2015 WI 73

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP2435-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent, 

 v. 

Fernando Ortiz-Mondragon, 

 Defendant-Appellant-Petitioner. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

(Reported at 358 Wis. 2d 423, 856 N.W.2d 339) 

(Ct. App. 2014 – Published) 

PDC No: 2014 WI App 114 

OPINION FILED: July 9, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 21, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Brown 

 JUDGE: Donald R. Zuidmulder 

 

JUSTICES: 

 CONCURRED: 

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

Filed.) 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the defendant-appellant-petitioner, there were briefs 

by Michelle L. Velasquez, assistant state public defender, and 

oral argument by Michelle L. Velasquez. 

For the plaintiff-respondent, the cause was argued by Nancy 

A. Noet, assistant attorney general, with whom on the brief was 

Brad D. Schimel, attorney general. 

An amicus curiae brief was filed by Barbara Graham on 

behalf of the Catholic Charities Legal Services for Immigrants, 

Milwaukee. 
2015 WI 73

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP2435-CR 

(L.C. No. 2012CF1101) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin, 

 Plaintiff-Respondent, 

 v. 

Fernando Ortiz-Mondragon, 

 Defendant-Appellant-Petitioner. 

FILED 

JUL 9, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

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

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

published decision of the court of appeals,1 which affirmed the 

Brown County Circuit Court's2 judgment of conviction and order 

denying Fernando Ortiz-Mondragon's ("Ortiz-Mondragon") postconviction motion to withdraw his no-contest plea to substantial 

battery as an act of domestic abuse.3 

 

1 State v. Ortiz-Mondragon, 2014 WI App 114, 358 

Wis. 2d 423, 856 N.W.2d 339. 

2 The Honorable Donald R. Zuidmulder presided. 

3 Some documents in the record spell the defendant's name as 

Fernando Ortiz-Mondragen. 
No. 2013AP2435-CR 

2 

¶2 Ortiz-Mondragon argues that the circuit court erred by 

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

should be allowed to withdraw his plea on the basis of 

ineffective assistance of counsel under Padilla v. Kentucky, 559 

U.S. 356 (2010). In Padilla the Supreme Court held that "[w]hen 

the law is not succinct and straightforward . . . , a criminal 

defense attorney need do no more than advise a noncitizen client 

that pending criminal charges may carry a risk of adverse 

immigration consequences." Padilla v. Kentucky, 559 U.S. 356, 

369 (2010). "But when the deportation consequence is truly 

clear, . . . the duty to give correct advice is equally clear." 

Id. 

¶3 Specifically, Ortiz-Mondragon argues that his trial 

counsel performed deficiently by failing to inform him that his 

no-contest plea to substantial battery, with a domestic abuse 

enhancer, was certain to result in his deportation and permanent 

exclusion from the United States. He argues that these 

immigration consequences were clear and certain because his 

substantial battery was a "crime involving moral turpitude" 

under federal immigration law, thereby rendering him 

automatically deportable and permanently inadmissible.4 Ortiz-

 

4 We recognize that an alien could be "deportable" if 

"convicted of a crime of domestic violence." 8 U.S.C. 

§ 1227(a)(2)(E)(i). However, whether an alien will actually be 

deported because of such a conviction is far from certain. We 

do not address this issue because it was not raised, briefed, or 

argued by any of the parties in the case at issue. See Aurora 

Consol. Health Care v. LIRC, 2012 WI 49, ¶43 n.7, 340 

(continued) 
No. 2013AP2435-CR 

3 

Mondragon further argues that his trial counsel performed 

deficiently by failing to research or consider the possible 

immigration consequences of the plea agreement. He argues that 

this deficient performance prejudiced him because he would have 

insisted on going to trial had he known that his plea to 

substantial battery would subject him to mandatory deportation 

and permanent exclusion from the United States. He reasons 

that, because he has lived, worked, and raised a family in the 

United States since 1997, he would have sought a plea agreement 

that avoided these immigration consequences. If he were unable 

to secure such a plea agreement, he argues that he would have 

gone to trial to leave open the possibility of remaining in the 

United States. 

¶4 The State argues that the circuit court correctly 

denied Ortiz-Mondragon's motion to withdraw his plea. The State 

argues that trial counsel's performance was not deficient. The 

State contends that, because federal law is not succinct and 

straightforward with respect to the possible immigration 

consequences of Ortiz-Mondragon's plea, trial counsel gave 

correct advice under Padilla when he advised Ortiz-Mondragon 

that the "plea could result in deportation, the exclusion of 

admission to this country, or the denial of naturalization under 

federal law." Specifically, the State contends that federal 

immigration law does not clearly and succinctly provide that 

 

Wis. 2d 367, 814 N.W.2d 824 (declining to address arguments not 

raised before this court). 
No. 2013AP2435-CR 

4 

Ortiz-Mondragon's conviction for substantial battery would 

constitute a crime involving moral turpitude. The State further 

argues that, if we determine that trial counsel's performance 

was deficient, we should remand the matter to the circuit court 

for an evidentiary hearing on the issue of whether the 

deficiency prejudiced Ortiz-Mondragon. 

¶5 We conclude that Ortiz-Mondragon is not entitled to 

withdraw his no-contest plea to substantial battery because he 

did not receive ineffective assistance of counsel. 

Specifically, his trial counsel did not perform deficiently. 

Because federal immigration law is not "succinct, clear, and 

explicit" in providing that Ortiz-Mondragon's substantial 

battery constituted a crime involving moral turpitude, his 

attorney "need[ed] [to] do no more than advise [him] that 

pending criminal charges may carry a risk of adverse immigration 

consequences." See Padilla, 559 U.S. at 369. Ortiz-Mondragon's 

trial attorney satisfied that requirement by conveying the 

information contained in the plea questionnaire and waiver of 

rights form——namely, that Ortiz-Mondragon's "plea could result 

in deportation, the exclusion of admission to this country, or 

the denial of naturalization under federal law." Counsel's 

advice was correct, not deficient, and was consistent with Wis. 

Stat. § 971.08(1)(c) (2011-12).5 In addition, Ortiz-Mondragon's 

 

5 This statute 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

(continued) 
No. 2013AP2435-CR 

5 

trial attorney did not perform deficiently by failing to further 

research the immigration consequences of the plea agreement. 

Because Ortiz-Mondragon failed to prove deficient performance, 

we do not consider the issue of prejudice. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶6 In 1997 Ortiz-Mondragon came to the United States from 

Mexico. In 2002 he moved to Wisconsin to work in the 

agricultural industry. He has four children, all of whom are 

United States citizens and reside in Wisconsin. 

¶7 On September 14, 2012, the State filed a criminal 

complaint charging Ortiz-Mondragon with: (1) substantial 

battery, contrary to Wis. Stat. § 940.19(2); (2) false 

imprisonment, contrary to Wis. Stat. § 940.30; (3) felony 

intimidation of a victim, contrary to Wis. Stat. § 940.45(1); 

(4) criminal damage to property, contrary to Wis. Stat. 

§ 943.01(1); and (5) disorderly conduct, contrary to Wis. Stat. 

§ 947.01(1). Each count included a domestic abuse enhancer 

under Wis. Stat. § 968.075. All of the counts stemmed from one 

incident that occurred on September 12, 2012. 

 

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) (2011-12). All subsequent references 

to the Wisconsin Statutes are to the 2011-12 version unless 

otherwise indicated. 
No. 2013AP2435-CR 

6 

¶8 According to the complaint, Ortiz-Mondragon violently 

attacked J.S., who was his cohabiting girlfriend at the time and 

who is the mother of two of his children. Ortiz-Mondragon 

became enraged because J.S. was talking to a male neighbor on 

the phone. Ortiz-Mondragon jumped on top of J.S. while she was 

talking on the phone in bed. Their two young children were in 

the room with them. Ortiz-Mondragon put his hands around J.S.'s 

neck and began squeezing. J.S. had trouble breathing and 

thought that Ortiz-Mondragon was going to kill her. When J.S. 

managed to get off of the bed and tried to leave the bedroom, 

Ortiz-Mondragon punched her in the face and mouth and hit her in 

the back of the head. J.S.'s head bled profusely. OrtizMondragon also broke J.S.'s phone in half. When J.S. later 

sought treatment for her injuries, a wound on her face required 

five staples. 

¶9 On September 24, 2012, Ortiz-Mondragon waived his 

right to a preliminary examination and was bound over for trial. 

That same day, the State filed an information that contained the 

same five charges as the complaint. 

¶10 On November 15, 2012, the State made a plea offer to 

Ortiz-Mondragon. If Ortiz-Mondragon pled guilty or no contest 

to substantial battery, criminal damage to property, and 

disorderly conduct, all with a domestic abuse enhancer, the 

State would dismiss and read-in the intimidation and false 

imprisonment charges. The State would recommend three years of 

probation and four months in jail as a condition of probation. 
No. 2013AP2435-CR 

7 

¶11 On November 27, 2012, the circuit court held a plea 

and sentencing hearing. Ortiz-Mondragon's attorney, Raj Kumar 

Singh ("Attorney Singh"), informed the court that the State 

recently made a plea offer to the defendant. Attorney Singh 

stated that he had "presented" the State's plea offer to OrtizMondragon, "given him paperwork to use to study it, given him 

information to use in counseling, and [Ortiz-Mondragon] has just 

now confirmed that now he's made his final decision. He would 

like to take the offer." 

¶12 Attorney Singh then handed a plea questionnaire and 

waiver of rights form, along with "some other papers," to the 

circuit court. Ortiz-Mondragon had signed the plea

questionnaire and waiver of rights form, which stated, inter 

alia: "I understand that if I am not a citizen of the United 

States, my plea could result in deportation, the exclusion of 

admission to this country, or the denial of naturalization under 

federal law." Attorney Singh had signed the plea questionnaire 

and waiver of rights form immediately below the following 

affirmation: "I am the attorney for the defendant. I have 

discussed this document and any attachments with the defendant. 

I believe the defendant understands it and the plea agreement. 

The defendant is making this plea freely, voluntarily, and 

intelligently. . . . " 

¶13 Ortiz-Mondragon then stated that he wished to plead no 

contest to three counts pursuant to the plea agreement. The 

circuit court then informed him of the possible immigration 

consequences of his pleas. 
No. 2013AP2435-CR 

8 

THE COURT: All right. The law requires I 

address you now and advise you of the following: If

you're not a citizen of the United States, the plea

you offer me could result in your deportation, the 

exclusion of admission, or the denial of 

naturalization under federal law. . . . 

These are collateral consequences to [sic] on top of 

whatever I sentence you to. Do you understand that? 

THE DEFENDANT: Yes. 

THE COURT: All right. Do you still wish to 

offer me these pleas then? 

THE DEFENDANT: Yes. 

¶14 The circuit court then confirmed that Ortiz-Mondragon 

and his attorney had discussed the plea questionnaire and waiver 

of rights form, which contained a warning about possible 

immigration consequences of a conviction. 

