State v. Andres Romero-Georgana

2014 WI 83

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP55

COMPLETE TITLE: State of Wisconsin,

Plaintiff-Respondent,

v.

Andres Romero-Georgana,

Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 347 Wis. 2d 549, 830 N.W.2d 722

(Ct. App. 2013 – Unpublished)

OPINION FILED: July 23, 2014

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: April 3, 2014

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Brown

JUDGE: Kendall M. Kelley

JUSTICES:

CONCURRED:

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

filed.)

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs

by Sara Kelton Brelie and Byron C. Lichstein, and law student

Diana Eisenberg, and Frank J. Remington Center, University of

Wisconsin Law School, Madison. Oral argument by Sara Kelton

Brelie.

For the plaintiff-respondent, the cause was argued by

William L. Gansner, assistant attorney general, with whom on the

brief was J.B. Van Hollen, attorney general.

May 19

2014 WI 83

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2012AP55

(L.C. No. 2006CF379)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,

FILED

v.

JUL 23, 2014

Andres Romero-Georgana,

Diane M. Fremgen

Defendant-Appellant-Petitioner. Clerk of Supreme Court

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

¶1 DAVID T. PROSSER, J. This is a review of an

unpublished decision of the court of appeals.1 The issue

presented has been framed by the defendant as whether the

defendant is "entitled to an evidentiary hearing based on his

Wis. Stat. § 974.06 motion alleging ineffective assistance of

postconviction counsel for failing to raise a strong argument

for plea withdrawal[.]"

1

State v. Romero-Georgana, No. 2012AP55, unpublished slip

op. (Wis. Ct. App. Mar. 19, 2013).

No. 2012AP55

¶2 This somewhat innocuous statement of the issue

requires the court to conduct a wide-ranging discussion of

postconviction procedure before it determines whether the

defendant's Wis. Stat. § 974.06 (2011-12)2 motion provides a

sufficient reason for failing to bring his present claims in an

earlier postconviction proceeding and whether the § 974.06

motion alleges sufficient facts that, if true, would entitle the

defendant to relief. As is often the case, the procedural

history is crucial to the court's conclusions.

¶3 We conclude the following.

¶4 First, a defendant who alleges in a § 974.06 motion

that his postconviction counsel was ineffective for failing to

bring certain viable claims must demonstrate that the claims he

wishes to bring are clearly stronger than the claims

postconviction counsel actually brought. See State v. Starks,

2013 WI 69, ¶6, 349 Wis. 2d 274, 833 N.W.2d 146. However, in

evaluating the comparative strength of the claims, reviewing

courts should consider any objectives or preferences that the

defendant conveyed to his attorney. A claim's strength may be

bolstered if a defendant directed his attorney to pursue it.

¶5 Second, the defendant has not offered a sufficient

reason in his third postconviction motion for failing to raise

his § 974.06 claim in his second postconviction motion. Without

a sufficient reason, a defendant may not bring a claim in a

2

All subsequent references to the Wisconsin Statutes are to

the 2011-12 version unless otherwise indicated.

2

No. 2012AP55

§ 974.06 motion if that claim "could have been raised in a

previously filed sec. 974.02 motion and/or on direct appeal."

State v. Escalona-Naranjo, 185 Wis. 2d 168, 173, 517 N.W.2d 157

(1994). Consequently, the defendant's claim is barred.

¶6 Third, even if the § 974.06 motion were not barred on

"sufficient reason" grounds, the motion does not allege

sufficient facts that, if true, would entitle the defendant to

relief. The defendant failed to allege that the plea withdrawal

claim was clearly stronger than the resentencing claim. He does

not specifically state which postconviction attorney was

ineffective and instead makes an ambiguous reference to

"postconviction counsel." The motion then focuses almost

exclusively on trial counsel and does not provide facts

regarding postconviction counsel's performance. Consequently,

the defendant's motion falls far short of what is required, and

the circuit court properly determined that he is not entitled to

an evidentiary hearing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶7 On April 7, 2006, the State filed a complaint charging

Andres Romero-Georgana (Romero-Georgana) with first-degree

sexual assault of a child under the age of 13 contrary to Wis.

Stat. § 948.02(1) (2005-06). The complaint alleged that Romero-

Georgana had sexual contact with the seven-year-old daughter of

the woman with whom he was in a relationship. On May 17, 2006,

assistant state public defender Carrie LaPlant (Attorney

LaPlant) was appointed to represent Romero-Georgana. On May 26,

2006, Romero-Georgana waived his right to a preliminary

3

No. 2012AP55

examination, and an information repeating the charge in the

complaint was filed that day. On June 23, 2006, Romero-Georgana

entered a plea of not guilty before Brown County Circuit Judge

J.D. McKay. At this arraignment, Judge McKay scheduled the case

for trial and informed Romero-Georgana, "If you're not a citizen

of this country, a conviction could lead to your deportation."3

¶8 On October 20, 2006, Romero-Georgana completed an

English and Spanish Plea Questionnaire/Waiver of Rights form in

which he pled no contest to first-degree sexual assault of a

child. As part of the plea agreement, the State agreed not to

file any additional charges against the defendant and agreed not

to make any specific sentencing recommendation. At a plea

hearing on November 17, 2006, Romero-Georgana entered a no-

contest plea with the aid of an interpreter. The court accepted

Romero-Georgana's plea and found him guilty of first-degree

sexual assault of a child under the age of 13.

¶9 At the plea hearing, the circuit court failed to

advise Romero-Georgana that he could be deported as a result of

his plea, as required by Wis. Sat. § 971.08(1)(c) (2005-06).

The pertinent portion of the statute provides that before

accepting a plea of guilty or no contest, the court shall:

Address the defendant personally and advise the

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

United States of America, you are advised that a plea

of guilty or no contest for the offense with which you

are charged may result in deportation, the exclusion

3

There was an interpreter assisting at the arraignment.

4

No. 2012AP55

from admission to this country or the denial of

naturalization, under federal law."

Wis. Stat. § 971.08(1)(c) (2005-06).

¶10 Romero-Georgana's plea came more than four years after

this court decided State v. Douangmala, 2002 WI 62, 253

Wis. 2d 173, 646 N.W.2d 1, a case in which this court emphasized

the importance of the statutory requirement to advise the

defendant about possible deportation as well as the statutory

remedy of plea withdrawal. See Wis. Stat. § 971.08(2) (2005-

06).

¶11 On January 19, 2007, Judge McKay sentenced Romero-

Georgana to 12 years of initial confinement and four years of

extended supervision. At the sentencing hearing, Attorney

LaPlant stated: "We fully expect that as soon as he is released

from custody, whenever that may be, that he will be deported

back to Mexico. And he does want that to happen. He does want

to return home as soon as he can."

¶12 Unfortunately, in sentencing Romero-Georgana, the

court failed to consider the sentencing guidelines on the record

as was then required by Wis. Stat. § 973.017(2)(a) (2007-08).

See State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364.

The remedy for failure to comply with § 973.017(2)(a) (2007-08)

was resentencing.

¶13 After judgment of conviction was filed on January 23,

2007, Romero-Georgana filed a notice of intent to pursue

postconviction relief, and he requested appointment of

postconviction counsel. Assistant state public defender Suzanne

5

No. 2012AP55

Hagopian (Attorney Hagopian) was appointed to represent Romero-

Georgana in postconviction and appellate proceedings.

¶14 Several weeks later, on March 20, 2007, the U.S.

Department of Justice Immigration and Naturalization Service

(INS) sent an Immigration Detainer——Notice of Action form to

Dodge Correctional Institution where Romero-Georgana was serving

his sentence. The form advised the institution that INS had

started an investigation to determine whether Romero-Georgana

was subject to deportation and required that INS be notified at

least 30 days before Romero-Georgana was released.

A. First Postconviction Motion and Appeal

¶15 On June 11, 2007, Attorney Hagopian filed a motion for

extension of time to file a postconviction motion or notice of

appeal. In the motion, Attorney Hagopian stated that she had

met with Romero-Georgana and, with the help of an interpreter,

discussed two possible postconviction claims: one regarding the

validity of the no-contest plea and the other for resentencing

based on the court's failure to go through the sentencing

guidelines on the record.

¶16 On July 20, 2007, Romero-Georgana filed a

postconviction motion pursuant to Wis. Stat. § (Rule)

809.30(2)(h) (2007-08) seeking resentencing or sentence

modification in the alternative. The postconviction motion

alleged that the sentencing court failed to consider the

relevant sentencing guidelines, as required under Wis. Stat.

§ 973.017(2)(a) (2007-08) and Grady, 302 Wis. 2d 80, which had

6

No. 2012AP55

been decided less than a month earlier. The motion did not

mention any defect in the plea colloquy.

¶17 On August 23, 2007, the circuit court held a hearing

and denied Romero-Georgana's postconviction motion. Attorney

Hagopian filed a notice of appeal on August 29, 2007.

