                                                                  2015 WI 74

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2013AP1437-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Hatem M. Shata,
                                 Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                         (Reported at 356 Wis. 2d 326, 855 N.W.2d 491)
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:         July 9, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 21, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Timothy G. Dugan

JUSTICES:
   CONCURRED:
   DISSENTED:          BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
                       Filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Nancy Noet, assistant attorney general, with whom on
the briefs was Brad Schimel, attorney general.


       For the defendant-appellant, there was a brief by Amelia L.
Bizzaro and Bizzaro Law LLC, Milwaukee. Oral argument by Amelia
L. Bizzaro.


       An amicus curiae brief was filed by Stacy Taeuber on behalf
of the University of Wisconsin Law School, Immigrant Justice
Clinic. Oral argument by Stacy Taeuber.
                                                                       2015 WI 74
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2013AP1437-CR
(L.C. No.   2012CF1757)

STATE OF WISCONSIN                           :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent-Petitioner,                       FILED
      v.
                                                                JUL 9, 2015
Hatem M. Shata,
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
             Defendant-Appellant.




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


      ¶1     ANNETTE KINGSLAND ZIEGLER, J.          This is a review of an
unpublished decision of the court of appeals,1 which reversed the
Milwaukee     County   Circuit   Court's2   judgment      of    conviction       and
order denying Hatem Shata's ("Shata") post-conviction motion to
withdraw his guilty plea to one count of possession with intent
to deliver marijuana, as party to a crime.



      1
       State v. Shata, No. 2013AP1437-CR, unpublished slip op.
(Wis. Ct. App. July 15, 2014).
      2
          The Honorable Timothy G. Dugan presided.
                                                                                 No.    2013AP1437-CR



        ¶2           Shata argues that the circuit court erred by denying
his motion to withdraw his guilty plea.                                 He argues that he
should          be     allowed      to    withdraw       his    plea        on    the     basis    of
ineffective assistance of counsel under Padilla v. Kentucky, 559
U.S. 356 (2010).
        ¶3           Specifically,       Shata    argues       that,    under          Padilla,   his
trial counsel performed deficiently by failing to inform him
that        he       would     be    subject       to    "mandatory"             deportation      if
convicted.3             Although trial counsel did inform Shata that he
faced       a    "strong       chance"      of    deportation          if    convicted,        Shata
argues       that       this     advice    was     deficient      because          trial    counsel
should          have    told     him     that    "his    conviction          would       absolutely

result          in    deportation."             Shata    argues    that          immigration      law
clearly provides that he would have been subject to mandatory
deportation upon conviction.                       Shata argues that this deficient
performance prejudiced him because he would have insisted on
going to trial had he known that the guilty plea would subject
him to mandatory deportation.                          He argues that deportation has


        3
       In his brief, Shata argues that his deportation is
"mandatory" under 8 U.S.C. § 1227(a)(2)(B)(i).      However, the
Supreme Court has described deportation under that statute as
"presumptively mandatory."   Padilla v. Kentucky, 559 U.S. 356,
368-69 (2010). That statute does not state that deportation is
"mandatory." Rather, it states that certain aliens "shall, upon
the order of the Attorney General, be removed . . . ." 8 U.S.C.
§ 1227(a)(intro.).   The Attorney General has some discretion to
prevent deportation. Padilla, 559 U.S. at 363-64. Further, as
we will explain later, the United States Department of Homeland
Security exercises prosecutorial discretion as to which aliens
it will seek to deport.



                                                   2
                                                                      No.     2013AP1437-CR



been his primary concern throughout this case because he has
lived in the United States for 22 years and does not want to be
separated from his children and wife, who live in New Jersey.
       ¶4      The    State   argues       that    the    circuit     court       correctly
denied Shata's post-conviction motion because his trial counsel
did provide effective assistance.                  The State argues that Shata's
attorney did not perform deficiently.                      The State contends that
under Padilla, Shata's attorney was merely required to inform
him that he was at risk of being deported if convicted.                                 The
State argues that Shata's attorney went above and beyond that
requirement by telling Shata that he faced a "strong chance" of
deportation.         The State argues that Shata's conviction made him