THE COURT: All right. In my right hand I have a 

plea-questionnaire-and-waiver-of-rights form. I have 

the standard jury instruction for the charge of 

substantial battery with intent to cause bodily harm 

as well as the elements of criminal damage and 

disorderly conduct. Do you see all these documents? 

THE DEFENDANT: Yes. 

THE COURT: Did you sign the plea questionnaire? 

THE DEFENDANT: Yes. 

THE COURT: Before you signed it, did you read it 

over carefully? 

THE DEFENDANT: Yes. 

THE COURT: And while you were going over all 

these documents, did you have an opportunity to fully 

discuss it with your attorney, Mr. Singh? 

THE DEFENDANT: Yes. 
No. 2013AP2435-CR 

9 

THE COURT: And are you satisfied with his 

representation thus far? 

THE DEFENDANT: Yes. 

¶15 The court concluded: "I'm going to find the 

defendant's pleas today to be freely, voluntarily, and 

intelligently entered on the record I have made. I'll 

incorporate in support of that the plea-questionnaire-andwaiver-of-rights form." The court then determined that "[t]he 

facts do support his pleas" and "adjudge[d] him guilty today of 

substantial battery and criminal damage to property and 

disorderly conduct." 

¶16 The State then explained that, pursuant to a joint 

recommendation, it was going to recommend "three years' 

probation with four months' jail and other standard conditions 

of probation." The State explained that it had "consulted with 

the victim," Ortiz-Mondragon committed a "fairly violent 

offense," and he had no prior criminal record. The State also 

noted that although Ortiz-Mondragon "was on an immigration hold 

at the . . . initial appearance," he was not "on any other type 

of hold at all." 

¶17 The victim of Ortiz-Mondragon's domestic abuse, J.S., 

then spoke to the court. She stated that she would like for the 

felony battery charge to be reduced to a misdemeanor. J.S. 

stated that Ortiz-Mondragon has two children with her and also 

has two other children, and they "were trying to keep them here 

in the states, but if he ends up with a felony charge, that's 

not going to happen." The court informed J.S. that Ortiz-
No. 2013AP2435-CR 

10 

Mondragon had just been found guilty of a felony. J.S. then 

stated that probation and four months in jail were "fine" with 

her. 

¶18 Attorney Singh then asked the court to grant OrtizMondragon sentence credit, which the court granted. The court 

then asked Attorney Singh whether Ortiz-Mondragon has an 

Immigration and Customs Enforcement hold.6 Attorney Singh 

stated, "I think there is, but the information I get is 

secondhand." 

¶19 Ortiz-Mondragon then apologized for his behavior and 

stated that he "never had a problem like this before." 

¶20 The court then proceeded to sentence Ortiz-Mondragon. 

It stated that its sentence would be based on "the protection of 

the public, punishment of the defendant, the defendant's 

rehabilitative needs, and other factors." The court noted that 

it received a joint recommendation and that it "defer[s] a 

little bit to [the State's] judgment" in "these kinds of cases 

because [the State] handle[s] so many of them . . . ." The 

court then discussed the "great impact parents' behaviors have 

on their children" and encouraged Ortiz-Mondragon to "do a 

better job of being a parent and an adult." The court then 

adopted the joint recommendation, withheld sentence on all three 

counts, placed Ortiz-Mondragon on probation for three years, and 

 

6 The United States Immigration and Customs Enforcement is a 

component of the United States Department of Homeland Security. 
No. 2013AP2435-CR 

11 

sentenced him to four months in the county jail as a condition 

of probation. 

¶21 J.S. then asked the court if Ortiz-Mondragon will "be 

let go" after his jail sentence. The court stated that he would 

be let go "if the immigration doesn't put a hold on him. If the 

immigration people put a hold on him, that's a federal issue. 

Our officers have nothing to do with that." 

¶22 After Ortiz-Mondragon completed his jail sentence,7

Immigration and Customs Enforcement took him into custody and 

commenced removal proceedings against him. He agreed to a 

voluntary departure to avoid a deportation on his record.8 

¶23 On September 17, 2013, Ortiz-Mondragon filed a 

postconviction motion to withdraw his no-contest plea to 

substantial battery on grounds of ineffective assistance of 

counsel. In the motion, Ortiz-Mondragon argued that his 

 

7 The record does not indicate exactly when Ortiz-Mondragon 

was released from jail. At the plea and sentencing hearing on 

November 27, 2012, the circuit court sentenced Ortiz-Mondragon 

to four months in jail and granted him 76 days of sentence 

credit. Accordingly, he seems to have been released from jail 

in early or mid-January 2013. 

8 Ortiz-Mondragon's motion to withdraw his plea discusses 

these events but does not indicate when they took place. The 

record contains a letter from Immigration and Customs 

Enforcement ("ICE"), which was filed with the Brown County 

Circuit Court on December 12, 2012. This letter requested that 

the circuit court forward to ICE certified copies of the 

complaint, information, judgment and commitment order for this 

case. The letter stated that these documents would help ICE "in 

its efforts to expeditiously remove alien criminals from the 

United States." Under "charge(s)," the letter stated "940.19(2) 

Substantial Battery——Intend Bodily Harm." 
No. 2013AP2435-CR 

12 

substantial battery as an act of domestic abuse was a "crime 

involving moral turpitude" under federal immigration law, 

thereby rendering him subject to mandatory deportation and 

permanent exclusion from the United States. He argued that 

these consequences of his substantial battery conviction were 

clear and that under Padilla his attorney performed deficiently 

in failing to inform him of these consequences. Ortiz-Mondragon 

further argued that this deficiency prejudiced him. He 

contended that, had he known the immigration consequences of 

this conviction, he would have sought a different plea agreement 

or would have insisted on going to trial in order to preserve 

the possibility of remaining in or returning to the United 

States to be with his family. 

¶24 On October 29, 2013, the circuit court issued a

written order denying Ortiz-Mondragon's motion without a Machner 

hearing.9 The court first held that Ortiz-Mondragon's "trial 

counsel was not required to provide [Ortiz-Mondragon] with 

unequivocal advice regarding the immigration-related 

consequences of his plea because the law elucidating the 

 

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

App. 1979). "[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)). 
No. 2013AP2435-CR 

13 

consequences is not succinct and straightforward." The court 

reasoned that "a 'crime involving moral turpitude' is a broad, 

rather than specific, classification of crimes," and OrtizMondragon failed to prove that his substantial battery was a 

crime involving moral turpitude. Quoting Padilla, 559 U.S. at 

369, the circuit court stated that, "[b]ecause the law is not 

succinct and straightforward, [Ortiz-Mondragon's] counsel 'need 

do no more than advise [Ortiz-Mondragon] that pending criminal 

charges may carry a risk of adverse immigration consequences.'" 

Ortiz-Mondragon "does not assert that trial counsel did not so 

advise him, and the record affirmatively establishes that trial 

counsel did so advise him." 

¶25 The circuit court discussed the immigration warnings 

and advice that Ortiz-Mondragon received. In particular, the 

court noted that Ortiz-Mondragon "acknowledges that he was given 

equivocal immigration warnings by both the Court, as required by 

[Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of 

Rights form." The court also noted that, at the plea and 

sentencing hearing, "[Ortiz-Mondragon] confirmed with the Court 

that he read [the plea questionnaire] over carefully before 

signing it and had the opportunity to fully discuss it with his 

attorney." The court further noted that Attorney Singh signed 

the plea questionnaire form under a statement affirming that he 

discussed that form with Ortiz-Mondragon and that OrtizMondragon understood the form and the plea agreement. The court 

concluded that Attorney Singh did not perform deficiently. 

Specifically, the court concluded that "[u]nder the
No. 2013AP2435-CR 

14 

circumstances, [Ortiz-Mondragon] has not stated sufficient facts 

which entitle him to a hearing on his postconviction motion. 

The facts, as alleged, demonstrate that [Ortiz-Mondragon's] 

counsel did not perform deficiently by providing [OrtizMondragon] with equivocal, rather than unequivocal, advice 

regarding the immigration-related consequences of his plea." 

The court did not address the issue of prejudice. 

¶26 On October 7, 2014, the court of appeals affirmed the 

circuit court's order denying Ortiz-Mondragon's motion to 

withdraw his plea. The court of appeals explained that OrtizMondragon "has not identified clear authority indicating any of 

the crimes to which he pled were crimes of moral turpitude." 

State v. Ortiz-Mondragon, 2014 WI App 114, ¶13, 358 Wis. 2d 423, 

856 N.W.2d 339. The court of appeals reasoned that "[i]f an 

attorney must search federal court and unfamiliar administrative 

board decisions from around the country to identify a category 

of elements that together constitute crimes of moral turpitude, 

and then determine whether a charged crime fits that category, 

then the law is not 'succinct, clear, and explicit.'" Id., ¶12 

(quoting Padilla, 559 U.S. at 368). It concluded that "Ortiz–

Mondragon's attorney did not perform deficiently by failing to 

unequivocally inform him that his plea would result in 

deportation and permanent inadmissibility." Id., ¶13. The 

court of appeals did not address the issue of prejudice. 

¶27 On November 6, 2014, Ortiz-Mondragon filed a petition 

for review, which we granted on December 18, 2014. 

II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW 
No. 2013AP2435-CR 

15 

¶28 "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. State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30, 

829 N.W.2d 482. 

¶29 "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. 2013AP2435-CR 

16 

¶30 "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 

¶31 "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). 

¶32 "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. 2013AP2435-CR 

17 

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. 

See 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). 

¶33 The Supreme Court in Padilla held "that advice 

regarding deportation is not categorically removed from the 

ambit of the Sixth Amendment right to counsel." Id. at 366. 

The Court explained that the scope of counsel's duty to provide 

advice regarding deportation depends on whether the immigration 

consequences of a conviction are clear, succinct, and 

straightforward. It explained that counsel's duty to provide 

advice regarding deportation "is more limited" in "situations in 

which the deportation consequences of a particular plea are 

unclear or uncertain." Id. at 369. Specifically, "[w]hen the 

law is not succinct and straightforward . . . , a criminal 

defense attorney need do no more than advise a noncitizen client 

that pending criminal charges may carry a risk of adverse 

immigration consequences." Id. (emphases added). "But when the 

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

correct advice is equally clear." Id. 
No. 2013AP2435-CR 

18 

¶34 The Court in Padilla held that defense counsel 

performed deficiently by incorrectly advising the defendant that 

he would not be deported upon conviction. 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)). "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 369. 

¶35 In order to determine whether Ortiz-Mondragon's trial 

counsel performed deficiently, we must first determine what 

advice Padilla required Ortiz-Mondragon's trial attorney to 

provide. To that end, we will determine whether immigration law 

is succinct, clear, and explicit such that Ortiz-Mondragon's 

trial attorney should have discovered that Ortiz-Mondragon would 

be deported and excluded because his substantial battery was a 

crime involving moral turpitude. Second, we will determine 

whether Ortiz-Mondragon's trial attorney performed deficiently 

under Padilla by giving inadequate advice and failing to further 

research the immigration consequences of the plea agreement. 

Because we conclude that Ortiz-Mondragon's trial attorney did 

not perform deficiently, we do not address prejudice. 