¶18 On April 22, 2008, the court of appeals issued an

order reversing the judgment and remanding the case for

resentencing because Judge McKay failed to consider the

sentencing guidelines on the record. State v. Romero-Georgana,

No. 2007AP2042-CR, unpublished order (Wis. Ct. App. Apr. 22,

2008). Soon after the court of appeals issued its decision,

Attorney Hagopian sent Romero-Georgana a letter explaining the

decision and informing him of his right to judicial

substitution. Several weeks later, Attorney Hagopian spoke to

Romero-Georgana on the phone and discussed judicial

substitution. With the help of an interpreter, Attorney

Hagopian told Romero-Georgana that he should discuss judicial

substitution with the attorney who would represent him at

resentencing.

¶19 Assistant state public defender William FitzGerald

(Attorney FitzGerald) was appointed to represent Romero-Georgana

at resentencing. Attorney FitzGerald received a letter from

Romero-Georgana on May 29, 2008, stating that Romero-Georgana

wanted to substitute his judge. On May 30, 2008, Attorney

FitzGerald filed a motion requesting a judicial substitution. A

judicial assignment order was filed on June 6, 2008, in which

7

No. 2012AP55

Brown County Circuit Judge Kendall M. Kelley was substituted for

Judge McKay.

¶20 On October 1, 2008, Judge Kelley held a resentencing

hearing, and, based in part on a recommendation in the

presentence investigation, sentenced Romero-Georgana to 20 years

of initial confinement and eight years of extended supervision.

A revised judgment of conviction for first-degree sexual assault

of a child under the age of 13 was filed on October 2, 2008. On

the same day, Attorney FitzGerald filed Romero-Georgana's notice

of intent to pursue postconviction relief.

B. Second Postconviction Motion and Appeal

¶21 Attorney Tajara S. Dommershausen (Attorney

Dommershausen) represented Romero-Georgana in postconviction and

appellate proceedings. On March 24, 2009, she filed a Wis.

Stat. § 974.02 (2009-10)4 postconviction motion on behalf of

Romero-Georgana. The motion alleged that Attorney Hagopian had

provided ineffective assistance of counsel for failing to inform

4

Wisconsin Stat. § 974.02(1) (2009-10) states:

A motion for postconviction relief other than

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

criminal case shall be made in the time and manner

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

a criminal case from a judgment of conviction or from

an order denying a postconviction motion or from both

shall be taken in the time and manner provided in ss.

808.04(3) and 809.30. An appeal of an order or

judgment on habeas corpus remanding to custody a

prisoner committed for trial under s. 970.03 shall be

taken under ss. 808.03(2) and 809.50, with notice to

the attorney general and the district attorney and

opportunity for them to be heard.

8

No. 2012AP55

Romero-Georgana that on resentencing, Judge McKay would not be

able to increase his sentence (absent a new factor) but if Judge

McKay were substituted, the new judge could impose a longer

sentence without having to justify the increase in time. The

postconviction motion did not allege that Attorney Hagopian was

ineffective for failing to move for plea withdrawal.

¶22 On June 5, 2009, Judge Kelley held a hearing on the

postconviction motion and determined that neither Attorney

Hagopian nor Attorney FitzGerald was ineffective in advising

Romero-Georgana about judicial substitution. Judge Kelley

issued a written order denying the postconviction motion on July

15, 2009. Attorney Dommershausen filed a notice of appeal on

July 21, 2009.

¶23 On November 19, 2009, Attorney Dommershausen filed a

notice of no-merit appeal pursuant to Wis. Stat. § (Rule)

809.30(2)(a) (2009-10), and she filed a no-merit report on March

2, 2010. After considering the no-merit report, the court of

appeals affirmed the circuit court's judgment in a decision

filed on September 9, 2010.

¶24 In its decision, the court of appeals mentioned that

Romero-Georgana had filed a response5 to Attorney Dommershausen's

no-merit report in which he "raise[d] an issue regarding his

initial no contest plea." The court of appeals limited its

review to the resentencing issue and determined that because

5

Romero-Georgana's response to Attorney Dommershausen's no-

merit report is not in the record.

9

No. 2012AP55

Romero-Georgana did not raise the issue relating to the no-

contest plea in his initial appeal, he forfeited that claim.

Romero-Georgana petitioned this court for review, which we

denied in an order filed December 8, 2010.

C. Third Postconviction Motion and Appeal

¶25 On September 2, 2011, Romero-Georgana filed a pro se

motion under Wis. Stat. § 974.06. In the § 974.06 motion,

Romero-Georgana stated that he is a Mexican native and is not a

citizen of the United States. He alleged that "[p]ostconviction

counsel was ineffective for failing to raise the issue that the

circuit court failed to comply with the statutory mandate when

it did not address Romero-Georgana personally to advise him in

the words set forth in Wis. Stat. 971.08(1)(c) of the

deportation consequences of his no contest plea . . . ." The

§ 974.06 motion alleged that when Romero-Georgana completed the

plea questionnaire, he did not fully understand what he was

signing because of his poor English, inadequate interpreters,

and Attorney LaPlant's failure to advise him of the deportation

risk. Romero-Georgana alleged that he would have pled not

guilty had he known that he could be deported.

¶26 The Wis. Stat. § 974.06 motion also alleged that

"[p]ostconviction counsel was ineffective for failing to raise a

claim of ineffective assistance of trial counsel for failing to

fully explain the deportation consequences of his no contest

plea . . . ."6 Romero-Georgana attached an Immigration Detainer—

6

Romero-Georgana concedes in his brief that he cannot

prevail on this claim and has therefore abandoned it.

10

No. 2012AP55

—Notice of Action that indicated that an investigation had been

initiated to determine whether Romero-Georgana was subject to

deportation.

¶27 In a decision and order filed on December 22, 2011,

Judge Kelley denied Romero-Georgana's § 974.06 motion. The

circuit court concluded that the § 974.06 motion did not contain

sufficient factual allegations to entitle Romero-Georgana to a

hearing. The court stated: "Although Romero-Georgana's

allegations of the ineffectiveness of trial counsel are relevant

to the analysis, he limits his argument to what happened on the

trial level. For the Court to analyze postconviction

ineffectiveness, it needs facts pertaining to why postconviction

counsel was ineffective." Therefore, the court determined that

Romero-Georgana was not entitled to an evidentiary hearing.

¶28 On January 9, 2012, Romero-Georgana filed a notice of

appeal from his judgments of conviction and from the order

denying his § 974.06 motion. In a per curiam decision, the

court of appeals affirmed the circuit court's order denying

Romero-Georgana's § 974.06 motion without a hearing. State v.

Romero-Georgana, No. 2012AP55, unpublished slip op., ¶1 (Wis.

Ct. App. Mar. 19, 2013). The court of appeals determined that

Romero-Georgana's § 974.06 motion contained only bare-bones

assertions and did not demonstrate why the plea withdrawal claim

was clearly stronger than the claims raised by Attorney

11

No. 2012AP55

Hagopian.7 Id., ¶¶5-6. Furthermore, the court concluded that

Romero-Georgana's § 974.06 motion did not explain why the

Escalona-Naranjo bar against successive postconviction motions

did not apply. Id., ¶7.

¶29 Romero-Georgana petitioned this court for review,

which we granted on December 19, 2013.

II. STANDARD OF REVIEW

¶30 Whether a Wis. Stat. § 974.06 motion alleges a

sufficient reason for failing to bring available claims earlier

is a question of law subject to de novo review. State v.

Kletzien, 2011 WI App 22, ¶¶9, 16, 331 Wis. 2d 640, 794

N.W.2d 920. Similarly, whether a § 974.06 motion alleges

sufficient facts to require a hearing is a question of law that

this court reviews de novo. State v. Balliette, 2011 WI 79,

¶18, 336 Wis. 2d 358, 805 N.W.2d 334. If the motion does allege

sufficient facts, "the circuit court must hold an evidentiary

hearing." State v. John Allen, 2004 WI 106, ¶9, 274

Wis. 2d 568, 682 N.W.2d 433 (citations omitted). "However, if

the motion does not raise facts sufficient to entitle the movant

to relief, or presents only conclusory allegations, or if the

record conclusively demonstrates that the defendant is not

entitled to relief, the circuit court has the discretion to

7

The court of appeals did not address the appeals of the

judgments of conviction and stated, "Because an appeal from an

order under Wis. Stat. § 974.06 is not governed by Wis. Stat.

[§ (Rule)] 809.30, the judgment of conviction is not the subject

of this appeal." State v. Romero-Georgana, No. 2012AP55,

unpublished slip op., ¶1 n.1 (Wis. Ct. App. Mar. 19, 2013).

12

No. 2012AP55

grant or deny a hearing." Id. (citations omitted). We review

the circuit court's discretionary decision to grant or deny a

hearing under the erroneous exercise of discretion standard.

Id.

III. DISCUSSION

¶31 Much of this court's time is devoted to cases

involving postconviction claims that are filed after a

defendant's appeal is over. These claims require the court to

apply fundamental principles of postconviction review, including

the principle that finality is important in the criminal justice

system. Accordingly, not every mistake will justify relief.

