumstances, the Romero-Georgana court 

expressed concern about judicial efficiency, stating that 

"[w]hen a defendant has notice that he is likely to be deported 

and subsequently brings postconviction claims unrelated to Wis. 

Stat. § 971.08(2), we think it would be unwise to allow him to 

bring his claim as a § 971.08(2) motion at a later time, 

although he may be able to bring his claim as a Wis. Stat.

§ 974.06 motion if he has a sufficient reason for the delay."10 

¶14 The circumstances that concerned the court in RomeroGeorgana are not at issue here. Ms. Valadez has not brought 

other postconviction motions. Ms. Valadez has not, with notice 

of a ripe claim, sat on her rights. Moreover, neither Ms. 

Valadez's counsel nor the State argued for a time limit on Wis. 

Stat. § 971.08(2) motions, and the State conceded that Ms. 

Valadez's motion would be timely even under the time limit 

suggested in Romero-Georgana. 

 

8 Romero-Georgana, 360 Wis. 2d 522, ¶67 n.14. 

9 Id. 

10 Id. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

8

¶15 Because the parties agree and do not present 

adversarial positions, we do not address the second question.11

I

¶16 The facts are not in dispute for purposes of this 

appeal. 

¶17 The defendant, Melisa Valadez, is not a citizen of the 

United States. She became a Lawful Permanent Resident (LPR) in 

2001, when she was 15 years old. Her three children were born 

in the United States.

¶18 Ms. Valadez was convicted in 2004 and 2005 (when she 

was 19 years old) of possession of cocaine, possession of THC, 

and possession of drug paraphernalia in three separate cases on 

pleas of guilty.12 To the extent it may be relevant under 

federal immigration law,13 the offenses underlying the first two 

cases——possession of cocaine, two counts of possession of THC, 

and two counts of possession of drug paraphernalia——occurred 

when Ms. Valadez was 18 years old. The offense underlying the 

 

11 See State v. Denk, 2008 WI 130, ¶32 n.5, 315 Wis. 2d 5, 

758 N.W.2d 775 (stating that while the court of appeals' 

certification included several additional questions, "[t]hese 

questions are tangential to our inquiry . . . ."); State v. 

Popanz, 112 Wis. 2d 166, 168 n.3, 332 N.W.2d 750 (1983) 

(refusing to answer a second certified question because the case 

was resolved on other grounds)

12 On Ms. Valadez's motion, the court of appeals 

consolidated the three cases to facilitate briefing and 

disposition.

13 See, e.g., 8 U.S.C. §§ 1182(a)(2)(A)(ii)(I), 

1227(a)(2)(A)(i). 
Nos. 2014AP678, 2014AP679 & 2014AP680 

9

third case, possession of THC as a repeater, occurred when she 

was 19 years old. 

¶19 The transcripts of the plea hearings clearly show that 

the circuit court failed to warn Ms. Valadez, as required by 

Wis. Stat. § 971.08(1)(c), that her pleas and subsequent 

convictions may have immigration consequences. 

¶20 As a result of these convictions, Ms. Valadez served 

jail time and was placed on probation. She was ordered to pay 

fines, have an AODA assessment, and get alcohol counseling. She 

has fulfilled all the conditions imposed by the circuit courts 

and has had no subsequent convictions in the decade since these 

2004-2005 convictions. 

¶21 In 2013, Ms. Valadez filed a motion under Wis. Stat. 

§ 971.08(2) to withdraw her guilty pleas, arguing that as a 

result of the convictions she is unable to renew her LPR card; 

she is subject to deportation; she likely would be excluded from 

admission to the United States if she left the country; and she 

likely would be denied naturalization if she applied to become a 

naturalized American citizen.

¶22 At the initial hearing on Ms. Valadez's motion to 

withdraw her plea, the circuit court granted her additional time 

to attempt to acquire an affidavit or some narrative of verbal 

communications with a federal agent in order to meet the 

requirements of this court's decision in State v. Negrete, 2012 

WI 92, 343 Wis. 2d 1, 819 N.W.2d 749. 

¶23 To supplement Ms. Valadez's initial brief, defense 

counsel submitted e-mail communications between counsel and an 
Nos. 2014AP678, 2014AP679 & 2014AP680 

10

Immigration and Customs Enforcement (ICE) Special Agent. The emails were introduced apparently to confirm a telephone call

between defense counsel and the ICE Special Agent regarding 

immigration law and enforcement practices. The e-mails did not 

confirm or challenge defense counsel's views of immigration law. 

¶24 Citing Negrete (especially footnote 8), the circuit 

court denied Ms. Valadez's motion to withdraw her pleas. 

Footnote 8 in Negrete states as follows: 

More specifically, if a defendant chooses to establish 

that the crime to which the defendant pleaded is one 

for which the defendant would have been subject to 

potentially adverse immigration consequences under 

controlling federal law, the defendant should cite the 

federal law upon which reliance is placed. For 

example, under federal law, 8 U.S.C. § 1227 (2006) 

delineates numerous categories of aliens who are 

potentially deportable. Relevant to motions under 

Wis. Stat. § 971.08(2) is the federal statute 

providing that "[a]ny alien who is convicted of an 

aggravated felony at any time after admission is 

deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). See

State v. Baeza, 174 Wis. 2d 118, 127, 496 N.W.2d 233 

(Ct. App. 1993).

In addition, in such a motion, a defendant should 

allege that the federal government has conveyed its 

intent to impose one of the enumerated immigration 

consequences set out in Wis. Stat. § 971.08(2). This 

required nexus between the crime to which a plea was 

made and adverse immigration consequences can be 

demonstrated by alleging facts that show that, because 

of his plea, the defendant has become subject to 

deportation proceedings, has been excluded from 

admission to the country, or has been denied 

naturalization.

Negrete, 343 Wis. 2d 1, ¶27 n.8. 

¶25 Relying on footnote 8 in Negrete, the circuit court 

reasoned that Ms. Valadez had not met the statutory standard of 
Nos. 2014AP678, 2014AP679 & 2014AP680 

11

"likely" to suffer the enumerated immigration consequences, 

because she is not presently the object of a proceeding for 

deportation, exclusion from admission, or denial of 

naturalization. The circuit court concluded the hearing 

stating: "Gratuitously, I will say that I think that this area 

is ripe for some clarification from the appellate court."

¶26 The court of appeals certified the instant case to 

this court. The court of appeals wrote that the "degree of 

certainty necessary to show, for purposes of plea withdrawal 

under Wis. Stat. § 971.08(2), that a defendant is likely to 

suffer immigration consequences as a result of a guilty plea is 

not clear under existing case law."

II

¶27 This case requires us to interpret and apply Wis. 