A. Is Immigration Law Succinct, Clear, and Explicit 

that Ortiz-Mondragon's Substantial Battery 

Was a Crime Involving Moral Turpitude? 
No. 2013AP2435-CR 

19 

¶36 The relevant immigration statutes authorize 

deportation and exclusion of an alien who is convicted of a 

"crime involving moral turpitude."10 Under certain 

circumstances, "[a]ny alien who . . . is convicted of a crime 

involving moral turpitude . . . is deportable." 8 U.S.C. 

§ 1227(a)(2)(A)(i). Any such alien "shall, upon the order of 

the Attorney General, be removed . . . ." 8 U.S.C. § 1227(a) 

(intro.). The Attorney General may not "cancel removal" of an 

alien who is "inadmissible or deportable" due to a conviction 

for a crime involving moral turpitude. See 8 U.S.C. 

§ 1229b(b)(1)(C). Further, an alien is "ineligible to receive 

visas and ineligible to be admitted to the United States" if 

"convicted of . . . a crime involving moral turpitude . . . ." 

8 U.S.C. § 1182(a)(2)(A)(i)(I). 

¶37 However, the Immigration and Nationality Act, which 

includes those statutory provisions, does not define "crime 

involving moral turpitude." See Padilla, 559 U.S. at 361; id. 

at 377-78 (Alito, J., concurring). The Code of Federal 

Regulations also does not define that term. Garcia v. State, 

425 S.W.3d 248, 260 (Tenn. 2013) ("[A] crime involving moral 

turpitude is nowhere defined in the [Immigration and 

Nationality] Act or in the Code of Federal Regulations."). The 

Immigration and Nationality Act does not even list examples of 

crimes involving moral turpitude. Lopez-Penaloza v. State, 804 

 

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

national of the United States." 8 U.S.C. § 1101(a)(3). 
No. 2013AP2435-CR 

20 

N.W.2d 537, 544 (Iowa Ct. App. 2011) ("The [Immigration and 

Nationality Act] does not define the term 'moral turpitude' or 

list [crimes involving moral turpitude]."). 

¶38 Thus, because the term "crime involving moral 

turpitude" is undefined in the immigration statutes, we will 

consider case law that defines this term. We need to determine 

whether immigration law is succinct, clear, and explicit such 

that Ortiz-Mondragon's counsel was deficient for failing to 

discover that the substantial battery offense was a crime 

involving moral turpitude and advise Ortiz-Mondragon to that 

effect. Because we conclude that immigration law is not 

succinct, clear, and explicit in this case, counsel was not 

deficient for not giving further immigration advice to OrtizMondragon. In order to explain how immigration law is not 

succinct, clear, and explicit in this case, we will discuss 

cases wherein the subject of the dispute was whether a 

particular crime qualified as a crime involving moral turpitude. 

One important difference between the cases we will discuss and 

the case at issue is that the analysis in those cases concerned 

appeals from actual deportation proceedings. The dispute in 

those cases was not whether counsel was ineffective for failing 

to discover and then advise that a specific crime involved moral 

turpitude. 

¶39 Even the case law that analyzes whether a crime

qualified as a crime involving moral turpitude for purposes of 

deportation often uses terms of generality, not specifics. 

"[T]he phrase 'crime involving moral turpitude' is notoriously 
No. 2013AP2435-CR 

21 

baffling . . . ." Garcia-Meza v. Mukasey, 516 F.3d 535, 536 

(7th Cir. 2008)." "As a general rule, a crime involves 'moral 

turpitude' if it is inherently base, vile, or depraved, and 

contrary to the accepted rules of morality and the duties owed 

between persons or to society in general." In re Sanudo, 23 

I. & N. Dec. 968, 970 (BIA 2006) (emphasis added); see also 

Garcia-Meza, 516 F.3d at 536. The term "crime involving moral 

turpitude" "generally refers to acts that are per se morally 

reprehensible and intrinsically wrong." In re Solon, 24 I. & N. 

Dec. 239, 240 (BIA 2007) (emphasis added) (citing Rodriguez v. 

Gonzales, 451 F.3d 60, 63 (2d Cir. 2006)). The United States 

Court of Appeals for the Seventh Circuit has "put [its] own 

gloss on the term," "stating that crimes of moral turpitude are 

usually serious crimes (in terms of the magnitude of the loss 

they cause or the indignation in the public they arouse) that 

are committed deliberately." Garcia-Meza, 516 F.3d at 536 

(emphasis added). Thus, even in deportation proceedings 

themselves, the issue of what constitutes a crime involving 

moral turpitude is frequently litigated as it is often less than 

clear. 

¶40 Even in deportation proceeding cases where the subject 

of the litigation is whether a crime qualifies as a crime 

involving moral turpitude, "[n]either the seriousness of the 

underlying offense nor the severity of the punishment imposed is 

determinative of whether a crime involves moral turpitude." 

Solon, 24 I. & N. Dec. at 240 (citing In re Serna, 20 I. & N. 

Dec. 579, 581 (BIA 1992)). "[A]t least in the context of 
No. 2013AP2435-CR 

22 

assault crimes, a finding of moral turpitude involves an 

assessment of both the state of mind and the level of harm 

required to complete the offense." Id. at 243. "Thus, 

intentional conduct resulting in a meaningful level of harm, 

which must be more than mere offensive touching, may be 

considered morally turpitudinous." Id. (emphasis added). 

¶41 In addition to the fact that the amorphous term "crime 

involving moral turpitude" is not defined, it is even more 

problematic to ascertain whether a particular crime would 

qualify as a crime involving moral turpitude. Padilla, 559 U.S. 

at 378 (Alito, J., concurring) ("As has been widely

acknowledged, determining whether a particular crime is . . . a 

'crime involving moral turpitude [(CIMT)]' is not an easy 

task."). Even courts confronted with analyzing crimes involving 

moral turpitude in deportation proceedings are not uniform in 

their analysis of whether a crime qualified as a crime involving 

moral turpitude. Five federal circuit courts of appeals apply a 

two-step test consisting of a "categorical approach" and 

"modified categorical approach."11 Two other circuits follow a 

three-step test for determining whether a crime qualifies as a 

 

11 See Silva-Trevino v. Holder, 742 F.3d 197, 200 & n.1 (5th 

Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907, 911-16 (9th 

Cir. 2013) (amended opinion); Prudencio v. Holder, 669 F.3d 472, 

480-84 (4th Cir. 2012); Fajardo v. U.S. Att'y Gen., 659 F.3d 

1303, 1307-11 (11th Cir. 2011); Jean-Louis v. Att'y Gen. of 

United States, 582 F.3d 462, 472-82 (3d Cir. 2009).
No. 2013AP2435-CR 

23 

crime involving moral turpitude.12 In the wake of Descamps v. 

United States, how federal courts will determine whether a crime 

qualifies as a crime involving moral turpitude is unclear. See 

Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 282 

(2013) (holding "that sentencing courts may not apply the 

modified categorical approach when the crime of which the 

defendant was convicted has a single, indivisible set of 

elements"); id. at 2288-89 (holding that under the modified 

categorical approach, a court may rely on "only 

facts . . . constituting elements of the offense," rather than 

"rely[ing] on its own finding about a non-elemental fact"). 

Thus, relevant immigration law is far from succinct, clear, and 

explicit as to what constitutes a crime involving moral 

turpitude. See State v. Telford, 22 A.3d 43, 49-50 (N.J. App. 

Div. 2011) (holding that immigration law was not succinct, 

clear, and explicit because of a circuit split "surrounding the 

type of analysis that would be undertaken by the tribunals 

charged with determining whether a noncitizen has committed an 

aggravated felony"). 

 

12 See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 

2012); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 

2010). For a discussion of the categorical approach and 

modified categorical approach, see Descamps v. United States, 

570 U.S. ___, 133 S. Ct. 2276, 2281-82 (2013). For a discussion 

of the two- and three-step tests, see In re Silva-Trevino, 26 

I. & N. Dec. 550, 550-51 (A.G. 2015); Maria Theresa BaldiniPotermin, Defending Non-Citizens in Illinois, Indiana, and 

Wisconsin 3-5 to 3-9 (2009), available at 

https://www.immigrantjustice.org/defendersmanual. 
No. 2013AP2435-CR 

24 

¶42 In addition to that circuit split, the United States 

Attorney General has added to the complexity of determining 

whether a crime will qualify as a crime involving moral 

turpitude. In 2008 the United States Attorney General adopted 

the three-step test for the Board of Immigration Appeals.13 In 

re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). However, on 

April 10, 2015, the Attorney General issued an opinion vacating 

his In re Silva-Trevino opinion in its entirety. In re SilvaTrevino, 26 I. & N. Dec. 550, 550, 554 (A.G. 2015). That 2015 

opinion seemingly leaves unresolved how the Board of Immigration 

Appeals should determine whether a crime will qualify as a crime 

involving moral turpitude. That opinion stated that 

the Board may address, in this case and other cases as 

appropriate, the following issues: 

1. How adjudicators are to determine whether a 

particular criminal offense is a crime involving moral 

turpitude under the Act; 

2. When, and to what extent, adjudicators may 

use a modified categorical approach and consider a 

record of conviction in determining whether an alien 

has been "convicted of . . . a crime involving moral 

turpitude" . . . . 

Id., 26 I. & N. Dec. at 553. 

¶43 In her comprehensive guide on the immigration 

consequences of convictions, Maria Theresa Baldini-Potermin 

wrote in 2009 that "[t]he current state of the case law for 

 

13 The Board of Immigration Appeals is an administrative 

appellate body within the United States Department of Justice. 
No. 2013AP2435-CR 

25 

crimes involving moral turpitude is presently in a state of 

flux . . . ." Maria Theresa Baldini-Potermin, Defending NonCitizens in Illinois, Indiana, and Wisconsin 3-5 (2009), 

available at https://www.immigrantjustice.org/defendersmanual. 

¶44 Recognizing this lack of clarity, the State argues 

that, "[w]hile Ortiz-Mondragon's conviction may well qualify as 

a crime of moral turpitude, that conclusion is not 'clear and 

certain' or 'succinct and straightforward.'" The State notes 

that case law has held that domestic battery is not necessarily 

a crime involving moral turpitude. The State argues that the 

relevant case law and the circuit split regarding the two- or 

three-step test "illustrate the complexity of deciphering 

whether a given offense is a crime involving moral turpitude." 

Thus, because Ortiz-Mondragon's conviction does not clearly 

constitute a crime involving moral turpitude, the State contends 

"that Ortiz-Mondragon's trial attorney was required to do no 

more than advise him that his plea 'may carry a risk of adverse 

immigration consequences.'" Padilla, 559 U.S. at 369. 

¶45 Despite the lack of any clear guidance by statute or 

jurisprudence regarding whether a particular crime qualifies as 

a crime involving moral turpitude, Ortiz-Mondragon argues that 

federal law is "succinct" and "straightforward" in providing 

that his substantial battery was a crime involving moral 

turpitude such that his counsel should have given him different 

advice. He contends that "[s]ome crimes, such as substantial 

battery, domestic abuse, are universally treated as [crimes 

involving moral turpitude] . . . ." In both of his briefs to 
No. 2013AP2435-CR 

26 

this court, he provides string cites to several cases that, 

according to him, support that conclusion.14 He argues that this 

court can determine that his substantial battery was a crime 

involving moral turpitude simply by looking at Wis. Stat. 