¶32 Wisconsin Stat. § 974.06 "was 'designed to replace

habeas corpus as the primary method in which a defendant can

attack his conviction after the time for appeal has expired.'"

Escalona-Naranjo, 185 Wis. 2d at 176 (quoting Howard B.

Eisenberg, Post-Conviction Remedies in the 1970's, 56 Marq. L.

Rev. 69, 79 (1972)). Section 974.06 provides a mechanism for

correcting errors when: (1) the sentence violated the United

States or Wisconsin Constitution; (2) the court lacked

jurisdiction to impose the sentence; or (3) the sentence

exceeded the maximum or was "otherwise subject to collateral

attack." Wis. Stat. § 974.06(1); see Balliette, 336

Wis. 2d 358, ¶34. A defendant may file a § 974.06 motion at any

time "[a]fter the time for appeal or postconviction remedy

provided in s. 974.02 has expired." Wis. Stat. § 974.06(1)-(2).

However, the following caveat applies:

13

No. 2012AP55

All grounds for relief available to a person

under this section must be raised in his or her

original, supplemental or amended motion. Any ground

finally adjudicated or not so raised, or knowingly,

voluntarily and intelligently waived in the proceeding

that resulted in the conviction or sentence or in any

other proceeding the person has taken to secure relief

may not be the basis for a subsequent motion, unless

the court finds a ground for relief asserted which for

sufficient reason was not asserted or was inadequately

raised in the original, supplemental or amended

motion.

Wis. Stat. § 974.06(4) (emphasis added).

¶33 Wisconsin Stat. § 974.06(4) promotes finality and

efficiency by requiring defendants to bring all available claims

in a single proceeding unless there exists a sufficient reason

for not raising some claims in that initial proceeding.

Escalona-Naranjo, 185 Wis. 2d at 185-86; see State v. Aaron

Allen, 2010 WI 89, ¶40, 328 Wis. 2d 1, 786 N.W.2d 124 (citation

omitted) ("The purpose behind Wis. Stat. § 974.06 is to avoid

successive motions for relief by requiring a defendant to raise

all grounds for relief in one motion.").

¶34 Thus, without a sufficient reason, a movant may not

bring a claim in a § 974.06 motion if it "could have been raised

in a previously filed sec. 974.02 motion and/or on direct

appeal." See Escalona-Naranjo, 185 Wis. 2d at 173.

¶35 A defendant need not provide a "sufficient reason" for

a claim cognizable under Wis. Stat. § 974.06 if the defendant

did not file a motion under Wis. Stat. § 974.02 or a direct

appeal. State v. Lo, 2003 WI 107, ¶44 n.11, 264 Wis. 2d 1, 665

N.W.2d 756; Loop v. State, 65 Wis. 2d 499, 222 N.W.2d 694

(1974). But if the defendant did file a motion under § 974.02

14

No. 2012AP55

or a direct appeal or a previous motion under § 974.06, the

defendant is barred from making a claim that could have been

raised previously unless he shows a sufficient reason for not

making the claim earlier. Lo, 264 Wis. 2d 1, ¶44.

¶36 In some instances, ineffective assistance of

postconviction counsel may be a sufficient reason for failing to

raise an available claim in an earlier motion or on direct

appeal. Aaron Allen, 328 Wis. 2d 1, ¶85; see Balliette, 336

Wis. 2d 358, ¶62. If the defendant sufficiently alleges

ineffective assistance of postconviction counsel as the reason

for failing to raise an issue earlier, "[t]he trial court can

perform the necessary factfinding function and directly rule on

the sufficiency of the reason." Aaron Allen, 328 Wis. 2d 1, ¶85

(brackets in original) (quoting State ex rel. Rothering v.

McCaughtry, 205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996)

). Conversely, if the defendant fails to allege why and how his

postconviction counsel was constitutionally ineffective——that

is, if the defendant asserts a mere conclusory allegation that

his counsel was ineffective——his "reason" is not sufficient.

¶37 To move beyond the initial prerequisites of Wis. Stat.

§ 974.06(4) and Escalona-Naranjo, and to adequately raise a

claim for relief, a defendant must allege "sufficient material

facts——e.g., who, what, where, when, why, and how——that, if

true, would entitle [the defendant] to the relief he seeks."

John Allen, 274 Wis. 2d 568, ¶2; see Balliette, 336 Wis. 2d 358,

¶¶58-60; State v. Bentley, 201 Wis. 2d 303, 314-18, 548

15

No. 2012AP55

N.W.2d 50 (1996). If he does so, the defendant is normally

entitled to an evidentiary hearing.

¶38 In sum, because Romero-Georgana's § 974.06 motion

alleges that his postconviction counsel provided ineffective

assistance, he must allege facts that support every facet of his

claim and that, if true, would entitle him to relief.

A. Ineffective Assistance of Postconviction Counsel

¶39 The Sixth and Fourteenth Amendments to the United

States Constitution guarantee criminal defendants the right to

effective assistance of counsel. Balliette, 336 Wis. 2d 358,

¶21. To state a claim for ineffective assistance of counsel,

the defendant must demonstrate: (1) that his counsel's

performance was deficient; and (2) that the deficient

performance was prejudicial. Strickland v. Washington, 466 U.S.

668, 687 (1984).

¶40 To prove deficiency, "the defendant must show that

counsel's representation fell below an objective standard of

reasonableness." Id. at 688. The defendant must overcome the

"strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance." Id. at 689.

¶41 To prove prejudice, the defendant must show "that

counsel's errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable." Id. at 687.

The prejudice inquiry asks whether "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A

16

No. 2012AP55

reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 694.8

¶42 Romero-Georgana's motion alleges that he received

ineffective assistance of postconviction counsel because

postconviction counsel failed to bring a claim that Romero-

Georgana now wishes to assert. This allegation is different

from an allegation that postconviction counsel did not comply

with the defendant's requests or instructions after trial or

that postconviction counsel failed to bring any claims at all.

Romero-Georgana acknowledges that his postconviction counsel

brought claims; he contends now that postconviction counsel

brought the wrong claims.

¶43 An allegation that postconviction counsel failed to

bring a claim that should have been brought is an allegation

that counsel's performance was constitutionally deficient, that

it fell below the services required by an objective standard of

reasonableness under prevailing professional norms. Strickland,

466 U.S. at 687-88. How does a reviewing court evaluate such an

allegation?

¶44 In Starks, 349 Wis. 2d 274, the court faced a

situation in which postconviction counsel failed to file any

post-trial motions, including a Wis. Stat. § 974.02 motion, in

the circuit court but made numerous arguments on appeal. Id.,

¶4. When postconviction counsel's performance was subsequently

8

The Strickland analysis and the presumption of effective

assistance apply to postconviction counsel. State v. Balliette,

2011 WI 79, ¶28, 336 Wis. 2d 358, 805 N.W.2d 334.

17

No. 2012AP55

attacked, this court disregarded counsel's nonperformance in the

circuit court and instead evaluated his performance as

"appellate counsel." Id.

¶45 Starks adopted a "clearly stronger" standard in

evaluating the performance of "appellate counsel." Id., ¶6.

That is, the court adopted the "clearly stronger" pleading

standard for the deficiency prong of the Strickland test in

Wisconsin for criminal defendants alleging in a habeas petition

that they received ineffective assistance of appellate counsel

due to counsel's failure to raise an issue. Stated differently,

the court said that "the defendant must show that 'a particular

nonfrivolous issue was clearly stronger than issues that counsel

did present.'" Id., ¶59 (quoting Smith v. Robbins, 528 U.S.

259, 288 (2000)); see Gray v. Greer, 800 F.2d 644, 646 (7th Cir.

1986) ("Generally, only when ignored issues are clearly stronger

than those presented, will the presumption of effective

assistance of counsel be overcome.").

¶46 We think this "clearly stronger" standard is equally

appropriate in evaluating the alleged deficiency in an

attorney's performance as postconviction counsel when

postconviction counsel is accused of ineffective assistance on

account of his failure to raise certain material issues before

the circuit court. The "clearly stronger" standard is

appropriate when postconviction counsel raised other issues

before the circuit court, thereby making it possible to compare

the arguments now proposed against the arguments previously

made. However, the clearly stronger standard may not be

18

No. 2012AP55

adequate when counsel has valid reasons for choosing one set of

arguments over another. These reasons may include the

preferences, even the directives, of the defendant.

¶47 Turning to Romero-Georgana's § 974.06 motion, we first

consider whether Romero-Georgana provided a sufficient reason

for failing to bring his claims in his earlier postconviction

motions. See Escalona-Naranjo, 185 Wis. 2d at 181-85. We then

consider the allegations of ineffective assistance of

postconviction counsel to determine whether Romero-Georgana has

alleged sufficient facts that, if true, would entitle him to

relief.

B. Sufficient Reason

¶48 Romero-Georgana acknowledges that he must allege a

sufficient reason for failing to raise his § 974.06 claim

earlier. He correctly states that ineffective assistance of

counsel may, in some cases, provide the requisite sufficient

reason. From there, however, his argument veers off course.