Stat. § 971.08(2) to the undisputed facts. The interpretation 

and application of a statute to undisputed facts are ordinarily 

questions of law which this court determines independently of 

the circuit court and court of appeals, but benefiting from 

their analyses.14 We begin with the text of the statute and 

examine case law interpreting and applying the statute.

III

¶28 In order to withdraw a guilty or no contest plea under 

Wis. Stat. § 971.08(2), the statute requires a defendant to 

 

14 State v. Negrete, 2012 WI 92, ¶15, 343 Wis. 2d 1, 819 

N.W.2d 749; State v. Bobby G., 2007 WI 77, ¶42, 301 Wis. 2d 531, 

734 N.W.2d 81.
Nos. 2014AP678, 2014AP679 & 2014AP680 

12

allege: (1) that the circuit court "fail[ed] to advise [the] 

defendant as required by [Wis. Stat. § 971.08(1)(c)]"; and (2) 

that the defendant's plea "is likely to result in the 

defendant's deportation, exclusion from admission to this 

country, or denial of naturalization . . . ."15 

¶29 No one disputes that Ms. Valadez has met the first 

requirement. Transcripts of the plea colloquies are available;

the circuit courts did not provide the immigration warning 

required under Wis. Stat. § 971.08(1)(c). As case law 

demonstrates, it is of utmost importance that circuit courts 

adhere to § 971.08(1)(c) in plea colloquies.

¶30 At issue is whether Ms. Valadez showed that her guilty 

pleas are "likely" to result in one of the enumerated 

immigration consequences. If Ms. Valadez makes this showing, 

she may withdraw her pleas and enter new ones, irrespective of 

whether she was otherwise aware of such consequences. State v. 

Douangmala, 2002 WI 62, ¶¶22-25, 42, 253 Wis. 2d 173, 646 

N.W.2d 1.

¶31 Ms. Valadez was convicted more than 10 years ago for 

violations of laws relating to controlled substances. She does 

not allege she is the subject of a deportation proceeding. 

According to the record, the federal government has not taken 

any steps to deport her and has not manifested any intent to 

deport her. 

 

15 Wis. Stat. § 971.08(2) (emphasis added). See also State 

v. Negrete, 2012 WI 92, ¶23, 343 Wis. 2d 1, 819 N.W.2d 749.
Nos. 2014AP678, 2014AP679 & 2014AP680 

13

¶32 Ms. Valadez's case was not presented in this court, 

however, as solely a deportation case. Ms. Valadez argues that 

unlike many who seek to vacate guilty pleas by merely claiming 

they are "likely" to be deportable, she is claiming that she is 

"likely" to be excluded from admission. 

¶33 Ms. Valadez claims that even though she is a Lawful 

Permanent Resident, if she were to leave the United States and 

seek to return, she would be excluded from admission as a result 

of her convictions. She cites 8 U.S.C. 1182(a)(2)(A)(i)(II) to 

support her claim.

16 

 

16 See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2012), providing:

Except as otherwise provided in this chapter, aliens 

who are inadmissible under the following paragraphs 

are ineligible to receive visas and ineligible to be 

admitted to the United States:

. . . .

(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general

Except as provided in clause (ii), 

any alien convicted of, or who 

admits having committed, or who 

admits committing acts which 

constitute the essential elements 

of-

. . . .

(II) a violation of (or a 

conspiracy or attempt to violate) 

any law or regulation of a State, 

the United States, or a foreign 

(continued)
Nos. 2014AP678, 2014AP679 & 2014AP680 

14

¶34 The State argues that Ms. Valadez's reliance on the 

federal statutes that render her excluded from admission is 

misplaced. According to the State, what would happen if Ms. 

Valadez left the country and was excluded from admission does 

not prove that she is likely to be excluded from admission. 

¶35 Quoting extensively from the Negrete decision, the 

State contends that Ms. Valadez has not met the burden set forth 

in Negrete: She has failed, according to the State, to allege 

facts showing that she is "likely" to be excluded from 

admission. 

¶36 Because Negrete interpreted Wis. Stat. § 971.08(2), we 

examine Negrete. Negrete is distinguishable and does not govern 

the instant case. The Negrete case governs a non-citizen's 

motion to withdraw a guilty plea under Wis. Stat. § 971.08(2) 

based on "likely" deportation. Although Negrete refers to the 

other immigration consequences enumerated in Wis. Stat. 

§ 971.08(2)——"likely" exclusion from admission to this country 

or "likely" denial of naturalization17——Negrete was a deportation 

 

country relating to a controlled 

substance (as defined in section 

802 of Title 21), 

is inadmissible.

17 Negrete, 343 Wis. 2d 1, ¶5 n.5. 

In two other cases, the court has addressed deportation. 

The cases address ineffective assistance of counsel. 

Ineffective assistance of counsel is not involved in the instant 

case.

(continued)
Nos. 2014AP678, 2014AP679 & 2014AP680 

15

case, and the standard it sets forth governs deportation; it 

does not govern "likely" exclusion from admission. 

¶37 In Negrete, the defendant pleaded guilty in 1992 to 

one count of second-degree sexual assault of a person under the 

age of 16, in violation of Wis. Stat. § 948.02(2) (1991-92).18 

No transcript of the plea colloquy was available.19 

¶38 Negrete sought to withdraw his guilty plea in 2010, 

citing Wis. Stat. § 971.08(2). Negrete alleged in his motion to 

 

In State v. Shata, 2015 WI 74, ¶¶59-61, 364 Wis. 2d 83, 868 

N.W.2d 93, a case involving deportation and ineffective 

assistance of counsel, this court noted that although a person 

convicted of a violation of laws relating to controlled 

substances is deportable, "such a conviction will not 

necessarily result in deportation." The court concluded that 

defense counsel did not render defective performance in advising 

the defendant that his plea carried a strong chance of 

deportation. Shata, 364 Wis. 2d 83, ¶79. 

In State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 

N.W.2d 717, a case involving deportation and ineffective 

assistance of counsel, Ortiz-Mondragon pleaded no contest to 

felony battery. He failed to show that defense counsel rendered 

deficient service when defense counsel conveyed the information 

regarding immigration consequences contained in the plea 

questionnaire and waiver of rights form. 

