2017 WI 104

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP2041-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Jose Alberto Reyes Fuerte,

 Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 372 Wis. 2d 106, 887 N.W.2d 121

PDC No: 2016 WI App 78 - Published

OPINION FILED: December 19, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 5, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Columbia

JUDGE: Alan J. White

JUSTICES:

CONCURRED:

DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, 

J. (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs 

filed by Nancy A. Noet, assistant attorney general, and Brad D. 

Schimel, attorney general. There was an oral argument by Lisa 

E.F. Kumfer, assistant attorney general.

For the defendant-appellant there was a brief filed by Ben 

M. Crouse and Sesini Law Group, S.C., Milwaukee. There was an 

oral argument by Ben M. Crouse.
2017 WI 104

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP2041-CR

(L.C. No. 2012CF582)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Jose Alberto Reyes Fuerte,

 Defendant-Appellant.

FILED

DEC 19, 2017

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 MICHAEL J. GABLEMAN, J. This is a review of a 

published decision of the court of appeals that reversed the 

Columbia County Circuit Court's1 order denying Jose Alberto Reyes 

Fuerte's ("Reyes Fuerte") motion to withdraw two guilty pleas 

for two separate criminal violations. The motions for 

withdrawal were made pursuant to Wis. Stat. § 971.08(2) (2013-

14).2 State v. Reyes Fuerte, 2016 WI App 78, 372 Wis. 2d 106, 

887 N.W.2d 121. 

 

1 The Honorable Alan J. White presided.

2 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2015AP2041-CR 

2

¶2 The State argues that motions to withdraw a guilty 

plea pursuant to Wis. Stat. § 971.08(2) should be subject to 

harmless error analysis pursuant to Wis. Stat. §§ 971.26 and 

805.18, and thus this court should overrule its decision in 

State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. 

The State asks this court to remand this matter to the circuit 

court for a Bangert3 hearing in order to determine whether Reyes 

Fuerte knew of the potential immigration consequences of his 

plea at the time of the plea hearing.

¶3 We hold that Douangmala was objectively wrong because 

it failed to properly consider the harmless error statutes, Wis. 

Stat. §§ 971.26 and 805.18, and is thus overruled. Applying 

harmless error analysis, we further hold that the circuit 

court's error in this case was harmless as a matter of law and 

thus reverse the decision of the court of appeals.

¶4 We begin with a description of the facts and 

procedural history. We then set forth the standard of review. 

We begin our analysis by setting forth the decisions of this 

court and the court of appeals considering the applicability of 

Wis. Stat. §§ 971.26 and 805.18 to Wis. Stat. § 971.08(2). We 

follow with our conclusion that Douangmala was wrongly decided 

because harmless error analysis does apply to § 971.08(2).

Finally, we conclude that the circuit court's error in this case 

was harmless.

 

3 State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
No. 2015AP2041-CR 

3

I. FACTUAL AND PROCEDURAL BACKGROUND

¶5 Reyes Fuerte entered guilty pleas on February 20, 

2014, to two charges: (1) attempting to flee or elude a traffic 

officer, contrary to Wis. Stat. § 346.04(3), and (2) secondoffense operating with a restricted controlled substance in his 

blood, contrary to Wis. Stat. §§ 346.63(1)(am) and 

346.65(2)(am)2. At the plea hearing, the circuit court gave the 

following advisement regarding the potential immigration 

consequences of Reyes Fuerte's plea:

Usually we're looking at felonies, but any conviction 

to a person who is not a resident of the United States 

could lead, at some point in the future, to that 

person either being denied re-entry or that person 

being required to leave this country. And I'm not 

saying that's going to happen at all. I'm just saying 

that convictions can lead to those results.

Reyes Fuerte confirmed, through an interpreter, that he 

understood the circuit court's advisement. Reyes Fuerte was 

also alerted to the potential immigration consequences of his 

plea in the Plea Questionnaire/Waiver of Rights form, which was 

in English and Spanish. Further, defense counsel was bilingual, 

and stated on the record that he also went over the form in 

Spanish with Reyes Fuerte. 

¶6 At all times relevant to this case, Reyes Fuerte was 

in the United States illegally and spoke Spanish as his first 

language. At the time of his plea, Reyes Fuerte was in the 
No. 2015AP2041-CR 

4

midst of deportation4 proceedings. He asserted cancellation of 

removal as a defense in those proceedings. Cancellation of 

removal allows the United States Attorney General to cancel 

removal and grant lawful permanent residence to aliens 

fulfilling certain criteria. 8 U.S.C. § 1229b(b)(1). One of 

those criteria is that the alien has not been convicted of a 

crime of moral turpitude. 8 U.S.C. § 1229b(b)(1)(C) (citing 8 

U.S.C. § 1227(a)(2)(A)(i)). At the time of Reyes Fuerte's plea, 

whether either or both of his convictions were for crimes of 

moral turpitude was unclear. 

¶7 The United States Court of Appeals for the Seventh 

Circuit resolved any ambiguities late in 2014. Cano-Oyarzabal 

v. Holder, 774 F.3d 914, 919 (7th Cir. 2014). In CanoOyarzabal, the court affirmed a determination by the Board of 

Immigration Appeals that Wis. Stat. § 346.04(3), attempting to 

flee or elude a traffic officer, is a crime of moral turpitude. 

Id. Thus, Reyes Fuerte was no longer eligible for the 

cancellation of removal defense.

¶8 Reyes Fuerte moved to withdraw his plea pursuant to 

Wis. Stat. § 971.08(2) in June 2015, alleging that the circuit 

court's immigration consequences advisement was defective and 

Reyes Fuerte's guilty plea resulted in losing the cancellation 

of removal defense. The circuit court denied the motion because 

 

4 Federal immigration law uses the term "removal" to 

describe the process traditionally known as "deportation." We 

use those terms interchangeably in this opinion.
No. 2015AP2041-CR 

5

it found the immigration consequences advisement substantially 

complied with the statute under State v. Mursal, 2013 WI App 

125, 351 Wis. 2d 180, 839 N.W.2d 173. Reyes Fuerte appealed. 

¶9 The court of appeals reversed, holding that the 

circuit court's immigration consequences advisement did not 

substantially comply with Wis. Stat. § 971.08(1)(c). Reyes

Fuerte, 372 Wis. 2d 106, ¶23. The court of appeals identified 

two substantial deviations from the language of the statute. 