"deportable"         but   did     not    make     his    deportation       an     absolute
certainty.           The   State    also    argues       that,   if   Shata's       counsel
performed deficiently, Shata was not prejudiced thereby.                                The
State argues that Shata would have pled guilty even if he had
been    told     that      deportation      was     an    absolute     certainty       upon
conviction.          Alternatively, the State argues that this court
should remand the matter to the circuit court for a hearing on
the issue of prejudice.
       ¶5      We conclude that Shata is not entitled to withdraw his
guilty plea because he did not receive ineffective assistance of
counsel.         Specifically,           Shata's     attorney       did     not    perform
deficiently.          Shata's attorney was required to "give correct
advice" to Shata about the possible immigration consequences of
his conviction.            Padilla, 559 U.S. at 369.                  Shata's attorney
satisfied that requirement by correctly advising Shata that his
                                             3
                                                                     No.    2013AP1437-CR



guilty plea carried a "strong chance" of deportation.                             Shata's
attorney was not required to tell him that his guilty plea would
absolutely result in deportation.                      In fact, Shata's deportation
was not an absolute certainty.                   Executive action, including the
United     States    Department       of     Homeland      Security's      exercise     of
prosecutorial        discretion,           can     block     the    deportation         of
deportable     aliens.4         Because      Shata's       trial    counsel      did   not
perform deficiently, we do not address the issue of prejudice.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
      ¶6     Shata is an Egyptian foreign national and is not a
United States citizen.              He has been living in the United States
since approximately 1991.              In December 2011 he opened a coffee

shop called the Sphinx Café, located in Milwaukee.
      ¶7     On     April     18,    2012,       the    Milwaukee   County       District
Attorney's Office filed a criminal complaint charging Shata with
one count of possession with intent to deliver marijuana, as
party to a crime, contrary to Wis. Stat. §§ 961.41(1m)(h)3.,
939.50(3)(g), and 939.05 (2011-12).5
      ¶8     According to the complaint, investigators obtained a
warrant to search the Sphinx Café after receiving information
that a substantial amount of marijuana was being stored there.
On   February       16,     2012,    shortly      before     executing     the     search


      4
       "The term 'alien' means any person not a citizen                                 or
national of the United States." 8 U.S.C. § 1101(a)(3).
      5
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.



                                             4
                                                                        No.     2013AP1437-CR



warrant,       investigators        conducted        surveillance        of     the    Sphinx
Café.         While   conducting         surveillance,      a    detective       saw     Shata
carry a large cardboard box from the Sphinx Café and place it in
the trunk of a car parked on the street.                        Shata was accompanied
by    one     of   his     employees,       Amanda    Nowak      ("Nowak").           Shortly
thereafter, Shata returned to the Sphinx Café and Nowak drove
away     in     the      car.      Law      enforcement         officers      subsequently
conducted a traffic stop of the car.                            Nowak consented to a
search of the car, and officers found 2,319 grams (approximately
five    pounds)       of    marijuana     inside     of   the     box    that    Shata     had
placed in the trunk.              Also on February 16 investigators executed
the search warrant.               A search of Shata's person revealed 2.9

grams of marijuana and 1.7 grams of cocaine, which he claimed
were for personal use.
        ¶9     The    complaint      further      alleged       that    Nowak    and     Shata
confessed to selling marijuana.                    Specifically, Shata confessed
to selling marijuana through the Sphinx Café in order to support
his     family.          Nowak    told     investigators         that    Shata     let     his
marijuana supplier store marijuana at the Sphinx Café, sometimes
up to 20 pounds.             Nowak also told investigators that Shata sold
marijuana and that he would front marijuana to her, she would
sell it, and then she would give the sale proceeds to Shata.
        ¶10    On May 2, 2012, Shata made an initial appearance and a
signature bond was set.                  On May 15 the circuit court held a

preliminary hearing.              Shata waived his right to a preliminary
examination and was bound over for trial.                        The State then filed
an    information          and   provided    a    copy    to    Shata,     who    waived     a
                                              5
                                                                       No.     2013AP1437-CR



reading and pled not guilty.                The information charged Shata with
the same count that was in the complaint.
                                 A. The Plea Hearing
        ¶11    On October 5, 2012, Shata appeared in court for a pre-
trial     hearing       that    turned   into       a    plea    hearing.           Shata's
attorney,       James    Toran    ("Attorney        Toran"),    informed        the    court
that Shata "doesn't want to be deported."                       Attorney Toran asked
the court to adjourn the trial date so that he could "deal with"
the immigration consequences that Shata could face if convicted.
The court denied the request for an adjournment but offered to
schedule another pre-trial hearing.                     The court passed the case
to allow Attorney Toran to confer with Shata and the State.

        ¶12    After     a     discussion     off       the   record,        the    parties
appeared before the court again.                     The State described a plea
agreement to the court.            Specifically, if Shata pled guilty, the
State would recommend two years of initial confinement followed
by two years of extended supervision, imposed and stayed for 24
months of probation.              As a condition of probation, the State
would     recommend      12     months   of       confinement     in     the       House   of
Corrections.        The maximum penalty that Shata faced was "a fine
not to exceed $25,000 or imprisonment not to exceed 10 years, or
both."        Wis. Stat. §§ 939.50(3)(g), 961.41(1m)(h)3.                     Shata faced
a "term of confinement in prison" not to exceed five years.
Wis. Stat. § 973.01(2)(b)7.

