2015 WI 74

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP1437-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent-Petitioner, 

 v. 

Hatem M. Shata, 

 Defendant-Appellant. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

(Reported at 356 Wis. 2d 326, 855 N.W.2d 491) 

(Ct. App. 2014 – Unpublished) 

OPINION FILED: July 9, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 21, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Milwaukee 

 JUDGE: Timothy G. Dugan 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion 

Filed.) 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the plaintiff-respondent-petitioner, the cause was 

argued by Nancy Noet, assistant attorney general, with whom on 

the briefs was Brad Schimel, attorney general. 

For the defendant-appellant, there was a brief by Amelia L. 

Bizzaro and Bizzaro Law LLC, Milwaukee. Oral argument by Amelia 

L. Bizzaro. 

An amicus curiae brief was filed by Stacy Taeuber on behalf 

of the University of Wisconsin Law School, Immigrant Justice 

Clinic. Oral argument by Stacy Taeuber. 
2015 WI 74

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP1437-CR 

(L.C. No. 2012CF1757) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin, 

 Plaintiff-Respondent-Petitioner, 

 v. 

Hatem M. Shata, 

 Defendant-Appellant. 

FILED 

JUL 9, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

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

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished decision of the court of appeals,1 which reversed the 

Milwaukee County Circuit Court's2 judgment of conviction and 

order denying Hatem Shata's ("Shata") post-conviction motion to 

withdraw his guilty plea to one count of possession with intent 

to deliver marijuana, as party to a crime. 

 

1 State v. Shata, No. 2013AP1437-CR, unpublished slip op. 

(Wis. Ct. App. July 15, 2014). 

2 The Honorable Timothy G. Dugan presided. 
No. 2013AP1437-CR 

2 

¶2 Shata argues that the circuit court erred by denying 

his motion to withdraw his guilty plea. He argues that he 

should be allowed to withdraw his plea on the basis of 

ineffective assistance of counsel under Padilla v. Kentucky, 559 

U.S. 356 (2010). 

¶3 Specifically, Shata argues that, under Padilla, his 

trial counsel performed deficiently by failing to inform him 

that he would be subject to "mandatory" deportation if 

convicted.3 Although trial counsel did inform Shata that he 

faced a "strong chance" of deportation if convicted, Shata 

argues that this advice was deficient because trial counsel 

should have told him that "his conviction would absolutely 

result in deportation." Shata argues that immigration law 

clearly provides that he would have been subject to mandatory 

deportation upon conviction. Shata argues that this deficient 

performance prejudiced him because he would have insisted on 

going to trial had he known that the guilty plea would subject 

him to mandatory deportation. He argues that deportation has 

 

3 In his brief, Shata argues that his deportation is

"mandatory" under 8 U.S.C. § 1227(a)(2)(B)(i). However, the 

Supreme Court has described deportation under that statute as 

"presumptively mandatory." Padilla v. Kentucky, 559 U.S. 356, 

368-69 (2010). That statute does not state that deportation is 

"mandatory." Rather, it states that certain aliens "shall, upon 

the order of the Attorney General, be removed . . . ." 8 U.S.C. 

§ 1227(a)(intro.). The Attorney General has some discretion to 

prevent deportation. Padilla, 559 U.S. at 363-64. Further, as 

we will explain later, the United States Department of Homeland 

Security exercises prosecutorial discretion as to which aliens 

it will seek to deport. 
No. 2013AP1437-CR 

3 

been his primary concern throughout this case because he has 

lived in the United States for 22 years and does not want to be 

separated from his children and wife, who live in New Jersey. 

¶4 The State argues that the circuit court correctly 

denied Shata's post-conviction motion because his trial counsel 

did provide effective assistance. The State argues that Shata's 

attorney did not perform deficiently. The State contends that 

under Padilla, Shata's attorney was merely required to inform 

him that he was at risk of being deported if convicted. The 

State argues that Shata's attorney went above and beyond that 

requirement by telling Shata that he faced a "strong chance" of 

deportation. The State argues that Shata's conviction made him 

"deportable" but did not make his deportation an absolute 

certainty. The State also argues that, if Shata's counsel 

performed deficiently, Shata was not prejudiced thereby. The 

State argues that Shata would have pled guilty even if he had 

been told that deportation was an absolute certainty upon 

conviction. Alternatively, the State argues that this court 

should remand the matter to the circuit court for a hearing on 

the issue of prejudice. 

¶5 We conclude that 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. Padilla, 559 U.S. at 369. Shata's attorney 

satisfied that requirement by correctly advising Shata that his 
No. 2013AP1437-CR 

4 

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.4 Because Shata's trial counsel did not 

perform deficiently, we do not address the issue of prejudice. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶6 Shata is an Egyptian foreign national and is not a 

United States citizen. He has been living in the United States 

since approximately 1991. In December 2011 he opened a coffee 

shop called the Sphinx Café, located in Milwaukee. 

¶7 On April 18, 2012, the Milwaukee County District

Attorney's Office filed a criminal complaint charging Shata with 

one count of possession with intent to deliver marijuana, as 

party to a crime, contrary to Wis. Stat. §§ 961.41(1m)(h)3., 

939.50(3)(g), and 939.05 (2011-12).5 

¶8 According to the complaint, investigators obtained a 

warrant to search the Sphinx Café after receiving information 

that a substantial amount of marijuana was being stored there. 

On February 16, 2012, shortly before executing the search 

 

4 "The term 'alien' means any person not a citizen or 

national of the United States." 8 U.S.C. § 1101(a)(3). 

5 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated. 
No. 2013AP1437-CR 

5 

warrant, investigators conducted surveillance of the Sphinx 

Café. While conducting surveillance, a detective saw Shata 

carry a large cardboard box from the Sphinx Café and place it in 

the trunk of a car parked on the street. Shata was accompanied 

by one of his employees, Amanda Nowak ("Nowak"). Shortly 

thereafter, Shata returned to the Sphinx Café and Nowak drove 

away in the car. Law enforcement officers subsequently 

conducted a traffic stop of the car. Nowak consented to a 

search of the car, and officers found 2,319 grams (approximately 

five pounds) of marijuana inside of the box that Shata had 

placed in the trunk. Also on February 16 investigators executed 

the search warrant. A search of Shata's person revealed 2.9 

grams of marijuana and 1.7 grams of cocaine, which he claimed 

were for personal use. 

¶9 The complaint further alleged that Nowak and Shata 

confessed to selling marijuana. Specifically, Shata confessed 

to selling marijuana through the Sphinx Café in order to support 

his family. Nowak told investigators that Shata let his 

marijuana supplier store marijuana at the Sphinx Café, sometimes 

up to 20 pounds. Nowak also told investigators that Shata sold 

marijuana and that he would front marijuana to her, she would 

sell it, and then she would give the sale proceeds to Shata. 

¶10 On May 2, 2012, Shata made an initial appearance and a 

signature bond was set. On May 15 the circuit court held a 

preliminary hearing. Shata waived his right to a preliminary 

examination and was bound over for trial. The State then filed 

an information and provided a copy to Shata, who waived a 
No. 2013AP1437-CR 

6 

reading and pled not guilty. The information charged Shata with 

the same count that was in the complaint. 

A. The Plea Hearing 

¶11 On October 5, 2012, Shata appeared in court for a pretrial hearing that turned into a plea hearing. Shata's 

attorney, James Toran ("Attorney Toran"), informed the court 

that Shata "doesn't want to be deported." Attorney Toran asked 

the court to adjourn the trial date so that he could "deal with" 

the immigration consequences that Shata could face if convicted. 

The court denied the request for an adjournment but offered to 

schedule another pre-trial hearing. The court passed the case 

to allow Attorney Toran to confer with Shata and the State. 

¶12 After a discussion off the record, the parties 

appeared before the court again. The State described a plea 

agreement to the court. Specifically, if Shata pled guilty, the 

State would recommend two years of initial confinement followed 

by two years of extended supervision, imposed and stayed for 24 

months of probation. As a condition of probation, the State 

would recommend 12 months of confinement in the House of 

Corrections. The maximum penalty that Shata faced was "a fine 

not to exceed $25,000 or imprisonment not to exceed 10 years, or 

both." Wis. Stat. §§ 939.50(3)(g), 961.41(1m)(h)3. Shata faced 

a "term of confinement in prison" not to exceed five years. 

Wis. Stat. § 973.01(2)(b)7. 

¶13 After confirming that the State accurately described 

the plea agreement, Attorney Toran told the court that he had 

informed Shata "that there's a potential he could be deported." 
No. 2013AP1437-CR 

7 

MR. TORAN: And [Shata] is——I did inform him of 

the potential that he's——Are you a United States 

citizen? 

THE DEFENDANT: No. 

MR. TORAN: He's not a United States citizen, 

that there's a potential he could be deported. 

THE COURT: All right. And, Mr. Shata, is that 

your understanding as well? 

THE DEFENDANT: Yes, sir. 

Shata then stated that he wished to enter a guilty plea. 

¶14 The court then explained to Shata the maximum 

penalties he faced upon conviction and that, as a convicted 

felon, he would be barred from possessing a firearm and would be 

barred from voting in any election until his civil rights are 

restored. The circuit court next informed Shata of the possible 

immigration consequences of his plea: 

THE COURT: I'll also advise you that if you're 

not a citizen of the United States 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. And you understand 

that? 

THE DEFENDANT: Yes. 

After the circuit court explained the elements of the offense 

charged, Shata pled guilty. 

¶15 The circuit court then noted that Shata had signed a 

plea questionnaire and waiver of rights form that contained the 

same immigration warning.6 

 

6 The plea questionnaire and waiver of rights form states, 

inter alia, that: "I understand that if I am not a citizen of 

(continued) 
No. 2013AP1437-CR 

8 

THE COURT: Sir, I have before me a document 

entitled a plea questionnaire, waiver of rights form, 

and an addendum, and there are signatures at the 

bottom of each. Did you sign those documents? 

THE DEFENDANT: Yes, sir. 

THE COURT: Did you go over the forms with your 

lawyer? 

THE DEFENDANT: Yes, sir. 

THE COURT: Do you understand everything on those 

forms? 

THE DEFENDANT: Yes, sir. 

THE COURT: Are all of your answers truthful? 

THE DEFENDANT: Yes, sir. 

. . . 

THE COURT: Are you satisfied with your lawyer's 

representation? 

THE DEFENDANT: Yes, sir. 

¶16 The court then confirmed with Attorney Toran that he 

discussed the plea questionnaire with Shata. 

THE COURT: Mr. Toran, have you gone over the 

plea questionnaire, waiver of rights forms with your 

client? 

MR. TORAN: Yes, I have. 

THE COURT: Satisfied he understands all the 

rights he'll be giving up by entering his plea? 

 

the United States, my plea could result in deportation, the 

exclusion of admission to this country, or the denial of 

naturalization under federal law." Shata and Attorney Toran 

signed the form on October 5, 2012, the date of the plea and 

sentencing hearing. 
No. 2013AP1437-CR 

9 

MR. TORAN: Yes, Your Honor. 

THE COURT: Satisfied the plea is being made 

freely, voluntarily, and intelligently? 

MR. TORAN: Yes. 

¶17 The court then accepted the guilty plea, "find[ing] 

that the defendant is entering his plea freely, voluntarily, and 

intelligently, with full understanding of the nature of the 

offense charged, the maximum possible penalties, and all the 

rights he'll be giving up by entering his plea of 

guilty . . . ." The court subsequently found Shata guilty and 

entered a judgment of conviction. At the end of the plea 

hearing, the court decided not to order a presentence 

investigation and scheduled a sentencing hearing.7

B. The Sentencing Hearing 

¶18 On November 16, 2012, the circuit court held a 

sentencing hearing. The State argued that Shata deserved one 

year of conditional jail time as a condition of probation 

because of his "lack of a prior [criminal] record," his 

"character," and the facts of the case. The State argued that 

Shata "manipulate[ed] and use[d]" his co-defendant, Amanda 

Nowak, who was 17 years of age at the time. The State argued 

that "it's . . . disgusting that [Shata] would use his influence 

as a boss and [Nowak's] age and get her wrapped up into this." 