Id., ¶17. First, the circuit court used the term "resident" 

rather than "citizen." Id., ¶18. This difference was 

substantial to the court of appeals because each term has a 

separate and distinct meaning under federal immigration law. 

Id. United States citizens do not face any immigration or 

citizenship consequences for their crimes. Id. Conversely, 

residents of the United States who are not citizens, even those 

in the country legally, may suffer adverse immigration 

consequences. Id., ¶19. 

¶10 Second, the circuit court made no mention of "denial 

of naturalization," one of the three warnings required by Wis. 

Stat. § 971.08(1)(c). Id., ¶22. Though Reyes Fuerte was not 

concerned with denial of naturalization at the moment—

naturalization would be possible only if Reyes Fuerte was not 

deported and was granted legal status at some point—the court of 

appeals rejected the State's argument that the omission of this 

warning was irrelevant because such a finding would constitute 

harmless error analysis, which this court prohibited in State v. 
No. 2015AP2041-CR 

6

Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. Id., 

¶23.

¶11 Next, the court of appeals held that, under the second 

prong of Wis. Stat. § 971.08(2), Reyes Fuerte had successfully 

alleged that his plea was "likely" to result in deportation 

because the cancellation of removal defense was no longer 

available. Id., ¶41. The court of appeals then remanded to the 

circuit court for a hearing to determine whether Reyes Fuerte 

would have fulfilled the requirements for the cancellation of 

removal defense except for his guilty plea in this case. Id., 

¶42. 

¶12 The State petitioned this court for review, which we 

granted on January 18, 2017. 

II. STANDARD OF REVIEW

¶13 This court reviews motions to withdraw guilty pleas 

after sentencing in one of two ways, known as the Bentley

standard and the Bangert standard. State v. Negrete, 2012 WI 

92, ¶¶16, 19, 343 Wis. 2d 1, 819 N.W.2d 749. 

¶14 Under the Bentley standard, the reviewing court first 

determines whether the motion "alleges sufficient material facts 

that, if true, would entitle the defendant to relief." Id., ¶17 

(citing State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 

N.W.2d 433). See also State v. Bentley, 201 Wis. 2d 303, 309-

10, 548 N.W.2d 50 (1996). If sufficient facts are alleged, the 

court then looks to the record to determine whether an 

evidentiary hearing is required. Negrete, 343 Wis. 2d 1, ¶17 

n.6. An evidentiary hearing is required if the record is 
No. 2015AP2041-CR 

7

insufficient to determine whether the defendant is entitled to 

relief. Id. Conversely, no hearing is required if the record 

"conclusively demonstrates" that the defendant is not entitled 

to relief, even if the motion alleges sufficient facts. Id., 

¶17. These determinations are questions of law reviewed de 

novo. Id.

¶15 If the motion does not allege sufficient facts that, 

if true, would entitle the defendant to relief, then the 

decision to grant an evidentiary hearing is discretionary. Id., 

¶18. As such, this court reviews the decision for an erroneous 

exercise of discretion. Id.

¶16 Under the Bangert standard, defendants may shift the 

burden of proof to the State when: "(1) the defendant can point 

to a plea colloquy deficiency evident in the plea colloquy 

transcript, and (2) the defendant alleges that he did not know 

or understand the information that should have been provided in 

the colloquy." Id., ¶19 (citing State v. Bangert, 131 

Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986)). This court applies 

de novo review to both elements: whether the colloquy is 

sufficient and whether an evidentiary hearing is required. Id.

¶17 We apply the Bangert standard in this case because 

Reyes Feurte can point to a defect in the plea colloquy 

transcript and Reyes Fuerte has alleged that he was unaware of 

the immigration consequences of his plea. Therefore, we review 

the sufficiency of the colloquy and the necessity of an 

evidentiary hearing de novo. Id.
No. 2015AP2041-CR 

8

¶18 This case also requires us to interpret Wis. Stat. 

§§ 971.08, 971.26, and 805.18. Statutory interpretation is an 

issue of law we review de novo. State v. Ozuna, 2017 WI 64, ¶9, 

376 Wis. 2d 1, 898 N.W.2d 20. However, when a party asks this 

court to overrule one of its prior decisions interpreting a 

statute, as the State asks us to do in this case, we do not 

interpret the statute de novo. Progressive N. Ins. Co. v. 

Romanshek, 2005 WI 67, ¶46, 281 Wis. 2d 300, 697 N.W.2d 417. 

Rather, the party seeking we overturn a prior statutory 

interpretation must show that the prior interpretation was 

"objectively wrong" and thus the court has a "compelling reason 

to overrule it." Id., ¶45 (quoting Wenke v. Gehl Co., 2004 WI 

103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405).

III. DISCUSSION

¶19 Before we begin our analysis, we take a moment to 

remind circuit court judges that simply reading the language of 

the advisement from Wis. Stat. § 971.08(1)(c) is by far the best 

option. The use of quotation marks (such as those in 

§ 971.08(1)(c)) is "an unusual and significant legislative 

signal" that should be given effect by circuit courts. State v. 

Garcia, 2000 WI App 81, ¶16, 234 Wis. 2d 304, 610 N.W.2d 180. 

In this instance, those quotation marks are best given effect by 

reading the advisement as written in the statute. See id. 

Though, as a result of this opinion, harmless error now applies 

as a "safety net" for circuit courts, the best practice remains 

reading the exact language of the statute. Id.
No. 2015AP2041-CR 

9

¶20 Our analysis first discusses the three statutes at 

issue and how Wisconsin courts previously construed them. We 

next discuss why Douangmala was wrongly decided and why we 

overrule it. Finally, we apply the harmless error analysis to 

this case and hold that the circuit court's errors were 

harmless.

A. Statutory Background

¶21 This case requires us to consider the interplay of 

three statutes: Wis. Stat. §§ 971.08, 971.26, and 805.18. 

Section 971.08(1)(c) requires a circuit court to, before 

accepting a plea of guilty or no contest:

Address the defendant personally and advise the 

defendant as follows: "If you are not a citizen of 

the United States of America, you are advised that a 

plea of guilty or no contest for the offense with 

which you are charged may result in deportation, the 

exclusion from admission to this country or the denial 

of naturalization, under federal law." 

Wis. Stat. § 971.08(1)(c). The next subsection then provides a 

remedy if the circuit court fails to give the required 

advisement:

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.