Romero-Georgana implies that his § 974.06 motion alleges a

sufficient reason for failing to bring the claims earlier

because the motion alleges that his postconviction counsel

19

No. 2012AP55

(Attorney Hagopian)9 was ineffective in failing to raise a claim

for plea withdrawal pursuant to Wis. Stat. § 971.08(2). At this

point, Romero-Georgana focuses on the wrong attorney.

¶49 There were three postconviction motions in this case:

(1) a postconviction motion filed pursuant to Wis. Stat.

§ (Rule) 809.30(2)(h) (2007-08) by Attorney Hagopian; (2) a Wis.

Stat. § 974.02 (2009-10) motion filed by Attorney Dommershausen;

and (3) a § 974.06 motion filed pro se by Romero-Georgana.

¶50 Attorney Hagopian's alleged ineffective assistance in

filing the first postconviction motion might have been a

sufficient reason for failing to bring the plea withdrawal

claim. It might not. In any event, although Attorney

Hagopian's alleged ineffective assistance is an underlying claim

in the present Wis. Stat. § 974.06 motion, it does not explain

or provide a sufficient reason for Attorney Dommershausen's

failure in the second postconviction motion to argue that

Attorney Hagopian was ineffective for failing to seek plea

withdrawal in the first postconviction motion.

9

Romero-Georgana's Wis. Stat. § 974.06 motion does not

specify which of his two postconviction attorneys provided

ineffective assistance. Thus, we are uncertain as to where we

should direct our analysis——a good indication that the motion

contains fatal flaws. Because Romero-Georgana's brief focuses

on Attorney Hagopian, we assume, for the purpose of addressing

Romero-Georgana's arguments, that he intended to allege in his

§ 974.06 motion that Attorney Hagopian provided ineffective

assistance of counsel as the underlying claim. However, in our

analysis of the motion itself, we note that the reference to

"postconviction counsel" is ambiguous and renders his motion

insufficient.

20

No. 2012AP55

¶51 These are not onerous demands. Romero-Georgana was

required to allege two instances of ineffective assistance of

postconviction counsel because his attorneys filed two prior

postconviction motions that did not raise the issue now

presented.10 Moreover, the Brown County Circuit Court granted

Romero-Georgana two evidentiary hearings on these motions——and

he was present at both hearings——but the issue now presented was

never brought up. In sum, Romero-Georgana was required to

allege——in his third postconviction motion——that (1) Attorney

Dommershausen was constitutionally ineffective in the second

postconviction motion for failing to raise a claim about

Attorney Hagopian's ineffectiveness for failing to bring a plea

withdrawal claim in the first postconviction motion; and (2)

Attorney Hagopian was constitutionally ineffective in the first

postconviction motion for failing to raise the plea withdrawal

claim.

¶52 The first required allegations (against Attorney

Dommershausen), if properly pleaded, might provide the requisite

sufficient reason for failing to bring the claim earlier. The

10

Romero-Georgana must provide a sufficient reason for

failing to bring the claims he now wishes to raise in an earlier

postconviction proceeding. Because he offers no reason, and the

only claims in his § 974.06 motion are for ineffective

assistance of counsel, we assume that if he were to offer a

sufficient reason, it would be Attorney Dommershausen's alleged

ineffective assistance. It is possible that he had other

reasons, but none were advanced. Thus, when we say Romero-

Georgana was required to allege ineffective assistance of

Attorney Dommershausen as a sufficient reason for failing to

bring his claims earlier, we say that because we can see no

other reason for failing to bring the present claim earlier.

21

No. 2012AP55

second required allegations (against Attorney Hagopian), if

properly pleaded, might provide grounds for relief. However,

the required allegations have not been properly pleaded. The

single statement in Romero-Georgana's present § 974.06 motion

that "[p]ostconviction counsel was ineffective for failing to

raise the issue that the circuit court failed to comply with the

statutory mandate when it did not address Romero-Georgana

personally to advise him in the words set forth in Wis. Stat.

971.08(1)(c) of the deportation consequences of his no contest

plea . . . " is ambiguous and plainly deficient because it

refers to only one attorney ("Postconviction counsel was") and

does not even identify that attorney. Moreover, the statement

is conclusory inasmuch as both attorneys made other arguments.

¶53 When a defendant has two attorneys that share the

classification of "postconviction counsel," a general reference

to "postconviction counsel" is not enough. Romero-Georgana's

third postconviction motion was bound to fail if it did not

allege and explain why his second postconviction motion did not

make the claim he now seeks to make. Attorney Dommershausen is

simply not mentioned. Since the § 974.06 motion does not offer

a sufficient reason for failing to bring the current claim in

the second postconviction motion, Romero-Georgana's motion is

barred under § 974.06(4) and Escalona-Naranjo.

¶54 Having concluded that Romero-Georgana is barred from

raising his current claims, we need not go any further.

However, we will discuss briefly the insufficiency of Romero-

22

No. 2012AP55

Georgana's § 974.06 motion to provide guidance for future

movants.

C. Sufficiency of Romero-Georgana's Allegations of Ineffective

Assistance of Postconviction Counsel

¶55 Romero-Georgana faced an unusually complicated

situation when he filed the third postconviction motion. His

objective was to withdraw his plea of no contest and vacate the

judgment against him on grounds that the circuit court made an

error in the plea colloquy and that he is likely to be deported

because of his conviction. This would have been a simple

Bangert11-type motion if it had been filed shortly after Romero-

Georgana's sentencing in January 2007. When he filed his pro se

motion on September 2, 2011, however, he was required to justify

the delay in making his claim. In this case, the strongest

potential justification appears to be the alleged ineffective

assistance of Attorney Dommershausen for failing to complain

about the alleged ineffective assistance of Attorney Hagopian in

raising Romero-Georgana's statutory right to withdraw his plea.

¶56 Because Romero-Georgana's claim is one of ineffective

assistance of counsel, he was required to sufficiently allege

that each attorney provided deficient representation and that

each attorney's deficient performance prejudiced him.

Strickland, 466 U.S. at 687.

11

State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

23

No. 2012AP55

¶57 In making his ineffective assistance of counsel

claims,12 Romero-Georgana had some difficult facts to overcome.

First, as part of the plea deal, the State agreed not to bring

additional charges against Romero-Georgana even though the

complaint suggested that there were numerous occasions in which

he committed sexual offenses against the victim. Thus, if

Romero-Georgana had gone to trial after successful plea

withdrawal, the State would have been free to bring additional

charges. Second, Romero-Georgana's trial counsel stated at the

initial sentencing that Romero-Georgana was eager to be

deported, which conflicts with Romero-Georgana's current

contention that he would not have entered a plea if he knew it

could lead to deportation. Third, Attorney Hagopian said in a

motion to the court that she discussed a potential claim

regarding the validity of the no-contest plea, which suggests

that she talked to Romero-Georgana about seeking plea

withdrawal. Finally, Attorney Hagopian gave a valid reason for

bringing the resentencing claim when she stated at the

evidentiary hearing for the second postconviction motion that

she thought, based on the sentencing guidelines, Romero-Georgana

12

Although our analysis in this section focuses on the

sufficiency of the underlying ineffective assistance of counsel

claim against Attorney Hagopian, it applies also to the

sufficient reason requirement. As discussed above, because

Romero-Georgana did not offer any reason for failing to bring

his present claim in his second postconviction motion, he did

not adequately provide a sufficient reason for raising his claim

of ineffective assistance of postconviction counsel in a

§ 974.06 motion.

24

No. 2012AP55

would receive a shorter sentence at resentencing. In light of

this factual backdrop, we turn to the motion to assess its

sufficiency.

1. Deficient Performance

¶58 The clearly stronger standard applies to the

deficiency prong of each required allegation of ineffective

assistance of counsel in this case. Thus, to demonstrate that

Attorney Hagopian's representation was deficient, Romero-

Georgana was required to show that the plea withdrawal claim was

clearly stronger than the resentencing claim. See Starks, 349

Wis. 2d 274, ¶59. He was required do so by alleging "sufficient

material facts——e.g., who, what, where, when, why, and how——

that, if true, would entitle him to the relief he seeks." John

Allen, 274 Wis. 2d 568, ¶2. The five "w's" and one "h"

sometimes run together, but a sufficient motion will answer all

six questions.

¶59 Romero-Georgana has failed to allege "who" his claim

is about because his assertion ambiguously refers to a single

"[p]ostconviction counsel." Although the motion indicates that

Attorneys Hagopian and Dommershausen did represent Romero-

Georgana, it does not specify whose conduct is at issue.

Instead, the motion focuses on the wrong stage of the proceeding

and discusses facts regarding trial counsel's alleged

ineffectiveness. If Romero-Georgana wanted to make allegations

against Attorney Hagopian, he should have done so specifically

in his motion by stating that "Attorney Hagopian was

ineffective" rather than ambiguously claiming that

25

No. 2012AP55

"[p]ostconviction counsel was ineffective . . . ." As the

motion is written, it does not sufficiently state "who" provided

ineffective assistance.