The State also noted the danger of violence associated with 

 

7 The circuit court wanted to schedule the sentencing 

hearing for October 31, 2012, but due to Attorney Toran's 

schedule, the court set the hearing for November 16. 
No. 2013AP1437-CR 

10 

sales of illegal drugs. However, because Shata did "appear to 

be remorseful" and had no prior criminal record, the State felt 

that "probation is appropriate." 

 ¶19 At the sentencing hearing, Attorney Toran recommended 

that the court "impose and stay a prison sentence, place [Shata] 

on probation, and . . . allow his probation to be transferred to 

the State of New Jersey and . . . impose condition time but stay 

that as well." Attorney Toran noted that Shata had recently 

moved with his wife and children to New Jersey and that he 

returned from there to Milwaukee for every court appearance, 

demonstrating Shata's good character. Attorney Toran also noted 

that he tried to arrange for a deferred prosecution, "but the 

State was not amenable to doing so, and [Shata is] very, very 

concerned about being deported out of this country." Attorney 

Toran argued that his recommended sentence was appropriate 

because Shata has a college degree, is an entrepreneur, has a 

supportive family, and is "kind of a patsy kind of guy" and "is 

not a major player." Attorney Toran also noted that Shata had 

potential employment opportunities in New Jersey, was 

financially destitute, and had lost over $300,000 in the 

restaurant business. 

 ¶20 The court noted that its sentence would be based on 

the arguments of counsel as well as society's interest in 

punishment, deterrence, and rehabilitation. The court stated 

that Shata's offense is "serious" and that illegal drugs are 

"destroying the lives of individuals" and have a "big impact 

throughout the community." The court also stated that Shata was 
No. 2013AP1437-CR 

11 

"taking advantage of other people." The court noted that 

although Shata had no prior criminal record and had a supportive 

family, "the community needs to be protected from someone who's 

dealing this quantity of drugs." The court then sentenced Shata 

to five years of imprisonment consisting of one year of initial 

confinement in prison and four years of extended supervision. 

The court allowed the extended supervision to be transferred to 

New Jersey. Although the court did not follow either party's 

recommendation, it did impose one year of confinement, as the 

State recommended pursuant to the plea agreement. 

C. Shata's Plea Withdrawal Motion and Hearing 

¶21 About four months later, on March 15, 2013, Shata 

filed a postconviction motion to withdraw his guilty plea. In 

his motion, he argued that he received ineffective assistance of 

counsel because Attorney Toran failed to inform him "that 

federal law required he be deported following his conviction." 

Shata argued that Attorney Toran should have told him "that he 

was subject to mandatory deportation because the offense 

involved more than 30 grams of marijuana." Shata alleged that 

Attorney Toran "informed him that he did not have to worry about 

any immigration consequences because he would be receiving 

probation, and [Immigration and Customs Enforcement] only 

initiated deportation proceedings for aliens serving prison 

terms." However, despite that allegation, Shata noted that 

Attorney Toran stated at the plea hearing that "'there's a 

potential he could be deported.'" Shata also complained that 

the circuit court "did not inform [him] that his conviction 
No. 2013AP1437-CR 

12 

would necessarily subject him to deportation proceedings. The 

court merely stated that his plea 'may' result in deportation." 

¶22 On May 31, 2013, the circuit court held a Machner 

hearing on Shata's postconviction motion.8 Attorney Toran 

testified that he had informed Shata of the potential for 

deportation if convicted. Attorney Toran testified that he had 

used the word "potential" and did not tell Shata that 

deportation was "mandatory." He also testified that he "advised 

[Shata] prior to the plea that he may be deported, that there's 

a strong chance that he could be deported . . . ." Attorney 

Toran testified that he "knew [pleading guilty] would subject 

[Shata] to deportation." But Attorney Toran "didn't know 

[deportation] was mandatory." Attorney Toran testified that he 

"didn't research the immigration consequences in terms of 

whether or not it was mandatory." He also stated that he had 

not researched the federal immigration statutes. However, he 

explained that he was familiar with Padilla, 559 U.S. 356. He 

also testified that he had "asked a number of federal 

prosecutors about whether or not the impact of pleading to this 

charge would subject [Shata] to deportation, and they said it 

could, everyone used the word 'it could.'" Attorney Toran also 

explained that he had tried to have the charge amended so that 

Shata could avoid the possibility of deportation, but the State 

was unwilling to amend the charge. Attorney Toran testified 

 

8 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. 

App. 1979). 
No. 2013AP1437-CR 

13 

that he had advised Shata to plead guilty because they had "no 

defense," Shata confessed to the crime, and the State would 

recommend probation if he pled guilty. 

¶23 Shata testified next. He stated that he would not 

have pled guilty if he had known that he would be subject to 

mandatory deportation upon conviction. He testified that 

Attorney Toran "didn't say a strong chance" of deportation 

existed. To the contrary, Shata testified that Attorney Toran 

"promised [him] to get probation" and told Shata that "if you 

get probation, you're not going to be deported." Shata further 

testified that he received a letter from the Immigration and 

Naturalization Services that ordered him to appear before an 

immigration judge.9 

¶24 The circuit court found that the testimony of Attorney 

Toran was more credible and that counsel had informed Shata of a 

strong likelihood of deportation if convicted. It found "the 

testimony of Mr. Toran to be credible under the circumstances, 

 

9 This letter does not appear in the record. Further, the 

United States Immigration and Naturalization Services ceased to 

exist in 2003. The record, however, does contain "Page 1 of 3" 

of a U.S. Department of Homeland Security ("DHS") "Immigration 

Detainer——Notice of Action," which was signed on November 23, 

2012. A checked box on the form indicates that the DHS 

"[i]nitiated an investigation to determine whether this person 

is subject to removal from the United States." An unchecked box 

on the form indicates that the DHS had not "[i]nitiated removal 

proceedings and served a Notice to Appear or other charging 

document." Another unchecked box on the form indicates that the 

DHS had not "[o]btained an order of deportation or removal from 

the United States for this person." 
No. 2013AP1437-CR 

14 

that he did advise Mr. Shata, unlike Padilla, that there was a 

strong likelihood that he would be deported." The circuit court 

also stated, "I don't find that Mr. Toran told Mr. Shata that he 

would be getting probation and would go back to New Jersey and 

nothing would happen." 

¶25 The circuit court concluded that Shata had not 

received ineffective assistance of counsel. The court held that 

Attorney Toran did not perform deficiently. The circuit court 

distinguished Padilla explaining that "even the language in 

Padilla is not that it's mandatory that you'll be deported, but 

that it's presumptively mandatory, and the difference between 

the strong likelihood and presumptive deportation, I don't think 

that there's necessarily a significant difference." The circuit 

court also held that Shata failed to prove that he was 

prejudiced. It stated, "I don't find Mr. Shata's testimony to 

be credible today that he would've gone to trial under any 

circumstance had he known that removal, deportation was a 

presumptive mandatory." The court also noted that "[t]here 

appears to be some discretion" as to whether Shata will be 

deported and that "[i]t appears at least no one has presented 

factually that the law is that he will, in fact, automatically 

be deported." Accordingly, the circuit court denied Shata's 

motion to withdraw his guilty plea and issued a written order to 

that effect on July 15, 2013. 

D. The Court of Appeals' Decision 

¶26 On July 15, 2014, the court of appeals, in a split 

decision, reversed the circuit court's judgment of conviction 
No. 2013AP1437-CR 

15 

and order denying postconviction relief. The majority concluded 

that Shata received ineffective assistance of counsel. First, 

the majority held that Attorney Toran, by informing Shata that 

he faced a strong likelihood of deportation if convicted, "was 

deficient when he failed to provide Shata with complete and 

accurate information about the deportation consequences of his 

plea." State v. Shata, No. 2013AP1437-CR, unpublished slip op., 

¶28 (Wis. Ct. App. July 15, 2014). The majority reasoned that 

"the deportation consequences for conviction of Shata's offense, 

like the consequences of Padilla's, were in fact dramatically 

more serious than 'a strong likelihood.'" Id. The majority 

also held that this deficiency prejudiced Shata. Id., ¶¶29-33. 

¶27 Judge Brennan dissented. She reasoned that "[t]rial 

counsel not only complied with Padilla's requirement that he 

inform Shata 'whether his plea carries a risk of deportation,' 

see [Padilla], 559 U.S. at 374, trial counsel went one better 

and advised Shata not only that there was a 'risk' of 

deportation, but that there was a strong one." Id., ¶38 

(Brennan, J., dissenting). Judge Brennan also concluded that 

Shata suffered no prejudice because he "fail[ed] to show that it 

would have been a rational decision for him to reject a plea 

with a probation recommendation." Id., ¶49 (Brennan, J., 

dissenting). 

¶28 On August 14, 2014, the State filed a petition for 

review, which we granted on December 18, 2014. 

II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW 
No. 2013AP1437-CR 

16 

¶29 "In general 'a circuit court should freely allow a 

defendant to withdraw his plea prior to sentencing for any fair 

and just reason, unless the prosecution [would] be substantially 

prejudiced.'" State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1, 

843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007 

WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation 

marks omitted). In contrast, "the general rule [is] that a 

defendant seeking to withdraw a guilty or no contest plea after 

sentencing must prove manifest injustice by clear and convincing 

evidence." State v. Negrete, 2012 WI 92, ¶29, 343 Wis. 2d 1, 

819 N.W.2d 749 (emphasis added) (citations omitted). 

Ineffective assistance of counsel is one type of manifest 

injustice. See State v. Taylor, 2013 WI 34, ¶49, 347 

Wis. 2d 30, 829 N.W.2d 482. 

¶30 "The clear and convincing standard for plea withdrawal 

after sentencing, which is higher than the 'fair and just' 

standard before sentencing, 'reflects the State's interest in 

the finality of convictions, and reflects the fact that the 

presumption of innocence no longer exists.'" Id., ¶48 (quoting 

State v. Cross, 2010 WI 70, ¶42, 326 Wis. 2d 492, 786 

N.W.2d 64). "The higher burden 'is a deterrent to defendants 

testing the waters for possible punishments.'" Id. (quoting 

State v. Nawrocke, 193 Wis. 2d 373, 379–80, 534 N.W.2d 624 (Ct. 

App. 1995)). "Disappointment in the eventual punishment does 

not rise to the level of a manifest injustice." Id., ¶49 

(citing Nawrocke, 193 Wis. 2d at 379). 
No. 2013AP1437-CR 

17 

¶31 "A claim of ineffective assistance of counsel is a 

mixed question of fact and law." State v. Carter, 2010 WI 40, 

¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted). "We 

will uphold the circuit court's findings of fact unless they are 

clearly erroneous." Id. (citation omitted). "Findings of fact 

include 'the circumstances of the case and the counsel's conduct 

and strategy.'" Id. (quoting State v. Thiel, 2003 WI 111, ¶21, 

264 Wis. 2d 571, 665 N.W.2d 305) (quotation marks omitted). 

"Moreover, this court will not exclude the circuit court's 

articulated assessments of credibility and demeanor, unless they 

are clearly erroneous." Id. (citing Thiel, 264 Wis. 2d 57, 

¶23). "However, the ultimate determination of whether counsel's 

assistance was ineffective is a question of law, which we review 

de novo." Id. 