Wis. Stat. § 971.08(2). This court has construed § 971.08(2) to 

require defendants prove two elements in order to withdraw their 
No. 2015AP2041-CR 

10

pleas: (1) the circuit court failed to give the immigration 

advisement to the defendant as required by § 971.08(1)(c), and 

(2) the plea is "likely" to result in deportation, exclusion 

from admission, or denial of naturalization. State v. Valadez, 

2016 WI 4, ¶28, 366 Wis. 2d 332, 874 N.W.2d 514. 

¶22 Wisconsin Stat. §§ 971.26 and 805.18 serve as savings 

clauses for judgments affected by harmless errors. Section 

971.26 applies exclusively to criminal actions:

No indictment, information, complaint or warrant shall 

be invalid, nor shall the trial, judgment or other 

proceedings be affected by reason of any defect or 

imperfection in matters of form which do not prejudice 

the defendant.

Wis. Stat. § 971.26. Section 805.18 is part of the civil 

procedure code, but is made applicable to criminal actions by 

Wis. Stat. § 972.11(1), and states:

(1) The court shall, in every stage of an action, 

disregard any error or defect in the pleadings or 

proceedings which shall not affect the substantial 

rights of the adverse party.

(2) No judgment shall be reversed or set aside or new 

trial granted in any action or proceeding on the 

ground of selection or misdirection of the jury, or 

the improper admission of evidence, or for error as to 

any matter of pleading or procedure, unless in the 

opinion of the court to which the application is made, 

after an examination of the entire action or 

proceeding, it shall appear that the error complained 

of has affected the substantial rights of the party 

seeking to reverse or set aside the judgment, or to 

secure a new trial.

Wis. Stat. § 805.18. 

¶23 Prior to this court's decision in Douangmala, 

Wisconsin courts applied harmless error analysis to motions to 
No. 2015AP2041-CR 

11

withdraw pleas pursuant to Wis. Stat. § 971.08(2). E.g., State 

v. Chavez, 175 Wis. 2d 366, 371, 498 N.W.2d 887 (Ct. App. 1993). 

See also Douangmala, 253 Wis. 2d 173, ¶¶33-40 (discussing Chavez

and its progeny). The Chavez court noted that the intersection 

of Wis. Stat. §§ 971.08(2) and 971.265 created an ambiguity 

because both statutes use mandatory language with seemingly 

contradictory commands. Chavez, 175 Wis. 2d at 370-71. The 

court of appeals then utilized legislative history6 to hold that 

the legislature intended to protect only "an alien [who] 

unwittingly pleads guilty or no contest . . . without being 

 

5 Chavez did not consider Wis. Stat. § 805.18. State v. 

Chavez, 175 Wis. 2d 366, 370-71, 498 N.W.2d 887 (Ct. App. 1993).

6 This legislative history consists of an article attached 

to the drafting request by Senator John Norquist that stated 

statutes like section 971.08 help "alleviate the hardship and 

unfairness involved when an alien unwittingly pleads guilty or 

nolo contendere to a charge without being informed of the 

immigration consequences of such a plea." (Emphasis added) 

This language never made it into the Legislative Reference 

Bureau analysis that was ultimately distributed with the draft 

bill to the entire legislature.

The State uses the same legislative history in its argument 

in the present matter, but we do not need the legislative 

history because we are tasked with giving effect to what the 

legislature enacted, not necessarily what it intended. State ex 

rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 

Wis. 2d 633, 681 N.W.2d 110. Nonetheless, we are inclined to 

agree with the Chavez court that "the legislature did not intend 

a windfall to a defendant who was aware of the deportation 

consequences of his plea," 175 Wis. 2d at 371, though we 

emphasize that we resolve this case based solely on the plain 

meaning of all statutes involved.
No. 2015AP2041-CR 

12

informed of the consequences of such a plea." Id. at 371. 

Thus, harmless error could apply where the defendant otherwise 

knew (i.e., was not "unwitting") about the consequences of the 

plea. Id.

¶24 This court rejected Chavez's conclusion in Douangmala, 

instead holding that the legislative history merely indicated 

that the legislature said what it intended to: if all 

conditions of Wis. Stat. § 971.08(2) are met, then the court 

must vacate the judgment. Douangmala, 253 Wis. 2d 173, ¶31. 

The Douangmala court found it highly relevant that the mention 

of aliens who unwittingly enter a guilty or no-contest plea was 

contained solely in the drafting file, which not all legislators 

see. Id., ¶¶28-29. 

¶25 Further, the court noted that Wis. Stat. § 971.08(2) 

uses mandatory "shall" language. Id., ¶31. Thus, the court 

held that harmless error does not apply because the 

legislature's use of mandatory language in effect precluded 

harmless error analysis. Id., ¶42. 

B. Douangmala failed to harmonize the interplay between Wis. 

Stat. §§ 971.08, 971.26, and 805.18.

¶26 This court set out the basic method for statutory 

interpretation in State ex rel. Kalal v. Circuit Court for Dane 

Cty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. See also

Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. 

Rev. 969, 970 (2017). Where the meaning of a statute is plain 

based on the language of the statute, analysis ends there. 

Kalal, 271 Wis. 2d 633, ¶45. As part of our plain language 
No. 2015AP2041-CR 

13

analysis, we must consider the statute's context as well. Id., 

¶46. This means we read "statutory language . . . not in 

isolation, but as part of a whole; in relation to the language 

of surrounding or closely-related statutes . . . ." Id. 

Accordingly, analyzing Wis. Stat. § 971.08(2) in a vacuum is 

improper, and we must view it in light of its related statutes. 

In this instance, that means we must read § 971.08(2) in light 

of the statutory savings clauses in Wis. Stat. §§ 971.26 and 

805.18.

¶27 Though many decisions parrot Kalal's language that 

statutes are to be interpreted "in relation to the language of 

surrounding or closely-related statutes," id., few provide any 

definition of "closely-related." Statutes are closely related 

when they are in the same chapter, reference one another, or use 

similar terms. City of Janesville v. CC Midwest, Inc., 2007 WI 

93, ¶24, 302 Wis. 2d 599, 734 N.W.2d 428 (interpreting 

"comparable replacement property" in Wis. Stat. § 32.05(8)(b)-

(c) in light of Wis. Stat. § 32.19). Being within the same 

statutory scheme may also make two statutes closely related. 