¶60 The § 974.06 motion does allege broadly "what" conduct

provides the basis for the ineffective assistance claim when it

states, "Postconviction counsel was ineffective for failing to

raise the issue that the circuit court failed to comply with the

statutory mandate when it did not address Romero-Georgana

personally to advise him . . . of the deportation consequences

of his no contest plea." However, it does not tell the court

what Attorney Hagopian did that made her failure to raise the

plea withdrawal claim ineffective. Did she act contrary to his

directive? Did she fail to advise him?

¶61 Furthermore, Romero-Georgana's § 974.06 motion does

not sufficiently allege "where" or "when" the ineffective

assistance occurred. It is unclear whether his allegations

focus on the first postconviction proceeding or the second.

¶62 Similarly, the motion does not say "why" Attorney

Hagopian was ineffective. The mere fact that Attorney Hagopian

did not pursue a plea withdrawal claim does not demonstrate

ineffectiveness because she could have had, and presumably did

have, good reasons for not pursuing plea withdrawal. For

example, Romero-Georgana could have told her to bring a claim

for resentencing after Attorney Hagopian advised him of his

options. Or, as the record suggests, Romero-Georgana might have

wanted to be deported, and Attorney Hagopian believed he would

receive less time on resentencing. We will not assume

26

No. 2012AP55

ineffective assistance from a conclusory assertion; Romero-

Georgana must say why the claim he wanted raised was clearly

stronger than the claims actually raised. His motion is devoid

of any such explanation.

¶63 Finally, because Romero-Georgana's motion contains

only conclusory allegations and almost no facts relating to the

relevant postconviction counsel, he has not demonstrated "how"

he would prove his claims at an evidentiary hearing. Does he

have copies or records of communications with his postconviction

counsel to support his claim? Who would testify on his behalf?

Blanket assertions of ineffective assistance are not sufficient

to alert the court or opposing counsel how the defendant will

prove his claim at a hearing, especially when the record

contains facts that refute the crux of the defendant's argument.

¶64 In sum, defendants must allege sufficient facts in

their § 974.06 motions so that reviewing courts do not grant

frivolous hearings. We will not read into the § 974.06 motion

allegations that are not within the four corners of the motion.

Therefore, Romero-Georgana has failed to sufficiently allege

that Attorney Hagopian was deficient.

¶65 Because we have determined that the § 974.06 motion

does not allege sufficient facts to demonstrate that

postconviction counsel was deficient, we do not need to consider

whether the motion sufficiently alleged prejudice. However, we

consider prejudice briefly to provide guidance for future

movants.

2. Prejudice

27

No. 2012AP55

¶66 To demonstrate prejudice, Romero-Georgana's motion

must show that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, 466 U.S. at 694.

Romero-Georgana alleges in his § 974.06 motion that

postconviction counsel was ineffective for failing to argue that

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

(2005-06) at the plea hearing. The plea hearing transcript is

clear that the circuit court failed to advise Romero-Georgana of

the deportation risk as required by Wis. Stat. § 971.08. Thus,

Romero-Georgana likely could have withdrawn his plea if he had

timely brought a § 971.08(2) motion.13

13

Wisconsin Stat. § 971.08(2) provides in relevant part:

If a court fails to advise a defendant as

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

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

deportation, exclusion from admission to this country

or denial of naturalization, the court on the

defendant's motion shall vacate any applicable

judgment against the defendant and permit the

defendant to withdraw the plea and enter another plea.

In his brief, Romero-Georgana discusses the standards for

pleading under Wis. Stat. § 971.08(2) at length. However,

because this case falls under Wis. Stat. § 974.06, the plea

withdrawal claim under Wis. Stat. § 971.08 is relevant only to

the question of prejudice in the context of Romero-Georgana's

ineffective assistance claim against Attorney Hagopian. The

State responded to Romero-Georgana's argument relating to

§ 971.08 by stating that "a response by the State to——and this

court's consideration of——Argument section I of Romero-

Georgana's brief is unnecessary. Had Romero-Georgana pursued a

Wis. Stat. § 971.08(2) claim in a timely manner, he might well

have prevailed on it."

28

No. 2012AP55

¶67 However, the motion at issue is not a Wis. Stat.

§ 971.08(2) motion. In fact, at oral argument, Romero-

Georgana's counsel explicitly stated that Romero-Georgana was

arguing this case as a Wis. Stat. § 974.06 motion. Counsel

said, "This court's order granting review specifically asked us

to stay within the arguments made in the petition for review,

and that did not include an argument that this case should be

decided as a 971.08(2) motion by itself."14 Therefore, because

14

Justice Bradley asked at oral argument, "Why does

971.08(2) have to be a 974.06 motion at all?" Romero-Georgana's

counsel responded:

I believe that it could have been raised as a

straight 971.08(2) motion. As this court knows we

were appointed . . . after the petition for review was

filed and the case had been decided up to that point

under 974.06 and we believe that our client is

entitled to relief on that basis, and so that's how

we've construed the motion and argued it.

Chief Justice Abrahamson continued Justice Bradley's line

of questioning and suggested that Romero-Georgana could have

pursued an argument based on Wis. Stat. § 971.08. The Chief

Justice then asked, "But you didn't take that position?"

Romero-Georgana's counsel responded, "It's true your honor. We

did not." Thus, despite being prodded at oral argument, Romero-

Georgana was clear: he is not asking this court to construe his

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

Indeed, such a request would appear improper under the facts of

this case and in light of the history of § 971.08(2). In the

1981-82 version of the Wisconsin Statutes, § 971.08(2) contained

a time limit that stated, "The court shall not permit the

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

after conviction." Wis. Stat. § 971.08(2) (1981-82). The 120-

day time limit was repealed in 1983 Wis. Act 219. A judicial

council note explained:

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

time limit for withdrawing a guilty plea or a plea of

no contest after conviction, is repealed as

29

No. 2012AP55

Romero-Georgana never brought a Wis. Stat. § 971.08(2) motion or

argued for plea withdrawal in previous postconviction motions,

he must attempt to resuscitate that claim in the present Wis.

Stat. § 974.06 motion.

¶68 A proper allegation of prejudice would state that

Romero-Georgana would have told Attorney Hagopian to pursue the

unnecessary. Withdrawal of a guilty plea or plea of

no contest may be sought by postconviction motion

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

stats.

Judicial Council Note, 1983 Wis. Act 219, § 43. The Judicial

Council Note suggests that, in general, the proper method for

raising § 971.08 plea withdrawal claims after conviction is

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

§ 974.02, or Wis. Stat. § 974.06.

In the present case, the notice that INS had started an

investigation to determine whether Romero-Georgana was subject

to deportation was dated March 20, 2007——four months before

Attorney Hagopian filed the first postconviction motion. In

addition, the petitioner's brief demonstrates that Romero-

Georgana's Final Administrative Removal Order from the

Department of Homeland Security was dated October 22, 2007, and

he appears to have received it on November 5, 2007——almost a

year and a half before he filed his second postconviction

motion. When a defendant has notice that he is likely to be

deported and subsequently brings postconviction claims unrelated

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

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

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

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

Removing all time constraints on a Wis. Stat. § 971.08(2) motion

would frustrate judicial efficiency by encouraging defendants to

delay bringing those motions. In the absence of a time limit,

if a defendant were indifferent to deportation or wanted to be

deported, the defendant would have incentive to keep a

§ 971.08(2) motion in his back pocket while pursuing relief on

other grounds. However, that issue is not before us. In this

case, we need only address Romero-Georgana's motion under Wis.

Stat. § 974.06 because that is the motion he brought.

30

No. 2012AP55

plea withdrawal claim if she had advised him that it was an

option because he wanted to avoid deportation. That allegation

would demonstrate that there is a reasonable probability that

the proceedings would have been different if Attorney Hagopian

had provided effective assistance of counsel. In the absence of

that allegation, the § 974.06 motion alleges only that Romero-

Georgana would not have pled had Attorney LaPlant informed him

of the deportation consequences of his plea. Thus, the

prejudice allegation is at the wrong stage of the proceeding.

This is a subtle point, and we might have given Romero-Georgana,

a pro se defendant, the benefit of the doubt had the rest of his

§ 974.06 motion been adequate. Because he did not allege a

sufficient reason for raising his current claim earlier and

because he did not sufficiently allege Attorney Hagopian's

deficient performance, we do not need to determine whether he

was prejudiced.

¶69 Although we liberally construe filings by pro se

litigants, bin-Rilla v. Israel, 113 Wis. 2d 514, 520, 335

N.W.2d 384 (1983), there is a limit to our lenience. A

reviewing court might avert its eyes from the flaws on the

peripheries, but it will not ignore obvious insufficiencies at

the center of a motion. Romero-Georgana has failed to

sufficiently allege that Attorney Dommershausen was ineffective

for failing to raise the ineffectiveness of Attorney Hagopian in

the second postconviction motion. He has failed to sufficiently

allege that Attorney Hagopian was ineffective for failing to

31

No. 2012AP55

raise the issue of plea withdrawal in the first postconviction

motion.