III. ANALYSIS 

¶32 "Both the United States Constitution and the Wisconsin 

Constitution guarantee criminal defendants the right to 

counsel." Carter, 324 Wis. 2d 640, ¶20 (citing U.S. Const. 

amend. VI; Wis. Const. art. I, § 7). "The United States Supreme 

Court has recognized that 'the right to counsel is the right to 

the effective assistance of counsel.'" Id. (quoting Strickland 

v. Washington, 466 U.S. 668, 686 (1984)) (quotation marks 

omitted). 

¶33 "Whether a convicted defendant received ineffective 

assistance of counsel is a two-part inquiry." Id., ¶21 (citing 

Strickland, 466 U.S. at 687). "First, the defendant must prove 

that counsel's performance was deficient." Id. (citing 
No. 2013AP1437-CR 

18 

Strickland, 466 U.S. at 687). "Second, if counsel's performance 

was deficient, the defendant must prove that the deficiency 

prejudiced the defense." Id. (citing Strickland, 466 U.S. at 

687). To succeed on a claim of ineffective assistance of 

counsel, a defendant must prove both deficient performance and 

prejudice. Id. (citing Strickland, 466 U.S. at 687). If a 

defendant fails to prove deficient performance, a reviewing 

court need not consider whether the defendant was prejudiced. 

Id., ¶36; State v. Franklin, 2001 WI 104, ¶13, 245 Wis. 2d 582, 

629 N.W.2d 289 (citing Strickland, 466 U.S. at 697).

10

¶34 Prior to Padilla state courts and federal courts of 

appeals almost universally held that defense counsel's failure 

to advise a criminal defendant of possible immigration 

consequences of a conviction does not provide a basis for an 

ineffective assistance claim. Padilla, 559 U.S. at 364-65 & 

n.9; Chaidez v. United States, 568 U.S. ___, 133 S. Ct. 1103, 

1109 & nn.8-9 (2013). These courts reasoned that "collateral 

 

10 A defendant must make a sufficient proffer in order to be 

entitled to a hearing on an ineffective assistance of counsel 

claim. "[T]he circuit court has the discretion to deny the 

postconviction motion without a Machner hearing 'if the motion 

fails to allege sufficient facts to raise a question of fact, 

presents only conclusory allegations, or if the record 

conclusively demonstrates that the defendant is not entitled to 

relief.'" State v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280, 

717 N.W.2d 111 (emphasis added in Roberson) (quoting State v. 

Curtis, 218 Wis. 2d 550, 555 n.3, 582 N.W.2d 409 (Ct. App. 

1998)). A defendant is not "automatically entitled to an 

evidentiary hearing no matter how cursory or meritless the 

ineffective assistance of counsel claim might be." Curtis, 218 

Wis. 2d at 555 n.3. 
No. 2013AP1437-CR 

19 

matters, i.e., those matters not within the sentencing authority 

of the state trial court," are outside the scope of counsel's 

duties under the Sixth Amendment. Padilla, 559 U.S. at 364-65 & 

n.9. 

¶35 The Supreme Court in Padilla parted ways with that 

precedent by holding "that counsel must inform her client 

whether his plea carries a risk of deportation."11 Id. at 374. 

The Court explained: 

When the law is not succinct and 

straightforward . . . , a criminal defense attorney

need do no more than advise a noncitizen client that 

pending criminal charges may carry a risk of adverse 

immigration consequences. But when the deportation 

consequence is truly clear, . . . the duty to give 

correct advice is equally clear. 

Id. at 369 (footnote omitted). 

¶36 In the present case, Shata and the State agree that 

his conviction clearly made him deportable. The issue of 

whether Shata's trial counsel performed deficiently hinges on 

whether he gave Shata correct advice regarding the possibility 

of being deported. We will first provide background on Padilla 

 

11 The Supreme Court noted that it has 

never applied a distinction between direct and 

collateral consequences to define the scope of 

constitutionally "reasonable professional assistance" 

required under Strickland[ v. Washington, 466 U.S. 

668, 689 (1984)]. Whether that distinction is 

appropriate is a question we need not consider in this 

case because of the unique nature of deportation. 

Padilla, 559 U.S. at 365. 
No. 2013AP1437-CR 

20 

and relevant immigration law. Second, we will summarize the 

parties' arguments. Third and finally, we will determine 

whether Shata's trial counsel performed deficiently under 

Padilla. Because we conclude that Shata failed to prove 

deficient performance, we do not address prejudice.

A. Padilla and Background Immigration Law 

¶37 "The landscape of federal immigration law has changed 

dramatically over the last 90 years." Padilla, 559 U.S. at 360. 

"While once there was only a narrow class of deportable offenses 

and judges wielded broad discretionary authority to prevent 

deportation, immigration reforms over time have expanded the 

class of deportable offenses and limited the authority of judges 

to alleviate the harsh consequences of deportation." Id. 

¶38 By passing the Immigration Act of 1917, "[f]or the 

first time in our [nation's] history, Congress made classes of 

noncitizens deportable based on conduct committed on American 

soil." Id. at 361 (citation omitted). Although the Act 

"authorized deportation as a consequence of certain

convictions," it included a procedure, known as a judicial 

recommendation against deportation ("JRAD"), which allowed a 

sentencing judge in a state or federal prosecution to make a 

recommendation that a noncitizen defendant not be deported. Id. 

A JRAD forbade deportation and was binding on the executive 

branch. Id. at 361-62. "Thus, from 1917 forward, there was no 

such creature as an automatically deportable offense. Even as 

the class of deportable offenses expanded, judges retained 

discretion to ameliorate unjust results on a case-by-case 
No. 2013AP1437-CR 

21 

basis." Id. at 362. "Although narcotics 

offenses . . . provided a distinct basis for deportation as 

early as 1922, the JRAD procedure was generally available to 

avoid deportation in narcotics convictions." Id. (footnote 

omitted) (citation omitted). 

¶39 "However, the JRAD procedure is no longer part of our 

law. Congress first circumscribed the JRAD provision in the 

1952 Immigration and Nationality Act (INA), and in 1990 Congress 

entirely eliminated it[.]" Id. at 363 (footnote omitted) 

(citation omitted). "In 1996, Congress also eliminated the 

Attorney General's authority to grant discretionary relief from 

deportation[.]" Id. (citation omitted). 

Under contemporary law, if a noncitizen has committed 

a removable offense after the 1996 effective date of 

these amendments, his removal is practically 

inevitable but for the possible exercise of limited

remnants of equitable discretion vested in the 

Attorney General to cancel removal for noncitizens 

convicted of particular classes of offenses. 

Id. at 363-64 (citing 8 U.S.C. § 1229b). "Subject to limited 

exceptions, this discretionary relief is not available for an 

offense related to trafficking in a controlled substance." Id. 

at 364 (citing 8 U.S.C. §§ 1101(a)(43)(B), 1228). 

¶40 The Supreme Court in Padilla stated that "[t]hese 

changes to our immigration law have dramatically raised the 

stakes of a noncitizen's criminal conviction. The importance of 

accurate legal advice for noncitizens accused of crimes has 

never been more important." Id. at 364. Accordingly, the Court 

"conclude[d] that advice regarding deportation is not 
No. 2013AP1437-CR 

22 

categorically removed from the ambit of the Sixth Amendment 

right to counsel." Id. at 366. 

¶41 Before determining the scope of an attorney's duty to 

give advice regarding deportation, the Court explained that the 

deficient-performance prong of Strickland "is necessarily linked 

to the practice and expectations of the legal community: 'The 

proper measure of attorney performance remains simply 

reasonableness under prevailing professional norms.'" Id. at 

366 (quoting Strickland, 466 U.S. at 688). The Court noted that 

"[t]he weight of prevailing professional norms supports the view 

that counsel must advise her client regarding the risk of 

deportation." Id. at 367-68 (collecting authorities). 

¶42 The Court also noted that "[i]mmigration law can be 

complex, and it is a legal specialty of its own. Some members 

of the bar who represent clients facing criminal charges, in 

either state or federal court or both, may not be well versed in 

it." Id. at 369. "There will, therefore, undoubtedly be 

numerous situations in which the deportation consequences of a 

particular plea are unclear or uncertain. The duty of the 

private practitioner in such cases is more limited." Id. 

¶43 The Court then explained the scope of an attorney's 

duty to give advice regarding deportation. "When the law is not 

succinct and straightforward . . . , a criminal defense attorney 

need do no more than advise a noncitizen client that pending 

criminal charges may carry a risk of adverse immigration 

consequences." Id. "But when the deportation consequence is 

truly clear, as it was in this case, the duty to give correct 
No. 2013AP1437-CR 

23 

advice is equally clear." Id. Ultimately, the Court "[held] 

that counsel must inform her client whether his plea carries a 

risk of deportation." Id. at 374. 

¶44 In Padilla Jose Padilla, a native of Honduras who had 

been a lawful permanent resident of the United States for more 

than 40 years, pled guilty to transporting a large amount of 

marijuana in his tractor-trailer in Kentucky. Id. at 359. His 

offense made him "deportable" from the United States. Id. at 

359 & n.1. Padilla filed a postconviction motion to withdraw 

his guilty plea, arguing that he received ineffective assistance 

of counsel.12 Id. at 359. He claimed that his trial counsel 

told him that he would not be deported because he had lived in 

the United States for such a long time. Id. 

¶45 The Supreme Court determined that "[t]his is not a 

hard case in which to find deficiency: The consequences of 

Padilla's plea could easily be determined from reading the 

removal statute, his deportation was presumptively mandatory, 

and his counsel's advice was incorrect." Id. at 368-69. The 

Court reasoned that "the terms of the relevant immigration 

statute are succinct, clear, and explicit in defining the 

removal consequence for Padilla's conviction." Id. at 368 

(citing 8 U.S.C. § 1227(a)(2)(B)(i)). 

¶46 The relevant federal statute provided: 

 

12 It appears that Padilla moved to withdraw his plea postsentencing. See Com. v. Padilla, 253 S.W.3d 482, 483 (Ky. 

2008), rev'd and remanded sub nom, Padilla v. Kentucky, 559 U.S. 

356 (2010). 
No. 2013AP1437-CR 

24 

Any alien who at any time after admission has 

been convicted of a violation of (or a conspiracy or 

attempt to violate) any law or regulation of a State, 

the United States, or a foreign country relating to a 

controlled substance (as defined in section 802 of 

title 21), other than a single offense involving 

possession for one's own use of 30 grams or less of

marijuana, is deportable. 

8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). "Any

alien . . . in and admitted to the United States shall, upon the 

order of the Attorney General, be removed if the alien is" 

convicted of such an offense. 8 U.S.C. § 1227(a) (intro.). 

¶47 The Court explained that "Padilla's counsel could have 

easily determined that his plea would make him eligible for 

deportation simply from reading the text of the statute, which 

addresses not some broad classification of crimes but 

specifically commands removal for all controlled substances 

convictions except for the most trivial of marijuana possession 

offenses." Padilla, 559 U.S. at 368. "Instead, Padilla's 

counsel provided him false assurance that his conviction would 

not result in his removal from this country." Id. 