State v. Scruggs, 2017 WI 15, ¶24, 373 Wis. 2d 312, 891 

N.W.2d 786 (considering a statute's presence in criminal 

sentencing statutes as part of its context, but ultimately 

concluding that other context took precedence in that case); cf

Homeward Bound Servs. v. Office of the Ins. Comm'r, 2006 WI App 

208, ¶34, 296 Wis. 2d 481, 724 N.W.2d 380 (considering Wis. 

Stat. chs. 600-655 closely related because they are a 
No. 2015AP2041-CR 

14

comprehensive statutory scheme intended to "ensure that policy 

holders are treated fairly."). 

¶28 We conclude that Wis. Stat. §§ 971.08, 971.26, and 

805.18 are closely related, and thus must be construed together, 

because they all appear in the same statutory scheme. See id. 

Sections 971.08 and 971.26 are in the same chapter, which 

strongly indicates they are related and should be construed 

together. CC Midwest, 302 Wis. 2d 599, ¶24. Additionally, 

though § 805.18 is not in the same chapter, Wis. Stat. 

§ 972.11(1) incorporates § 805.18 for use in criminal cases, and 

§ 972.11 is part of the criminal code. Chapters 971 and 972 

both deal with criminal procedure; chapter 971 generally governs 

pre-trial procedures while chapter 972 governs trial procedure. 

Thus, chapters 971 and 972 are related as part of the same 

statutory scheme. See Homeward Bound Servs., 296 Wis. 2d 481, 

¶34. Finally, this court acknowledged post-Douangmala that 

reading § 971.08(2) in light of § 971.26 is "reasonable." State 

v. Lagundoye, 2004 WI 4, ¶26 n.17, 268 Wis. 2d 77, 674 

N.W.2d 526 (stating "[b]oth statutes concern when a defendant 

may be relieved of a judgment based on a defect in the 

proceedings" in deciding whether Douangmala had retroactive 

effect). 

¶29 Where multiple statutes are at issue, this court seeks 

to harmonize them through a reasonable construction that gives 

effect to all provisions. State v. Delaney, 2003 WI 9, ¶13, 259 

Wis. 2d 77, 658 N.W.2d 416. Where conflict between statutes is 

unavoidable, specific statutes take precedence over general 
No. 2015AP2041-CR 

15

statutes. Rouse v. Theda Clark Med. Ctr., 2007 WI 87, ¶37, 302 

Wis. 2d 358, 735 N.W.2d 30.

¶30 We hold that the State has met its high burden of 

showing that this court's decision in Douangmala was 

"objectively wrong." See Romanshek, 281 Wis. 2d 300, ¶45. 

Douangmala made no attempt to harmonize Wis. Stat. §§ 971.08(2) 

and 971.26. See Douangmala, 253 Wis. 2d 173, ¶¶32-33. While 

the decision makes mention of § 971.26, it did not analyze how 

it applied in that case. Id., ¶42. Rather, Douangmala

overruled Chavez and its progeny based on Chavez's reliance on 

the legislative history that the court found unpersuasive and 

the use of the mandatory "shall" in § 971.08(2) rather than 

independently analyzing the interplay between the statutes. Id.7

 

7 Navigating the reasoning in Douangmala is a challenge in 

and of itself. The court first held that the use of "shall" 

indicated an intent that withdrawal be mandatory, contrary to 

the legislative history proffered by the State:

The legislative history therefore persuades us that 

the legislature intended what the statute explicitly 

states. Section 971.08(2) states that if the 

conditions set forth therein are met (and they were in 

the present case), the circuit court "shall" vacate 

the judgment and shall permit the defendant to 

withdraw the plea. The word "shall" in a statute is 

presumed to be mandatory unless a different 

construction is necessary to carry out the 

legislature's clear intent. Nothing in Wis. Stat. 

§ 971.08 points to a different interpretation of the 

word "shall" than an interpretation that the word 

signifies a mandatory act.

State v. Douangmala, 2002 WI 62, ¶31, 253 Wis. 2d 173, 646 

N.W.2d 1 (footnotes omitted).

(continued)
No. 2015AP2041-CR 

16

¶31 Douangmala's analysis suffers a fatal flaw in this 

regard: both of the harmless error savings statutes also use 

the mandatory "shall" language. Wis. Stat. § 971.26 ("[N]or 

shall the . . . judgment . . . be affected by reason of any 

defect or imperfection in matters of form which do not prejudice 

the defendant.") (emphasis added); Wis. Stat. § 805.18 ("(1) The 

court shall, in every stage of action, disregard any error or 

defect in the pleadings or proceedings which shall not affect 

 

The court then mentions Wis. Stat. § 971.26, but 

proceeds to discuss Chavez and its progeny. Douangmala, 

253 Wis. 2d 173, ¶32-40. The analysis section concludes 

with the court overruling Chavez, 175 Wis. 2d 366, State v. 

Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994), 

State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 

1995), and State v. Garcia, 2000 WI App 81, 234 

Wis. 2d 304, 610 N.W.2d 180:

The principle of stare decisis is applicable to the 

decisions of the court of appeals. Stare decisis 

requires us to abide by precedent established by the 

court of appeals unless a compelling reason exists to 

overrule the precedent. The principle of stare 

decisis does not, however, require us to adhere to 

interpretations of statutes that are objectively 

wrong. That the legislature has not taken action with 

respect to a statute that a court has construed is 

entitled to some weight in determining legislative 

intent, but it is not conclusive. As we have 

explained, we conclude that the Chavez harmless-error 

interpretation of Wis. Stat. § 971.08(2) is 

objectively wrong under the language of the statute. 

Accordingly, we overrule Chavez, Issa, Lopez, and 

Garcia to the extent that these cases hold that 

harmless-error principles apply to a defendant who 

satisfies the conditions set forth in § 971.08(2).

Douangmala, 253 Wis. 2d 173, ¶42 (footnotes omitted). 

Nowhere does the court analyze Wis. Stat. § 971.26 outside 

of the context of Chavez. 
No. 2015AP2041-CR 

17

the substantial rights of the adverse party. (2) No judgment 

shall be reversed or set aside . . . unless in the opinion of 

the court to which the application is made . . . the error 

complained of has affected the substantial rights of the party 

seeking to reverse . . . .") (emphasis added). We agree with 

Douangmala that "[t]he word 'shall' in a statute is presumed to 

be mandatory" and "[n]othing in Wis. Stat. § 971.08 points to 

a[n] . . . interpretation [other] than that the word signifies a 

mandatory act." Douangmala, 253 Wis. 2d 173, ¶31. More 

particularly, we agree this analysis is true as far as it goes; 

however, this analysis is incomplete in that it ignores the 

presence of "shall" in Wis. Stat. §§ 971.26 and 805.18.

