                                                                       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,
                                                                      FILED
      v.                                                         JUL 9, 2015

Fernando Ortiz-Mondragon,                                          Diane M. Fremgen
                                                                Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




      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")              post-
conviction 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      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)
                                                 2
                                                                            No.     2013AP2435-CR



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).



                                              3
                                                                            No.      2013AP2435-CR



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)
                                                 4
                                                                       No.    2013AP2435-CR



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.


                                             5
                                                                        No.   2013AP2435-CR



        ¶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.                   Ortiz-

Mondragon 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.


                                                 6
                                                                          No.     2013AP2435-CR



        ¶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 Ortiz-
Mondragon, "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.
                                               7
                                                         No.    2013AP2435-CR


          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.



                                     8
                                                                                   No.   2013AP2435-CR


           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-and-
waiver-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-


                                                     9
                                                                       No.   2013AP2435-CR



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 Ortiz-
Mondragon 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.



                                              10
                                                                   No.     2013AP2435-CR



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."



                                           11
                                                                          No.     2013AP2435-CR



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)).



                                                12
                                                                       No.     2013AP2435-CR



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     Ortiz-
Mondragon 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     Ortiz-
Mondragon 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
                                             13
                                                                   No.    2013AP2435-CR



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."
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 Ortiz-
Mondragon "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
                                            14
                                                                        No.    2013AP2435-CR



        ¶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).


                                              15
                                                                         No.     2013AP2435-CR



        ¶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
                                               16
                                                                               No.        2013AP2435-CR



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.
                                                   17
                                                                                   No.     2013AP2435-CR



        ¶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?




                                                 18
                                                                 No.      2013AP2435-CR



      ¶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).



                                         19
                                                                           No.      2013AP2435-CR



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 Ortiz-
Mondragon.       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
                                                20
                                                                               No.    2013AP2435-CR



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
                                                  21
                                                                            No.     2013AP2435-CR



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).



                                                 22
                                                                            No.        2013AP2435-CR



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 Baldini-
Potermin, Defending Non-Citizens in Illinois, Indiana, and
Wisconsin     3-5     to     3-9     (2009),      available  at
https://www.immigrantjustice.org/defendersmanual.



                                                23
                                                                   No.    2013AP2435-CR



     ¶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 Silva-
Trevino, 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.



                                         24
                                                                          No.    2013AP2435-CR



crimes    involving          moral   turpitude         is     presently    in    a    state   of
flux . . . ."              Maria   Theresa      Baldini-Potermin,          Defending       Non-
Citizens       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
                                                25
                                                                      No.    2013AP2435-CR



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.").



                                           26
                                                                   No.    2013AP2435-CR



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 non-
morally turpitudinous conduct targeted at a victim with whom the
defendant has a special relationship may transform a crime into
one involving moral turpitude.").



                                          27
                                                                                 No.       2013AP2435-CR



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       Ortiz-
Mondragon'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)
                                                     28
                                                                        No.    2013AP2435-CR



(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)
                                              29
                                                                No.     2013AP2435-CR



     ¶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 hard-
pressed 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).



                                           30
                                                                          No.        2013AP2435-CR



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       Ortiz-
Mondragon 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).



                                               31
                                                                     No.     2013AP2435-CR



       ¶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."
                                           32
                                                                         No.     2013AP2435-CR



      ¶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       Ortiz-
Mondragon'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.
                                              33
                                                                           No.     2013AP2435-CR



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 Ortiz-
Mondragon     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
                                              34
                                                                                     No.     2013AP2435-CR



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)).



                                                   35
                                                                      No.     2013AP2435-CR



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
                                            36
                                                                              No.     2013AP2435-CR



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)
                                                   37
                                                                                  No.     2013AP2435-CR



       ¶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).



                                                     38
                                                                              No.       2013AP2435-CR



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     Ortiz-
Mondragon'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. Ortiz-

Mondragon 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
                                                 39
                                                                        No.        2013AP2435-CR



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
                                             40
                                                                      No.     2013AP2435-CR



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 Montes-
Flores, 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)
                                             41
                                                                                 No.     2013AP2435-CR



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.



                                                  42
                                                                              No.     2013AP2435-CR



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"); Lopez-
Penaloza,           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
                                                  43
                                                                      No.    2013AP2435-CR



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.




                                             44
                                                                              No.    2013AP2435-CR.awb




       ¶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.



                                                 1
                                                                       No.   2013AP2435-CR.awb


      ¶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."


                                              2
                                                            No.    2013AP2435-CR.awb


                                          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 Ortiz-
Mondragon 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




                                          3
                                                                       No.    2013AP2435-CR.awb

       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.


                                                4
                                                               No.    2013AP2435-CR.awb


'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.'"); Gonzalez-
Gonzalez 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.


                                       5
                                                                       No.   2013AP2435-CR.awb


        ¶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

                                                6
                                                                 No.    2013AP2435-CR.awb


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.




                                           7
                                                                    No.    2013AP2435-CR.awb


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-



                                              8
                                                                  No.    2013AP2435-CR.awb


list#Chicago.5          Thus,    upon     completion      of    his     sentence     Ortiz-
Mondragon'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 Ortiz-

Mondragon'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.


                                            9
                                                             No.       2013AP2435-CR.awb


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


                                      10
                                                                          No.   2013AP2435-CR.awb


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



                                             11
                                                         No.    2013AP2435-CR.awb


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, Morales-
Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009), has not been
followed outside of the Ninth Circuit.


                                      12
                                                            No.    2013AP2435-CR.awb


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).
                                          13
                                                               No.    2013AP2435-CR.awb


       ¶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

                                         14
                                                      No.   2013AP2435-CR.awb


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

                                   15
                                                                       No.    2013AP2435-CR.awb

        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. Ortiz-
Mondragon 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



                                                16
                                                                         No.   2013AP2435-CR.awb


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   Ortiz-

Mondragon'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 Ortiz-
Mondragon'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.

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       ¶114 Each of the majority's errors removes some of that
protection.           By    ignoring       statutory         grounds      rendering        Ortiz-
Mondragon       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    Ortiz-
Mondragon'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.




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