B. The Parties' Arguments 

¶48 The State argues that Shata's trial counsel, Attorney 

Toran, did not perform deficiently. The State contends that 

Shata's deportation is not inevitable. The State contends that, 

because the relevant immigration statute made Shata "deportable" 

upon conviction, Padilla required Attorney Toran to inform Shata 

"whether his plea carries a risk of deportation." Padilla, 559 

U.S. at 374. The State argues that Attorney Toran complied with 

and, in fact, exceeded the requirements of Padilla by telling 
No. 2013AP1437-CR 

25 

Shata that his conviction carried a "strong chance" of 

deportation. The State contrasts that advice with the false 

assurance that Padilla received from his attorney that he would 

not be deported. The State relies on several cases in which 

courts held that Padilla requires counsel to inform a defendant 

that a conviction for a deportable offense carries a risk of 

deportation. See Com. v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 

2013); Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013); 

Neufville v. State, 13 A.3d 607 (R.I. 2011).13 

¶49 For example, in Escobar the Pennsylvania Superior 

Court held that Padilla requires counsel to inform an alien 

criminal defendant that a drug-related conviction carries a 

"risk" of deportation. In that case, Israel Escobar pled guilty 

to possession with intent to deliver cocaine and was sentenced. 

Escobar, 70 A.3d at 840. After the federal government began 

deportation proceedings against him, he sought to withdraw his 

plea on the basis of ineffective assistance of counsel. Id. He 

argued that his attorney performed deficiently by failing to 

advise him that "deportation would, in fact, result from his 

plea, and not just that deportation was likely to result." Id. 

¶50 The Pennsylvania Superior Court held that Escobar's 

trial counsel did not perform deficiently by advising him that 

his guilty plea would "likely" result in deportation. Id. at 

842. The court noted that the Supreme Court in Padilla held 

 

13 In each of these cases, the defendant moved postsentencing to withdraw his plea. 
No. 2013AP1437-CR 

26 

that "when the deportation consequence is truly clear, 'the duty 

to give correct advice is equally clear.'" Id. at 841 (emphasis 

added in Escobar) (quoting Padilla, 559 U.S. at 369). The court 

rejected the notion "that giving 'correct' advice necessarily 

means counsel, when advising Escobar about his deportation risk, 

needed to tell Escobar he definitely would be deported." Id. 

Although 8 U.S.C. § 1227(a)(2)(B)(i) made Escobar "deportable" 

upon conviction, "whether the U.S. Attorney General and/or other 

personnel would necessarily take all the steps needed to 

institute and carry out Escobar's actual deportation was not an 

absolute certainty when he pled." Id. "Given that Escobar did 

know deportation was possible, given that counsel advised him 

there was a substantial risk of deportation, and given that 

counsel told Escobar it was likely there would be deportation 

proceedings instituted against him, we find counsel's advice 

was, in fact, correct." Id. Although the Padilla Court stated 

that 8 U.S.C. § 1227(a)(2)(B) made Padilla "eligible for 

deportation" and that "his deportation was presumptively 

mandatory," the Supreme Court and that statute did not announce 

"a guarantee that actual deportation proceedings are a certainty 

such that counsel must advise a defendant to that effect." Id. 

at 842. 

¶51 The Escobar court "acknowledge[d] that parts of the 

Padilla opinion contain language arguably supporting the notion 

that plea counsel in some cases may have a duty to provide a 

rather certain indication of deportation." Id. "For example, 

at one point, the Padilla court agreed competent counsel would 
No. 2013AP1437-CR 

27 

have told Padilla he was 'subject to automatic deportation.'" 

Id. (quoting Padilla, 559 U.S. at 360). "At another point, the 

[Padilla] court indicated the instant deportation statute 

'commands' deportation for virtually all drug convictions." Id. 

(quoting Padilla, 559 U.S. at 368). "The opinion likewise 

observes that deportation for certain convictions is 

'practically inevitable.'" Id. (quoting Padilla, 559 U.S. at 

363-64). 

¶52 Nevertheless, the Escobar court concluded that 

the [Padilla] court's overall emphasis was that the

deportation statute in question makes most drug 

convicts subject to deportation in the sense that they 

certainly become deportable, not in the sense that 

plea counsel should know and state with certainty that 

the federal government will, in fact, initiate 

deportation proceedings. 

Id. The court reasoned that, "[u]ltimately, when announcing its 

holding, the Padilla court opined, '[W]e now hold that counsel 

must inform [the] client whether [the] plea carries a risk of 

deportation.'" Id. (quoting Padilla, 559 U.S. at 374). The 

court held that Escobar's trial attorney complied with Padilla 

by informing him that "his plea carried a risk of deportation." 

Id. "In fact, counsel told Escobar deportation proceedings were 

likely." Id. 

¶53 On the other hand, Shata argues that Attorney Toran 

performed deficiently. Shata argues that Attorney Toran was 

required, under Padilla, to tell him that "his conviction would 

absolutely result in deportation." Shata contends that "[t]here 

is no difference between Padilla's attorney, who affirmatively 
No. 2013AP1437-CR 

28 

gave her client bad advice, and Shata's attorney, who told him 

there was a 'strong chance' he would be deported when it was 

actually inevitable." According to Shata, Attorney Toran gave 

him "misinformation" because "[t]here is a difference between a 

'strong chance' and an 'absolute certainty.'" He notes that the 

Supreme Court in Padilla stated that "constitutionally competent 

counsel would have advised [Padilla] that his conviction for 

drug distribution made him subject to automatic deportation." 

Padilla, 559 U.S. at 360. He also relies on several cases in 

which courts interpreted Padilla as requiring counsel to inform 

an alien defendant that a conviction for a deportable offense 

would necessarily result in deportation. See State v. Mendez, 

2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895; see also United 

States v. Bonilla, 637 F.3d 980 (9th Cir. 2011); Salazar v. 

State, 361 S.W.3d 99 (Tex. App. 2011); State v. Sandoval, 249 

P.3d 1015 (Wash. 2011) (en banc). 

¶54 For example, in Mendez, Ivan Mendez moved to withdraw 

his guilty plea to maintaining a drug trafficking place.14 

Mendez, 354 Wis. 2d 88, ¶1. In support of his motion he argued 

that he received ineffective assistance of counsel because his 

"attorney failed to inform him that conviction of this charge 

would subject him to automatic deportation from the United 

States with no applicable exception and no possibility of 

 

14 The court of appeals' opinion did not state whether 

Mendez moved to withdraw his guilty plea before or after being 

sentenced. 
No. 2013AP1437-CR 

29 

discretionary waiver." Id. (citations omitted). Mendez's trial 

attorney "'basically' reiterated the general warning on the plea 

questionnaire, that 'a conviction may make [the defendant] 

inadmissible or deportable.'" Id., ¶4 (alteration in original). 

The Wisconsin Court of Appeals held that this advice constituted 

deficient performance. Id., ¶¶9-10. 

¶55 The court of appeals in Mendez rejected Chacon, on 

which the State relies in the present case. Id., ¶¶13-14. In 

Chacon the Missouri Court of Appeals held that the defendant's 

attorney did not perform deficiently by advising him that upon 

being convicted for two deportable offenses "he 'would very 

likely be deported and wouldn't be able to come back.'" Id., 

¶13 (quoting Chacon, 409 S.W.3d at 536). In Mendez the court of 

appeals stated, "We reject Chacon. Its holding is contrary to 

Padilla's plain statement that 'when the deportation consequence 

is truly clear . . . the duty to give correct advice is equally 

clear.'" Id., ¶14 (quoting Padilla, 559 U.S. at 369). "In 

addition to being bad law, Chacon is distinguishable from 

Mendez's case, because while Chacon's lawyer at least told 

Chacon that deportation was 'very likely,' Mendez's lawyer gave 

only the same unclear warning that appears in the generic plea 

questionnaire, that the plea 'could result in deportation.'" 

Id., ¶14. 

C. Whether Shata's Trial Counsel Performed Deficiently 

¶56 "To demonstrate deficient performance, the defendant 

must show that his counsel's representation 'fell below an 

objective standard of reasonableness' considering all the 
No. 2013AP1437-CR 

30 

circumstances." Carter, 324 Wis. 2d 640, ¶22 (quoting 

Strickland, 466 U.S. at 688). "In evaluating the reasonableness 

of counsel's performance, this court must be 'highly 

deferential.'" Id. (quoting Strickland, 466 U.S. at 689). 

"Counsel enjoys a 'strong presumption' that his conduct 'falls 

within the wide range of reasonable professional assistance.'" 

Id. (quoting Strickland, 466 U.S. at 689). "Indeed, counsel's 

performance need not be perfect, nor even very good, to be 

constitutionally adequate." Id. (citing Thiel, 264 

Wis. 2d 571, ¶19). Because we determine that Shata's trial 

counsel did not perform deficiently, we do not address 

prejudice. 

¶57 The Supreme Court in Padilla stated that "when the 

deportation consequence is truly clear, . . . the duty to give 

correct advice is equally clear." Padilla, 559 U.S. at 369 

(emphasis added). Shata and the State agree that his conviction 

clearly made him deportable. The parties disagree, however, as 

to whether Shata's trial counsel gave correct advice. 

¶58 At the outset, we note that the advice that Shata 

received is far better than the advice that Padilla received. 

"Padilla's counsel provided him false assurance that his 

conviction would not result in his removal from this country." 

Id. at 368 (emphasis added). Thus, the Supreme Court determined 

that "[t]his is not a hard case in which to find deficiency: The 

consequences of Padilla's plea could easily be determined from 

reading the removal statute, his deportation was presumptively 

mandatory, and his counsel's advice was incorrect." Id. at 368-
No. 2013AP1437-CR 

31 

69 (emphasis added). In contrast, Shata received correct 

immigration advice. Shata's trial counsel, Attorney Toran, 

correctly told Shata that his conviction carried a "strong 

chance" of deportation.15 Accordingly, we disagree with Shata's 

contention that the advice he received is "no differen[t]" than 

the incorrect legal advice that Padilla received. 

¶59 Although a controlled substance conviction makes an 

alien "deportable," 8 U.S.C. § 1227(a)(2)(B)(i), such a 

conviction will not necessarily result in deportation. The 

Pennsylvania Superior Court in Escobar correctly noted that 

whether immigration "personnel would necessarily take all the 

steps needed to institute and carry out [an alien's] actual 

deportation [i]s not an absolute certainty . . . ." Escobar, 70 

A.3d at 841. For example, prosecutorial discretion and the 

current administration's immigration policies provide possible 

avenues for deportable aliens to avoid deportation.16 In fact, 

 

15 Shata appears to have dropped his assertion that Attorney 

Toran never told him that his guilty plea carried a strong 

chance of deportation. In any event, the circuit court found 

that Attorney Toran told Shata that his guilty plea carried a 

"strong likelihood" of deportation, and that finding is not 

clearly erroneous. 

16 Since at least the 1960s, the federal executive branch 

has gone back and forth in adopting and rescinding policies 

regarding deferred action on deportation. See Texas v. United 

States, No. CIV. B-14-254, 2015 WL 648579, at *7 & n.12 (S.D. 

Tex. Feb. 16, 2015). On June 15, 2012, the United States 

Department of Homeland Security ("DHS") adopted the Deferred 

Action for Childhood Arrivals ("DACA") program, which provided 

relief from deportation for certain aliens who entered the 

United States before age 16. Id. at *4. On June 5, 2014, the 

United States Citizenship and Immigration Services, which is a 

(continued) 
No. 2013AP1437-CR 

32 

the executive branch has essentially unreviewable prosecutorial 

discretion with respect to commencing deportation proceedings, 

adjudicating cases, and executing removal orders. Reno v. Am.-

Arab Anti-Discrimination Comm., 525 U.S. 471, 482-85 (1999). 