18 Negrete, 343 Wis. 2d 1, ¶5.

19 Negrete, 343 Wis. 2d 1, ¶1. In Negrete, because no 

transcript was available, the court turned to State v. Bentley, 

201 Wis. 2d 303, 548 N.W.2d 50 (1996), and concluded that 

Negrete failed to sufficiently allege that the plea-accepting 

court did not tell him of the potential immigration consequences 

of his plea. In the present case, the transcripts of the plea 

colloquies are available and clearly show the circuit court 

failed to give the required warnings. As a result, the 

"Bentley-type" analysis conducted in Negrete is unnecessary 

here. Negrete, 343 Wis. 2d 1, ¶33. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

16

withdraw his plea that the circuit court did not inform him of 

the potential immigration consequences of his plea. In 

contrast, Negrete's affidavit stated that he "'d[id] not recall' 

whether he received the necessary warning."20 

¶39 Based on the equivocal assertions in the defendant's 

motion and affidavit, the Negrete court concluded that Negrete 

had not sufficiently alleged that the circuit court failed to 

advise him of the potential immigration consequences of his 

plea.21 Despite this ground for denying Negrete's motion, the 

Negrete court moved on to discuss the "likely" prong of Wis. 

Stat. § 971.08(2). 

¶40 Negrete's motion alleged that he was "now the subject 

of deportation proceedings."22 Negrete's affidavit alleged that 

he was "now subject to deportation proceedings."23 The Negrete

court concluded that Negrete's "[b]are allegations of possible 

deportation" were insufficient to show his plea was "likely" to 

result in deportation.24 

¶41 In deportation proceedings, immigration officials seek 

out those who are deportable. Given the role of immigration 

officials in seeking out those who are deportable, the Negrete

 

20 Negrete, 343 Wis. 2d 1, ¶35. 

21 Id., ¶25. 

22 Id., ¶¶15, 36 (emphasis added).

23 Id., ¶2 (emphasis added).

24 Id., ¶¶26, 36. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

17

court held that Negrete's equivocal assertion that he was 

"subject to" or "subject of" deportation was not sufficient to 

show he was actually "likely" to be deported or that deportation 

would be the result of the criminal offense.25 Negrete had to 

allege facts demonstrating a causal nexus between the entry of 

the guilty plea and the federal government's likely institution 

of deportation proceedings.26 Bare allegations were not 

sufficient. 

¶42 In contrast to deportation, a non-citizen would have 

to take affirmative steps in order to induce the federal 

government to exclude the non-citizen from admission to the 

United States. The federal government does not seek out 

individuals who may be excluded from admission or otherwise 

inform non-citizens that they may be excluded from admission to 

this country based on convictions for violating laws relating to 

controlled substances. 

¶43 Instead, the federal government, through the statutes 

governing admission to this country, excludes only non-citizens 

with convictions for violating laws relating to controlled 

substances who affirmatively seek admission to the country. 

 

25 Compare Negrete, 343 Wis. 2d 1, ¶¶5, 36 (quoting 

Negrete's motion, which stated that he was "now 'the subject of

deportation proceedings'") (emphasis added), with Negrete, 343 

Wis. 2d 1, ¶2 (stating that "Negrete's affidavit also states 

that he is now subject to deportation proceedings.") (emphasis 

added).

26 Negrete, 343 Wis. 2d 1, ¶26.
Nos. 2014AP678, 2014AP679 & 2014AP680 

18

Short of Ms. Valadez taking the affirmative step of leaving the 

United States and actually being excluded from admission, Ms. 

Valadez has no way aside from the immigration and naturalization 

statutes to demonstrate that she is "likely" to be excluded from 

admission.

¶44 Ms. Valadez's convictions are, as stated previously, 

explicitly listed in federal statutes as grounds for exclusion 

from admission. Based on the federal statutes, if Ms. Valadez 

leaves the United States and attempts to gain readmission to 

this country, the federal government will "likely" exclude her 

from admission because of her convictions.

¶45 The circuit court mistakenly required Ms. Valadez to

show that the federal government has taken steps to exclude her

from admission. Section 971.08(2) does not require such a 

showing. The statute requires only that a defendant show that 

such a consequence is "likely." Here the text of the federal 

statute and the necessity that a defendant take affirmative 

steps to leave the country in order to actually be excluded from 

admission satisfy the "likely" test. In other words, the 

immigration and naturalization statutes demonstrate the 

likelihood that Ms. Valadez will be excluded from admission. 

¶46 Requiring Ms. Valadez to leave the country and seek 

readmission to demonstrate that she is "likely" to be excluded 

from admission is the equivalent of asking her to demonstrate 

exclusion from admission to 100% certainty. Wisconsin Stat. 

§ 971.08(2) requires an immigration consequence be "likely," not 

"certain." 
Nos. 2014AP678, 2014AP679 & 2014AP680 

19

¶47 When questioned at oral argument about exclusion from 

admission, the State conceded that "given her convictions, [Ms. 

Valadez] is inadmissible," but attempted to distinguish between 

her being inadmissible under the law and her actually being 

excluded from admission. 

¶48 We are not persuaded by this distinction. Ms. Valadez 

has demonstrated that she will, as a matter of federal law, be 

excluded from admission should she take the affirmative step of 

leaving the country. She has thus shown she is likely to be 

excluded from admission.

¶49 The Wisconsin legislature afforded relief to a 

defendant "likely" to be excluded from admission. Wisconsin 

Stat. § 978.02 does not require a defendant to show that he or 

she actually has been excluded from admission or that the 

federal government has manifested its intent to exclude the 

defendant from admission other than through the federal law 

providing for exclusion from admission. 

¶50 To hold that Ms. Valadez cannot withdraw her guilty 

pleas because the federal government has not excluded her from 

admission is, as a matter of practicality, unworkable and 

effectively expunges an enumerated consequence——exclusion from 

admission——from Wis. Stat. § 971.08(2).27 

 

27 "[S]tatutes are interpreted to avoid surplusage, giving 

effect to each word." State v. Hemp, 2014 WI 129, ¶13, 359 

Wis. 2d 320, 856 N.W.2d 811. 
Nos. 2014AP678, 2014AP679 & 2014AP680 

20

¶51 We are convinced that if Ms. Valadez left the United 

States she would, as a matter of law, be excluded from 

admission. As a result, we are persuaded that it is "likely" 

that her guilty pleas will "result in [her] . . . exclusion from 

admission." To deny Ms. Valadez the opportunity to withdraw her 

pleas would render relief under the statutes illusory.

¶52 Because Ms. Valadez has met her burden of showing her 

guilty pleas are "likely" to result in her exclusion from 

admission to this country, we need not reach the question of 

whether her pleas are also "likely" to result in deportation or 

denial of naturalization.

¶53 In sum, Ms. Valadez has fulfilled the statutory 

requirements for withdrawing her pleas. The circuit court 

failed to give the warning required by Wis. Stat. § 971.08(1)(c) 

and Ms. Valadez's guilty pleas are "likely" to result in her 

exclusion from admission. Wis. Stat. § 971.08(2). 