¶70 When proceedings arrive at the Wis. Stat. § 974.06

stage, the defendant's case has been heard; he has been

represented by counsel; sometimes he has filed previous

postconviction motions. He has progressed through proceedings

designed to facilitate justice and finality. Thus, any claim of

error must point particularly to the facts surrounding the

alleged constitutional or jurisdictional flaws that supposedly

vitiated the goals of the judicial system. Romero-Georgana's

§ 974.06 motion falls far short of what is required.

D. Circuit Court's Exercise of Discretion

¶71 Because Romero-Georgana's motion is barred under

Escalona-Naranjo and Wis. Stat. § 974.06(4) and because he has

failed to sufficiently allege facts that, if true, would entitle

him to relief, the circuit court's decision to deny Romero-

Georgana's § 974.06 motion without a hearing was not an

erroneous exercise of discretion.

IV. CONCLUSION

¶72 We conclude the following.

¶73 First, a defendant who alleges in a § 974.06 motion

that his postconviction counsel was ineffective for failing to

bring certain viable claims must demonstrate that the claims he

wishes to bring are clearly stronger than the claims

postconviction counsel actually brought. See Starks, 349

Wis. 2d 274, ¶6. However, in evaluating the comparative

strength of the claims, reviewing courts should consider any

32

No. 2012AP55

objectives or preferences that the defendant conveyed to his

attorney. A claim's strength may be bolstered if a defendant

directed his attorney to pursue it.

¶74 Second, the defendant has not offered a sufficient

reason for failing to raise his § 974.06 claim in his second

postconviction motion. Without a sufficient reason, a defendant

may not bring a claim in a § 974.06 motion if that claim "could

have been raised in a previously filed sec. 974.02 motion and/or

on direct appeal." Escalona-Naranjo, 185 Wis. 2d at 173.

Consequently, the defendant's claim is barred.

¶75 Third, even if the § 974.06 motion were not barred,

the motion does not allege sufficient facts that, if true, would

entitle the defendant to relief. The defendant failed to allege

that the plea withdrawal claim was clearly stronger than the

resentencing claim. He does not specifically state which

postconviction attorney was ineffective and instead makes an

ambiguous reference to "postconviction counsel." The motion

then focuses almost exclusively on trial counsel and does not

provide facts regarding postconviction counsel's performance.

Consequently, the defendant's motion falls far short of what is

required, and the circuit court properly determined that he is

not entitled to an evidentiary hearing.

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

affirmed.

33

No. 2012AP55-CR.awb

¶76 ANN WALSH BRADLEY, J. (dissenting). As a circuit

court judge, I handled thousands of cases. Many of those cases

dealt with imposing consequences and holding people accountable.

They were required to follow the law.

¶77 Additionally, as a supreme court justice, I have

reviewed thousands of cases which have imposed consequences and

held people accountable. They were required to follow the law.

¶78 Those experiences inform how I approach this case. I

come to this case with what should be the unremarkable

observation that circuit court judges and supreme court justices

should be held to follow the law.

¶79 The law clearly requires judges to "personally" advise

defendants of deportation consequences when entering a guilty

plea. With unusual emphasis underscoring the requirement, the

legislature actually sets forth the explicit wording, detailing

what the judge is to say. Judges are to:

Address the defendant personally and advise the

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

United States of America, you are advised that a plea

of guilty or no contest for the offense with which you

are charged may result in deportation, the exclusion

from admission to this country or the denial of

naturalization, under federal law."

Wis. Stat. § 971.08(1)(c).

¶80 The legislature mandates the remedy of plea withdrawal

if the judge fails to personally explain deportation

consequences. If the prerequisites are met, the statute does

not provide for a remedy of "maybe plea withdrawal" or "plea

withdrawal upon compliance with a maze of conditions." Rather,

1

No. 2012AP55-CR.awb

the law clearly provides that the court "shall vacate" the

judgment and "permit the defendant to withdraw the plea."

If a court fails to advise a defendant as required by

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

is likely to result in the defendant's deportation,

exclusion from admission to this country or denial of

naturalization, the court on the defendant's motion

shall vacate any applicable judgment against the

defendant and permit the defendant to withdraw the

plea and enter another plea.

Wis. Stat. § 971.08(2).

¶81 Here the circuit court judge failed to follow the law.

He did not give the deportation warning as mandated.

¶82 And the majority of the supreme court fails to follow

the law. Instead of following the clear remedy of plea

withdrawal set forth in the statute, the majority engrafts all

sorts of conditions onto the statute. One need almost be a

"Philadelphia lawyer" to follow the byzantine maze of added

conditions that the majority embraces.

¶83 The consequence of the majority opinion is

unfortunate. It is not a mere error of law but an error that

affects life and liberty.

¶84 For this defendant and others similarly situated, the

majority appears to erase from the statutory text the

legislatively mandated remedy. In reaching its conclusion, the

majority ignores the express language of the statute, the

purpose behind Wis. Stat. § 971.08, and our case law

interpreting it.

2

No. 2012AP55-CR.awb

¶85 Because I conclude that Wis. Stat. § 971.08 means what

it says and that we are required to follow it, I respectfully

dissent.

I

¶86 This case involves a non-citizen defendant who did not

receive the required deportation warning.1 Paramount to the

analysis is the language of the statute.

¶87 Wisconsin Stat. § 971.08(2) provides that if a court

has failed to personally inform a defendant that a plea may

result in deportation, and it is later shown that the plea is

likely to result in deportation, "the court on the defendant's

motion shall vacate any applicable judgment against the

defendant and permit the defendant to withdraw the plea and

enter another plea." (Emphasis supplied.)

¶88 Rather than follow the dictates of the statute, the

majority imposes the restraints of Wis. Stat. § 974.06 and State

v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994),

without questioning whether they apply. In superimposing

§ 974.06 and Escalona-Naranjo onto the clear words of the

statute, the majority rewrites the statute for the defendant and

others similarly situated. Now they are required to meet a

1

Wisconsin's non-citizens include people who have lawful

permanent resident status (a "green card"), refugees and asylees

and certain legal nonimmigrants (including those on student,

work, or some other temporary visas). In addition, as of 2010,

Wisconsin is home to an estimated 100,000 undocumented

immigrants. Jeffrey S. Passel & D'Vera Cohn, "Unauthorized

Immigrant Population: National and State Trends, 2010" (Feb. 1,

2011), available at http://www.pewhispanic.org/files/

reports/133.pdf.

3

No. 2012AP55-CR.awb

multitude of conditions that cannot be found anywhere in the

statute.

¶89 In essence, the majority's response to the clear

legislative mandate is as follows:

 OK, we shall vacate and permit plea withdrawal, but only if

the defendant alleges that second postconviction counsel

"was constitutionally ineffective in the second

postconviction motion for failing to raise a claim about

[first postconviction counsel's] ineffectiveness for

failing to bring a plea withdrawal claim in the first

postconviction motion." Majority op., ¶51.

 OK, we shall vacate and permit plea withdrawal, but only if

defendant alleges that [first postconviction counsel] "was

constitutionally ineffective in the first postconviction

motion for failing to raise the plea withdrawal claim."

Id., ¶51.

 OK, we shall vacate and permit plea withdrawal, but only if

the defendant alleges "why and how his postconviction

counsel was constitutionally ineffective." Id., ¶36.

 OK, we shall vacate and permit plea withdrawal, but only if

the defendant shows "sufficient reason" for not bringing

the claim in an earlier motion or appeal. Id., ¶34.

4

No. 2012AP55-CR.awb

 OK, we shall vacate and permit plea withdrawal, but only if

the defendant demonstrates that the claim now made is

"clearly stronger" than previously made claims.2 Id., ¶46.

 OK, we shall vacate and permit plea withdrawal, but only if

the defendant alleges "sufficient material facts——e.g.,

who, what, where, when, why, and how"——that if true would

entitle the defendant to the relief sought. Id., ¶37.

¶90 Nothing in Wis. Stat. § 971.08(2) requires a defendant

to bring a motion to withdraw under the auspices of Wis. Stat.

§ 974.06. Nothing in Wis. Stat. § 971.08(2) indicates that a

motion to withdraw can be brought under another statute.

Indeed, courts have repeatedly considered motions to withdraw

under Wis. Stat. § 971.08(2) without reference to Wis. Stat.

2

In its analysis, the majority extends the "clearly

stronger" standard from State v. Starks, 2013 WI 69, 349 Wis. 2d

274, 833 N.W.2d 146. Majority op., ¶¶45-46. As I explained in

my dissent to Starks, the "clearly stronger" standard is too

rigid and cannot practically be applied in many situations.

Starks, 349 Wis. 2d 274, ¶¶94, 98-102 (Bradley, J., dissenting).

The standard runs counter to United States Supreme Court

precedent, which has declined to adopt bright-line standards for

evaluating deficiency. Cullen v. Pinholster, 131 S. Ct. 1388,

1406 (2011). Further, it is inconsistent with Strickland v.

Washington, 466 U.S. 668, 695 (1984), which requires an

evaluation of the reasonableness of an attorney's performance

under the totality of the circumstances.