¶60 Indeed, the secretary of the United States Department 

of Homeland Security ("DHS") recently explained that the DHS, 

which is "responsible for enforcing the nation's immigration 

laws," "must exercise prosecutorial discretion in the 

enforcement of the law." Jeh Charles Johnson, Policies for the 

Apprehension, Detention and Removal of Undocumented Immigrants, 

at 2 (Nov. 20, 2014) (emphasis added), available at

http://www.dhs.gov/sites/default/files/publications/14_1120_memo

_prosecutorial_discretion.pdf. "Due to limited resources, 

DHS . . . cannot respond to all immigration violations or remove 

all persons illegally in the United States." Id. "DHS may 

exercise prosecutorial discretion at any stage of an enforcement 

proceeding." Id. "In the immigration context, prosecutorial 

discretion should apply not only to the decision to issue, 

serve, file, or cancel a Notice to Appear,17 but also to a broad 

 

component of DHS, expanded the DACA program to provide relief to 

more aliens. Id. at *5-6. On November 20, 2014, DHS adopted 

the Deferred Action for Parents of Americans ("DAPA") program, 

which provided relief from deportation for certain undocumented 

aliens who have a child who is a United States citizen or lawful 

permanent resident. Id. at *6-7. In February 2015 the United 

States District Court for the Southern District of Texas issued 

a preliminary injunction prohibiting the implementation of the 

2014 DACA expansion and the DAPA program. Id. at *62. The 

court did not enjoin the original 2012 DACA program. Id. 

17 A "notice to appear" initiates a removal proceeding. 8 

(continued) 
No. 2013AP1437-CR 

33 

range of other discretionary enforcement decisions, including 

deciding" "whether to settle [or] dismiss . . . a case" and 

"whether to grant deferred action . . . or a stay of 

removal . . . ." Id. Deportation is not mandatory for a felony 

conviction. Rather, certain aliens, including those convicted 

of a felony, are generally "prioritized for removal" unless, 

"based on the totality of the circumstances," the alien "should 

not . . . be an enforcement priority." Id. at 5-6. Relevant 

factors include an alien's "length of time in the United States" 

and "family or community ties in the United States." Id. at 6. 

Because deportation is not an absolutely certain consequence of 

a conviction for a deportable offense, Padilla does not require 

an attorney to advise an alien client that deportation is an 

absolute certainty upon conviction of a deportable offense, 

including a controlled substance offense. Escobar, 70 A.3d at 

841-42. 

¶61 In fact, the Padilla Court never stated that Padilla 

would absolutely be deported. The Padilla Court stated that 

"the terms of the relevant immigration statute are succinct, 

clear, and explicit in defining the removal consequence for 

Padilla's conviction." Padilla 559 U.S. at 368 (citing 8 U.S.C. 

§ 1227(a)(2)(B)(i)). The clear removal consequence was that 

Padilla was "eligible for deportation." Id. Two sentences 

later, the Court stated that Padilla's deportation was 

 

U.S.C. § 1229(a). 
No. 2013AP1437-CR 

34 

"presumptively mandatory." Id. at 369. Thus, the Court meant 

that Padilla clearly was deportable under that immigration 

statute, not that he clearly would be deported. Escobar, 70 

A.3d at 842. Shata emphasizes that the Padilla Court stated, 

"[w]e agree with Padilla that constitutionally competent counsel 

would have advised him that his conviction for drug distribution 

made him subject to automatic deportation." Padilla, 559 U.S. 

at 360. However, by "subject to automatic deportation," the 

Court meant that Padilla was automatically deportable upon 

conviction, not that he would be automatically deported. As the 

Court explained later, a conviction for drug trafficking 

automatically makes an alien deportable because the Attorney 

General has "limited" discretion to cancel removal of an alien 

with such a conviction. See id. at 363-64 (explaining that 

"removal is practically inevitable" if "a noncitizen has 

committed a removable offense" because the Attorney General has 

"limited" discretion to cancel removal of such an alien). The 

Padilla Court did not require that counsel advise that the DHS 

would necessarily initiate and prosecute a removal proceeding 

against Padilla and enforce a removal order against him because 

that was far from certain. Rather, the Court's "overall 

emphasis was that the deportation statute in question makes most 

drug convicts subject to deportation in the sense that they 

certainly become deportable, not in the sense that plea counsel 

should know and state with certainty that the federal government 

will, in fact, initiate deportation proceedings." Escobar, 70 

A.3d at 842. 
No. 2013AP1437-CR 

35 

¶62 Likewise, the Supreme Court's ultimate holding in 

Padilla recognized that Padilla's deportation was not an 

absolute certainty. The Padilla Court ultimately "[held] that 

counsel must inform her client whether his plea carries a risk 

of deportation." Padilla, 559 U.S. at 374 (emphasis added). 

The Court did not hold that an attorney must inform an alien 

client that a conviction for a deportable offense will 

absolutely result in deportation. The Court did not require an 

attorney to use any particular words, such as "inevitable 

deportation," or to even convey the idea of inevitable 

deportation. See Chacon, 409 S.W.3d at 537 ("Padilla does not 

require that counsel use specific words to communicate to a 

defendant the consequences of entering a guilty plea. Rather, 

it requires that counsel correctly advise his client of the risk 

of deportation so that the plea is knowing and voluntary."). 

¶63 The Padilla Court did not require that criminal

defense lawyers function as immigration lawyers or be able to 

predict what the executive branch's immigration policies might 

be now or in the future. Immediately before announcing the 

scope of a criminal defense attorney's duty to provide advice 

regarding deportation, the Court noted that "[i]mmigration law 

can be complex, and it is a legal specialty of its own. Some 

members of the bar who represent clients facing criminal 

charges, in either state or federal court or both, may not be 

well versed in it." Id. at 369. Accordingly, "the Court 

appears to acknowledge [that] thorough understanding of the 

intricacies of immigration law is not 'within the range of 
No. 2013AP1437-CR 

36 

competence demanded of attorneys in criminal cases.'" Id. at 

385 (Alito, J., concurring) (quoting Strickland, 466 U.S. at 

687). "[R]easonably competent attorneys should know that it is 

not appropriate or responsible to hold themselves out as 

authorities on a difficult and complicated subject matter with 

which they are not familiar," such as immigration law. Id. 

(Alito, J., concurring). 

¶64 Instead of requiring criminal defense attorneys to 

essentially serve as immigration lawyers for their alien 

clients, Padilla continued the longstanding practice of 

Strickland by requiring counsel to act "'reasonabl[y] under 

prevailing professional norms.'" Id. at 366 (majority opinion) 

(quoting Strickland, 466 U.S. at 688) ("'The proper measure of 

attorney performance remains simply reasonableness under 

prevailing professional norms.'"). The Court further explained 

that "[t]he weight of prevailing professional norms supports the 

view that counsel must advise her client regarding the risk of 

deportation." Id. at 367 (emphasis added) (collecting 

authorities). The Court did not conclude that prevailing 

professional norms require attorneys to inform alien clients 

that convictions for deportable offenses will absolutely result 

in deportation. See id. 

¶65 The Padilla Court suggested that an attorney would 

give reasonably competent advice by providing a warning similar 

to the one that Wis. Stat. § 971.08 requires a circuit court to 

give: that an alien's conviction may result in deportation. The 

Padilla Court noted that "many States require trial courts to 
No. 2013AP1437-CR 

37 

advise defendants of possible immigration consequences." Id. at 

374 n.15. The Court cited to Wis. Stat. § 971.08 (2005-06), 

among similar statutes from other States. Id. The Court 

explained that these statutes were "significant" to its 

conclusion that an attorney must "inform her noncitizen client 

that he faces a risk of deportation." Id. at 373-74 & n.15 

(emphasis added). 

¶66 In fact, we have previously stated that "by enacting 

Wis. Stat. § 971.08(1)(c) & (2), Wisconsin codified the 

protections contemplated in Padilla, but placed the duty to warn 

on the circuit court, rather than solely on the attorney." 

Negrete, 343 Wis. 2d 1, ¶34 n.12 (emphasis added). That 

statute, upon which the Padilla Court relied, provides: 

Before the court accepts a plea of guilty or no 

contest, it shall . . . [a]ddress the defendant 

personally and advise the defendant as follows: "If

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) (2005-06) (emphasis added). The 

legislature adopted § 971.08(1)(c) in 1985. See 1985 Wis. Act 

252. 

¶67 Accordingly, if Shata's position were correct, then an 

alien defendant would receive inconsistent immigration warnings 

when pleading guilty or no contest. The alien's attorney, 

according to Shata, would be required to tell the alien that a 

conviction will absolutely result in deportation. However, the 
No. 2013AP1437-CR 

38 

circuit court would warn the defendant pursuant to Wis. Stat. 

§ 971.08 that a conviction may result in deportation. Under 

Shata's logic, if an alien defendant wants to enter a plea, the 

circuit court would essentially have to act as an immigration 

lawyer, because to ensure that the plea is knowing, intelligent, 

and voluntary, the court would have to determine whether defense 

counsel gave correct immigration advice. Thus, under Shata's 

logic, in order to ensure that his plea was knowing, 

intelligent, and voluntary, the circuit court should have told 

him that he absolutely would be deported upon conviction and 

that his counsel's advice was incorrect. Circuit courts are not 

required to inform aliens that they absolutely will be deported 

upon conviction. See Wis. Stat. § 971.08(1)(c). Moreover, if 

an attorney were to give the advice that Shata argues is 

required, the attorney may, in fact, be giving wrong advice. In 

light of the Padilla Court's reliance on § 971.08, and in light 

of our view in Negrete that this statute codified the 

protections of Padilla, we conclude that Padilla did not require 

Shata's attorney to tell him that his conviction would 

absolutely result in deportation. Shata's argument is 

inconsistent with § 971.08. In fact, unlike Padilla's attorney 

whose advice was absolutely incorrect, Shata's attorney gave him 

advice that there was a "strong chance" of deportation, which 

was absolutely correct. Correct advice is not deficient. 

¶68 In addition to creating advice from counsel that is 

inconsistent with the circuit court's immigration warning, if we 

were to accept Shata's argument, a defendant like Shata would 
No. 2013AP1437-CR 

39 

always be in a position to complain that counsel was ineffective 

whether he was deported or not. Allow us to further explain how 

Shata's conclusions would open the door for any alien to seek 

postconviction relief regardless of deportation. Shata argues 

that if deportation proceedings are subsequently brought against 

a defendant, like Shata who pled pursuant to an agreement, the 

defendant should be entitled to withdraw the plea in order to 

avoid deportation even though that defendant entered the plea 

knowing that there was a "strong chance" of deportation. Such a 

defendant would be able to enjoy the benefits of a plea 

agreement——such as the State's agreement to reduce, dismiss or 

agree not to file charges and recommendation for a more lenient 

sentence——and later seek relief if deportation proceedings are 

commenced even though the defendant knew that there was a 

"strong chance" of deportation. 

¶69 On the other hand, a defendant who, like Shata, is 

warned that there is a "strong chance" of deportation could 

gamble by pleading guilty pursuant to an agreement reached with 

the State. Seemingly then, if deportation proceedings were not 

brought against the defendant, then the defendant could complain 

that he should have gone to trial with the hope of receiving a 

more beneficial verdict from a jury. In other words, Shata 

could also complain, if not deported, that he gave up his right 

to a trial because he was told that he faced a "strong chance" 

of deportation.18 

 

18 Perhaps deportation may not come because a sentence 

(continued) 
No. 2013AP1437-CR 

40 

¶70 Similarly, consider a defendant who is told that he 

will absolutely be deported upon conviction and so he proceeds 

to trial instead of accepting a plea offer. If that defendant 

is convicted, but is not then deported, should that defendant be 

allowed postconviction relief because he asserts that if he had 

not received that advice, he would have taken the State's plea 

bargain offer instead of proceeding to trial? A defendant in 

those circumstances very well could have given up a beneficial 

plea agreement due to counsel's advice that mandatory 

deportation would occur. As can been seen, Shata's argument 

seems to hinge on whether a defendant is deported, instead of 

whether the defendant knew that he was pleading to an offense 

for which he could face deportation, exclusion from admission, 

or denial of naturalization. Thus, Shata's argument would 

entitle him to relief whether he pleads or goes to trial and 

whether he is deported or not. Padilla did not create such an 

impossible scenario for the State, counsel, the defendant, or 

the courts. 