¶54 Accordingly, we reverse the order of the circuit court 

denying Ms. Valadez's motion to withdraw her guilty pleas. We 

remand the matter to the circuit court with directions to vacate 

the judgments of conviction and permit Ms. Valadez to withdraw 

her guilty pleas and enter other pleas.

¶55 By the Court.—The order of the circuit court is 

reversed and the cause is remanded.

¶56 REBECCA G. BRADLEY, J., did not participate.
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

1

¶57 ANNETTE KINGSLAND ZIEGLER, J. (concurring in part, 

dissenting in part). I join the opinion of the court and its 

conclusion to reverse the order of the circuit court. I agree 

that under the specific facts of this case, and based on the 

arguments raised, Valadez has established that her pleas are 

likely to result in her exclusion from admission to this 

country. 

¶58 I do not join the decision to "remand the cause to the 

circuit court to vacate the judgments of conviction and to 

permit Ms. Valadez to withdraw her guilty pleas and enter new 

pleas," majority op., ¶9, because there may be other impediments 

to the withdrawal of Valadez's pleas. Instead, I would remand 

for further proceedings, which may indeed result in withdrawal 

of Valadez's guilty pleas or perhaps, could result in a 

determination of how to proceed if the State has somehow 

preserved the issues raised by Justice Prosser. If so, the 

circuit court could be called upon to decide on remand whether 

Valadez's motion to withdraw her guilty pleas is time-barred. 

See, e.g., Stern v. WERC, 2006 WI App 193, ¶38, 296 Wis. 2d 306, 

722 N.W.2d 594 (remanding to allow agency to decide whether 

party had waived timeliness issue); Jungels v. Pierce, 825 F.2d 

1127, 1132 (7th Cir. 1987) ("These are issues to be explored on 

remand, unless waived.").

¶59 To be clear, even if not deemed to be properly raised 

in the case at issue, however, arguments regarding the 

application of time limits to a motion premised on Wis. Stat. 

§ 971.08(2) remain viable for a future case because we do not 
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

2

decide that issue today. The present opinion of this court does 

not resolve the question of how long is too long to wait to 

bring a challenge based upon the failure of a court to give the 

warning required under Wis. Stat. § 971.08(1)(c). Our opinion 

certainly does not conclude that the amount of time that Valadez 

waited to file her motion for plea withdrawal was reasonable or 

that Valadez's claim was otherwise timely. The issue of 

timeliness was not pursued in the case at issue; thus, it 

remains undecided.

¶60 Despite the logic of Justice Prosser's dissent 

regarding the time period within which a motion for plea 

withdrawal based on Wis. Stat. § 971.08(2) should be filed, I do 

not join the dissent because I would prefer to reach a 

conclusion on that issue after meaningful briefing and argument. 

Here, given the posture of the case and the State's concessions, 

this was not done. See Swatek v. Cnty. of Dane, 192 Wis. 2d 47,

52 n.1, 531 N.W.2d 45 (1995) (citation omitted) ("[T]here are 

real problems with addressing unmade claims and developing the 

arguments for one side to a dispute."). Moreover, we often 

benefit from the analysis of the courts below; there was no 

analysis in this case of the issues raised by the dissent. 

Therefore, I conclude that this court could benefit from these 

issues being fully vetted on remand or in a future case.

¶61 Importantly, as stated, the court does not decide 

today whether there are any time constraints on the assertion of 

Wis. Stat. § 971.08(2) claims or whether Valadez timely raised 

her claim. Indeed, I emphasize that I do not join the opinion 
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

3

of the court if it is read to resolve this issue.1 Justice 

Prosser's dissent seemingly fears that the opinion of the court 

could be construed as foreclosing the possibility of a time 

limit on § 971.08(2) claims. See Dissent, ¶108. I write to 

dispel that notion, as the court does not reach that conclusion.

¶62 On the contrary, the opinion of the court leaves the 

issue alive and well. The opinion of the court is clear on this 

point; although the opinion addressed the first question that 

was certified to this court, it did not address the second. See

Majority op., ¶¶8-11 ("The appeal presents two 

questions: . . . 2. Is there a time limit for a defendant to 

file a motion to withdraw a plea based on Wis. Stat. 

§ 971.08(2)? . . . We do not respond to the second question.").2 

 

1 If the opinion of the court is read to resolve this issue, 

then it is in fact only a lead opinion, since it would have 

failed to garner a majority of votes. 

2 Given the way the second certified question was framed to 

this court by the court of appeals, the State's concessions may 

be understandable. The discussion by the court of appeals of 

time limits on Wis. Stat. § 971.08(2) claims was tethered to 

specific language in State v. Romero-Georgana, 2014 WI 83, 360 

Wis. 2d 522, 849 N.W.2d 668. See Valadez, Nos. 2014AP678, 

2014AP679, 2014AP680, slip op., *5-6 (Wis. Ct. App. Jan. 21, 

2015). The parties agree that the discussion at issue in 

Romero-Georgana, which pertains to defendants who knowingly fail 

to assert ripe § 971.08(2) claims while pursuing unrelated 

postconviction claims, does not apply to Valadez's case. See

Romero-Georgana, 360 Wis. 2d 522, ¶67 n.14. The State conceded 

that "Valadez did not pursue additional postconviction relief 

beyond the motions underlying this consolidated appeal." Thus 

the concerns raised by the dissent, while reasonable, were not 

briefed or argued.

(continued)
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

4

Moreover, while the question posed in the second certified 

question could be interpreted in the manner in which Justice 

Prosser interprets it, it could also be interpreted much more 

narrowly. It is far from clear that the second issue, as raised 

by Justice Prosser, is in fact before the court. What we know is 

that the issues raised by Justice Prosser were not meaningfully 

briefed, argued, or otherwise vetted. 

¶63 In other words, then, the analysis in Justice 

Prosser's dissent could become the law of the state, but I 

conclude that it is more prudent to have the issue clearly 

presented, fully briefed, and argued before reaching such a 

conclusion. In fact, there may be other bases upon which claims 

of those in Valadez's position are time-barred but that should 

be determined only after meaningful briefing and argument.

¶64 I also concur to clarify that this case should not be 

read as modifying our prior case law on deportation, including 

 

It also bears mentioning that the court of appeals 

formulated the second certified question largely in terms of the 

interplay between potential time limits and the need to await 

the institution of deportation proceedings. The court of 

appeals asked, "If, in order to withdraw the plea, the defendant 

must show that deportation proceedings are underway, how does 

this standard fit in with the time limits for a motion to 

withdraw the plea?" Valadez, slip op., *1-2 (emphases added). 