¶32 We hold that Wis. Stat. §§ 971.08(2), 971.26, and 

805.18 are most comprehensibly harmonized by applying harmless 

error analysis. All of the relevant statutes use "shall," and, 

accordingly, none is "more mandatory" than any other. We 

emphasize that applying harmless error analysis does not 

facially violate § 971.08(2), but failing to apply harmless 

error analysis does facially violate §§ 971.26 and 805.18. 

¶33 Further, harmless error was plainly codified in the 

two statutes ignored by Douangmala that we harmonize today, long 

before Wis. Stat. § 971.08(2) was enacted into law. Wisconsin 

Stat. § 971.26 was enacted in its current form in 1969, though 

the concept goes back much further. See § 63, ch. 255, Laws of 

1969; Flynn v. State, 97 Wis. 44, 47, 72 N.W. 373 (1897) 

(referencing "harmless error"). When Wisconsin Stat. 

§ 971.08(2) was created in 1986, the legislature was well aware 
No. 2015AP2041-CR 

18

of the concept of harmless error in criminal proceedings. 1985 

Wis. Act 252, §§ 3-4; see Villa Clement, Inc. v. National Union 

Fire Ins. Co., 120 Wis. 2d 140, 147, 353 N.W.2d 369 (Ct. App. 

1984) (presuming the legislature is aware of pre-existing 

statutes).

¶34 Our holding is consistent with how federal courts 

review imperfect immigration advisements in plea colloquies.8 

Before 2013, federal courts were not required to give any sort 

of immigration advisement. See United States v. Matamula, 788 

F.3d 166, 174 (5th Cir. 2015). The Federal Rules of Criminal 

Procedure were amended, effective December 1, 2013, to require 

federal courts to give an immigration advisement substantially 

identical to that of Wis. Stat. § 971.08(1)(c) before accepting 

a guilty or no contest plea.9 Id.; Fed. R. Crim. P. 11(b)(1)(O).

 

8 "Federal cases are persuasive guides to the construction 

of state law when state and federal provisions are 

similar . . . ." State v. Brady, 118 Wis. 2d 154, 157 n.1, 345 

N.W.2d 533 (Ct. App. 1984). Cf State v. Cardenas-Hernandez, 219 

Wis. 2d 516, 527-28, 579 N.W.2d 678 (1998) ("Wisconsin courts 

look to federal cases interpreting and applying the federal 

rules of evidence as persuasive authority" where federal rules 

of evidence and Wisconsin rules of evidence are similar.). 

9 The federal immigration advisement provides the same 

substantive warnings as Wis. Stat. § 971.08(1)(c) with minor 

linguistic differences: 

Before the court accepts a plea of guilty or nolo 

contendre . . . the court must address the defendant 

personally in open court . . . that, if convicted, a 

defendant who is not a United States Citizen may be 

removed from the United States, denied citizenship, 

and denied admission to the United States in the 

future.

(continued)
No. 2015AP2041-CR 

19

¶35 Imperfect plea colloquies in federal courts are 

subject to harmless error analysis. Fed. R. Crim. P. 11(h) ("A 

variance from the requirements of this rule is harmless error if 

it does not affect substantial rights."). Federal courts 

consider an imperfect immigration advisement harmless error 

where the defendant otherwise knew of potential immigration 

consequences. United States v. Anderson, 624 F. App'x 106, 107 

(4th Cir. 2015) (per curiam)10 ("[W]e conclude that any such 

error is harmless because Anderson had actual notice of these 

possible immigration consequences . . . ."). This reasoning is 

entirely consistent with pre-Douangmala court of appeals 

decisions applying harmless error to Wis. Stat. § 971.08(2), 

e.g., State v. Lopez, 196 Wis. 2d 725, 731, 539 N.W.2d 700, and 

our holding today.

¶36 In light of the foregoing, we hold that Douangmala was 

objectively wrong because it failed to consider the mandatory 

language in Wis. Stat. §§ 971.26 and 805.18 and thus overrule 

it. Additionally, we reinstate Chavez,

11 Issa,12 Lopez,13 and 

 

Fed. R. Crim. P. 11(b)(1)(O).

10 No published federal court decisions apply harmless error 

under rule 11(h) to plea colloquies that imperfectly state the 

immigration advisement required by rule 11(b)(1)(O) due to the 

short time rule 11(b)(1)(O) has been in existence. We are thus 

left with only unpublished decisions, of which United States v. 

Anderson is the most analogous to Reyes Fuerte's situation, 624 

F. App'x 106 (4th Cir. 2015) (per curiam). Anderson is citable 

in federal courts. Fed. R. App. P. 32.1(a) (allowing citation 

to unpublished decisions issued on or after January 1, 2007).

11 State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. 

App. 1993).
No. 2015AP2041-CR 

20

Garcia14 as valid law and binding precedent. See Steele v. 

State, 97 Wis. 2d 72, 85, 294 N.W.2d 2 (1978) (reinstating cases 

overruled by the case Steele overruled).15 

C. The circuit court's errors were harmless.

¶37 The circuit court made two errors in its immigration 

advisement: (1) completely omitting any mention of denial of 

naturalization and (2) using the term "resident" instead of 

"citizen." We hold both errors were harmless. 

¶38 We identify three reasons these errors were harmless. 

First, defense counsel testified at the plea withdrawal hearing 

that he went over the Plea Questionnaire/Waiver of Rights form 

in Spanish with Reyes Fuerte. The form contains language 

 

12 State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 

1994).

13 State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 

1995).

14 State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 

N.W.2d 180 (Ct. App. 2000). 

15 Since Douangmala, the court of appeals developed a line 

of cases that applied the substantial compliance doctrine to 

immigration advisements under Wis. Stat. § 971.08(1)(c). State 

v. Mursal, 2013 WI App 125, 351 Wis. 2d 180, 839 N.W.2d 180. An 

immigration advisement substantially complied with 

§ 971.08(1)(c) if it explained all elements of the statute. 