¶71 Shata's position——that his attorney was required to 

tell him that "his conviction would absolutely result in 

deportation"——is unworkable and untenable. That advice would be 

 

imposed affects deportation, because the DHS has prosecutorial 

discretion, or perhaps because a change in policy affecting 

deportation occurs. How certain must counsel be of the 

likelihood that deportation will occur, considering the 

immigration legal landscape and changing executive branch or 

administration policies regarding deportation? 
No. 2013AP1437-CR 

41 

incorrect because a defense attorney does not control and cannot 

know with certainty whether the federal government will deport 

an alien upon conviction. If we were to adopt Shata's position, 

the unintended consequence may be that an alien defendant could 

be essentially precluded from ever pleading guilty or no contest 

to a crime. Why would the State make a plea bargain offer to 

such a defendant knowing that it could almost always be 

withdrawn? If we adopted Shata's position, then an alien might 

not ever be able to knowingly, intelligently, and voluntarily 

plead or even decide to proceed to trial. Padilla requires 

advice to be correct and, unlike in Padilla, the advice that 

Shata received was actually correct. Shata's arguments fail 

because the advice that he received——that there was a "strong 

chance" of deportation——was correct and accurate and he entered 

a knowing, intelligent, and voluntary plea with that 

understanding. 

¶72 The case law on which Shata relies is likewise 

distinguishable. For example, the attorneys in Bonilla and 

Sandoval rendered assistance that Padilla clearly condemned. 

The attorney in Sandoval gave wrong advice by telling his client 

that he would not be deported upon conviction when, in fact, he 

was deportable. Sandoval, 249 P.3d at 1020. That advice was 

identical to the advice that Padilla received, and the Padilla 

Court held that such incorrect advice constitutes deficient 

performance. Padilla, 559 U.S. at 368-69. In Bonilla the 

attorney failed to mention anything to the defendant about 

possible immigration consequences of a conviction. Bonilla, 637 
No. 2013AP1437-CR 

42 

F.3d at 984. The Padilla Court held that an attorney must 

inform an alien client of possible immigration consequences of a 

conviction. Padilla, 559 U.S. at 369-71.19 In Mendez defense 

counsel advised the defendant that "'a conviction may make [the 

defendant] inadmissible or deportable.'" Mendez, 354 

Wis. 2d 88, ¶4 (alteration in original). In Salazar defense 

counsel advised the defendant that there was "a possibility" of 

deportation upon conviction. Salazar, 361 S.W.3d at 101. By 

contrast, Shata's attorney provided correct advice about the 

immigration consequences of his plea, telling Shata that there 

was a "strong chance" of deportation upon conviction. 

¶73 Bonilla is further distinguishable because the 

defendant in that case moved to withdraw his plea presentencing, so the Ninth Circuit applied the "fair and just" 

standard for pre-sentencing plea withdrawal. Bonilla, 637 F.3d 

at 983. By contrast, because Shata moved to withdraw his plea 

post-sentencing, we must apply the higher "manifest injustice" 

standard. See Negrete, 343 Wis. 2d 1, ¶29. 

¶74 The cases on which the State relies are much more 

persuasive and, unlike the cases cited by Shata, the cases cited 

by the State analyzed Padilla in-depth. See Chacon, 409 S.W.3d 

 

19 The Padilla Court rejected an argument, put forth by the 

United States as amicus curiae, "that Strickland applies to 

Padilla's claim only to the extent that he has alleged 

affirmative misadvice." Padilla, 559 U.S. at 369-71. Unlike 

the attorney in Padilla, Shata's attorney provided correct 

advice. 
No. 2013AP1437-CR 

43 

at 533-37; Escobar, 70 A.3d at 840-42. Those courts correctly 

noted that a conviction for a deportable offense will not 

necessarily result in deportation. See Chacon, 409 S.W.3d at 

534, 536-37; Escobar, 70 A.3d at 841-42. As a result, those 

courts correctly held that counsel was not required to advise 

the defendants that they would necessarily be deported upon 

conviction. See Chacon, 409 S.W.3d at 536-37; Escobar, 70 A.3d 

at 841-42. The courts correctly determined that the attorneys 

gave correct advice, as required by Padilla, by advising the 

defendants that deportation was "likely" or "very likely." See 

Chacon, 409 S.W.3d at 537 ("very likely"); Escobar, 70 A.3d at 

842 ("likely"). Shata received similar and correct advice, that 

there was a "strong possibility" or "strong chance" of 

deportation. 

¶75 We also disagree with Shata's argument that Attorney 

Toran performed deficiently by not reading the relevant 

immigration statutes. The Padilla Court did not hold that an 

attorney must read those statutes in order to avoid performing 

deficiently. Rather, the Padilla Court focused on the advice 

that was given and concluded that the advice was deficient 

because it was contrary to the clear language of the relevant 

immigration statutes. See Padilla, 559 U.S. at 368-69. 

Although Attorney Toran did not specifically read the 

immigration statutes, he asked several federal prosecutors 

whether Shata could be deported upon conviction. Attorney Toran 

also sought to have the State offer deferred prosecution or 

amend the charge to an offense that carried no risk of 
No. 2013AP1437-CR 

44 

deportation, but the State was unwilling to do so. Further, 

Attorney Toran informed the court at both the plea hearing and 

sentencing hearing that Shata was concerned that he would be 

deported. Attorney Toran testified at the Machner hearing that 

he "know[s] the case Padilla v. Kentucky . . . ." Nowhere in 

Padilla did the Court state that not specifically reading the 

immigration statutes is the equivalent of giving misadvice. 

Most importantly, Attorney Toran gave correct advice when he 

told Shata that the guilty plea carried a "strong chance" of 

deportation. 

¶76 Under these circumstances, Attorney Toran did not 

perform deficiently when advising Shata of the risk of 

deportation. This advice is significantly different than 

counsel's deficient advice in Padilla. While the advice given 

in Padilla was that the defendant would not face deportation, 

the advice given to Shata was correct. Attorney Toran is not 

deficient for giving correct advice to Shata, even if Shata 

ultimately is deported. If we were to conclude that counsel was 

deficient for giving this advice, it would place a defendant 

like Shata in the position of being able to second-guess a plea 

decision, even when that decision was knowing, intelligent, and 

voluntary. 

¶77 The bottom line is that an attorney's advice must be 

adequate to allow a defendant to knowingly, intelligently, and 

voluntarily decide whether to enter a guilty plea. See Wofford 

v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (citations 

omitted) ("Because [a guilty plea] is valid only if made 
No. 2013AP1437-CR 

45 

intelligently and voluntarily, an accused who has not received 

reasonably effective assistance from counsel in deciding to 

plead guilty cannot be bound by his plea."). Attorney Toran 

"adequately advised [Shata] of the risk of deportation so as to 

allow [him] to make a knowing and voluntary decision to plead 

guilty." See Chacon, 409 S.W.3d at 537. In addition to 

Attorney Toran's advice, the plea questionnaire and the circuit 

court's immigration warning helped to ensure that Shata entered 

his guilty plea knowingly, intelligently, and voluntarily. See 

Neufville, 13 A.3d at 610, 613-14. Shata understood the court's 

admonition that he could be deported upon conviction. He 

accepted the plea agreement, entered the plea, and was sentenced 

to one year of confinement as the State recommended. He did not 

see fit to complain until about four months later, on March 15, 

2013, after he received a letter from the DHS. 

¶78 We withdraw any language in Mendez, 354 Wis. 2d 88, 

that suggests that Padilla requires an attorney to advise an 

alien client that a conviction for a deportable offense will 

necessarily result in deportation. The remainder of Mendez 

retains precedential value. See State v. Ziegler, 2012 WI 73, 

¶7 & n.3, 342 Wis. 2d 256, 816 N.W.2d 238. 

IV. CONCLUSION 

¶79 We conclude that 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 
No. 2013AP1437-CR 

46 

his conviction. Padilla, 559 U.S. at 369. 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. Because Shata's trial counsel did not perform 

deficiently, we do not address the issue of prejudice. 

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

reversed. 
No. 2013AP1437-CR.awb 

1 

¶80 ANN WALSH BRADLEY, J. (dissenting). In Padilla v. 

Kentucky, 559 U.S. 356, 360 (2010), the United States Supreme 

Court determined that defense counsel should have informed his 

client "that his conviction for drug distribution made him 

subject to automatic deportation," and that counsel's failure to 

do so constituted deficient performance. 

¶81 This case involves the same type of crime and the same 

immigration statute at issue in Padilla. It should have the 

same result. 

¶82 Yet, rather than employing a straightforward 

application of Padilla, the majority conducts a lengthy 

analysis, making several missteps along the way. I focus here 

on two errors of substantial consequence. 

¶83 First, the majority lowers the professional standard 

for Wisconsin attorneys below that required by national 

standards and the United States Supreme Court. It contends that 

when a client is concerned about immigration consequences of a 

plea, his attorney need not even look at the statute governing 

the immigration consequences before providing advice. It 

states: "we [] disagree with Shata's argument that Attorney 

Toran performed deficiently by not reading the relevant 

immigration statutes." Majority op., ¶75. 

¶84 Second, in maintaining that an attorney provides 

effective assistance by advising a client with the same language 

that a court uses in a plea colloquy, the majority 

misunderstands Padilla's holding and conflates the court's 
No. 2013AP1437-CR.awb 

2 

obligations under the Fifth Amendment with the obligations of an 

attorney under the Sixth Amendment. 

¶85 Together these errors severely undermine the standards 

for attorney conduct set forth in Padilla. The probable result 

is that clients will be left with only vague and incomplete 

advice about the immigration consequences of entering a plea. 

Because I am confident that clients deserve more and recognize 

that Wisconsin attorneys must do better, I respectfully dissent. 

I 

¶86 The majority's position that an attorney need not even 

look at the statute governing the immigration consequences at 

issue before providing advice is untenable. Despite defense 

counsel's awareness that Shata was "very concerned" about 

deportation, the majority "disagree[s] with Shata's argument 

that Attorney Toran performed deficiently by not reading the 

relevant immigration statutes." Majority op., ¶75. 

¶87 An attorney's failure to read the statute governing 

the immigration consequences of a plea after his client has 

indicated that deportation is a great concern is a 

quintessential example of deficient performance. As the United 

States Supreme Court has explained, "an attorney's ignorance of 

a point of law that is fundamental to his case combined with his 

failure to perform basic research on that point is a 

quintessential example of unreasonable performance under 

Strickland." Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). 

¶88 Strickland v. Washington provides that in determining 

whether an attorney's performance is deficient, "[t]he proper 
No. 2013AP1437-CR.awb 

3 

measure of attorney performance remains simply reasonableness 

under prevailing professional norms." 466 U.S. 668, 688 (1984). 

The standard of conduct set by the majority is neither 

prevailing nor a recognized professional norm. 

¶89 The United States Supreme Court sets the standard for 

performance: it requires an attorney to be familiar with the 

governing immigration statute before determining how to advise a 

client. 

¶90 In discussing the same statute at issue in this case, 

the Padilla Court observed that "the terms of the relevant 

immigration statute are succinct, clear, and explicit in 

defining the removal consequences for Padilla's conviction." 

Padilla, 559 U.S. at 368. It stated that "Padilla's counsel 

could have easily determined that his plea would make him 

eligible for deportation simply from reading the text of the 

statute." Id. Given the clarity of the law, the Court 

determined that the alleged failure of Padilla's attorney to 

correctly inform him of the immigration consequences of a plea 

was deficient performance. Id. at 369. In essence, an attorney 

must read the statute and convey the information it contains to 

the client. 