Yet the court disposes of today's case based on Valadez's 

ability to demonstrate the likelihood that she will be excluded 

from admission to this country, not a likelihood that she will 

be deported. Majority op., ¶9. Obviously, then, Valadez does 

not need to wait for deportation proceedings to begin, which 

renders the question quoted above irrelevant. This is yet 

another reason not to attempt to decide the issue discussed by 

the dissent without briefing and argument.
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

5

State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93,3 State 

v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717,4

 

3 In Shata we concluded in part:

Shata is not entitled to withdraw his guilty plea 

because he did not receive ineffective assistance of 

counsel. Specifically, Shata's attorney did not 

perform deficiently. Shata's attorney was required to 

"give correct advice" to Shata about the possible 

immigration consequences of his conviction. Shata's 

attorney satisfied that requirement by correctly 

advising Shata that his guilty plea carried a "strong 

chance" of deportation. Shata's attorney was not

required to tell him that his guilty plea would 

absolutely result in deportation. In fact, Shata's 

deportation was not an absolute certainty. Executive 

action, including the United States Department of 

Homeland Security's exercise of prosecutorial 

discretion, can block the deportation of deportable 

aliens.

State v. Shata, 2015 WI 74, ¶79, 364 Wis. 2d 63, 868 N.W.2d 93 

(citation omitted).

4 In Ortiz-Mondragon, we concluded in part: 

Ortiz–Mondragon is not entitled to withdraw his nocontest 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." 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). In addition, Ortiz–

Mondragon's trial attorney did not perform deficiently 

(continued)
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

6

and State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749. 

Fundamentally, this court's opinion, unlike the court's previous 

opinions, is about the single adverse immigration consequence of 

exclusion from admission to this country. Importantly, however, 

this case again highlights the need for circuit courts to take 

the time to properly administer the warning mandated by Wis. 

Stat. § 971.08(1)(c). 

¶65 In short, I join the opinion of the court and its 

conclusion that Valadez has shown that her pleas are likely to 

result in her exclusion from admission to this country. I would 

remand for further proceedings, which may indeed result in 

withdrawal of Valadez's guilty pleas or perhaps, could result in 

a determination of how to proceed if the State has somehow 

preserved the issues raised by Justice Prosser. If so, the 

circuit court could be called upon to decide on remand whether 

Valadez's motion to withdraw her guilty pleas is time-barred. 

Regardless, the opinion of this court should not be viewed as 

resolving the question of how long is too long to wait to bring 

a challenge based upon the failure of a court to give the 

warning required under Wis. Stat. § 971.08(1)(c). Similarly, 

the opinion certainly does not conclude that the amount of time 

that Valadez waited to file her motion for plea withdrawal was 

reasonable, or that Valadez's claim was otherwise timely. I 

 

by failing to further research the immigration 

consequences of the plea agreement.

State v. Ortiz-Mondragon, 2015 WI 73, ¶70, 364 Wis. 2d 1, 866 

N.W.2d 717 (citation omitted).
Nos. 2014AP678, 2014AP679, & 2014AP680.akz

7

decline to join Justice Prosser's dissent, because I conclude 

that this court could benefit from a thorough vetting of the 

issue having had the issue fully briefed and argued. Finally, 

today's opinion does not alter our deportation case law. 

¶66 For the foregoing reasons, I respectfully concur in 

part and dissent in part. 

¶67 I am authorized to state that Justice MICHAEL J. 

GABLEMAN joins this opinion.
No. 2014AP678, 2014AP679 & 2014AP680.dtp

1

¶68 DAVID T. PROSSER, J. (dissenting). In May 2004 the 

defendant, Melisa Valadez, was charged with possession of 

cocaine, possession of THC, and possession of drug 

paraphernalia. She pled guilty to the first two misdemeanors; 

the third was dismissed but read in. In June 2004 Ms. Valadez 

was charged with possession of THC and possession of drug 

paraphernalia. She pled guilty to the latter; the former charge 

was dismissed and read in. In February 2005 she was charged 

again with possession of THC, a second or subsequent offense, 

which constituted a felony. She pled guilty on April 29, 2005.

¶69 In the plea colloquies for these offenses, the 

Walworth County Circuit Court failed to provide Ms. Valadez with 

the immigration warnings required by Wis. Stat. § 971.08(1)(c). 

This fact is not in dispute.

¶70 Wisconsin Stat. § 971.08(1)(c) (2005-06) reads:

(1) Before the court accepts a plea of guilty or 

no contest, it shall do all of the following:

. . . .

(c) Address the defendant personally and 

advise the defendant as follows: "If you are not a 

citizen of the United States of America, you are 

advised that a plea of guilty or no contest for the 

offense with which you are charged may result in 

deportation, the exclusion from admission to this 

country or the denial of naturalization, under federal 

law."

¶71 Subsection (2) then reads:

(2) If a court fails to advise a defendant as 

required by sub. (1)(c) and a defendant later shows 

that the plea is likely to result in the defendant's 

deportation, exclusion from admission to this country 

or denial of naturalization, the court on the 

defendant's motion shall vacate any applicable 
No. 2014AP678, 2014AP679 & 2014AP680.dtp

2

judgment against the defendant and permit the 

defendant to withdraw the plea and enter another plea. 

This subsection does not limit the ability to withdraw 

a plea of guilty or no contest on any other grounds.

Wis. Stat. § 971.08(2).

¶72 On October 3, 2013, Ms. Valadez moved to withdraw her 

2004 and 2005 pleas. Her motion came approximately eight and 

one-half years after she entered her plea in April 2005 to the 

felony. Her motion was filed after she had completed her 

sentence.

¶73 The lengthy delay between her 2005 sentence and her 

2013 plea withdrawal motion inevitably raises the question posed 

by the majority opinion: "Is there a time limit for a defendant 

to file a motion to withdraw a plea based on Wis. Stat. 

§ 971.08(2)?" The certification from the court of appeals was 

more nuanced: "If, in order to withdraw the plea, the defendant 

must show that deportation proceedings are underway, how does 

this standard fit in with the time limits for a motion to 

withdraw the plea?"

I

¶74 There are long-established principles governing plea 

withdrawal. See State v. Cain, 2012 WI 68, ¶24, 342 Wis. 2d 1, 

816 N.W.2d 177. Before sentencing, the circuit court should 

freely allow withdrawal of a plea if the defendant supplies any 

"fair and just reason" unless withdrawal would substantially 

prejudice the prosecution. State v. Jenkins, 2007 WI 96, ¶2, 

303 Wis. 2d 157, 736 N.W.2d 24. After sentencing, however, the 

defendant must show that withdrawal is necessary to correct a 

"manifest injustice." Cain, 342 Wis. 2d 1, ¶24.
No. 2014AP678, 2014AP679 & 2014AP680.dtp

3

¶75 Our court adopted the "manifest injustice" test in 

State v. Reppin, 35 Wis. 2d 377, 386, 151 N.W.2d 9 (1967). 