Id., ¶16. Thus, minor linguistic differences that did not 

change the meaning of the advisement could not form the basis of 

plea withdrawal under § 971.08(2). Id. Our decision today does 

not affect the substantial compliance doctrine, as no error is 

present in an immigration advisement that substantially complies 

with § 971.08(1)(c).
No. 2015AP2041-CR 

21

substantially similar to that of Wis. Stat. § 971.08(1)(c).16 

Wisconsin Court System, Circuit Court Form CR-227, Plea 

Questionnaire/Waiver of Rights (revised May 1, 2004), 

https://www.wicourts.gov/formdisplay/CR-227.pdf?formNumber=CR227&formType=Form&formatId=2&language=en. Thus, we conclude 

that Reyes Fuerte had actual knowledge of the potential 

immigration consequences of his plea and thus the circuit 

court's errors were harmless. This is consistent with preDouangmala court of appeals decisions applying harmless error to 

§ 971.08(2). The court of appeals in Lopez concluded the error 

was harmless where the trial court completely omitted the 

immigration advisement during the plea colloquy, but trial 

counsel testified to going over the Plea Questionnaire/Waiver of 

Rights form in Spanish with the defendant. State v. Lopez, 196 

Wis. 2d 725, 728-29, 539 N.W.2d 700 (Ct. App. 1995). The facts 

of Lopez are even more extreme than this case because the 

circuit court at least gave Reyes Fuerte an advisement, albeit 

an imperfect one. Our conclusion is further bolstered by 

Garcia, which found harmless error where the defendant had 

actual knowledge of the potential immigration consequences 

 

16 The relevant language in the Plea Questionnaire/Waiver of 

Rights form states: "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." Wisconsin Court System, 

Circuit Court Form CR-227, Plea Questionnaire/Waiver of Rights 

(revised May 1, 2004), https://www.wicourts.gov/formdisplay/CR227.pdf?formNumber=CR-227&formType=Form&formatId=2&language=en.
No. 2015AP2041-CR 

22

through, inter alia, going over the plea waiver form with 

counsel. State v. Garcia, 2000 WI App 81, ¶¶3, 14, 234 

Wis. 2d 304, 610 N.W.2d 180.

¶39 Next, Reyes Fuerte has not alleged ineffective 

assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 

(2010). Padilla held that effective assistance of counsel under 

the Sixth Amendment requires defense attorneys to inform 

criminal defendants of the potential immigration consequences of 

a plea. Id. at 374. We do not hold that the mere lack of a 

Padilla ineffective assistance claim is sufficient, on its own, 

to prove actual knowledge and thus harmless error when a circuit 

court fails to give the advisement as required by Wis. Stat. 

§ 971.08(1)(c). However, the lack of such a claim can be a 

factor to be included in our consideration to support other 

facts of record that show actual knowledge and harmless error.

¶40 Finally, we hold the circuit court's error was 

harmless because the immigration consequence at issue in this 

case——deportation——was raised by the circuit court. Reyes 

Fuerte brought his motion because he was concerned about being 

deported, not because he was concerned about being denied 

naturalization. Reyes Fuerte never argues that the advisement 

given for deportation was deficient in any way. Thus, the 

circuit court's error in omitting denial of naturalization is 

harmless.

¶41 We hold that, under the circumstances of this case, 

the circuit court's errors in giving the plea advisement 

required by Wis. Stat. § 971.08(1)(c) are harmless. Reyes 
No. 2015AP2041-CR 

23

Fuerte knew of the potential immigration consequences because 

his counsel went over the plea waiver form, which contains a 

substantially similar advisement, with him in Spanish. The 

failure to bring any ineffective assistance claim under Padilla

further indicates that counsel did inform Reyes Fuerte of the 

potential immigration consequences of his plea. Finally, the 

two immigration consequences relevant to Reyes Fuerte were 

raised by the circuit court, such that he had knowledge of those 

potential consequences.17 To allow him to withdraw his plea now 

would be to allow him to "manipulate [Wisconsin's] criminal 

justice system in order to circumvent the immigration laws;" we 

cannot accept that the legislature intended to, or actually did, 

write § 971.08(2) to have such a result. State v. Issa, 186 

Wis. 2d 199, 212, 519 N.W.2d 741 (Ct. App. 1994) (Fine, J., 

concurring). 

IV. CONCLUSION

¶42 We hold that Reyes Fuerte is not entitled to withdraw 

his pleas of guilty to attempting to flee or elude a traffic 

officer, contrary to Wis. Stat. § 346.04(3), and second-offense 

operating with a restricted controlled substance in his blood, 

 

17 The record reveals that Reyes Fuerte was in deportation 

proceedings at the time of his guilty plea. However, the record 

does not state why he was in deportation proceedings; it may 

have been for the conduct underlying the charges in this case, 

but it may not have. Thus, we leave for another case whether a 

defendant who was already in deportation proceedings for the 

conduct underlying the criminal charge is imputed with knowledge

that a guilty or no contest plea may bring adverse immigration 

consequences.
No. 2015AP2041-CR 

24

contrary to Wis. Stat. § 346.63(1)(am), pursuant to Wis. Stat. 

§ 971.08(2) because the circuit court's error in giving an 

imperfect immigration advisement under Wis. Stat. § 971.08(1)(c) 

was harmless. In so doing, we overrule this court's decision in 

State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1 

because it was objectively wrong due to its failure to properly 

address the harmless error statutes.

By the Court.—The decision of the court of appeals is 

reversed.
No. 2015AP2041-CR.ssa

1

¶43 SHIRLEY S. ABRAHAMSON, J. (dissenting). The State 

of Wisconsin, petitioner in the instant case, presented one 

issue for review:

Now that criminal defense attorneys are obligated to 

advise their clients about the immigration 

consequences of their pleas, Padilla v. Kentucky, 559 

U.S. 356 (2010), should the Wisconsin Supreme Court 

overturn its decision in State v. Douangmala, 2002 WI 

62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the 

harmless error rule to prohibit a defendant who was 

aware of the potential immigration consequences of his 

plea from being able to withdraw the plea because the 

circuit court failed to give a statutory immigration 

warning that complied with Wis. Stat. § 971.08(1)(c)?

Rather than answer this single question limited to the effect of 

Padilla v. Kentucky, 559 U.S. 356 (2010), the majority opinion 

reaches beyond the issue presented to reinterpret anew Wis. 