        ¶13    After confirming that the State accurately described
the plea agreement, Attorney Toran told the court that he had
informed Shata "that there's a potential he could be deported."
                                              6
                                                             No.    2013AP1437-CR


          MR. TORAN: And [Shata] is——I did inform him of
     the potential that he's——Are you a United States
     citizen?

            THE DEFENDANT:       No.

          MR. TORAN: He's not a United States citizen,
     that there's a potential he could be deported.

          THE COURT: All right.              And, Mr. Shata, is that
     your understanding as well?

            THE DEFENDANT:       Yes, sir.
Shata then stated that he wished to enter a guilty plea.
     ¶14    The    court    then       explained   to   Shata      the    maximum

penalties   he    faced   upon   conviction    and   that,   as    a     convicted
felon, he would be barred from possessing a firearm and would be
barred from voting in any election until his civil rights are
restored.    The circuit court next informed Shata of the possible
immigration consequences of his plea:

           THE COURT: I'll also advise you that if you're
     not a citizen of the United States that a plea of
     guilty or no contest for the offense with which you
     are charged may result in deportation, the exclusion
     from admission to this country, or the denial of
     naturalization under federal law.  And you understand
     that?

            THE DEFENDANT:       Yes.
After the circuit court explained the elements of the offense
charged, Shata pled guilty.
     ¶15    The circuit court then noted that Shata had signed a
plea questionnaire and waiver of rights form that contained the
same immigration warning.6

     6
      The plea questionnaire and waiver of rights form states,
inter alia, that: "I understand that if I am not a citizen of
                                                   (continued)
                                         7
                                                   No.   2013AP1437-CR


          THE COURT: Sir, I have before me a document
     entitled a plea questionnaire, waiver of rights form,
     and an addendum, and there are signatures at the
     bottom of each. Did you sign those documents?

           THE DEFENDANT:   Yes, sir.

          THE COURT:    Did you go over the forms with your
     lawyer?

           THE DEFENDANT:   Yes, sir.

          THE COURT:    Do you understand everything on those
     forms?

           THE DEFENDANT:   Yes, sir.

           THE COURT:   Are all of your answers truthful?

           THE DEFENDANT:   Yes, sir.

           . . .

          THE COURT:    Are you satisfied with your lawyer's
     representation?

           THE DEFENDANT:   Yes, sir.
     ¶16   The court then confirmed with Attorney Toran that he
discussed the plea questionnaire with Shata.

          THE COURT: Mr. Toran, have you gone over the
     plea questionnaire, waiver of rights forms with your
     client?

           MR. TORAN:   Yes, I have.

          THE COURT: Satisfied he understands all           the
     rights he'll be giving up by entering his plea?



the United States, my plea could result in deportation, the
exclusion of admission to this country, or the denial of
naturalization under federal law."  Shata and Attorney Toran
signed the form on October 5, 2012, the date of the plea and
sentencing hearing.



                                  8
                                                                                        No.        2013AP1437-CR


                     MR. TORAN:         Yes, Your Honor.

             THE COURT: Satisfied the plea is                                           being        made
        freely, voluntarily, and intelligently?

                     MR. TORAN:         Yes.
        ¶17          The court then accepted the guilty plea, "find[ing]
that the defendant is entering his plea freely, voluntarily, and
intelligently,               with     full       understanding               of   the    nature        of     the
offense charged, the maximum possible penalties, and all the
rights           he'll          be    giving       up      by           entering         his         plea     of

guilty . . . ."                  The court subsequently found Shata guilty and
entered          a    judgment        of    conviction.                 At    the   end       of     the    plea
hearing,             the     court         decided       not        to        order      a      presentence
investigation and scheduled a sentencing hearing.7
                                     B. The Sentencing Hearing
        ¶18          On    November        16,     2012,        the          circuit     court         held    a
sentencing hearing.                     The State argued that Shata deserved one
year        of       conditional        jail      time     as       a    condition            of     probation
because          of       his    "lack      of     a     prior          [criminal]            record,"        his
"character," and the facts of the case.                                       The State argued that
Shata        "manipulate[ed]               and     use[d]"          his        co-defendant,            Amanda
Nowak, who was 17 years of age at the time.                                           The State argued
that "it's . . . disgusting that [Shata] would use his influence
as a boss and [Nowak's] age and get her wrapped up into this."
The    State          also      noted      the    danger       of       violence        associated          with

        7
       The circuit court wanted to schedule the sentencing
hearing for October 31, 2012, but due to Attorney Toran's
schedule, the court set the hearing for November 16.