However, over the past half century, the court has shifted its 

focus from the broad "manifest injustice" test to tailored rules 

for particular fact situations that amount to a manifest 

injustice.

¶76 A defective plea colloquy may constitute a manifest 

injustice that warrants plea withdrawal either before or after a 

defendant's sentence. The statutory basis for this rule is Wis. 

Stat. § 971.08, but § 971.08 does not embody all Wisconsin law 

on defective plea colloquies. There are many court decisions. 

The key decisions addressing the constitutional importance of 

plea colloquies in establishing knowing, intelligent, and 

voluntary pleas are State v. Bangert, 131 Wis. 2d 246, 389 

N.W.2d 12 (1986), and State v. Brown, 2006 WI 100, 293 

Wis. 2d 594, 716 N.W.2d 906. Brown restated and supplemented 

the Bangert plea colloquy by adding the text of Wis. Stat. 

§ 971.08(1)(c) as well as additional court-mandated duties. 

Brown, 293 Wis. 2d 594, ¶35.

¶77 The Brown court then explained the procedure on a plea 

withdrawal motion:

After sentencing, in cases that involve an 

alleged deficiency in the plea colloquy, an attempt to 

withdraw a guilty plea proceeds as follows. The 

defendant must file a postconviction motion under Wis. 

Stat. § 809.30 or other appropriate statute. The 

motion must (1) make a prima facie showing of a 

violation of Wis. Stat. § 971.08(1) or other courtmandated duties by pointing to passages or gaps in the 

plea hearing transcript; and (2) allege that the 

defendant did not know or understand the information 
No. 2014AP678, 2014AP679 & 2014AP680.dtp

4

that should have been provided at the plea hearing. 

Bangert, 131 Wis. 2d at 274.

When a Bangert motion is filed, it is reviewed by 

the court. If the motion establishes a prima facie 

violation of Wis. Stat. § 971.08 or other courtmandated duties and makes the requisite allegations, 

the court must hold a postconviction evidentiary 

hearing at which the state is given an opportunity to 

show by clear and convincing evidence that the 

defendant's plea was knowing, intelligent, and 

voluntary despite the identified inadequacy of the 

plea colloquy. Bangert, 131 Wis. 2d at 274. When the 

defendant has met his two burdens, the burden of 

producing persuasive evidence at the evidentiary 

hearing shifts to the state. Id. at 275. In meeting 

its burden, the state may rely "on the totality of the 

evidence, much of which will be found outside the plea 

hearing record." Hampton, 274 Wis. 2d 379, ¶47. For 

example, the state may present the testimony of the 

defendant and defense counsel to establish the 

defendant's understanding. Bangert, 131 Wis. 2d at 

275. The state may also utilize the plea 

questionnaire and waiver of rights form, documentary 

evidence, recorded statements, and transcripts of 

prior hearings to satisfy its burden.

If the state is able to meet its burden, the 

hearing should be over. In a theoretical sense, the 

burden will have shifted back to the defendant, but 

there is nothing for the defendant to prove because 

the defendant is not entitled to turn a Bangert

hearing into a fishing expedition on other issues that 

were not pleaded in the defendant's original motion.

Id., ¶¶39-41 (footnotes omitted).

¶78 The Bangert case (1986) was important for numerous 

reasons. One reason is especially pertinent to this discussion. 

In State v. Cecchini, 124 Wis. 2d 200, 368 N.W.2d 830 (1985), 

this court held unanimously that prior to acceptance of a plea, 

a trial court "must ascertain that the defendant understands the 

nature of the charge, and that this must be done on the record 

at the plea hearing." Cecchini, 124 Wis. 2d at 201 (emphasis 
No. 2014AP678, 2014AP679 & 2014AP680.dtp

5

added). The court then held: "Because the trial court failed to 

do so . . . , the plea was involuntary and unknowing and in 

violation of the defendant's right to due process." Id. As we 

later explained in Brown, "[U]nder Cecchini, a deficient plea 

colloquy was per se a violation of due process and required 

withdrawal of the defendant's plea." Brown, 293 Wis. 2d 594, 

¶26. 

¶79 Bangert excised the language from Cecchini that 

required such a result and created the Bangert hearing.

¶80 What is at stake in the interpretation of Wis. Stat. 

§ 971.08(2) is that one reading of the statute produces an 

absolute right to plea withdrawal, no matter when that right is 

asserted, if the court failed to properly warn the defendant. 

This reading would resurrect the Cecchini per se plea withdrawal 

rule but only for persons subject to "deportation, exclusion 

from admission to this country or denial of naturalization," not 

ordinary citizens.

¶81 Wisconsin Stat. § 971.08(2) does not appear to 

implicate any requirement for a Bangert-type hearing in which 

the state is permitted to show by clear and convincing evidence 

that the defendant's plea was knowing, intelligent, and 

voluntary despite the court's failure to give the immigration 

warning. Thus, an "alien" (non-citizen) defendant will always 

appear to have a fair and just reason for plea withdrawal before 

sentencing and will not need to establish a manifest injustice 

for plea withdrawal after sentencing.
No. 2014AP678, 2014AP679 & 2014AP680.dtp

6

¶82 This strict interpretation of the statute does not 

appear to be unfair to the government if it is cabined by a 

reasonable time limit. However, if the statute is not cabined 

by a reasonable time limit, it will not matter that an alien 

defendant fully understood the risk of adverse immigration 

consequences at the time of his plea. He will never have to 

establish a manifest injustice for plea withdrawal. It will not 

matter that an alien's untimely plea withdrawal will effectively 

prevent retrial or otherwise substantially prejudice the 

government. It will not matter that an alien will have 

dramatically different plea-withdrawal rights from a citizen and 

may be able to obtain opportunities, such as gun ownership, that 

a citizen convicted of the same crime or crimes could not obtain 

under the law.

¶83 If the statute is not cabined by a reasonable time 

limit, the best thing that can happen to most alien defendants 

is for a court to forget to give the statutory warning. In 

these circumstances, it would border on malfeasance for a 

defense attorney to interrupt a plea colloquy to ask for the 

warning.

¶84 The bizarre consequences of a limitless right to plea 

withdrawal for non-citizens who did not receive a proper 

immigration warning from the court compels an inquiry whether 

these results are what the legislature intended.

II

¶85 Wisconsin Stat. § (Rule) 809.30(1)(c) defines 

"postconviction relief":
No. 2014AP678, 2014AP679 & 2014AP680.dtp

7

"Postconviction relief" means an appeal or a motion

for postconviction relief in a criminal case, other 

than an appeal, motion, or petition under 

ss. 302.113(7m) 302.113(9g), 973.19, 973.195, 974.06, 

or 974.07(2). In a ch. 980 case, the term means an 

appeal or a motion for postcommitment relief under 

s. 980.038(4).