Stat. §§ 971.08(1)(c), 971.08(2), and 971.26. In so doing, the 

majority overrules State v. Douangmala, 2002 WI 62, 253 

Wis. 2d 173, 646 N.W.2d 1, a unanimous decision of this court 

that has gone unchallenged for fifteen years and has been cited

and relied upon in numerous cases. As the majority makes clear, 

Padilla has no effect on Douangmala.

¶44 The majority's errors are threefold. First, 

Douangmala was properly decided, and the majority's contrary 

conclusion is unpersuasive and objectively wrong. Second, the 

majority announces a novel interpretation of the harmless error 

statute with implications far beyond the present case, affecting 

future petitions for plea withdrawal under Wis. Stat. 

§ 971.08(2). Third, the majority flouts the generally accepted 

rule of stare decisis that an appellate court adheres to its own 
No. 2015AP2041-CR.ssa

2

prior decisions unless there are compelling reasons not to do 

so. Accordingly, I dissent. 

I

¶45 In Douangmala, the unanimous court reached two 

conclusions:

(1) The plain text of Wis. Stat. § 971.08(1)(c) directs and 

requires a circuit court to address a defendant personally 

and advise the defendant that his plea of guilty or no 

contest for the offense may result in deportation, the 

exclusion from admission to the United States, or the 

denial of naturalization; and 

(2) If the circuit court fails to so advise a defendant who 

later shows that the plea is likely to result in 

deportation, the exclusion from admission to the United 

States, or the denial of naturalization, the court shall 

vacate any applicable judgement and allow the defendant to 

withdraw his plea. 

Douangmala, 253 Wis. 2d 173, ¶¶3, 4. 

¶46 In reaching these conclusions, the Douangmala court

examined Wis. Stat. §§ 971.08(1)(c), 971.08(2), and 971.26. 

¶47 Wisconsin Stat. § 971.08(1)(c) directs a circuit court 

to give a warning about immigration consequences. Before the 

court accepts a plea of guilty or no contest, the legislature 

requires the circuit court to do the following:

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 
No. 2015AP2041-CR.ssa

3

from admission to this country or the denial of 

naturalization, under federal law."

Wis. Stat. § 971.08(1)(c).

¶48 Wisconsin Stat. § 971.08(2) provides the remedy if the 

circuit court fails to give the statutorily mandated warnings 

about immigration consequences. The remedy provision of the 

statute reads as follows:

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.

Wis. Stat. § 971.08(2).

¶49 I turn now to Wis. Stat. § 971.26, the harmless error 

statute. This statute saves numerous proceedings in which an 

error is made. The harmless error statute applied in criminal 

cases provides as follows:

No indictment, information, complaint or warrant shall 

be invalid, nor shall the trial, judgment or other 

proceedings be affected by reason of any defect or 

imperfection in matters of form which do not prejudice 

the defendant.

Wis. Stat. § 971.26.1

 

1 The majority also invokes Wis. Stat. § 805.18, the 

harmless error statute applicable to civil actions. The 

majority claims that § 805.18 is made applicable to criminal 

actions by Wis. Stat. § 972.11(1). Majority op., ¶22. 

Wisconsin Stat. § 972.11(1) provides as follows:

Except as provided in subs. (2) to (4), the rules of 

evidence and practice in civil actions shall be 

applicable in all criminal proceedings unless the 

(continued)
No. 2015AP2041-CR.ssa

4

¶50 I now return to Wis. Stat. § 971.08. Applying the 

plain text rule of interpretation to § 971.08(2), the unanimous 

Douangmala court concluded that if a circuit court fails to give 

the statutory warning, the legislature explicitly directs that 

the defendant is entitled to withdraw the plea upon a showing 

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

deportation. Douangmala, 253 Wis. 2d 173, ¶¶3, 4. 

¶51 Relying on the text of Wis. Stat. § 971.08(2), the 

unanimous Douangmala court also concluded that prior cases 

applying the harmless error rule to § 971.08 were "objectively 

wrong under the language of the statute." Douangmala, 253 

Wis. 2d 173, ¶42. These cases were explicitly overruled. 

Douangmala, 253 Wis. 2d 173, ¶42. 

¶52 The justices joining the majority opinion——committed 

to applying the same plain-text analysis to the identical text 

of the statutes interpreted in Douangmala——overrule the 

unanimous Douangmala decision believing it to be "objectively 

wrong." The majority faults the Douangmala court for failing to 

 

context of a section or rule manifestly requires a 

different construction. No guardian ad litem need be 

appointed for a defendant in a criminal action. 

Chapters 885 to 895 and 995, except ss. 804.02 to 

804.07 and 887.23 to 887.26, shall apply in all 

criminal proceedings.

Wis. Stat. § 972.11(1). 

The majority does not explain how or why § 805.18 

constitutes a "rule[] of evidence or practice in civil actions." 

Thus, § 805.18's applicability to criminal cases is, at best, 

questionable. Regardless, there is nothing in my analysis that 

would be affected by § 805.18's applicability.
No. 2015AP2041-CR.ssa

5

harmonize Wis. Stat. § 971.08(2) (remedy provision) with Wis. 

Stat. § 971.26 (harmless error). Majority op., ¶¶26-36. 

¶53 The majority acknowledges that when two statutes 

conflict with one another, the more specific statute takes 

precedence over the more general statute. Majority op., ¶29.2

¶54 The majority gets around this rule, however, by 

declaring "that applying harmless error analysis does not 

facially violate Wis. Stat. § 971.08(2), but failing to apply 

harmless error analysis does facially violate Wis. Stat. 

§§ 971.26 and 805.18." Majority op., ¶32.

¶55 Curiously, the majority does not explain its 

assertion. The majority recognizes that both Wis. Stat. 

§ 971.08(2) and § 971.26 use the mandatory "shall," and neither 

statute is "more mandatory" than the other, but the majority 

somehow reaches the conclusion that applying the harmless error 

rule to § 971.08(2) does not create a conflict. How? Wis. 