§ 940.19(2) and the case law addressing "similar offenses." 

¶46 For example, Ortiz-Mondragon relies on two spousal 

abuse deportation cases arising from California: Grageda v. U.S. 

I.N.S., 12 F.3d 919 (9th Cir. 1993), superseded by statute on 

other grounds, and In re Tran, 21 I. & N. Dec. 291 (BIA 1996). 

In Grageda the Ninth Circuit held "that spousal abuse under 

[California Penal Code] section 273.5(a) is a crime of moral 

turpitude." Grageda, 12 F.3d at 922. In In re Tran the Board 

of Immigration Appeals expanded the holding in Grageda and 

concluded "that any violation of section 273.5(a) of the 

California Penal Code constitutes a crime involving moral 

turpitude." In re Tran, 21 I. & N. Dec. at 294. However, the 

 

14 Ortiz-Mondragon also relies on publications that do not 

have the force of law. For example, he cites to the Immigrant 

Defense Project's Immigration Consequences of Convictions 

Summary Checklist, which states that crimes involving moral 

turpitude "includ[e]" "[c]rimes in which bodily harm is caused 

or threatened by an intentional act, or serious bodily harm is 

caused or threatened by a reckless act . . . ." However, that 

checklist does not cite to legal authority for that proposition 

and does not state that such crimes necessarily are crimes 

involving moral turpitude. To the contrary, such crimes may be 

considered crimes involving moral turpitude. See In re Solon, 

24 I. & N. Dec. 239, 243 (BIA 2007) ("[I]ntentional conduct 

resulting in a meaningful level of harm, which must be more than 

mere offensive touching, may be considered morally 

turpitudinous."). 
No. 2013AP2435-CR 

27 

Ninth Circuit in Grageda explained that its holding was limited 

to spousal abuse and did not include abuse of a cohabitant.15 

Grageda, 12 F.3d at 921-22 n.1. 

¶47 In a subsequent decision, the Ninth Circuit recognized 

the narrow holding of Grageda and concluded that a "conviction 

under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is 

not categorically a [crime involving moral turpitude]." 

Morales-Garcia v. Holder, 567 F.3d 1058, 1064-67 (9th Cir. 

2009).16 In Morales-Garcia the Ninth Circuit expressly declined 

to follow In re Tran. Id. at 1066 & n.4. Accordingly, it is 

unclear whether abuse of a cohabitant, in violation of Cal. 

 

15 The Ninth Circuit's holding in Grageda may be limited to 

spousal abuse that willfully causes a "traumatic condition." 

See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th Cir. 

2009) (quoting Grageda v. U.S. I.N.S., 12 F.3d 919, 922 (9th 

Cir. 1993)) (internal quotation marks omitted) ("In Grageda, for 

example, we held that 'when a person willfully beats his or her 

spouse severely enough to cause a traumatic condition, he or she 

has committed an act of baseness or depravity contrary to 

accepted moral standards.'"). Ortiz-Mondragon does not discuss 

whether substantial battery under Wis. Stat. § 940.19(2) 

involves the willful infliction of a traumatic condition. 

16 In Morales-Garcia the Ninth Circuit held that abuse of a 

cohabitant is not necessarily a crime involving moral turpitude 

because not all cohabitants "are committed to, trust, or depend 

upon each other." Morales-Garcia, 567 F.3d at 1066. If 

cohabitants are not committed to such a relationship, then their 

status as cohabitants does not transform a battery offense into 

a crime involving moral turpitude. See id. But if cohabitants 

are committed to such a relationship, then their status as 

cohabitants "may transform" a battery offense into a crime 

involving moral turpitude. See id. at 1065 ("Otherwise nonmorally turpitudinous conduct targeted at a victim with whom the 

defendant has a special relationship may transform a crime into 

one involving moral turpitude."). 
No. 2013AP2435-CR 

28 

Penal Code § 273.5(a), is a crime involving moral turpitude. In 

the present case, Ortiz-Mondragon was convicted for battering 

his cohabiting girlfriend, not a spouse. 

¶48 Furthermore, Ortiz-Mondragon's substantial battery 

conviction was under a Wisconsin statute, not a California 

statute. Because the cases cited by Ortiz-Mondragon do not 

discuss whether substantial battery under Wis. Stat. § 940.19(2) 

is a crime involving moral turpitude, those cases do not 

succinctly, clearly, and explicitly demonstrate that OrtizMondragon's substantial battery under § 940.19(2) was a crime 

involving moral turpitude. See Garcia, 425 S.W.3d at 260-61 

(holding that immigration law was not "clear, succinct, and 

straightforward" partly because the defendant "provided no 

federal judicial or administrative decision considering whether 

the Tennessee offenses to which he pleaded guilty amount to 

crimes involving moral turpitude, although the [defendant] has 

cited court decisions classifying abuse offenses in other 

jurisdictions as crimes involving moral turpitude"). Thus, 

Grageda and In re Tran do not succinctly, clearly, and 

explicitly demonstrate that Ortiz-Mondragon's substantial 

battery was a crime involving moral turpitude. 

¶49 Ortiz-Mondragon also relies on cases in which courts 

held that aggravated assault of a peace officer and aggravated 

child abuse were crimes that qualified as crimes involving moral 

turpitude. See In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 

1988) (aggravated assault of peace officer); Garcia v. Attorney 

Gen. of United States, 329 F.3d 1217, 1222 (11th Cir. 2003) 
No. 2013AP2435-CR 

29 

(aggravated child abuse). However, as Morales-Garcia 

demonstrates, it is not safe to assume that Ortiz-Mondragon's 

substantial battery of his cohabiting girlfriend is necessarily 

a crime involving moral turpitude simply because aggravated 

assault of a peace officer and aggravated child abuse qualify as 

crimes involving moral turpitude. See Morales-Garcia, 567 F.3d 

at 1064-67 (holding that abuse of a cohabitant is not 

necessarily a crime involving moral turpitude, although spousal 

abuse contrary to California law necessarily is). 

¶50 As the Board of Immigration Appeals has explained, "it 

has often been found that moral turpitude necessarily inheres in 

assault and battery offenses that are defined by reference to 

the infliction of bodily harm upon a person whom society views 

as deserving of special protection, such as . . . a domestic 

partner . . . ." Sanudo, 23 I. & N. Dec. at 971-72 (emphasis 

added) (citations omitted). However, such crimes do not 

categorically qualify as a crime involving moral turpitude. See 

id. Rather, "a case-by-case approach has been employed to 

decide whether battery (or assault and battery) offenses involve 

moral turpitude." Id. at 971. Thus, the State's argument that, 

"[w]hile Ortiz-Mondragon's conviction may well qualify as a 

crime of moral turpitude, that conclusion is not 'clear and 

certain' or 'succinct and straightforward,'" is correct.17

 

17 Ortiz-Mondragon argues that if the case law on which he 

relies does not succinctly, clearly, and explicitly indicate 

that his substantial battery was a crime involving moral 

turpitude, then this court should look to his record of 

conviction, including the criminal complaint and plea hearing 

(continued) 
No. 2013AP2435-CR 

30 

¶51 Based on the foregoing discussion, we conclude that 

federal immigration law does not succinctly, clearly, and 

explicitly provide that Ortiz-Mondragon's substantial battery 

was a crime involving moral turpitude such that his counsel's 

advice should have been different. The methodology for 

determining whether a crime qualifies as a crime involving moral 

turpitude varies by jurisdiction and is in a "state of flux." 

 

transcript. In other words, he argues that this court should 

proceed to the second step of the two- or three-step test for 

determining whether a crime qualified as a crime involving moral 

turpitude. However, when determining whether a crime qualifies 

as a crime involving moral turpitude, a court looks to a record 

of conviction only if the statute of conviction is "divisible"——

that is, only if the statute "includes some offenses which 

involve moral turpitude and some which do not." In re Short, 20 

I. & N. Dec. 136, 137-38 (BIA 1989) (citations omitted) ("Only 

where the statute under which the respondent was convicted 

includes some offenses which involve moral turpitude and some 

which do not do we look to the record of conviction . . . ."). 

Because Ortiz-Mondragon does not argue that Wis. Stat. 

§ 940.19(2) is divisible, his record of conviction will not help 

to determine whether his substantial battery qualified as a 

crime involving moral turpitude. 

Further, Ortiz-Mondragon does not explain how the relevant 

immigration law would be succinct, clear, and explicit if one 

must consult a record of conviction under the two- or three-step 

test in order to determine whether a crime qualified as a crime 

involving moral turpitude. See State v. Telford, 22 A.3d 43, 50 

(N.J. App. Div. 2011) (stating that an attorney "would be hardpressed to provide any clear advice regarding the deportation 

consequences of a guilty plea" if the immigration advice could 

"turn on the precise wording of the indictment"). See also 

Garcia v. State, 425 S.W.3d 248, 260-61 (Tenn. 2013) (holding 

that immigration law did not succinctly, clearly, and explicitly 

provide that the defendant's conviction qualified as a crime 

involving moral turpitude); Lopez-Penaloza v. State, 804 N.W.2d 

537, 545-46 (Iowa Ct. App. 2011) (same). 
No. 2013AP2435-CR 

31 

Baldini-Potermin, supra, 3-5; Telford, 22 A.3d at 49-50 (holding 

that a federal circuit split made the relevant immigration law 

not succinct, clear, and explicit). The cases that OrtizMondragon cites fail to provide a succinct, clear, and explicit 

answer as to whether Ortiz-Mondragon's substantial battery 

qualified as a crime involving moral turpitude. Accordingly, 

his trial counsel "need[ed] [to] do no more than advise [him] 

that pending criminal charges may carry a risk of adverse 

immigration consequences." Padilla, 559 U.S. at 369. We now 

consider whether his counsel performed deficiently under 

Padilla. 

B. Whether Ortiz-Mondragon's Trial Counsel 

Performed Deficiently 

¶52 "To demonstrate deficient performance, the defendant 

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

objective standard of reasonableness' considering all the 

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). 
No. 2013AP2435-CR 

32 

¶53 Ortiz-Mondragon argues that his trial counsel, 

Attorney Singh, performed deficiently by failing to advise him 

that his conviction for substantial battery would necessarily 

result in his deportation and permanent exclusion from the 

United States. Ortiz-Mondragon concedes that "the circuit 

[court] found that the record affirmatively demonstrated that 

Mr. Ortiz-Mondragon received advice about the immigration 

consequences of his plea in the form of the general warnings 

contained in the plea questionnaire form as well as the circuit 

court's statutory warnings." However, he argues that the 

circuit court's statutory warning and the plea questionnaire are 

"insufficient" "substitute[s] for the advice of counsel." 