¶91 National standards for attorney conduct likewise 

support the need for attorneys to investigate the governing 

immigration law before providing immigration advice. 

¶92 An examination of deficient performance "is 

necessarily linked to the practice and expectations of the legal 

community." Padilla, 559 U.S. at 366. Accordingly, "prevailing 
No. 2013AP1437-CR.awb 

4 

norms of practice as reflected in American Bar Association 

standards and the like . . . are guides to determining what is 

reasonable." Id. (quoting Strickland, 466 U.S. at 688). 

¶93 Standard 4-6.3 of the American Bar Association's 

Standards for Criminal Justice, Prosecution and Defense 

Functions (4th ed. 2015), states that "[d]efense counsel should 

investigate and be knowledgeable about sentencing procedures, 

law, and alternatives, collateral consequences and likely 

outcomes, . . . and advise the client on these topics before 

permitting the client to enter a negotiated disposition." 

¶94 Likewise, standard 14-3.2 of the American Bar 

Association's Standards for Criminal Justice, Pleas of Guilty 

(3d ed. 1999), requires attorneys to investigate the law before 

advising defendants about pleas. The commentary advises that 

"defense counsel should be active, rather than passive, taking 

the initiative to learn about rules in this area rather than 

waiting for questions from the defendant." Id. at 126-27. 

Because the immigration consequence of a guilty plea may well be 

a client's greatest priority, "counsel should be familiar with 

the basic immigration consequences that flow from different 

types of guilty pleas, and should keep this in mind in 

investigating law and fact and advising the client." Id. at 

127. 

¶95 The performance standard set by the United States 

Supreme Court and the national standards convey the same 

message: before advising a non-citizen client on whether to 

accept a plea, attorneys must investigate the immigration law 
No. 2013AP1437-CR.awb 

5 

implicated by the plea. The most basic investigation is to read 

the governing immigration statute. 

¶96 By suggesting that an attorney need not look at and be 

familiar with the specific governing statute, the majority's 

standard fails the Strickland test. It is simply unrecognizable 

as a "prevailing professional norm." Padilla, 559 U.S. at 366. 

¶97 Nevertheless, the majority transforms what would be 

deficient performance elsewhere into acceptable professional 

conduct here. It puts its stamp of approval on the conduct of 

Wisconsin attorneys who give substandard legal advice. This is 

especially troublesome in an area of law that has such 

significant and life altering consequences for their clients and 

the clients' families. 

II 

¶98 A cornerstone of the majority's analysis rests on its 

erroneous contention that attorneys provide effective assistance 

when they advise clients with the same language that a court 

uses in a plea colloquy. It states: "[t]he Padilla Court 

suggested that an attorney would give reasonably competent 

advice by providing a warning similar to the one that Wis. Stat. 

§ 971.08 requires a circuit court to give: that an alien's 

conviction may result in deportation." Majority op., ¶65 

(emphasis in original). 

¶99 This analysis reveals both a serious misunderstanding 

of Padilla's holding and conflates the court's obligations under 

the Fifth Amendment with the obligations of an attorney under 

the Sixth Amendment. I address each in turn. 
No. 2013AP1437-CR.awb 

6 

A 

¶100 Padilla addressed the same type of crime at issue in 

this case and its holding clearly stated what advice should have 

been given to Shata. However, the majority appears to 

misunderstand the holding. 

¶101 Padilla instructs: "constitutionally competent counsel 

would have advised him that his conviction for drug distribution 

made him subject to automatic deportation." 559 U.S. at 360. It 

explained that "[t]his is not a hard case in which to find 

deficiency: the consequences of Padilla's plea could easily be 

determined from reading the removal statute." Id. at 368-69. 

The Court described the governing immigration statute as 

"succinct, clear, and explicit in defining the removal 

consequences [of a controlled substances conviction]." Id. at 

368. 

¶102 Padilla set forth a test for determining the amount of 

advice a defense attorney needs to provide. When the 

immigration consequences are clear, as here, the consequences 

must be clearly conveyed to the client, and when they are not, 

more general advice is sufficient: 

When the law is not succinct and 

straightforward . . . a criminal defense attorney need 

do no more than advise a noncitizen client that 

pending criminal charges may carry a risk of adverse 

immigration consequences. . . . when the deportation 

consequence is truly clear, . . . the duty to give 

correct advice is equally clear. 
No. 2013AP1437-CR.awb 

7 

Id. Because Padilla conclusively established that the 

immigration consequences of a controlled substances offense are 

clear, Shata should have been given more than general advice.1

¶103 Yet, the language in Wis. Stat. § 971.08 that the 

majority deems sufficient provides only general, equivocal 

information: 

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. This warning is equivalent to the warning 

that Padilla permits when the law is not clear. The majority's 

suggestion that this warning necessarily fulfills an attorney's 

Padilla obligations ignores the Court's directive that such a 

warning is unacceptable when more specific advice is available, 

and ignores Padilla's determination that more specific advice is 

available when the defendant pleads to a controlled substances 

crime. 

 

1 Any question about the possible exercise of prosecutorial 

discretion is answered by a recent memo from the Department of 

Homeland Security. It lists aggravated felonies, such as 

illicit trafficking in a controlled substance, as "Priority 1" 

and states "[a]liens described in this priority represent the 

highest priority to which enforcement resources should be 

directed." Jeh Charles Johnson, Polices for the Apprehension, 

Detention and Removal of Undocumented Immigrants, at 3 (Nov. 20, 

2014), available at 

www.dhs.gov/sites/default/files/publications/14_1120_memo_prosec

utorial_discretion.pdf (emphasis added). Once Shata entered his 

plea, it appears his deportation fate was sealed. 
No. 2013AP1437-CR.awb 

8 

¶104 In an attempt to explain why it does not follow 

Padilla, the majority insists that this case is different 

because unlike Padilla's attorney, Shata's attorney did not 

provide incorrect advice. Majority op., ¶58. This distinction 

reveals a further misunderstanding of Padilla's holding. 

Padilla directly stated that its holding was not limited to 

affirmative misadvice from counsel. 559 U.S. at 370. It 

explained that a contrary holding would lead to "absurd 

results": "First, it would give counsel an incentive to remain 

silent on matters of great importance, even when answers are 

readily available. . . . Second, it would deny a class of 

clients least able to represent themselves the most rudimentary 

advice on deportation even when it is readily available." Id. 

at 370-71. The majority's disregard for the warning required by 

Padilla in favor of a general warning in a plea colloquy 

illustrates its misunderstanding of that case. 

B 

¶105 Additionally, the majority's suggestion that the 

court's warning pursuant to Wis. Stat. § 971.08 should be the 

same as an attorney's advice during plea negotiations conflates 

the distinct roles served by attorneys and the courts. 

¶106 The majority repeatedly asserts that attorneys' 

immigration warnings should match the court's colloquy. For 

example, in response to Shata's argument that his attorney 

should have provided more information, the majority states, "if 

Shata's position were correct, then an alien defendant would 

receive inconsistent immigration warnings when pleading guilty 
No. 2013AP1437-CR.awb 

9 

or no contest." Majority op., ¶67. The majority even suggests 

that if an attorney were to offer more advice, the court would 

have to as well: it states "[if Shata was correct then] the 

circuit court should have told [Shata] that he absolutely would 

be deported upon conviction . . . . Shata's argument is 

inconsistent with § 971.08." Id. 

¶107 The majority's insistence that the court and a defense 

attorney give matching warnings fails to recognize that they 

undertake different roles in relation to a defendant's choice to 

enter a plea. Defense counsel's role, as dictated by the Sixth 

Amendment, is to assist the defendant in deciding whether to 

enter the plea. Padilla, 559 U.S. at 370 (referring to "the 

critical obligation of counsel to advise the client of the 

advantages and disadvantages of a plea agreement"). 

¶108 The court plays a more limited role under the Fifth 

Amendment of ensuring that the plea is knowing, intelligent and 

voluntary. See Danielle M. Lang, Padilla v. Kentucky: The Effect 

of Plea Colloquy Warnings on Defendants' Ability to Bring 

Successful Padilla Claims, 121 Yale L. J. 944, 954 (2012). As 

the United States Supreme Court has explained, a judge "cannot 

investigate the facts, advise and direct the defense, or 

participate in those necessary conferences between counsel and 

accused which sometimes partake of the inviolable character of 

the confessional." Powell v. Alabama, 287 U.S. 45, 61 (1932); 

see also United States v. Batamula, No. 12-20630 (5th Cir. June 

2, 2015) ("the Supreme Court has long contrasted the unique and 

critical obligations of defense counsel during the plea 
No. 2013AP1437-CR.awb 

10 

bargaining process with the far more limited role of a district 

court to ensure a minimally valid guilty plea"). 

¶109 Precedent clearly establishes that although the role 

of an attorney and the role of a court overlap, they are not 

equivalent: 

A district court's duty to ensure a knowing and 

voluntary plea arises from the Fifth Amendment's 

guarantee of due process and thus affords defendants a 

right distinct from the Sixth Amendment right to 

effective assistance of counsel. While we have 

recognized the inter-relationship between the two 

amendments in the context of guilty pleas, we have 

never suggested that the sufficient protection of one 

right automatically corrects any constitutional 

deficiency of the other. 

United States v. Akinsade, 686 F.3d 248, 255 (4th Cir. 2012) 

(internal citations omitted); see also Lang, 121 Yale L. J. at 

948 ("these two protections serve complementary but distinct 

functions in our constitutional structure——neither can replace 

the other"). 

¶110 The Supreme Court has been clear that the inquiry into 

whether an attorney has provided effective assistance of counsel 

is different from the inquiry into whether a plea is knowing, 

intelligent, and voluntary: 

The [Padilla] Court made clear that "the negotiation 

of a plea bargain is a critical phase of litigation

for purposes of the Sixth Amendment right to effective 

assistance of counsel." It also rejected the argument 

made by petitioner in this case that a knowing and 

voluntary plea supersedes errors by defense counsel. 

Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012); see also Lafler 

v. Cooper, 132 S. Ct. 1376, 1390 (2012) ("An inquiry into 

whether the rejection of a plea is knowing and voluntary, 
No. 2013AP1437-CR.awb 

11 

however, is not the correct means by which to address a claim of 

ineffective assistance of counsel."). 

¶111 Consistent with that guidance, courts have declined to 

conclude that the generic warning in a plea colloquy rescues 

inadequate advice from defense attorneys. See, e.g., United 

States v. Kayode, 777 F.3d 719, 728 (5th Cir. 2014) ("[A] 

district court's admonishments are 'irrelevant' in determining 

whether error has occurred under the first Strickland prong."); 

Akinsade, 686 F.3d at 255 (finding that a trial court's general 

admonishment concerning immigration consequences could not cure 

misadvice by counsel, unless specific); Ortega-Araiza v. State, 

331 P.3d 1189, 1196 (Wyo. 2014) ("We find that the district 

court's generic advisement could not compensate for defense 

counsel's failure to adequately advise his client as required by 

Padilla."); Hernandez v. State, 124 So. 3d 757, 763 (Fla. 2012) 

("[A]n equivocal warning from the trial court . . . cannot, by 

itself, remove prejudice resulting from counsel's deficiency."); 

State v. Sandoval, 249 P.3d 1015, 1020-21 (Wash. 2011) ("[T]he 

guilty plea statement warnings . . . cannot save the advice that 

counsel gave."); State v. Favela, 311 P.3d 1213, 1214 (N.M. Ct. 

App. 2013) ("judicial statements made during the plea colloquy 

about the immigration consequences of a plea do not cure 

counsel's deficient representation"). 