(Emphasis added.) Unsurprisingly, this definition does not 

exclude a postconviction motion under Wis. Stat. § 974.02.

¶86 Wisconsin Stat. § 974.02 is entitled "Appeals and 

postconviction relief in criminal cases." It reads in part:

(1) A motion for postconviction relief other 

than under s. 974.06 or 974.07(2) by the defendant in 

a criminal case shall be made in the time and manner 

provided in s. 809.30. An appeal by the defendant in 

a criminal case from a judgment of conviction or from 

an order denying a postconviction motion or from both 

shall be taken in the time and manner provided in 

ss. 808.04(3) and 809.30. . . .

(Emphasis added.)

¶87 Wisconsin Stat. § (Rule) 809.30(2)(a) reads in part:

A person seeking postconviction relief in a criminal 

case . . . shall comply with this section. Counsel 

representing the person at sentencing or at the time 

of the final adjudication shall continue 

representation by filing a notice under par. (b) if 

the person desires to pursue postconviction or 

postdisposition relief unless counsel is discharged by 

the person or allowed to withdraw by the circuit court 

before the notice must be filed.

(Emphasis added.)

¶88 Wisconsin Stat. § (Rule) 809.30(2)(b) reads in part: 

"Notice of intent to pursue postconviction or postdisposition 

relief. Within 20 days after the date of sentencing or final 

adjudication, the person shall file in circuit court and serve 

on the prosecutor and any other party a notice of intent to 

pursue postconviction or postdisposition relief."
No. 2014AP678, 2014AP679 & 2014AP680.dtp

8

¶89 Wisconsin Stat. § (Rule) 809.30 contains multiple 

other statutory deadlines. Then, subsection (2)(h) provides, 

"The person shall file in circuit court and serve on the 

prosecutor and any other party a notice of appeal or motion 

seeking postconviction . . . relief within 60 days after the 

later of the service of the transcript or circuit court case 

record." (Emphasis Added.)

¶90 The statutory section being interpreted——Wis. Stat. 

§ 971.08(2)——clearly ties the right of plea withdrawal to a 

motion from the defendant:

(2) If a court fails to advise a defendant as 

required by sub. (1)(c) and a defendant later shows 

that the plea is likely to result in the defendant's 

deportation, exclusion from admission to this country 

or denial of naturalization, the court on the 

defendant's motion shall vacate any applicable 

judgment against the defendant and permit the 

defendant to withdraw the plea and enter another plea. 

This subsection does not limit the ability to withdraw 

a plea of guilty or no contest on any other grounds.

(Emphasis added.)

¶91 It is not evident from the text of the quoted statutes 

why the right of plea withdrawal in Wis. Stat. § 971.08(2) is 

not governed by the time limits in Wis. Stat. § (Rule) 809.30, 

including a motion under Wis. Stat. § 974.06.

¶92 In State v. Romero-Georgana, 2014 WI 83, 360 

Wis. 2d 522, 849 N.W.2d 668, the court discussed the fact that 

the 1981-82 version of Wis. Stat. § 971.08(2) contained a time 

limit that stated: "The court shall not permit the withdrawal of 

a plea of guilty or no contest later than 120 days after 

conviction." Wis. Stat. § 971.08(2) (1981-82). The 120-day 
No. 2014AP678, 2014AP679 & 2014AP680.dtp

9

time limit was repealed in 1983 Wis. Act 219, § 43.1 A Judicial 

Council note explained:

Section 971.08(2), stats., providing a 120-day time 

limit for withdrawing a guilty plea or a plea of no 

contest after conviction, is repealed as unnecessary. 

Withdrawal of a guilty plea or a plea of no contest 

may be sought by postconviction motion under 

s. 809.30(1)(f), stats., or under s. 974.06, stats.

(Emphasis added.)

¶93 The court in Romero-Georgana observed that "[t]he 

Judicial Council Note suggests that, in general, the proper 

method for raising § 971.08 plea withdrawal claims after 

conviction is through a motion under Wis. Stat. § (Rule) 809.30, 

Wis. Stat. § 974.02, or Wis. Stat. § 974.06." Romero-Georgana, 

360 Wis. 2d 522, ¶67 n.14.

¶94 We also observed:

When a defendant has notice that he is likely to be 

deported and subsequently brings postconviction claims 

unrelated to Wis. Stat. § 971.08(2), we think it would 

be unwise to allow him to bring his claims as a 

§971.08(2) motion at a later time, although he may be 

able to bring his claims as a Wis. Stat. § 974.06 

motion if he has a sufficient reason for the delay. 

Removing all time constraints on a Wis. Stat. 

§ 971.08(2) motion would frustrate judicial efficiency 

by encouraging defendants to delay bringing those 

motions. In the absence of a time limit, if a 

defendant were indifferent to deportation or wanted to 

 

1 The legislature adopted the 120-day time limit in § 63, 

ch. 255, Laws of 1969. The Judicial Council legislation reduced 

"from one year to 120 days the time limit for withdrawing a 

'guilty' plea." Laws of 1969 at 641. The one-year period had 

been established in Pulaski v. State, 23 Wis. 2d 138, 126 

N.W.2d 625 (1964). The Pulaski court had observed that 

"normally for a trial court to entertain a motion made beyond a 

year would seem to be an abuse of discretion." Id. at 144.
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be deported, the defendant would have incentive to 

keep a § 971.08(2) motion in his back pocket while 

pursuing relief on other grounds.

Id.

¶95 This brings us to Wis. Stat. § 974.06, which reads in 

pertinent part:

(1) After the time for appeal or postconviction 

remedy provided in s. 974.02 has expired, a prisoner 

in custody under sentence of a court or a person 

convicted and placed with a volunteers in probation 

program under s. 973.11 claiming the right to be 

released upon the ground that the sentence was imposed 

in violation of the U.S. constitution or the 

constitution or laws of this state, that the court was 

without jurisdiction to impose such sentence, or that 

the sentence was in excess of the maximum authorized 

by law or is otherwise subject to collateral attack, 

may move the court which imposed the sentence to 

vacate, set aside or correct the sentence.

. . . .

(4) All grounds for relief available to a person 

under this section must be raised in his or her 

original, supplemental or amended motion. Any ground 

finally adjudicated or not so raised, or knowingly, 

voluntarily and intelligently waived in the proceeding 

that resulted in the conviction or sentence or in any 

other proceeding the person has taken to secure relief 

may not be the basis for a subsequent motion, unless 

the court finds a ground for relief asserted which for 

sufficient reason was not asserted or was inadequately 

raised in the original, supplemental or amended 

motion.