¶54 Ortiz-Mondragon further argues that his trial counsel 

performed deficiently by failing to research the relevant 

immigration law and Ortiz-Mondragon's immigration status. He 

argues that "the record contains no evidence that defense 

counsel investigated Mr. Ortiz-Mondragon's immigration status or 

relevant law." He contends that "[e]ven when a more general 

warning is warranted, counsel must reasonably investigate the 

potential immigration consequences in light of the particular 

facts of the case because counsel cannot determine the clarity 

of a consequence without some investigation and research." He 

further argues that "[c]ounsel's failure to inform a defendant 

of the adverse immigration consequences when legal research 

would show that the crimes at issue involved moral turpitude for 

immigration purposes falls below an objective standard of 

reasonableness." 
No. 2013AP2435-CR 

33 

¶55 The State argues that, because the immigration 

consequences of the plea agreement were not succinct, clear, and 

explict, "Ortiz-Mondragon's trial attorney was required to do no 

more than advise him that his plea 'may carry a risk of adverse 

immigration consequences.'" Padilla, 559 U.S. at 369. The 

State contends that "[t]he court should also uphold the circuit 

court's finding that Ortiz-Mondragon did, in fact, receive such 

a warning." The State does not separately address OrtizMondragon's argument that his attorney failed to adequately 

research his immigration status or the immigration consequences 

of the plea agreement. 

¶56 We will first determine whether Ortiz-Mondragon's 

trial counsel, Attorney Singh, performed deficiently by giving 

incorrect advice. We will next determine whether Attorney Singh 

performed deficiently by failing to adequately research the 

immigration consequences of the plea agreement. 

¶57 The record in the circuit court demonstrates that 

Ortiz-Mondragon knowingly, intelligently, and voluntarily made 

no-contest pleas to the subject charges. The record further 

demonstrates that he knew he faced a risk of deportation and 

exclusion if he entered a no-contest plea to substantial 

battery. Not only does the record reveal that there were 

serious known concerns regarding an ongoing Immigration and 

Customs Enforcement hold, but despite that, Ortiz-Mondragon 

discussed this case with counsel, accepted the State's plea 

bargain, signed a plea questionnaire, and knowingly, 

intelligently, and voluntarily pled in the circuit court. 
No. 2013AP2435-CR 

34 

Specifically, his counsel, Attorney Singh, had "presented" the 

State's plea offer to him, "given him paperwork to use to study 

it, [and] given him information to use in counseling . . . ." 

Attorney Singh and the plea questionnaire both informed OrtizMondragon that the "plea could result in deportation, the 

exclusion of admission to this country, or the denial of 

naturalization under federal law." The circuit court advised 

Ortiz-Mondragon: "If you're not a citizen of the United States, 

the plea you offer me could result in your deportation, the 

exclusion of admission, or the denial of naturalization under 

federal law." Ortiz-Mondragon's girlfriend stated that he and 

she were trying to keep their family together "in the states, 

but if he ends up with a felony charge, that's not going to 

happen." Ortiz-Mondragon himself stated that he carefully read 

the plea questionnaire and discussed it with his attorney before 

he signed it. Ortiz-Mondragon also stated that he understood 

the circuit court's immigration warning and wished to enter his 

no-contest pleas. All of these factors militate against the 

arguments that Ortiz-Mondragon makes today. 

¶58 Moreover, when Ortiz-Mondragon filed a motion to 

withdraw his plea and request a Machner hearing, the circuit 

court correctly concluded that his motion did not warrant a 

hearing. While it is a defendant's burden to demonstrate that 

he is entitled to a Machner hearing by alleging sufficient facts 

to raise a question of fact, the circuit court correctly 

concluded that Ortiz-Mondragon's proffer was insufficient to 

warrant a Machner hearing. In fact, the circuit court concluded 
No. 2013AP2435-CR 

35 

that, "[u]nder the circumstances, [Ortiz-Mondragon] has not 

stated sufficient facts which entitle him to a hearing on his 

postconviction motion. The facts, as alleged, demonstrate that 

[Ortiz-Mondragon's] counsel did not perform deficiently by 

providing [Ortiz-Mondragon] with equivocal, rather than 

unequivocal, advice regarding the immigration-related 

consequences of his plea." It is well-established that a 

"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)). 

¶59 In its order denying Ortiz-Mondragon's request for a 

Machner hearing and his motion to withdraw his plea, the circuit 

court found that "the record affirmatively establishes that 

trial counsel did so advise him" that "'pending criminal charges 

may carry a risk of adverse immigration consequences.'" This 

finding is not clearly erroneous.18 The court noted that Ortiz-

 

18 "Facts which are stated in a trial court's memorandum 

decision will be accorded the same weight as if they had been 

contained in formal findings." Lambert v. Wrensch, 135 

Wis. 2d 105, 114-15, 399 N.W.2d 369 (1987) (citing Hochguertel 

v. San Felippo, 78 Wis. 2d 70, 86, 253 N.W.2d 526 (1977)). 
No. 2013AP2435-CR 

36 

Mondragon conceded "that he was given equivocal immigration 

warnings by both the Court, as required by [Wis. Stat. 

§] 971.08, and the Plea Questionnaire/Waiver of Rights form." 

The circuit court also noted that, at the plea and sentencing 

hearing, "[Ortiz-Mondragon] confirmed with the [c]ourt that he 

read [the plea questionnaire] over carefully before signing it 

and had the opportunity to fully discuss it with his attorney." 

The circuit court further noted that Attorney Singh signed the 

plea questionnaire, thereby affirming that he discussed it with 

Ortiz-Mondragon and that he believed Ortiz-Mondragon understood 

it and the plea agreement. 

¶60 The immigration advice that Ortiz-Mondragon received 

stands in stark contrast to the incorrect immigration advice 

that was given in Padilla. In contrast to the present case, the 

immigration law in Padilla was "succinct, clear, and explicit" 

in providing that Padilla's conviction made him "eligible for 

deportation." Padilla, 559 U.S. at 368. Thus, Padilla's 

attorney was required to do more than advise him that his 

conviction may carry a risk of adverse immigration consequences. 

Id. at 369. But "Padilla's counsel provided him false assurance 

that his conviction would not result in his removal from this 

country." Id. at 368. That "advice was incorrect." Id. at 

369. By contrast, the advice that Ortiz-Mondragon received was 

correct. 

¶61 In fact, had Attorney Singh given the immigration 

advice that Ortiz-Mondragon argues he should have given, he may 

well have given incorrect advice. Because federal immigration 
No. 2013AP2435-CR 

37 

law does not succinctly, clearly, and explicitly provide that 

Ortiz-Mondragon's substantial battery was a crime involving 

moral turpitude, it may well have been inaccurate for Attorney 

Singh to unequivocally tell Ortiz-Mondragon that the immigration 

authorities would determine that his substantial battery was a 

crime involving moral turpitude. Accordingly, it also may well 

have been inaccurate for Attorney Singh to unequivocally tell 

Ortiz-Mondragon that he would be deportable and inadmissible to 

the United States on grounds of moral turpitude if convicted of 

substantial battery. 

¶62 We note that incorrect advice that a plea will result 

in deportation or exclusion, like incorrect advice that a plea 

will not result in deportation or exclusion, could impact an 

alien defendant's decisionmaking. The former kind of 

misinformation might encourage a defendant to reject a 

beneficial plea offer and thereby subject him or herself to 

significantly more exposure. The latter kind of misinformation 

could cause a defendant to be surprised with the actual 

immigration consequences. Counsel should give accurate advice. 

Counsel should avoid overstating or understating the possible 

immigration consequences of a conviction. Ortiz-Mondragon's 

position, if adopted, would require more of an attorney than is 

required under Padilla because it is not succinct, clear, and 

explicit that Ortiz-Mondragon's substantial battery is a crime 

involving moral turpitude.19 

 

19 Case law demonstrates that even if immigration 

(continued) 
No. 2013AP2435-CR 

38 

¶63 In sum, we conclude that Ortiz-Mondragon's trial 

counsel did not perform deficiently by advising him that the 

plea agreement "could result in deportation, the exclusion of 

admission to this country, or the denial of naturalization under 

federal law." That warning was correct and adequate under 

Padilla because it informed Ortiz-Mondragon that a conviction 

may carry a risk of adverse immigration consequences. 

¶64 We turn briefly to Ortiz-Mondragon's argument that his 

attorney performed deficiently by failing to perform an adequate 

amount of research. Contrary to Ortiz-Mondragon's assertion, 

the record contains evidence that Attorney Singh researched 

Ortiz-Mondragon's immigration status and relevant immigration 

law. For example, at the plea and sentencing hearing, the 

circuit court asked Ortiz-Mondragon's attorney, Attorney Singh, 

whether Ortiz-Mondragon had an Immigration and Customs 

Enforcement hold. Attorney Singh stated that "I think there is, 

but the information I get is secondhand," indicating that 

Attorney Singh had conducted some research into the matter. 

Further, at the plea and sentencing hearing, Attorney Singh 

informed the court that he had "presented" the State's plea 

 

proceedings were commenced against Ortiz-Mondragon for the 

substantial battery being a crime involving moral turpitude, 

whether his substantial battery would qualify as a deportable 

offense could be, and likely would be, contested in those 

proceedings. See Abdelqadar v. Gonzales, 413 F.3d 668, 673-74 

(7th Cir. 2005) (holding that an alien was not deportable under 

8 U.S.C. § 1227(a)(2)(A)(i) because his crime involving moral 

turpitude occurred more than five years after he initially 

entered the United States). 
No. 2013AP2435-CR 

39 

offer to Ortiz-Mondragon, "given him paperwork to use to study 

it, [and] given him information to use in counseling . . . ." 

Immediately thereafter, Attorney Singh handed a signed plea 

questionnaire and waiver of rights form, along with "some other 

papers," to the court. 

¶65 Because the record provides evidence that OrtizMondragon's attorney did some level of research regarding the 

immigration consequences of the plea agreement, we turn now to 

Ortiz-Mondragon's argument that his attorney was deficient for 

failing to perform additional research. Ortiz-Mondragon argues 

that additional research would have revealed that his 

substantial battery is a crime involving moral turpitude. OrtizMondragon relies on Commonwealth v. Balthazar, 16 N.E.3d 1143 

(Mass. App. Ct. 2014), and Montes-Flores v. United States, No. 

2:11-CR-032-JMS-CMM, 2013 WL 428024 (S.D. Ind. Feb. 4, 2013). 

¶66 In Balthazar the defendant moved to withdraw his 

guilty pleas to larceny and malicious destruction of property 

after the Immigration and Naturalization Service began 

deportation proceedings against him as a result of the 

convictions. Commonwealth v. Balthazar, 16 N.E.3d 1143, 1145 & 

n.3 (Mass. App. Ct. 2014). He alleged that he received 

ineffective assistance of counsel when his attorney told him 

that he would not be deported because the charges had been 

reduced to misdemeanors. Id. at 1145, 1147. The Massachusetts 

Appeals Court held that, "[a]s legal research would have 

indicated that the crimes were ones involving moral turpitude, 

we must conclude . . . that counsel's failure to inform the 
No. 2013AP2435-CR 

40 

defendant that pleading guilty to the charges would subject him 

to presumptively mandatory deportation fell below an objective 

standard of reasonableness." Id. at 1147-48. 