Although the "clearly stronger" is one factor to consider

in applying Strickland, it is not the test. There are many

situations in which the standard will prove unworkable. This

case is one of those situations. Given that it appears the

defendant would have been successful in both the resentencing

motion and the Wis. Stat. § 971.08(2) motion, a court cannot

determine whether his postconviction representation was

deficient without considering whether she adequately informed

Romero-Georgana of his options and what, if anything, Romero-

Georgana asked her to do on his behalf.

5

No. 2012AP55-CR.awb

§ 974.06. See, e.g., State v. Negrete, 2012 WI 92, 343 Wis. 2d

1, 819 N.W.2d 749; State v. Douangmala, 2002 WI 62, 253 Wis. 2d

173, 646 N.W.2d 1; State v. Vang, 2010 WI App 118, 328 Wis. 2d

251, 789 N.W.2d 115; State v. Bedolla, 2006 WI App 154, 295 Wis.

2d 410, 720 N.W.2d 158.

¶91 The apparent reason the majority incorporates the

§ 974.06 and the Escalona-Naranjo standard is because it

considers the defendant's motion untimely under Wis. Stat.

§ 971.08(2). Majority op., ¶66. Yet, unlike the other

statutory procedures for postconviction motions, Wis. Stat.

§ 971.08(2) imposes no time limitations. See, e.g., Wis. Stat.

§§ 809.30 and 974.02 (requiring defendant to file notice of

appeal or motion seeking postconviction relief within 60 days

after service of transcript or court record).

¶92 It is impractical to expect a defendant to move timely

to withdraw a plea on a ground for which he would have no

knowledge. As explained in Vang, 328 Wis. 2d 251, ¶14, "[t]he

statute anticipates that the motion to vacate the judgment and

withdraw the plea will be submitted following a qualifying event

in the future and reserves the right to defendants who

demonstrate they have suffered the particular harm."

¶93 Notably, the qualifying event, notice of deportation,

will often be long after the timeframes for filing for

postconviction relief under Wis. Stat. §§ 974.02 and 809.30 have

expired. One commentator observed, "it often takes more than a

decade for the INS (now ICE) to initiate deportation

proceedings." Cody Harris, Comment, A Problem of Proof: How

6

No. 2012AP55-CR.awb

Routine Destruction of Court Records Routinely Destroys a

Statutory Remedy, 59 Stan. L. Rev. 1791, 1805 (2007).3 Thus, the

majority's suggestion that Romero-Georgana's motion would be

untimely under Wis. Stat. § 971.08(2) is supported neither by

practicality nor by the text of the statute.

II

¶94 The majority's failure to honor the statutory language

undermines not only the legislative intent as expressed by the

clear words of the statute, but also the important purpose

behind Wis. Stat. § 971.08. When passed in 1985, it was

intended to serve as a safeguard, ensuring that a non-citizen

defendant not unwittingly plead guilty because he was unaware of

the significant potential consequences of deportation.4 The

3

The majority attempts to justify its timeliness argument

by referencing in a footnote the legislative history of Wis.

Stat. § 971.08. Majority op., ¶67 n.14. It observes that in

1983 the statute was amended to eliminate a 120-day time limit

for filing motions to withdraw under Wis. Stat. § 971.08(1)

because those claims could be brought under Wis. Stat.

§§ 809.30, 974.02, or 974.06. Contrary to the majority's

suggestion, the 1983 amendment provides no illumination to our

analysis because it predates the enactment of the current Wis.

Stat. § 971.08(2). It was not until 1985 that the legislature

mandated the deportation warning along with its required remedy.

As discussed above, its very language suggests that no time

limit was intended.

4

The drafting files to Wis. Stat. § 971.08 note that the

enactment of similar legislation in other states "go[es] a long

way to alleviate the hardship and unfairness involved when an

alien unwittingly pleads guilty or nolo contendere to a charge

without being informed of the immigration consequences of such a

plea." Drafting files, 1985 Wis. Act 252, on file with the Wis.

Legislative Reference Bureau.

7

No. 2012AP55-CR.awb

landscape of immigration policy and practice has changed

dramatically over the ensuing years making the need for

safeguards even more pronounced.5

¶95 Currently, non-citizens are being deported in record

numbers.6 Reportedly, in the last eight years nearly two million

people were deported. Of those, "[t]wenty percent——or about

394,000——of the cases involved people convicted of serious

crimes, including drug-related offenses." Others may have

committed only minor infractions, including traffic violations.7

"Even long-term lawful permanent residents who have lived much

of their lives in the United States are subject to immigration

detention and deportation as a consequence of criminal arrest

and conviction." Allegra M. McLeod, The U.S. Criminal-

Immigration Convergence and Its Possible Undoing, 49 Am. Crim.

L. Rev. 105, 113 (2012).

¶96 Commenting on the change in the immigration landscape,

the United States Supreme Court observed how the changes have

exacerbated the importance for non-citizens to be aware of the

deportation consequences when entering a guilty plea:

5

The changes in the legal landscape are discussed in

Vivian Chang, Where Do We Go from Here: Plea Colloquy Warnings

and Immigration Consequences Post-Padilla, 45 U. Mich. J.L.

Reform 189, 193 (2011).

6

DHS Office of Immigration Statistics Annual Report:

"Immigration Enforcement Actions: 2012," available at

http://www.dhs.gov/sites/default/files/publications/ois_enforcem

ent_ar_2012_1.pdf.

7

Ginger Thompson, More Deportations Follow Minor Crimes,

Records Show, New York Times, Apr. 6, 2014.

8

No. 2012AP55-CR.awb

The importance of accurate legal advice for non-

citizens accused of crimes has never been more

important. . . . [D]eportation is an integral part——

indeed, sometimes the most important part——of the

penalty that may be imposed on non-citizen defendants

who plead guilty to specified crimes.

Padilla v. Kentucky, 559 U.S. 356, 364 (2010).

¶97 The Padilla court focused on the obligation of a

defense attorney under the Sixth Amendment to advise non-

citizens about potential deportation consequences that arise

from criminal convictions. Id. It determined that the absence

of such advice may be the basis for a claim of ineffective

assistance of counsel. Id. at 360.8 It did not, however,

address the obligation of the court when presiding over the plea

of a non-citizen in a criminal proceeding.

¶98 In its first published post-Padilla decision, the

Wisconsin Court of Appeals also referenced the severe

consequences of deportation. State v. Mendez, 2014 WI App 57,

___ Wis. 2d ___, ___ N.W.2d ___. Describing the defendant, it

noted that Mendez came to this country in 1997 when he was

fourteen years old and never returned to Mexico. Id., ¶3. He

is married to a United States citizen and together they have a

four-year-old child who is a United States citizen. The court

8

The court observed:

Immigration law can be complex, and it is a legal

specialty of its own. Some members of the bar who

represent clients facing criminal charges, in either

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

in it. . . . But when the deportation consequence is

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

correct advice is equally clear.

Padilla, 559 U.S. at 369.

9

No. 2012AP55-CR.awb

observed that "despite the benefit of a great reduction in the

length of the potential prison sentence, a rational non-citizen

defendant might have rejected a plea bargain and risked trial

for the chance at avoiding deportation." Id., ¶16. Like

Padilla, the Mendez court focused on the ineffective assistance

of counsel claim and did not discuss the duty of a circuit court

when accepting a guilty plea.

¶99 The importance of deportation warnings and the duty of

a judge to give them was addressed recently by the New York

Court of Appeals. People v. Peque, 3 N.E.3d 617 (2013). It

commented that under contemporary law, a non-citizen's removal

upon a felony conviction "is practically inevitable," and

described this as an "enormous penalty upon non-citizen

convicts," with wide-ranging consequences for life and liberty:

After being removed from the country, the defendant

rarely, if ever, has further in-person contact with

any family members remaining in America. Additionally,

deportation effectively strips the defendant of any

employment he or she had in this country, thus

depriving the defendant and his or her family of

critical financial support.

Id. at 630-32. Accordingly, it determined that a court was

required to inform a defendant of the possible deportation

consequences of entering a guilty plea. Id. at 635.

¶100 Several states have legislation like Wisconsin's

affirmatively requiring courts to take an active role in

informing defendants of the possible deportation consequences of

entering a guilty plea. See, e.g., Cal. Penal Code Ann.

§ 1016.5; Conn. Gen. Stat. § 54-1j; D.C. Code § 16-713; Fla.

Rule Crim. Proc. 3.172(c)(8); Ga. Code Ann. § 17-7-93(c); Haw.

10

No. 2012AP55-CR.awb

Rev. Stat. Ann. § 802E-2; Iowa Rule Crim. Proc. 2.8(2)(b)(3);

Mass. Gen. Laws, ch. 278, § 29D; Minn. Rule Crim. Proc. 15.01;

Mont. Code Ann. § 46-12-210; N.Y. Crim. Proc. Law Ann.

§ 220.50(7); N.C. Gen. Stat. Ann. § 15A-1022; Ohio Rev. Code

Ann. § 2943.031; Ore. Rev. Stat. § 135.385; R.I. Gen. Laws § 12-

12-22; Tex. Code Crim. Proc. Ann., art. 26.13(a)(4); Vt. Stat.