Stat. § 971.08(2) sets forth a simple "if-then" conditional 

sentence: If the circuit court fails to provide the immigration 

consequence warning and the defendant shows that his plea is 

likely to result in deportation, then the circuit court shall 

 

2 The majority relies on Rouse v. Theda Clark Med. Ctr., 

2007 WI 87, ¶37, 302 Wis. 2d 358, 735 N.W.2d 30. See also

Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159, 

¶23, 286 Wis. 2d 252, 706 N.W.2d 110 ("[W]here a specific 

statutory provision leads in one direction and a general 

statutory provision in another, the specific statutory provision 

controls.").
No. 2015AP2041-CR.ssa

6

vacate the applicable judgment and permit the defendant to 

withdraw his plea. No exception is made for harmless errors.3

¶56 In my view, it is evident that there is a conflict 

between Wis. Stat. §§ 971.08(2) and 971.26. To resolve this 

conflict, the more specific statute should control over the more 

general statute.

II

¶57 I must also call attention to the staggering breadth 

of the majority's application of the harmless error statute in 

the instant case, and therefore, in future cases. See majority 

op., ¶¶31-33. According to the majority, in a battle between 

competing "shall" directives, the harmless error statute will 

always win out. This conclusion is in part supported by the 

 

3 The majority points out that harmless error statutes 

existed long before Wis. Stat. § 971.08(2) was enacted. So 

what? This court has given effect to specific statutes over 

general statutes for at least a century. See Chippewa & 

Flambeau Improvement Co. v. R.R. Comm'n of Wis., 159 N.W. 739, 

744, 164 Wis. 105 (1916). Rather than explicitly excepting 

§ 971.08(2) from the harmless error rule, the legislature has 

relied on the courts to apply this century-old canon of 

construction to give effect to § 971.08(2).

Moreover, the majority relies in part on Federal Rule of 

Criminal Procedure 11(b)(1)(O), which requires a federal 

district court to inform defendants that their conviction may 

result in adverse immigration consequences before accepting 

their pleas of guilty or nolo contendere. Majority op., ¶34. A 

defendant's claim that Rule 11(b)(1)(O) was violated is subject 

to harmless error analysis. Majority op., ¶35 (citing United 

States v. Anderson, 624 F. App'x 106, 107 (4th Cir. 2015)). 

However, there is no federal analogue to Wis. Stat. § 971.08(2), 

and it is the remedy provision unique to Wisconsin that is at 

issue in the instant case. The federal rule is of no help to 

the majority.
No. 2015AP2041-CR.ssa

7

fact that the harmless error statute, in one form or another, 

existed at least as early as 1897, long before Wis. Stat. 

§ 971.08(2) was enacted. 

¶58 Apparently, hereafter, every statute enacted and every 

case decided after 1897 is subject to a mandatory harmless error 

analysis (except perhaps when a violation of a constitutional or 

statutory provision has been declared prejudicial per se). This 

poses a conundrum for legislative drafters: What words should 

the drafter use if the legislature does not want the mandatory 

harmless error statute to apply? The legislature explicitly 

stated in the instant case that it did not want the mandatory 

harmless error to apply but the majority is ignoring the 

legislative direction.

III

¶59 I now turn to the issue of affording due respect to 

precedent. The court's interpretation and application of Wis. 

Stat. § 971.08 and the harmless error statute has not been 

challenged or changed since the Douangmala decision. Since 

Douangmala was decided, neither the text of § 971.08(2) nor the 

text of the harmless error statute has been changed by the 

legislature. Generally speaking, legislative acquiescence to a 

judicial construction of a statute gives rise to a presumption 

that the judicial construction should stand. See, e.g., Force 

ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶124 

n.76, 356 Wis. 2d 582, 850 N.W.2d 866; Milwaukee Journal 

Sentinel v. City of Milwaukee, 2012 WI 65, ¶43, n.21, 341 

Wis. 2d 607, 815 N.W.2d 367; Wenke v. Gehl Co., 2004 WI 103, 
No. 2015AP2041-CR.ssa

8

¶¶32-35, 274 Wis. 2d 220, 682 N.W.2d 405; State v. Hansen, 2001 

WI 53, ¶38, 243 Wis. 2d 328, 627 N.W.2d 195; Reiter v. Dyken, 95 

Wis. 2d 461, 471-72, 290 N.W.2d 510 (1980). 

¶60 Furthermore, litigants and courts have relied on 

Douangmala. Douangmala has been cited 168 times. Though not an 

absolute rule, stare decisis protects litigants' and courts'

reliance on judicial decisions.

¶61 A court should not overrule a judicial interpretation 

of a statute when the court simply disagrees with the rationale 

of the prior decision. Rather, the party seeking the overruling 

must show "not only that [the decision] was mistaken but also 

that it was objectively wrong, so that the court has a 

compelling reason to overrule it." Wenke, 274 Wis. 2d 220, ¶21. 

As I explained above, there are no compelling reasons for 

overruling Douangmala, and the majority reaches a contrary 

conclusion overruling Douangmala by hoping that the reader will 

not scrutinize the majority's baseless conclusion that applying 

harmless error to Wis. Stat. § 971.08(2) does not give rise to a 

conflict——even though it plainly does. 

¶62 Though not an absolute rule, stare decisis promotes 

stability, coherence, and the rule of law. By disregarding the

generally accepted interpretative approach of adhering to a 

prior judicial interpretation of a statute and by overruling the 
No. 2015AP2041-CR.ssa

9

Douangmala decision, the majority scoffs at stare decisis and 

jeopardizes finality and certainty in the law.4 

* * * *

¶63 The majority has no justification beyond its doctrinal 

disposition to overrule Douangmala. The only change since the 

Douangmala decision is the make up of the court. A change in 

judges is not a valid reason to overturn a decision of the 

court. "A basic change in the law upon a ground no firmer than 

a change in our membership invites the popular misconception 

that this institution is little different from the two political 

branches of the Government. No misconception could do more 

lasting injury to this Court and to the system of law which it 

is our abiding mission to serve." Mitchell v. W.T. Grant Co., 

416 U.S. 600, 636 (1974) (Stewart, J., dissenting).

¶64 The majority opinion represents the will of the 

justices joining the opinion; it does not promote the rule of 

law. Accordingly, I dissent.

¶65 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissenting opinion.

 

4 See also Planned Parenthood of S.E. Penn. v. Casey, 505 

U.S. 833, 864 (1992) (citing Mitchell) ("To overrule prior law 

for no other reason than [a present doctrinal disposition to 

come out differently from the previous court] would run counter 

to the view repeated in our cases, that a decision to overrule 

should rest on some special reason over and above the belief 

that a prior case was wrongly decided."); Mapp v. Ohio, 367 

U.S. 643, 677 (1961) (Harlan, J., dissenting).
No. 2015AP2041-CR.ssa

1