¶67 In Montes-Flores the defendant pled guilty to making a 

material false statement in violation of 18 U.S.C. § 1001(a)(2). 

Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 

428024, at *1-2 (S.D. Ind. Feb. 4, 2013). Prior to the plea, 

her attorney "'told her that it was possible that she could face 

deportation but that it will be up to the immigration judge to 

decide.'" Id. at *3. The federal district court granted the 

defendant's post-sentencing motion to withdraw her plea on 

grounds of ineffective assistance of counsel. Id. at *2, *4-5. 

The court held that the attorney's immigration advice was 

deficient because, "[w]hile crimes of 'moral turpitude' are not 

specifically defined in the statute, the Seventh Circuit has 

repeatedly held that '[t]here can be no question that a 

violation of [18 U.S.C. §] 1001 is a crime involving moral 

turpitude.'" Id. at *4 (emphases added) (internal citation 

omitted) (quoting Ghani v. Holder, 557 F.3d 836, 840 (7th Cir. 

2009)) (citing Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir. 

2010)). Thus, "counsel's failure to inform Montes–Flores that a 

conviction under § 1001 would result in presumptively mandatory 

deportation was objectively unreasonable." Id. at *5. The 

court further held that the deficient performance prejudiced the 

defendant. Id. at *6. 

¶68 Balthazar and Montes-Flores are distinguishable. 

Unlike in those cases, additional research in the present case 
No. 2013AP2435-CR 

41 

would not have revealed that the crime at issue clearly 

qualified as a crime involving moral turpitude. Thus, even had 

Attorney Singh performed additional research, his immigration 

advice would not have changed. As we explained earlier, federal 

immigration law does not succinctly, clearly, and explicitly 

provide that Ortiz-Mondragon's substantial battery is 

necessarily a crime involving moral turpitude. This lack of 

clarity presents a far different situation than that in 

Balthazar and Montes-Flores. Unlike the defendant in MontesFlores, Ortiz-Mondragon has not shown that the Seventh Circuit 

has "repeatedly held" that there can be "no question" that his 

conviction was for a crime involving moral turpitude.20 See 

 

20 Although not cited by Ortiz-Mondragon, we recognize that 

in some Seventh Circuit deportation cases the defendant conceded 

that his domestic battery qualified as a crime involving moral 

turpitude. See Coyomani-Cielo v. Holder, 758 F.3d 908, 910-11 

(7th Cir. 2014) (noting that, after an immigration judge 

determined that the defendant was removable because his domestic 

battery "qualifies as a [crime involving moral turpitude]" and 

"'an aggravated felony,'" the defendant argued that "he is 

subject [to removal] only" for committing a crime involving 

moral turpitude but that "he might be eligible for cancellation 

of removal"); Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir. 

2011) (noting that the defendant "denied that he committed an 

aggravated felony or a crime of domestic violence, but conceded 

that he was removable as an alien convicted of two crimes 

involving moral turpitude"); Benaouicha v. Holder, 600 F.3d 795, 

798 (7th Cir. 2010) (noting that the defendant "conceded that he 

is deportable under [8 U.S.C. §] 1227(a)(2)(A)(i) for having 

been convicted of a crime of moral turpitude"). The Seventh 

Circuit in those cases did not hold that the domestic battery 

crimes at issue qualified as crimes involving moral turpitude. 

Further, the defendants in those cases were convicted for 

domestic battery under Illinois and Indiana statutes, not Wis. 

Stat. § 940.19(2). Thus, those cases do not succinctly, clearly, 

and explicitly demonstrate that Ortiz-Mondragon's substantial 

(continued) 
No. 2013AP2435-CR 

42 

Montes-Flores, 2013 WL 428024, at *4. Although the circuit 

court did not make specific findings with respect to what 

research Attorney Singh performed and which paperwork he 

provided to the court and Ortiz-Mondragon, we can infer that the 

circuit court implicitly found that Attorney Singh performed an 

adequate amount of research. See State v. Hubanks, 173 

Wis. 2d 1, 27, 496 N.W.2d 96 (Ct. App. 1992) (citation omitted) 

("The [circuit] court found that Hubanks had not been denied 

effective assistance of counsel. Although the [circuit] court 

did not make specific findings of fact, we may assume on appeal 

that such findings of fact were made implicitly in favor of its 

decision."). Accordingly, unlike defense counsel in Balthazar 

and Montes-Flores, Attorney Singh was not deficient for failing 

to perform additional legal research, which would not have 

changed his immigration advice. 

¶69 We conclude that the immigration advice that Attorney 

Singh provided to Ortiz-Mondragon was sufficient under Padilla. 

Because the law is not "succinct, clear, and explicit" with 

respect to whether Ortiz-Mondragon's substantial battery was a 

crime involving moral turpitude, his trial counsel "need[ed] 

[to] do no more than advise [him] that pending criminal charges 

may carry a risk of adverse immigration consequences." See 

Padilla, 559 U.S. at 369 (emphases added). Counsel met that 

requirement by advising Ortiz-Mondragon that the "plea could 

 

battery under § 940.19(2) was a crime involving moral turpitude. 

See supra ¶48. 
No. 2013AP2435-CR 

43 

result in deportation, the exclusion of admission to this 

country, or the denial of naturalization under federal law." 

See Garcia, 425 S.W.3d at 260-61 (holding that, because the 

defendant's crimes did not clearly qualify as crimes involving 

moral turpitude, counsel gave adequate advice by stating that 

the guilty pleas "might or might not have an adverse affect on 

his ability to return legally to the United States"); LopezPenaloza, 804 N.W.2d at 546 (holding that, because the 

defendant's crime did not clearly qualify as a crime involving 

moral turpitude, counsel gave adequate advice by stating "'that 

a criminal conviction, deferred judgment, or deferred sentence 

may affect [her] status under federal immigration laws'"). 

IV. CONCLUSION 

¶70 We conclude that Ortiz-Mondragon is not entitled to 

withdraw his no-contest plea to substantial battery because he 

did not receive ineffective assistance of counsel. 

Specifically, his trial counsel did not perform deficiently. 

Because federal immigration law is not "succinct, clear, and 

explicit" in providing that Ortiz-Mondragon's substantial 

battery constituted a crime involving moral turpitude, his 

attorney "need[ed] [to] do no more than advise [him] that 

pending criminal charges may carry a risk of adverse immigration 

consequences." See Padilla, 559 U.S. at 369. Ortiz-Mondragon's 

trial attorney satisfied that requirement by conveying the 

information contained in the plea questionnaire and waiver of 

rights form——namely, that Ortiz-Mondragon's "plea could result 

in deportation, the exclusion of admission to this country, or 
No. 2013AP2435-CR 

44 

the denial of naturalization under federal law." Counsel's 

advice was correct, not deficient, and was consistent with Wis. 

Stat. § 971.08(1)(c). In addition, Ortiz-Mondragon's trial 

attorney did not perform deficiently by failing to further 

research the immigration consequences of the plea agreement. 

Because Ortiz-Mondragon failed to prove deficient performance, 

we do not consider the issue of prejudice. 

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

affirmed. 
No. 2013AP2435-CR.awb 

1 

¶71 ANN WALSH BRADLEY, J. (dissenting). This case 

represents yet another example of the intersection of state 

criminal law with the federal immigration law. It likewise 

offers another example of why the mantra of the bar and bench 

alike should be: read the relevant statute. 

¶72 Had the attorney merely read the governing statute, he 

would have discovered that the crime to which Ortiz-Mondragon 

pled made him deportable. Aside from the subsection on crimes 

involving moral turpitude (CIMTs), the statute has another 

subsection clearly rendering noncitizens deportable for a 

conviction of domestic violence. 8 U.S.C § 1227(a)(2)(E)(i). 

¶73 Because the consequence of a conviction is clear, the 

duty to give accurate immigration advice is likewise clear. 

Padilla v. Kentucky, 559 U.S. 356, 368 (2010) ("when the 

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

correct advice is equally clear."). 

¶74 Nevertheless, the majority essentially ignores the 

relevant domestic abuse subsection of the statute and the 

attorney's apparent failure to read it, and engages in a lengthy 

discussion of CIMTs. Rather than focusing on whether the 

specific crime at issue qualifies as a CIMT under the 

controlling federal precedent, it focuses instead on whether 

there is a clear definition of "crime of moral turpitude" and a 

consistent application of the concept across the federal 

judicial circuits. 
No. 2013AP2435-CR.awb 

2 

¶75 Because the circuit court denied Ortiz-Mondragon's 

motion for postconviction relief without a hearing, it is hard 

to know the extent of the information the attorney provided and 

his basis for it. The record is wholly insufficient to 

determine the merits of the claim. The majority, however, 

purports to perform this task, concluding that Ortiz-Mondragon's 

claim must fail. 

¶76 Padilla's requirement that attorneys inform their 

clients of the immigration consequences of entering a plea was 

not a mere suggestion. It set the standard for attorney 

performance under the Sixth Amendment. Unlike the majority, I 

conclude that Ortiz-Mondragon's claim of a Padilla violation 

cannot be so quickly brushed aside. 

¶77 Because the consequence of deportation is clear under 

the subsection on domestic abuse (8 U.S.C. § 1227(a)(2)(E)(i)), 

the duty under the Sixth Amendment to give correct advice is 

likewise clear. Given that no hearing was held, it is 

impossible to know the nature and extent of the advice given to 

the defendant. Without a developed record, it is also 

impossible to determine whether there was a violation of the 

defendant's Sixth Amendment right to effective assistance of 

counsel. Accordingly, I would remand to the circuit court for a 

Machner hearing.1 

 

1 In State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 

(Ct. App. 1979), the court of appeals determined that when a 

defendant raises an ineffective assistance of counsel claim a 

hearing is necessary to obtain trial counsel's testimony. These 

hearings have become known as "Machner hearings." 
No. 2013AP2435-CR.awb 

3 

I 

¶78 The majority ignores that had defense counsel done the 

bare minimum amount of research and merely read the governing 

statute, he would have discovered that the crime to which OrtizMondragon pled made him deportable. Aside from the subsection 

on CIMTs, the statute has another subsection clearly rendering 

noncitizens deportable for a conviction of domestic violence: 8 

U.S.C. § 1227(a)(2)(E)(i). 

¶79 In language that is clear and succinct, that 

subsection provides that any noncitizen who at any time after 

admission is convicted of a crime of domestic violence is 

deportable: 

Any alien who at any time after admission is convicted 

of a crime of domestic violence, a crime of stalking, 

or a crime of child abuse, child neglect, or child 

abandonment is deportable. 

8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added). 

¶80 The subsection further details what qualifies as a 

crime of domestic violence: 

For purposes of this clause, the term "crime of 

domestic violence" means any crime of violence (as 

defined in section 16 of Title 18) against a person

committed by a current or former spouse of the person, 

by an individual with whom the person shares a child 

in common, by an individual who is cohabiting with or 

has cohabited with the person as a spouse, by an 

individual similarly situated to a spouse of the 

person under the domestic or family violence laws of 

the jurisdiction where the offense occurs, or by any 

other individual against a person who is protected 

from that individual's acts under the domestic or 

family violence laws of the United States or any 
No. 2013AP2435-CR.awb 

4 

State, Indian tribal government, or unit of local 

government. 