¶112 By suggesting that the warning in Wisconsin's plea 

colloquy statute is sufficient to fulfill an attorney's 

responsibility under Padilla, the majority ignores Padilla's 

holding: when the relevant immigration statute is clear, as 
No. 2013AP1437-CR.awb 

12 

here, "constitutionally competent counsel would have advised him 

that his conviction for drug distribution made him subject to 

automatic deportation." 559 U.S. at 360. 

¶113 The majority's suggestion likewise rings hollow 

because it fails to recognize the difference between the 

defendants' Fifth and Sixth Amendment rights. It conflates the 

role of an attorney with the role of the court. The infirmity 

of the majority's suggestion is exacerbated because it comes at 

a time when "the importance of accurate legal advice for 

noncitizens accused of crimes has never been more important." 

Id. at 364. 

III 

¶114 In contrast to the majority, I conclude that Padilla 

requires more than what the defense attorney did in this case. 

As discussed above, under Padilla, the amount of information an 

attorney must provide to a non-citizen client regarding the 

immigration consequences of a plea is dependent upon how clear 

the law is: 

When the law is not succinct and straightforward (as 

it is in many of the scenarios posited by Justice 

Alito), a criminal defense attorney need do no more

than advise a noncitizen client that pending criminal 

charges may carry a risk of adverse immigration 

consequences. But when the deportation consequence is 

truly clear, as it was in this case, the duty to give 

correct advice is equally clear. 

Padilla, 559 U.S. at 369. 

¶115 Padilla explicitly held that the law setting forth the 

immigration consequences of a conviction relating to a 

controlled substance is clear: "[8 U.S.C. § 1227(a)(2)(B)(i)] 
No. 2013AP1437-CR.awb 

13 

specifically commands removal for all controlled substances 

convictions except for the most trivial of marijuana possession 

offenses." Id. at 368. Given the clarity of the law, 

"constitutionally competent counsel would have advised [Padilla] 

that his conviction for drug distribution made him subject to 

automatic deportation." Id. at 360. 

¶116 In this case, Shata faced a charge of possession with 

intent to deliver marijuana, as party to a crime. The state 

offered to recommend a short sentence if Shata pled guilty to 

that crime. The plea implicated the same immigration statute 

that was at issue in Padilla. See 8 U.S.C. § 1227(a)(2)(B)(i) 

("Any alien who at any time after admission has been convicted 

of a violation of . . . any law or regulation of a State, the 

United States, or a foreign country relating to a controlled 

substance . . . , other than a single offense involving 

possession for one's own use of 30 grams or less of marijuana, 

is deportable."). 

¶117 Because the same statute and immigration consequences 

applied to Shata that applied to Padilla, Padilla's holding 

applies as well. "[C]onstitutionally competent counsel would 

have advised him that his conviction for drug distribution made 

him subject to automatic deportation." Id. at 360. Yet that is 
No. 2013AP1437-CR.awb 

14 

not the advice that he gave. Instead, Shata's attorney informed 

him only that there was a "strong chance" of deportation. 2

¶118 Advising a client that there is a "strong chance" of 

deportation is not equivalent to advising that the client is 

"subject to automatic deportation." The court of appeals 

addressed this issue in State v. Mendez, 2014 WI App 57, 354 

Wis. 2d 88, 847 N.W.2d 895. There, Mendez sought to withdraw 

his plea, asserting that his counsel had been deficient by 

failing to tell him the clear deportation consequences of a 

plea. At the hearing, his attorney testified that he did not 

tell Mendez that he would be deported, instead he basically 

reiterated the general warning on the plea questionnaire that a 

conviction may make Mendez inadmissible or deportable. Id., ¶4. 

¶119 In response to Mendez' motion, the State cited Chacon 

v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013) (as it does here). 

Id., ¶13. In Chacon, the Missouri court of appeals determined 

that an attorney's advice to a client that he "would very likely 

 

2 In this case the circuit court made a finding of fact that 

Shata's attorney told him that "there was a strong likelihood 

that he would be deported." This appears to be an error. A 

review of the record reveals that the attorney never used those 

words. At the plea hearing he told the judge he had informed 

Shata "that there's a potential he could be deported." Likewise, 

on direct examination at the Machner hearing, the attorney 

stated that he did not use the word "mandatory" in informing 

Shata of the deportation consequences; the word he used was 

"potential." Then, on cross-examination, the attorney revised 

his statement: "I advised him prior to the plea that he may be 

deported, that there's a strong chance that he could be 

deported." Neither the attorney nor Shata ever testified that 

the attorney used the phrase "strong likelihood." 
No. 2013AP1437-CR.awb 

15 

be deported and wouldn't be able to come back" was sufficient. 

After observing Chacon's holding, the Wisconsin Court of Appeals 

stated explicitly: "We reject Chacon. Its holding is contrary to 

Padilla's plain statement that 'when the deportation consequence 

is truly clear . . . the duty to give correct advice is equally 

clear.'" Id., ¶14 (quoting Padilla, 559 U.S. at 369). In other 

words, informing a client that deportation is "very likely" is 

not good enough when deportation is presumptively mandatory. 

¶120 I agree with the Mendez court that advising 

"deportation is very likely" is not the same as advising 

"deportation is presumptively mandatory." It does not convey 

the same degree of certainty. Like the advice given in Mendez 

and Padilla, the advice given to Shata did not meet the 

prevailing professional norm and constituted deficient 

performance. 

¶121 I turn next to the second part of the Strickland test: 

whether that deficiency prejudiced Shata. 466 U.S. 668. In 

this case, the circuit court determined that there was no 

prejudice as a result of the advice that Shata received. It 

explained "I don't find Mr. Shata's testimony to be credible 

today that he would've gone to trial under any circumstance had 

he known that removal, deportation was a presumptive mandatory." 

¶122 The circuit court's analysis of prejudice misses the 

mark. The test for prejudice when an attorney fails to advise a 

client about immigration consequences is distinct from other 

scenarios. It is not whether the defendant would have gone to 

trial had the defendant received the adequate advice. Rather, 
No. 2013AP1437-CR.awb 

16 

the test "in determining whether deficient counsel prejudiced a 

noncitizen defendant's plea deal is whether 'a decision to 

reject the plea bargain would have been rational under the 

circumstances.'" Mendez, 354 Wis. 2d 88, ¶12 (quoting Padilla, 

559 U.S. at 372). 

¶123 This test recognizes that the ability to remain in the 

United States may be more important to a defendant than the 

length of a potential sentence. The desire to avoid deportation 

can dramatically affect a rational noncitizen's decision to 

accept or reject a plea offer. 

¶124 Therefore, under Padilla's test, a defendant can show 

prejudice by establishing that it would have been rational to 

reject a plea offer in hopes of obtaining a different plea offer 

that would not result in deportation, even if doing so exposes 

him to a longer sentence. As Mendez acknowledges, "an alien 

defendant might rationally be more concerned with removal than 

with a term of imprisonment.'" Mendez, 354 Wis. 2d 88, ¶16 

(quoting United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 

2011), abrogated in part on other grounds by Chaidez v. United 

States, 133 S. Ct. 1103 (2013)). Such a defendant might 

rationally choose to risk a lengthier prison sentence in 

exchange for another plea offer to an amended charge that does 

not carry automatic deportation consequences. Indeed, "[i]n 

numerous post-Padilla cases, courts have concluded that despite 

the benefit of a great reduction in the length of the potential 

prison sentence, a rational noncitizen defendant might have 
No. 2013AP1437-CR.awb 

17 

rejected a plea bargain and risked trial for the chance of 

avoiding deportation." Mendez, 354 Wis. 2d 88, ¶16. 

¶125 An objective standard is applied to the determination 

of whether it would be rational to reject a plea bargain. See 

Bonney v. Wilson, 754 F.3d 872, 884 (10th Cir. 2014); United 

States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012); Pilla v. 

United States, 668 F.3d 368, 373 (6th Cir. 2012); Zemene v. 

Clarke, 768 S.E.2d 684, 692 (Va. 2015). 

¶126 Here, in addition to failing to consider whether a 

decision to reject the plea bargain would have been rational, 

the circuit court's discussion of what it thought Shata would 

have done reveals that it took a subjective approach to the 

prejudice analysis. Accordingly, the court erred in both 

employing the wrong test and in applying a subjective standard. 

¶127 Under the objective standard we consider the totality 

of the circumstances. In its brief prejudice analysis, however, 

the circuit court focused solely on the risk Shata would have 

faced had he gone to trial: "the risk [Shata] ran had this 

matter gone to trial and more adverse facts came out, that the 

Court wasn't necessarily aware of at the time of sentencing, the 

sentence could've been much longer and a more significant period 

of incarceration or imprisonment which may ultimately reflect 
No. 2013AP1437-CR.awb 

18 

upon a presumptive mandatory removal."3 A prejudice analysis 

should not be so limited. 

¶128 Mendez stressed that a defendant facing potential 

deportation may show that his decision to reject a plea offer 

would have been rational without showing that he would likely 

have succeeded at trial. It provides guidance by listing 

factors to consider in assessing the totality of the 

circumstances. In determining prejudice, the court must 

consider the length of time a defendant has lived in the United 

States in comparison to the length of time lived in another 

country, whether he has married a United States citizen and has 

a child here, and whether he has a reason to fear harm upon 

returning to his country: 

Mendez has lived in the United States since he was 

fourteen years old, longer than he ever lived in 

Mexico, and is married to a United States citizen here 

with whom he has a young child—also a United States

citizen. He also asserted at the hearing that he fears 

retribution by his codefendant's family should he be 

deported to Mexico. Under Padilla, a court's analysis 

of prejudice must take those factors into account in 

measuring whether, properly informed of the automatic, 

irreversible, and permanent deportation consequences 

of his plea, Mendez might rationally have rejected the 

plea bargain in favor of trial despite the risk of 

four and one-half years of initial confinement. 

Mendez, 354 Wis. 2d 88, ¶12. 

 

3 The circuit court's suggestion that the length of 

incarceration would have affected whether removal was 

presumptively mandatory was also in error. Although the length 

of incarceration is a factor for determining deportation based 

on general crimes, it is not a factor in determining whether an 

individual is deportable for having committed a crime relating 

to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). 
No. 2013AP1437-CR.awb 

19 

¶129 Here, the circuit court applied the wrong test and 

failed to consider circumstances relevant to a prejudice 

determination. Given this failure, a remand to the circuit 

court for further proceedings on the issue of prejudice is 

required. 

IV 

¶130 In sum, the majority erroneously holds that attorneys 

need not even look at the statute governing the applicable 

immigration consequence and that attorneys need not give any 

more advice than that contained in a plea colloquy. These 

holdings defy precedent. 

¶131 The Padilla court well understood that effective 

assistance of counsel during the plea stage is critical. 

Padilla, 599 U.S. 356; see also Frye, 132 S. Ct. at 1406; Hill 

v. Lockhart, 474 U.S. 52 (1985). It emphasized that accurate 

legal advice about deportation consequences has never been more 

important and that it often is the most critical consideration 

for noncitizens: 

The importance of accurate legal advice for 

noncitizens accused of crimes has never been more 

important. . . . [D]eportation is an integral part——

indeed, sometimes the most important part——of the 

penalty that may be imposed on noncitizen defendants 

who plead guilty to specified crimes. 

Padilla, 559 U.S. at 364. 

¶132 For the reasons discussed above, I conclude that 

Shata's attorney's performance was deficient. Because the 

circuit court failed to employ the proper test and apply the 

correct standard for prejudice caused by inadequate immigration 
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20 

advice during the plea stage of trial, the correct course of 

action is to remand to the circuit court for further proceedings 

to address the issue of prejudice. 

¶133 Accordingly, I respectfully dissent. 

¶134 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent. 
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