Ann., tit. 13, § 6565(c)(1); Wash. Rev. Code § 10.40.200.

¶101 This court has acknowledged that "by enacting Wis.

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

contemplated in Padilla, but placed the duty to warn on the

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

343 Wis. 2d 1, ¶33 n.12. By circumventing the remedy set forth

in Wis. Stat. § 971.08(2), the majority minimizes the judge's

duty and undermines the purpose of the statute.

III

¶102 Our precedent interpreting the statute has strictly

held circuit courts to the requirements in Wis. Stat. § 971.08.

In State v. Douangmala, this court determined that Wis. Stat.

§ 971.08(2) means what it expressly states: if the defendant

makes the required showing, "the circuit court 'shall' vacate

the judgment and shall permit the defendant to withdraw the

plea." 253 Wis. 2d 173, ¶31. The court explained that "[t]he

word 'shall' in a statute is presumed to be mandatory unless a

different construction is necessary to carry out the

legislature's clear intent. Nothing in Wis. Stat. § 971.08

points to a different interpretation of the word 'shall' than an

interpretation that the word signifies a mandatory act." Id.

11

No. 2012AP55-CR.awb

¶103 Similarly, in Negrete, 343 Wis. 2d 1, ¶23, this court

explained that the procedures required by Wis. Stat. § 971.08(2)

are clear. All the defendant is required to show in order to

withdraw a plea are the two elements enumerated in Wis. Stat.

§ 971.08(2):

To employ Wis. Stat. § 971.08(2) to withdraw his plea,

however, the defendant's motion must first allege two

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

[the] defendant [of the deportation consequences of

the defendant's plea] as required by [§

971.08(1)(c)]"; and (2) that the defendant's "plea is

likely to result in the defendant's deportation,

exclusion from admission to this country[,] or denial

of naturalization."

Id., ¶23 (quoting Wis. Stat. § 971.08(2)).

¶104 Here, Romero-Georgana has shown what Negrete requires.

He was not given the mandatory warning by the circuit court that

a guilty plea could lead to his deportation and that he is now

facing deportation. Under the governing statute, Wis. Stat.

§ 971.08(2), that is all that Romero-Georgana needed to show in

order to withdraw his plea. Douangmala, 253 Wis. 2d 173, ¶31.

¶105 I acknowledge that Romero-Georgana's pro se motion was

on a form for Wis. Stat. § 974.06 motions. Perhaps this is why

the majority was misled. However, the only citation to Wis.

Stat. § 974.06 is in the form's preprinted labels on the first

and second pages. Neither the text of the motion nor the

attached affidavit makes any reference to a § 974.06 motion.

Even the majority recognizes that "Romero-Georgana likely could

have withdrawn his plea if he had timely brought a § 971.08(2)

motion." Majority op., ¶66.

12

No. 2012AP55-CR.awb

¶106 Nothing in Wis. Stat. § 971.08(2) or our precedent

permits a reviewing court to ignore the circuit court's duty

because of the defendant's failure to correctly label the

motion. A defendant's action or inaction cannot alter the duty

of the court under Wis. Stat. § 971.08(1)(c). Vang, 328 Wis. 2d

251, ¶14. Furthermore, under our precedent, Romero-Georgana's

confusion in selecting the wrong label does not serve as a bar

to his claim.

¶107 Wisconsin courts have a well-settled policy of

liberally construing the pro se pleadings of prisoners to

determine whether they contain a cause of action. State v.

Love, 2005 WI 116, ¶29 n.10, 284 Wis. 2d 111, 700 N.W.2d 62

(quoting State ex rel. Terry v. Traeger, 60 Wis. 2d 490, 496,

211 N.W.2d 4 (1973)) ("[W]e must follow a liberal policy in

judging the sufficiency of pro se complaints filed by unlettered

and indigent prisoners."); State ex rel. L'Minggio v. Gamble,

2003 WI 82, ¶16, 263 Wis. 2d 55, 667 N.W.2d 1 ("At the outset,

we note that it is well-settled that pro se complaints are to be

liberally construed to determine if the complaint states any

facts that can give rise to a cause of action."); Lewis v.

Sullivan, 188 Wis. 2d 157, 164, 524 N.W.2d 630 (1994) ("[P]ro se

complaints of prisoners must be construed liberally in

determining whether the stated facts give rise to a cause of

action.").

¶108 This court has explicitly instructed courts to look

to the contents of a pleading, not its label, to determine if

the prisoner is entitled to relief:

13

No. 2012AP55-CR.awb

We re-emphasize today what we have said previously. A

court presented with a prisoner's pro se document

seeking relief must look to the facts stated in the

document to determine whether the petitioner may be

entitled to any relief if the facts alleged are

proved. Neither a trial nor an appellate court should

deny a prisoner's pleading based on its label rather

than on its allegations. If necessary the court

should relabel the prisoner's pleading and proceed

from there.

bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983)

(emphasis supplied).

¶109 In this case, Romero-Georgana filed his motion without

the assistance of an attorney. The contents of the motion and

attached affidavit relate to the circuit court's failure to

inform him of the possible deportation consequences of his plea

and the fact that he is now facing deportation.9 The only

9

The motion states:

Romero-Georgana is a native of Mexico and is not a

citizen of the United States of America. Romero-

Georgana contends that the trial court failed to

advise him that if he pleas no contest he may be

deported.

Romero-Georgana pled no contest to one count of first

degree sexual assault of a child. Romero-Georgana did

through the use of the Plea Questionnaire/Waiver of

Rights form verify that he did understand the question

regarding deportation. However, Romero-Georgana

contends that at the time he completed the Plea

Questionnaire/Waiver of Rights Form that he did not

fully understand what he was initialing due to his

limited English skills, poor quality of interpreters

being employed by his attorney at the time, and the

failure of counsel to advise him of the consequences.

Romero-Georgana contends that had he known he would be

deported upon entering the no contest plea he would

have instead entered a plea of not guilty and went to

trial.

At no time did the court during the plea colloquy

(Plea Hearing Transcripts dated November 17, 2006,

14

No. 2012AP55-CR.awb

citation to Wis. Stat. § 974.06 in the motion is in its pre-

printed labels.

¶110 In an apparent attempt to deflect from the circuit

court's and this court's failure to follow the clear statutory

language, the majority lays blame on the back of the defendant

who filed pro se the motion and the petition for review. It

quotes in both text and footnote the comment of Romero-

Georgana's attorney who was appointed after the petition for

review was granted and who felt constrained by the order

granting the petition which she interpreted as precluding her

from raising a § 971.08(2) issue. Majority op., ¶67 and n.14.10

¶111 It is not the defendant's fault that the circuit court

failed to give the statutorily mandated deportation warning.

Wisconsin Stat § 971.08(1)(c) expressly provides that it is the

duty of the circuit court to give it.

pages 2-4) advise Romero-Georgana of the deportation

consequences of his entering a plea of no contest.

Again, Romero-Georgana contends he would not have

entered a plea of no contest had he fully understood

he would have been deported.

To verify that Romero-Georgana is indeed facing

deportation back to his native land of Mexico he

submits the Immigration Detainer-Notice of Action Form

File #A097-838-176, dated March 20, 2007. (Exhibit 1)

10

At oral argument Romero-Georgana's attorney stated "[a]s

this court knows we were appointed . . . after the petition for

review was filed and the case had been decided up to that point

under 974.06." The attorney further stated "[t]his court's

order granting review specifically asked us to stay within the

arguments made in the petition for review, and that did not

include an argument that this case should be decided as a

971.08(2) motion by itself."

15

No. 2012AP55-CR.awb

¶112 It is not the fault of the attorney appointed after

the petition for review was granted that this court fails to

follow the remedy mandated by the clear statutory language.

Wisconsin Stat. § 971.08(2) expressly provides that if the

preconditions are met, the remedy is "shall vacate . . . and

permit the defendant to withdraw the plea . . . ."

¶113 A defendant's action or inaction does not relieve the

circuit court of its duty to give the deportation warning. Nor

does an attorney's action or inaction give license to this court

to rewrite the words of a statute or circumvent the clearly

mandated legislative remedy.

IV

¶114 I conclude that the language of Wis. Stat. § 971.08(2)

is clear. If a defendant shows that the court did not advise

him of the possible deportation consequences of a plea and that

the defendant is likely to be deported as a result of his plea,

the court "shall" vacate the sentence. Wis. Stat. § 971.08(2).

¶115 The statute includes no requirement that the defendant

follow Wis. Stat. § 974.06 to obtain such relief. Its directive

to the courts is mandatory and should be strictly construed.

Accordingly, because the circuit court did not inform Romero-

Georgana of the possible deportation consequences of his plea

and he is now facing deportation, Wis. Stat. § 971.08(2)

requires that he be permitted to withdraw his plea.

¶116 For the reasons set forth above, I respectfully

dissent.

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No. 2012AP55-CR.awb

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

ABRAHAMSON joins this dissent.

17

No. 2012AP55-CR.awb

1