8 U.S.C. § 1227(a)(2)(E)(i).2 

¶81 If there is any doubt about the plain meaning of the 

subsection of the statute, it is put to rest by a recent 

decision by the United States Supreme Court. In Mellouli v. 

Lynch, 135 S. Ct. 1980, 1990 n.11 (June 1, 2015), the Court 

described the subsection as "specif[ying] the conduct that 

subjects an alien to removal." See also id. at 1992 (Thomas, J. 

dissenting) (describing § 1227(a)(2)(E)(i) as "making removable 

'[a]ny alien who . . . is convicted of a crime of domestic 

violence,' where 'the term "crime of domestic violence" means 

any crime of violence . . . committed by' a person with a 

specified family relationship with the victim"). 

¶82 This is in accord with prior circuit court decisions. 

See, e.g., Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015) 

(noncitizen rendered removable due to his domestic violence 

conviction); Florez v. Holder, 779 F.3d 207, 209 (2d Cir. 2015) 

("8 U.S.C. § 1227(a)(2)(E)(i), [] makes any alien removable if, 

 

2 Section 16 of title 18 defines "crime of violence" as: 

(a) an offense that has as an element the use, 

attempted use, or threatened use of physical 

force against the person or property of another, 

or 

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that 

physical force against the person or property of 

another may be used in the course of committing 

the offense. 

18 U.S.C. § 16. 
No. 2013AP2435-CR.awb 

5 

'at any time after admission,' the alien 'is convicted of a 

crime of domestic violence, a crime of stalking, or a crime of 

child abuse, child neglect, or child abandonment.'"); GonzalezGonzalez v. Ashcroft, 390 F.3d 649, 650 (9th Cir. 2004) ("§ 1227 

is titled 'Deportable aliens' and 'Domestic Violence' is listed 

as an offense under § 1227(a)(2), which lists criminal grounds 

of deportation."); Csekinek v. INS, 391 F.3d 819, 826-827 (6th 

Cir. 2004) (observing that 8 U.S.C. § 1227(a)(2)(E)(i) "renders 

deportable any alien convicted of a domestic violence offense 

after entry into the United States.").3 

¶83 Like a conviction for a CIMT, a domestic violence 

conviction renders noncitizens ineligible for relief under 8 

U.S.C. § 1229b(b). In relevant part, it provides that "The 

Attorney General may cancel removal of, and adjust to the status 

of an alien lawfully admitted for permanent residence, an alien 

who is inadmissible or deportable from the United States if the 

alien—— . . . has not been convicted of an offense under section 

1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title." 8 U.S.C. 

§ 1229b(b)(1). Both CIMTs and crimes of domestic violence are 

listed in 8 U.S.C. § 1227(a)(2). 

 

3 Notably, although deportation for CIMTs is limited to 

CIMTs "committed within five years (or 10 years in the case of 

an alien provided lawful permanent resident status under section 

1255(j)) after the date of admission," 8 U.S.C. 

§ 1227(a)(2)(A)(i)(I), a conviction for a crime of domestic 

violence is not so limited. 8 U.S.C. § 1227(a)(2)(E)(i) states 

that a crime of domestic violence occurring at "any time after 

admission" will render a noncitizen deportable. 
No. 2013AP2435-CR.awb 

6 

¶84 Fundamental to the practice of law is being familiar 

with the relevant statutes. Failure to do so constitutes a 

quintessential example of deficient performance. See Hinton v. 

Alabama, 134 S. Ct. 1081, 1089 (2014) ("[a]n 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."). 

¶85 Reading the governing statutes is required by the 

prevailing professional norms which, under Strickland, set the 

standards for deficient performance. Strickland v. Washington, 

466 U.S. 668, 688 (1984) ("[t]he proper measure of attorney 

performance remains simply reasonableness under prevailing 

professional norms."). For example, Standard 4-6.3(d) of the ABA 

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." 

¶86 Likewise, Standard 14-3.2 of the ABA 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 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 
No. 2013AP2435-CR.awb 

7 

guilty pleas, and should keep this in mind in investigating law 

and fact and advising the client." Id. at 127. 

¶87 Here, had defense counsel read the governing statute 

he would have been able to provide Ortiz-Mondragon with more 

than a general warning.4 Nevertheless, the majority attempts to 

circumvent this problem by simply dismissing the domestic abuse 

subsection in a footnote. It ignores not only the clear 

language of the subsection but also Padilla's clear directive: 

attorneys must "provide [their] client[s] with available 

advice . . . ." Padilla, 559 U.S. at 371. 

II 

¶88 Rather than discussing the plain language of the 

domestic abuse subsection or focusing on whether the crime at 

issue renders Ortiz-Mondragon deportable, the majority takes a 

different approach. It discusses the lack of definition of 

CIMTs in the immigration statute, that other courts have deemed 

the term "crime involving moral turpitude" ambiguous, and that 

 

4 The majority's determination that defense counsel did 

adequate research is highly speculative. It refers to defense 

counsel's statement that "the information I get is secondhand," 

his statement that he had given Ortiz-Mondragon "paperwork," and 

that he handed the signed plea questionnaire and waiver of 

rights form, along with "some other papers," to the court. The 

majority contends that these facts are evidence that he did 

"some level of research." Majority op., ¶64. It then "infer[s] 

that the circuit court implicitly found that [defense counsel] 

performed an adequate amount of research." Id., ¶68. The 

flimsy details that the majority points to say nothing about 

what that research was or what the attorney knew. Without a 

Machner hearing, this information is unknowable. 
No. 2013AP2435-CR.awb 

8 

different circuits have different tests for determining whether 

a crime is a CIMT. Majority op., ¶¶37, 39, 41. Accordingly, 

the majority concludes that the immigration consequences were 

unclear and that defense counsel's performance was not deficient 

because he needed to do no more than tell Ortiz-Mondragon that a 

conviction may have negative immigration consequences. 

¶89 The majority ignores, however, that this case did not 

require defense counsel to determine the definition of a CIMT. 

Rather he needed to determine only if the crime Ortiz-Mondragon 

faced, substantial battery with a domestic abuse enhancer, 

qualified as a CIMT. Further, defense counsel was not required 

to determine what other federal circuits would have done. 

Rather, he should have looked at the law in the Seventh Circuit, 

which governs Ortiz-Mondragon's case. 

¶90 Review of removal proceedings conducted in this

federal judicial circuit is performed by the Seventh Circuit 

Court of Appeals and therefore its precedent governs those 

cases. See 8 U.S.C. § 1252(b)(2) ("The petition for review 

shall be filed with the court of appeals for the judicial 

circuit in which the immigration judge completed the 

proceedings."). 

¶91 Immigration removal proceedings for Wisconsin 

residents, such as Ortiz-Mondragon, are conducted in Chicago. 

See Executive Office for Immigration Review, Department of 

Justice, "EOIR Immigration Court Listing" (2015), available at 

www.justice.gov/eoir/immigration-court-administrative-control-
No. 2013AP2435-CR.awb 

9 

list#Chicago.5 Thus, upon completion of his sentence OrtizMondragon's removal proceeding would have occurred in Chicago 

and Seventh Circuit Court of Appeals precedent would govern. 

¶92 A basic search of Seventh Circuit cases provides a 

clear answer to whether domestic battery qualifies as a CIMT. 

The answer is "yes." In Coyomani-Cielo v. Holder, the Seventh 

Circuit plainly stated that "[defendant] was convicted of 

domestic battery, which qualifies as a CIMT . . . ." 758 F.3d 

908, 910 (7th Cir. 2014). 

¶93 The majority attempts to explain away this clear 

statement by inaccurately asserting that it was presented as a 

concession by the defendant. Majority op., ¶68 n.20. It was 

neither a concession nor even a debatable point. Rather, the 

court made this statement as a clear statement of fact in its 

description of the background of the case. 

¶94 Admittedly, Coyomani-Cielo considered a conviction 

under Illinois law. Accordingly, to determine whether OrtizMondragon's conviction would be a CIMT, one must take the 

additional step of comparing the Illinois statute at issue in 

that case, 720 ILCS 5/12-3.2, with the Wisconsin statutes at 

issue, Wis. Stat. §§ 940.19(2), 968.075. 

¶95 Under the Illinois statute, domestic battery is

committed by: "knowingly without legal justification by any 

means: (1) Caus[ing] bodily harm to any family or household 

 

5 The DOJ list of immigration courts and their assigned 

geographic responsibilities is published pursuant to 8 C.F.R. 

§ 1003.11. 
No. 2013AP2435-CR.awb 

10 

member; (2) Mak[ing] physical contact of an insulting or 

provoking nature with any family or household member."6 Under 

the Wisconsin statute, Ortiz-Mondragon was convicted of 

"caus[ing] substantial bodily harm to another by an act done 

with intent to cause bodily harm to that person or another." 

Wis. Stat. § 940.19(2). The domestic abuse enhancer means that 

the individual Ortiz-Mondragon inflicted harm on was "his or her 

spouse or former spouse, . . . an adult with whom [he] resides 

or formerly resided or . . . an adult with whom the person has 

a child in common." Wis. Stat. § 968.075. 

¶96 The statutes reveal that a Wisconsin conviction for 

substantial battery with a domestic abuse enhancer necessarily 

would qualify as domestic battery under Illinois law. Thus, the 

crime for which Ortiz-Mondragon was convicted should likewise be 

deemed a CIMT. 

¶97 Other Seventh Circuit precedent is in accord. In 

Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008), the court 

 

6 Illinois defines "family or household member" as 

including: 

spouses, former spouses, parents, children, 

stepchildren, and other persons related by blood or by 

present or prior marriage, persons who share or 

formerly shared a common dwelling, persons who have or 

allegedly have a child in common, persons who share or 

allegedly share a blood relationship through a child, 

persons who have or have had a dating or engagement

relationship, persons with disabilities and their 

personal assistants, and caregivers as defined in 

Section 12-4.4a of this Code. 

720 ILCS 5/12-0.1 
No. 2013AP2435-CR.awb 

11 

considered whether aggravated battery of a police officer 

qualified as a CIMT. The court observed that "crimes involving 

moral turpitude are usually serious crimes (in terms of the 

magnitude of the loss they cause or the indignation in the 

public they arouse) that are committed deliberately." Id. at 

536. It commented that precedent has "emphasized the bodily 

harm requirement in concluding that the assault crime was 

serious enough to be turpitudinous." Id. at 537. It then 

referred to precedent determining that "moral turpitude 

necessarily inheres in assault and battery offenses that are 

defined by reference to the infliction of bodily harm upon a 

person whom society views as deserving of special protection, 

such as a child, a domestic partner, or a peace officer." In re 

Sanudo, 23 I.& N. Dec. 968, 971-72 (B.I.A. 2006). 