                                                       9
                                                                       No.     2013AP1437-CR



sales of illegal drugs.            However, because Shata did "appear to
be remorseful" and had no prior criminal record, the State felt
that "probation is appropriate."
        ¶19   At the sentencing hearing, Attorney Toran recommended
that the court "impose and stay a prison sentence, place [Shata]
on probation, and . . . allow his probation to be transferred to
the State of New Jersey and . . . impose condition time but stay
that as well."            Attorney Toran noted that Shata had recently
moved with his wife and children to New Jersey and that he
returned from there to Milwaukee for every court appearance,
demonstrating Shata's good character.                    Attorney Toran also noted
that he tried to arrange for a deferred prosecution, "but the

State was not amenable to doing so, and [Shata is] very, very
concerned about being deported out of this country."                              Attorney
Toran     argued    that    his    recommended       sentence          was     appropriate
because Shata has a college degree, is an entrepreneur, has a
supportive family, and is "kind of a patsy kind of guy" and "is
not a major player."            Attorney Toran also noted that Shata had
potential      employment         opportunities           in     New         Jersey,     was
financially        destitute,     and    had      lost    over    $300,000         in    the
restaurant business.
        ¶20   The court noted that its sentence would be based on
the   arguments      of    counsel      as   well   as     society's          interest    in
punishment, deterrence, and rehabilitation.                       The court stated

that Shata's offense is "serious" and that illegal drugs are
"destroying the lives of individuals" and have a "big impact
throughout the community."              The court also stated that Shata was
                                             10
                                                                         No.        2013AP1437-CR



"taking     advantage     of    other    people."           The        court        noted    that
although Shata had no prior criminal record and had a supportive
family, "the community needs to be protected from someone who's
dealing this quantity of drugs."                 The court then sentenced Shata
to five years of imprisonment consisting of one year of initial
confinement in prison and four years of extended supervision.
The court allowed the extended supervision to be transferred to
New Jersey.      Although the court did not follow either party's
recommendation, it did impose one year of confinement, as the
State recommended pursuant to the plea agreement.
             C. Shata's Plea Withdrawal Motion and Hearing
      ¶21    About     four    months    later,      on    March        15,     2013,       Shata

filed a postconviction motion to withdraw his guilty plea.                                     In
his motion, he argued that he received ineffective assistance of
counsel     because     Attorney      Toran       failed        to     inform       him     "that
federal law required he be deported following his conviction."
Shata argued that Attorney Toran should have told him "that he
was   subject     to     mandatory       deportation            because        the      offense
involved more than 30 grams of marijuana."                            Shata alleged that
Attorney Toran "informed him that he did not have to worry about
any   immigration       consequences        because        he        would     be     receiving
probation,      and    [Immigration         and     Customs           Enforcement]           only
initiated     deportation        proceedings        for     aliens           serving      prison
terms."      However,     despite       that     allegation,           Shata        noted    that

Attorney    Toran     stated     at   the    plea    hearing           that     "'there's       a
potential he could be deported.'"                   Shata also complained that
the   circuit    court    "did    not    inform      [him]       that        his    conviction
                                            11
                                                                                 No.        2013AP1437-CR



would necessarily subject him to deportation proceedings.                                             The
court merely stated that his plea 'may' result in deportation."
       ¶22       On   May    31,       2013,    the        circuit       court    held       a   Machner
hearing      on       Shata's      postconviction             motion.8            Attorney          Toran
testified        that       he    had    informed           Shata    of     the    potential           for
deportation if convicted.                    Attorney Toran testified that he had
used       the    word       "potential"             and     did     not     tell        Shata        that
deportation was "mandatory."                     He also testified that he "advised
[Shata] prior to the plea that he may be deported, that there's
a strong chance that he could be deported . . . ."                                               Attorney
Toran testified that he "knew [pleading guilty] would subject
[Shata]      to       deportation."             But        Attorney        Toran       "didn't        know

[deportation] was mandatory."                        Attorney Toran testified that he
"didn't      research            the    immigration           consequences             in     terms     of
whether or not it was mandatory."                            He also stated that he had
not researched the federal immigration statutes.                                        However, he
explained that he was familiar with Padilla, 559 U.S. 356.                                             He
also       testified        that        he     had        "asked     a     number        of      federal
prosecutors about whether or not the impact of pleading to this
charge would subject [Shata] to deportation, and they said it
could, everyone used the word 'it could.'"                                 Attorney Toran also
explained that he had tried to have the charge amended so that
Shata could avoid the possibility of deportation, but the State
was unwilling to amend the charge.                                 Attorney Toran testified