¶96 There is no time limit for a motion under Wis. Stat. 

§ 974.06. Moreover, this court has ruled that the "sufficient 

reason" requirement in subsection (4) does not apply in cases in 

which the defendant did not file a motion under Wis. Stat. 

§ 974.02 or file an appeal. Romero-Georgana, 360 Wis. 2d 522, 
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¶35 (citing State v. Lo, 2003 WI 107, ¶44 n.11, 264 Wis. 2d 1, 

665 N.W.2d 756).

¶97 There are, however, other problems for plea withdrawal 

under Wis. Stat. § 974.06.

¶98 First, a person who files a § 974.06 motion must be in 

custody. Wis. Stat. § 974.06(1). Unlike Romero-Georgana, Ms. 

Valadez is not a prisoner in custody. She is not in custody, 

and her sentence has been served.

¶99 Second, it is doubtful that the court's failure to 

give the immigration warnings under Wis. Stat. § 971.08(2) means 

that Ms. Valadez's sentence was imposed in violation of the 

United States or Wisconsin Constitutions. Ms. Valadez would 

have to claim that her plea was not knowing, intelligent, and 

voluntary and/or that she was prejudiced by the ineffective 

assistance of counsel, and that her pleas should be withdrawn on 

those constitutional grounds.

III

¶100 The impediment to the above-mentioned analysis has 

long been the perceived unfairness of having a time limit 

attached to a statute that requires a defendant to prove that 

her conviction "is likely to result in . . . deportation." Wis. 

Stat. § 971.08(2). In State v. Negrete, 2012 WI 92, 343 

Wis. 2d 1, 819 N.W.2d 749, the court said:

[T]o satisfy Wis. Stat. § 971.08(2)'s "likelihood" of 

immigration consequences requirement, a defendant may 

allege that: (1) the defendant pleaded guilty or no 

contest to a crime for which immigration consequences 

are provided under federal law; and (2) because of his 

plea, the federal government has manifested its intent 

to institute one of the immigration consequences 
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listed in § 971.08(2), as to the defendant. As 

alternatives, a defendant may submit some written 

notification that the defendant has received from a 

federal agent that imports adverse immigration 

consequence because of the plea that was entered; or, 

a defendant may narrate verbal communications that the 

defendant has had with a federal agent advising that 

adverse immigration consequences were likely and that 

such consequences were tied to the crime for which the 

plea was entered.

Negrete, 343 Wis. 2d 1, ¶27 (emphasis added) (footnote omitted).

¶101 In the absence of some notice from federal 

authorities, a defendant may have serious difficulty in proving 

that he is "likely" to be deported under the Negrete test. This 

is why the court of appeals asked: "If, in order to withdraw [a] 

plea, the defendant must show that deportation proceedings are 

underway, how does this standard fit in with the time limits for 

a motion to withdraw the plea?"

¶102 The majority opinion supplies an answer by explaining 

that Ms. Valadez, unlike many who seek to vacate guilty pleas 

"by merely claiming they are 'likely' to be deportable, [claims] 

that she is 'likely' to be excluded from admission." Majority 

op., ¶32. She claims that even though she is a Lawful Permanent 

Resident, "if she were to leave the United States and seek to 

return, she would be excluded from admission as a result of her 

convictions," citing 8 U.S.C. § 1182(a)(2)(A)(i)(II). Majority 

op., ¶33.

¶103 The majority reasons as follows:

In contrast to deportation, a non-citizen would 

have to take affirmative steps in order to induce the 

federal government to exclude the non-citizen from 

admission to the United States. The federal 

government does not seek out individuals who may be 

excluded from admission or otherwise inform non-
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citizens that they may be excluded from admission to 

this country based on convictions for violating laws 

relating to controlled substances.

Instead, the federal government, through the 

statutes governing admission to this country, excludes 

only non-citizens with convictions for violating laws 

relating to controlled substances who affirmatively 

seek admission to the country. Short of Ms. Valadez 

taking the affirmative step of leaving the United 

States and actually being excluded from admission, Ms. 

Valadez has no way aside from the immigration and 

naturalization statutes to demonstrate that she is 

"likely" to be excluded from admission.

Ms. Valadez's convictions are, as stated 

previously, explicitly listed in federal statutes as 

grounds for exclusion from admission. Based on the 

federal statutes, if Ms. Valadez leaves the United 

States and attempts to gain readmission to this 

country, the federal government will "likely" exclude 

her from admission because of her convictions.

Majority op., ¶¶42-44.

¶104 The majority concludes that Wis. Stat. § 971.08(2) 

does not require a showing that the federal government has taken 

steps to exclude Ms. Valadez from admission. "The statute 

requires only that a defendant show that such a consequence is 

'likely.'" Majority op., ¶45. "In sum, Ms. Valadez has 

fulfilled the statutory requirements for withdrawing her pleas." 

Id., ¶53.

¶105 Under the majority's analysis, "any alien" who is 

"convicted of, or admits having committed, or who admits 

committing acts which constitute the essential elements 

of . . . a violation of (or conspiracy or attempt to violate) 

any laws or regulations . . . relating to a controlled 

substance," 8 U.S.C. § 1182(a)(2)(A)(i)(II), is immediately upon 

conviction able to establish grounds for plea withdrawal. 
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Consequently, these alien drug offenders do not need time for 

the government to act against them; they can satisfy the second 

ground for plea withdrawal immediately upon conviction, and a 

time limit on plea withdrawal will not disadvantage them.

¶106 The same statute relied upon by the majority applies 

to persons convicted of "a crime involving moral turpitude." 8 

U.S.C. § 1182(a)(2)(A)(i)(I). It applies to any alien 

"convicted of 2 or more offenses (other than purely political 

offenses), regardless of whether . . . the offenses involved 

moral turpitude, for which the aggregate sentences to 

confinement were 5 years of more." 8 U.S.C. § 1182(a)(2)(B). 

It applies to many more.

¶107 In short, almost "any alien" defendant who seeks plea 

withdrawal on grounds that he did not receive the warnings under 

Wis. Stat. § 971.08(1)(c) will be able to make his case under a 

Wis. Stat. § 974.02 motion without raising the prospect of 

deportation.

¶108 The argument that fair play demands that an alien's 

right under Wis. Stat. § 971.08(2) have no time limit is 

unpersuasive. Permitting non-citizens to withdraw their pleas 

to serious crimes whenever they want to and regardless of the 

circumstances simply because they did not receive the statutory 

warning is too incongruous and unreasonable to be accepted.

¶109 For the foregoing reasons, I respectfully dissent.

¶110 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK joins this dissent.
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