¶98 Ultimately, the Seventh Circuit determined that

battery of a police officer did not necessarily constitute a 

CIMT because the Illinois statute at issue did not include 

bodily harm as an element. Garcia-Meza, 516 F.3d at 538. 

Garcia-Meza is instructive. Its analysis reveals that a crime 

qualifies as a CIMT when it includes as an element bodily harm 

to a person who society recognizes as deserving of special 

protection, such as a domestic partner. See also Castellanos v. 

Holder, 652 F.3d 762, 764 (7th Cir. 2011) (defendant conceded 

his domestic battery conviction constituted a CIMT); Benaouicha 

v. Holder, 600 F.3d 795, 797 (7th Cir. 2010) (noting defendant's 

concession that his conviction for the battery of his wife 
No. 2013AP2435-CR.awb 

12 

constituted a conviction for a CIMT).7 Ortiz-Mondragon's 

conviction for substantial battery with a domestic abuse 

enhancer meets these criteria. 

¶99 Even if defense counsel had been unable to find and 

analyze the governing precedent, he could have determined that 

substantial battery with a domestic abuse enhancer qualified as 

a CIMT by consulting legal practice guides. Padilla instructs 

attorneys to consult guidebooks to educate themselves about the 

relevant immigration law: "we expected that counsel who were 

unaware of the discretionary relief measures would 'follo[w] the 

advice of numerous practice guides.'" 559 U.S. at 368. 

¶100 Practice guides indicate that substantial battery with 

a domestic abuse enhancer qualifies as a CIMT. For example, 

 

7 Although they are not binding, it is notable that other 

jurisdictions have determined that crimes comparable to 

substantial battery with a domestic abuse enhancer constitute 

CIMTs. See, e.g., Medina v. United States, 259 F.3d 220, 228 

(4th Cir. 2001) ("we find it significant that Medina's crime was 

carried out against his former fiancée, Maria Bracho. The INS——

which is statutorily authorized to administer the immigration 

laws and determine what constitutes a CIMT——has, in the past 

several years, taken steps to assert that crimes of assault upon 

victims that have a 'special relationship' with the assaulter 

may be a CIMT."); Toutounjian v. INS, 959 F. Supp. 598, 603 

(W.D.N.Y. 1997) ("Sexual or physical abuse of women or children 

has been almost uniformly found to involve a crime of moral 

turpitude."); In re Tran, 21 I. & N. Dec. 291, 292-93 (BIA 1996) 

(concluding that acts of violence against someone in a special 

relationship with the assaulter is "different from [assault] 

between strangers or acquaintances," and is a CIMT). The one 

case the majority cites as stating to the contrary, MoralesGarcia v. Holder, 567 F.3d 1058 (9th Cir. 2009), has not been 

followed outside of the Ninth Circuit. 
No. 2013AP2435-CR.awb 

13 

Maria Baldini-Porterman's comprehensive guide on immigration 

consequences conveys the same information as Garcia-Meza: 

Where the elements of a domestic battery offense do

not require either actual infliction of serious harm 

or specific intent and physical injury to the victim, 

the offense is not categorically a crime involving 

moral turpitude. The willful infliction of corporal 

injury on a spouse, cohabitant, or parent of the 

offender's child in violation of California Penal Code 

§ 273.5(a) has been found to be a crime involving 

moral turpitude. 

Maria Baldini-Porterman, Defending Non-Citizens in Illinois, 

Indiana and Wisconsin (Heartland Alliance's National Immigrant 

Justice Center 2009). 

¶101 Likewise, another practice guide states: "moral 

turpitude has been found where the assault and battery offenses 

are defined by reference to the infliction of bodily harm on 

someone whom society views as deserving of special protection 

(such as a child or spouse)." Austin T. Fragomen, Jr. and 

Steven C. Bell, Immigration Fundamentals: A Guide to Law and 

Practice, § 7:2.2 at 7-32 (4th ed. 2014). 

¶102 The "Immigration Consequences Crimes Summary 

Checklist," published by the Immigrant Defense Project (2010), 

provides even clearer guidance. Its list of CIMTs includes 

"[c]rimes in which bodily harm is caused or threatened by an 

intentional act . . . ." Ortiz-Mondragon's conviction for 

substantial battery with a domestic abuse enhancer 

unquestionably meets these requirements. As noted above, 

substantial battery is defined as "caus[ing] substantial bodily 

harm to another by an act done with intent to cause bodily harm 

to that person or another." Wis. Stat. § 940.19(2). 
No. 2013AP2435-CR.awb 

14 

¶103 By focusing on the difficulty of defining "crimes of 

moral turpitude" and the different approaches the circuit courts 

take in determining whether a crime is a CIMT, the majority 

hides the fact that a conviction for substantial battery with a 

domestic abuse enhancer qualifies as a CIMT in the Seventh 

Circuit. Whether by reading the plain language of the domestic 

abuse subsection of the statute or by following clear Seventh 

Circuit precedent, defense counsel should have discovered the 

immigration consequences of Ortiz-Mondragon's plea. It was 

clear the plea would render him deportable. Thus, "the duty to 

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

368. Defense counsel was obligated to provide the advice that 

was available. Id., 371. 

¶104 As explained above, the United States Supreme Court 

has instructed, "[t]he proper measure of attorney performance 

remains simply reasonableness under prevailing professional 

norms." Strickland, 466 U.S. at 688. In criminal 

representation, this "entails certain basic duties," including 

the "duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations 

unnecessary." Id. at 688, 691. "[A]n 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). 

¶105 The majority conducts no inquiry into whether defense 

counsel's research was reasonable under professional norms, or 
No. 2013AP2435-CR.awb 

15 

whether defense counsel was ignorant on a fundamental point of 

law (i.e. the immigration consequences of a plea), nor could it. 

Without a Machner hearing the record is silent in this respect. 

Just as the record fails to show what warnings defense counsel 

provided, it also fails to show that he did adequate research 

into the immigration issue. 

III 

¶106 In contrast to the majority, I would remand this case 

for a Machner hearing. Such hearings are required unless the 

motion claiming ineffectiveness "presents only conclusory 

allegations," "fails to allege sufficient facts to raise a 

question of fact," or "if the record conclusively demonstrates 

that the defendant is not entitled to relief." Roberson, 292 

Wis. 2d 280, ¶43. 

¶107 Ortiz-Mondragon's motion is quite detailed and alleges 

sufficient facts which, if true, show that he is entitled to 

relief. It details that his plea rendered him ineligible for 

cancellation of his removal: 

Mr. Ortiz-Mondragon pleaded no contest to substantial 

battery, domestic abuse, contrary to Wis. Stat. 

§ 940.19(2). This is a crime involving moral 

turpitude. The maximum sentence for this offense is 

3.5 years of imprisonment. Because the maximum period 

of confinement exceeds one year, Mr. Ortiz-Mondragon's 

conviction rendered him ineligible for cancellation of 

removal. 

It also explains that the plea prevents Ortiz-Mondragon from 

returning to the United States: 

[B]ecause of his convictions, Mr. Ortiz-Mondragon is 

permanently excluded from legally re-entering the 

United States. An individual applying for admission 
No. 2013AP2435-CR.awb 

16 

to the United States cannot have been convicted for a 

crime involving moral turpitude. INA 

§212(a)(2)(A)(i)(I). The only exception is when the 

conviction involves a crime for which the maximum 

punishment is less than one year, and the actual 

sentence of the court does not exceed six months. 

¶108 Further, the motion alleges that defense counsel was 

deficient for failing to advise him of these consequences: 

"[Ortiz-Mondragon] was not properly advised of the adverse 

immigration consequences of his plea." It explains what his 

attorney should have told him: "counsel's advice to Mr. OrtizMondragon should have been that accepting a plea agreement in 

which he would plead guilty or no contest to substantial 

battery-domestic abuse would result in automatic removal and 

permanent exclusion from the United States." It then claims 

that his attorney failed to provide this advice: "trial counsel 

failed to advise him of adverse immigration consequences of his 

plea, specifically that the convictions mandated removal and 

resulted in permanent exclusion from the country once removed." 

¶109 Finally, the motion alleges that this deficient 

performance prejudiced Ortiz-Mondragon: "Mr. Ortiz-Mondragon 

would have gone to trial instead of pleading no contest had he 

known his convictions made him automatically deportable and 

permanently excluded." It explains that "[Ortiz-Mondragon] has 

already left the country and is now in Mexico. Due to his 

conviction, he was unable to apply for cancellation of his 

removal and he is now permanently excluded from re-entering the 

country." "[H]ad Mr. Ortiz-Mondragon known and understood the 

consequences of a conviction for substantial battery, he would 
No. 2013AP2435-CR.awb 

17 

have attempted to negotiate a plea agreement that avoided the 

automatic and permanent consequences he now faces."

¶110 These facts, if true, show that Ortiz-Mondragon's 

attorney was deficient because he did not meet the Padilla 

requirements. They also sufficiently allege that the deficiency 

prejudiced Ortiz-Mondragon. Thus, if true, the allegations 

establish a violation of Ortiz-Mondragon's Sixth Amendment 

rights, entitling him to relief. 

¶111 Nothing in the record conclusively rebuts OrtizMondragon's claim. It does not indicate what, if anything, 

defense counsel told Ortiz-Mondragon about the immigration 

consequences of his plea. It also fails to indicate the basis 

for that advice, whether it was grounded in research, and 

whether it was reasonable under prevailing professional norms. 

¶112 None of the scenarios that would preclude a Machner 

hearing are present. Roberson, 292 Wis. 2d 280, ¶43 (Machner 

hearing not required if the motion "presents only conclusory 

allegations," "fails to allege sufficient facts to raise a 

question of fact," or "if the record conclusively demonstrates 

that the defendant is not entitled to relief."). Accordingly, a 

Machner hearing is required to determine the merits of OrtizMondragon's claim. 

IV 

¶113 Under Padilla, attorneys representing noncitizens 

must research the relevant immigration consequences of a 

conviction and provide that information to their clients. These 

requirements are important protections to noncitizens. 
No. 2013AP2435-CR.awb 

18 

¶114 Each of the majority's errors removes some of that 

protection. By ignoring statutory grounds rendering OrtizMondragon deportable, the majority implicitly approves of 

attorneys not reading the governing immigration statutes, 

leaving the door open for uninformed, inaccurate advice. By 

determining that the immigration consequences of OrtizMondragon's plea are unclear because the definition of CIMT is 

unclear, the majority reduces the number of situations in which 

attorneys must provide available immigration advice. 

¶115 In contrast to the majority, I believe that Padilla's 

requirements have teeth. Had defense counsel researched the 

immigration consequences of Ortiz-Mondragon's plea, he would 

have discovered that it rendered Ortiz-Mondragon deportable. 

Under Padilla, that means that defense counsel was required to 

convey that information to his client. Ortiz-Mondragon should 

have the opportunity to prove that such advice was not given and 

that he was prejudiced as a result. Therefore a remand is 

required and a Machner hearing is necessary. 

¶116 For the reasons set forth above, I respectfully 

dissent. 

¶117 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent. 
No. 2013AP2435-CR.awb 

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