       8
       See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979).



                                                     12
                                                                No.     2013AP1437-CR



that he had advised Shata to plead guilty because they had "no
defense,"   Shata   confessed    to       the    crime,   and   the    State   would
recommend probation if he pled guilty.
     ¶23    Shata testified next.               He stated that he would not
have pled guilty if he had known that he would be subject to
mandatory    deportation      upon    conviction.          He    testified      that
Attorney    Toran   "didn't    say    a    strong    chance"     of     deportation
existed.    To the contrary, Shata testified that Attorney Toran
"promised [him] to get probation" and told Shata that "if you
get probation, you're not going to be deported."                      Shata further
testified that he received a letter from the Immigration and
Naturalization Services that ordered him to appear before an

immigration judge.9
     ¶24    The circuit court found that the testimony of Attorney
Toran was more credible and that counsel had informed Shata of a
strong likelihood of deportation if convicted.                    It found "the
testimony of Mr. Toran to be credible under the circumstances,


     9
       This letter does not appear in the record. Further, the
United States Immigration and Naturalization Services ceased to
exist in 2003. The record, however, does contain "Page 1 of 3"
of a U.S. Department of Homeland Security ("DHS") "Immigration
Detainer——Notice of Action," which was signed on November 23,
2012.    A checked box on the form indicates that the DHS
"[i]nitiated an investigation to determine whether this person
is subject to removal from the United States." An unchecked box
on the form indicates that the DHS had not "[i]nitiated removal
proceedings and served a Notice to Appear or other charging
document." Another unchecked box on the form indicates that the
DHS had not "[o]btained an order of deportation or removal from
the United States for this person."



                                          13
                                                                             No.     2013AP1437-CR



that he did advise Mr. Shata, unlike Padilla, that there was a
strong likelihood that he would be deported."                               The circuit court
also stated, "I don't find that Mr. Toran told Mr. Shata that he
would be getting probation and would go back to New Jersey and
nothing would happen."
        ¶25    The      circuit        court    concluded            that     Shata       had    not
received ineffective assistance of counsel.                            The court held that
Attorney Toran did not perform deficiently.                                 The circuit court
distinguished           Padilla     explaining         that     "even       the     language       in
Padilla is not that it's mandatory that you'll be deported, but
that it's presumptively mandatory, and the difference between
the strong likelihood and presumptive deportation, I don't think

that there's necessarily a significant difference."                                  The circuit
court     also       held    that      Shata     failed         to    prove        that    he     was
prejudiced.          It stated, "I don't find Mr. Shata's testimony to
be   credible        today      that    he   would've       gone      to     trial    under       any
circumstance         had     he    known       that    removal,        deportation          was     a
presumptive        mandatory."           The     court     also       noted    that       "[t]here
appears       to   be    some     discretion"         as   to    whether       Shata      will     be
deported and that "[i]t appears at least no one has presented
factually that the law is that he will, in fact, automatically
be deported."             Accordingly, the circuit court denied Shata's
motion to withdraw his guilty plea and issued a written order to
that effect on July 15, 2013.
                         D. The Court of Appeals' Decision
        ¶26    On July 15, 2014, the court of appeals, in a split
decision, reversed the circuit court's judgment of conviction
                                                14
                                                                      No.    2013AP1437-CR



and order denying postconviction relief.                  The majority concluded
that Shata received ineffective assistance of counsel.                            First,
the majority held that Attorney Toran, by informing Shata that
he faced a strong likelihood of deportation if convicted, "was
deficient      when   he    failed   to     provide     Shata   with        complete   and
accurate information about the deportation consequences of his
plea."       State v. Shata, No. 2013AP1437-CR, unpublished slip op.,
¶28 (Wis. Ct. App. July 15, 2014).                    The majority reasoned that
"the deportation consequences for conviction of Shata's offense,
like the consequences of Padilla's, were in fact dramatically
more serious than 'a strong likelihood.'"                       Id.         The majority
also held that this deficiency prejudiced Shata.                      Id., ¶¶29-33.

       ¶27    Judge Brennan dissented.                She reasoned that "[t]rial
counsel not only complied with Padilla's requirement that he
inform Shata 'whether his plea carries a risk of deportation,'
see [Padilla], 559 U.S. at 374, trial counsel went one better
and    advised     Shata     not     only    that      there    was     a     'risk'    of
deportation,      but      that    there    was   a    strong    one."         Id.,    ¶38
(Brennan, J., dissenting).                 Judge Brennan also concluded that
Shata suffered no prejudice because he "fail[ed] to show that it
would have been a rational decision for him to reject a plea
with     a   probation      recommendation."            Id.,    ¶49     (Brennan,      J.,
dissenting).
       ¶28    On August 14, 2014, the State filed a petition for
review, which we granted on December 18, 2014.
       II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW


                                            15
                                                                           No.    2013AP1437-CR



        ¶29    "In general 'a circuit court should freely allow a
defendant to withdraw his plea prior to sentencing for any fair
and just reason, unless the prosecution [would] be substantially
prejudiced.'"         State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1,
843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007
WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation
marks omitted).            In contrast, "the general rule [is] that a
defendant seeking to withdraw a guilty or no contest plea after
sentencing must prove manifest injustice by clear and convincing
evidence."          State v. Negrete, 2012 WI 92, ¶29, 343 Wis. 2d 1,
819      N.W.2d 749          (emphasis          added)         (citations             omitted).
Ineffective         assistance      of    counsel       is    one     type       of    manifest

injustice.           See    State    v.       Taylor,        2013    WI     34,       ¶49,    347
Wis. 2d 30, 829 N.W.2d 482.
        ¶30    "The clear and convincing standard for plea withdrawal
after    sentencing,        which    is    higher    than       the       'fair       and    just'
standard before sentencing, 'reflects the State's interest in
the   finality       of    convictions,       and   reflects         the    fact       that   the
presumption of innocence no longer exists.'"                          Id., ¶48 (quoting
State     v.    Cross,       2010    WI       70,   ¶42,       326    Wis. 2d 492,            786
N.W.2d 64).          "The higher burden 'is a deterrent to defendants
testing the waters for possible punishments.'"                                   Id. (quoting
State v. Nawrocke, 193 Wis. 2d 373, 379–80, 534 N.W.2d 624 (Ct.
App. 1995)).          "Disappointment in the eventual punishment does
not   rise     to    the   level    of    a    manifest       injustice."              Id.,    ¶49
(citing Nawrocke, 193 Wis. 2d at 379).


                                              16
                                                                         No.     2013AP1437-CR



        ¶31   "A claim of ineffective assistance of counsel is a
mixed question of fact and law."                     State v. Carter, 2010 WI 40,
¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted).                                 "We
will uphold the circuit court's findings of fact unless they are
clearly erroneous."            Id. (citation omitted).                  "Findings of fact
include 'the circumstances of the case and the counsel's conduct
and strategy.'"         Id. (quoting State v. Thiel, 2003 WI 111, ¶21,
264     Wis. 2d 571,      665     N.W.2d 305)             (quotation     marks       omitted).
"Moreover,       this   court        will   not      exclude      the    circuit       court's
articulated assessments of credibility and demeanor, unless they
are    clearly    erroneous."            Id.    (citing       Thiel,     264     Wis. 2d 57,
¶23).     "However, the ultimate determination of whether counsel's

assistance was ineffective is a question of law, which we review
de novo."     Id.
                                       III. ANALYSIS
        ¶32   "Both the United States Constitution and the Wisconsin
Constitution        guarantee          criminal           defendants      the     right     to
counsel."        Carter,       324     Wis. 2d 640,         ¶20   (citing       U.S.    Const.
amend. VI; Wis. Const. art. I, § 7).                       "The United States Supreme
Court has recognized that 'the right to counsel is the right to
the effective assistance of counsel.'"                        Id. (quoting Strickland
v.     Washington,      466     U.S.     668,       686     (1984))     (quotation       marks
omitted).
        ¶33   "Whether     a    convicted        defendant        received       ineffective
assistance of counsel is a two-part inquiry."                            Id., ¶21 (citing
Strickland, 466 U.S. at 687).                   "First, the defendant must prove
that     counsel's      performance            was    deficient."              Id.     (citing
                                               17
                                                                        No.       2013AP1437-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.
Id., ¶36; State v. Franklin, 2001 WI 104, ¶13, 245 Wis. 2d 582,
629 N.W.2d 289 (citing Strickland, 466 U.S. at 697).10
        ¶34    Prior to Padilla state courts and federal courts of
appeals almost universally held that defense counsel's failure

to    advise         a     criminal       defendant      of     possible       immigration
consequences of a conviction does not provide a basis for an
ineffective assistance claim.                     Padilla, 559 U.S. at 364-65 &
n.9; Chaidez v. United States, 568 U.S. ___, 133 S. Ct. 1103,
1109 & nn.8-9 (2013).                 These courts reasoned that "collateral

        10
        A defendant must make a sufficient proffer in order to be
entitled to a hearing on an ineffective assistance of counsel
claim.    "[T]he circuit court has the discretion to deny the
postconviction motion without a Machner hearing 'if the motion
fails to allege sufficient facts to raise a question of fact,
presents   only   conclusory  allegations,   or  if   the  record
conclusively demonstrates that the defendant is not entitled to
relief.'" State v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280,
717 N.W.2d 111 (emphasis added in Roberson) (quoting State v.
Curtis, 218 Wis. 2d 550, 555 n.3, 582 N.W.2d 409 (Ct. App.
1998)).     A defendant is not "automatically entitled to an
evidentiary hearing no matter how cursory or meritless the
ineffective assistance of counsel claim might be." Curtis, 218
Wis. 2d at 555 n.3.



                                              18
                                                           No.   2013AP1437-CR



matters, i.e., those matters not within the sentencing authority
of the state trial court," are outside the scope of counsel's
duties under the Sixth Amendment.            Padilla, 559 U.S. at 364-65 &
n.9.
       ¶35    The Supreme Court in Padilla parted ways with that
precedent      by   holding    "that   counsel   must   inform   her   client
whether his plea carries a risk of deportation."11               Id. at 374.
The Court explained:

       When     the     law     is    not   succinct    and
       straightforward . . . , a criminal defense attorney
       need do no more than advise a noncitizen client that
       pending criminal charges may carry a risk of adverse
       immigration consequences. But when the deportation
       consequence is truly clear, . . . the duty to give
       correct advice is equally clear.
Id. at 369 (footnote omitted).
       ¶36    In the present case, Shata and the State agree that
his    conviction    clearly    made   him   deportable.     The   issue   of
whether Shata's trial counsel performed deficiently hinges on
whether he gave Shata correct advice regarding the possibility
of being deported.       We will first provide background on Padilla


       11
            The Supreme Court noted that it has

       never   applied   a  distinction    between   direct  and
       collateral   consequences   to   define   the   scope  of
       constitutionally "reasonable professional assistance"
       required under Strickland[ v. Washington, 466 U.S.
       668, 689 (1984)].        Whether that distinction is
       appropriate is a question we need not consider in this
       case because of the unique nature of deportation.

Padilla, 559 U.S. at 365.



                                       19
                                                                              No.     2013AP1437-CR



and relevant immigration law.                     Second, we will summarize the
parties'      arguments.           Third     and        finally,        we     will       determine
whether      Shata's       trial     counsel           performed        deficiently              under
Padilla.        Because       we    conclude           that     Shata        failed       to     prove
deficient performance, we do not address prejudice.
                   A. Padilla and Background Immigration Law
      ¶37     "The landscape of federal immigration law has changed
dramatically over the last 90 years."                         Padilla, 559 U.S. at 360.
"While once there was only a narrow class of deportable offenses
and   judges    wielded       broad     discretionary             authority           to       prevent
deportation,       immigration       reforms           over    time     have        expanded       the
class of deportable offenses and limited the authority of judges

to alleviate the harsh consequences of deportation."                                  Id.
      ¶38     By passing the Immigration Act of 1917, "[f]or the
first time in our [nation's] history, Congress made classes of
noncitizens deportable based on conduct committed on American
soil."       Id.     at    361     (citation       omitted).             Although           the    Act
"authorized          deportation        as         a      consequence               of         certain
convictions,"        it    included     a    procedure,           known        as     a    judicial
recommendation        against       deportation          ("JRAD"),           which        allowed    a
sentencing judge in a state or federal prosecution to make a
recommendation that a noncitizen defendant not be deported.                                        Id.
A   JRAD    forbade       deportation       and    was        binding    on       the     executive
branch.      Id. at 361-62.          "Thus, from 1917 forward, there was no
such creature as an automatically deportable offense.                                       Even as
the   class     of    deportable        offenses          expanded,           judges       retained
discretion      to    ameliorate        unjust          results       on      a     case-by-case
                                             20
                                                                           No.     2013AP1437-CR



basis."                   Id.         at       362.             "Although            narcotics
offenses . . . provided                 a     distinct    basis     for    deportation       as
early as 1922, the JRAD procedure was generally available to
avoid    deportation            in    narcotics       convictions."          Id.     (footnote
omitted) (citation omitted).
        ¶39    "However, the JRAD procedure is no longer part of our
law.      Congress first circumscribed the JRAD provision in the
1952 Immigration and Nationality Act (INA), and in 1990 Congress
entirely       eliminated            it[.]"       Id.    at   363    (footnote        omitted)
(citation          omitted).          "In     1996,   Congress      also    eliminated      the
Attorney General's authority to grant discretionary relief from
deportation[.]"            Id. (citation omitted).

        Under contemporary law, if a noncitizen has committed
        a removable offense after the 1996 effective date of
        these    amendments,   his   removal   is    practically
        inevitable but for the possible exercise of limited
        remnants   of   equitable  discretion  vested   in   the
        Attorney General to cancel removal for noncitizens
        convicted of particular classes of offenses.
Id. at 363-64 (citing 8 U.S.C. § 1229b).                            "Subject to limited
exceptions, this discretionary relief is not available for an

offense related to trafficking in a controlled substance."                                  Id.
at 364 (citing 8 U.S.C. §§ 1101(a)(43)(B), 1228).
        ¶40    The     Supreme        Court     in    Padilla     stated     that     "[t]hese
changes       to    our    immigration          law   have    dramatically         raised   the
stakes of a noncitizen's criminal conviction.                          The importance of
accurate       legal      advice       for     noncitizens      accused     of     crimes   has
never been more important."                    Id. at 364.       Accordingly, the Court
"conclude[d]           that          advice      regarding        deportation         is    not


                                                 21
                                                                      No.    2013AP1437-CR



categorically        removed      from     the    ambit   of   the    Sixth       Amendment
right to counsel."           Id. at 366.
       ¶41    Before determining the scope of an attorney's duty to
give advice regarding deportation, the Court explained that the
deficient-performance prong of Strickland "is necessarily linked
to the practice and expectations of the legal community: 'The
proper       measure        of     attorney        performance        remains       simply
reasonableness under prevailing professional norms.'"                               Id. at
366 (quoting Strickland, 466 U.S. at 688).                     The Court noted that
"[t]he weight of prevailing professional norms supports the view
that   counsel       must     advise     her     client   regarding         the    risk    of
deportation."        Id. at 367-68 (collecting authorities).

       ¶42    The Court also noted that "[i]mmigration law can be
complex, and it is a legal specialty of its own.                            Some members
of the bar who represent clients facing criminal charges, in
either state or federal court or both, may not be well versed in
it."     Id.    at     369.       "There       will,   therefore,      undoubtedly         be
numerous situations in which the deportation consequences of a
particular     plea     are      unclear    or    uncertain.         The    duty    of    the
private practitioner in such cases is more limited."                         Id.
       ¶43    The Court then explained the scope of an attorney's
duty to give advice regarding deportation.                     "When the law is not
succinct and straightforward . . . , a criminal defense attorney
need do no more than advise a noncitizen client that pending
criminal      charges       may    carry     a    risk    of   adverse       immigration
consequences."         Id.        "But when the deportation consequence is
truly clear, as it was in this case, the duty to give correct
                                             22
                                                                          No.     2013AP1437-CR



advice is equally clear."                  Id.       Ultimately, the Court "[held]
that counsel must inform her client whether his plea carries a
risk of deportation."             Id. at 374.
        ¶44     In Padilla Jose Padilla, a native of Honduras who had
been a lawful permanent resident of the United States for more
than 40 years, pled guilty to transporting a large amount of
marijuana in his tractor-trailer in Kentucky.                            Id. at 359.        His
offense made him "deportable" from the United States.                                  Id. at
359 & n.1.            Padilla filed a postconviction motion to withdraw
his guilty plea, arguing that he received ineffective assistance
of counsel.12           Id. at 359.           He claimed that his trial counsel
told him that he would not be deported because he had lived in

the United States for such a long time.                      Id.
        ¶45     The Supreme Court determined that "[t]his is not a
hard     case    in     which    to    find     deficiency:        The    consequences       of
Padilla's        plea    could    easily        be   determined       from       reading    the
removal       statute,    his     deportation        was    presumptively          mandatory,
and his counsel's advice was incorrect."                           Id. at 368-69.           The
Court        reasoned    that    "the     terms      of    the     relevant      immigration
statute        are    succinct,        clear,    and      explicit       in     defining    the
removal        consequence       for    Padilla's         conviction."           Id.   at   368
(citing 8 U.S.C. § 1227(a)(2)(B)(i)).
        ¶46     The relevant federal statute provided:

        12
       It appears that Padilla moved to withdraw his plea post-
sentencing.   See Com. v. Padilla, 253 S.W.3d 482, 483 (Ky.
2008), rev'd and remanded sub nom, Padilla v. Kentucky, 559 U.S.
356 (2010).



                                                23
                                                                       No.    2013AP1437-CR


             Any alien who at any time after admission has
        been convicted of a violation of (or a conspiracy or
        attempt to violate) any law or regulation of a State,
        the United States, or a foreign country relating to a
        controlled substance (as defined in section 802 of
        title 21), other than a single offense involving
        possession for one's own use of 30 grams or less of
        marijuana, is deportable.
8   U.S.C.          § 1227(a)(2)(B)(i)          (emphasis         added).               "Any
alien . . . in and admitted to the United States shall, upon the
order    of   the    Attorney    General,      be   removed       if    the    alien     is"
convicted of such an offense.             8 U.S.C. § 1227(a) (intro.).
        ¶47   The Court explained that "Padilla's counsel could have

easily    determined     that    his    plea    would      make   him        eligible    for
deportation simply from reading the text of the statute, which
addresses      not     some     broad     classification           of        crimes      but
specifically        commands    removal       for   all     controlled         substances
convictions except for the most trivial of marijuana possession
offenses."          Padilla,    559    U.S.    at   368.      "Instead,         Padilla's

counsel provided him false assurance that his conviction would
not result in his removal from this country."                     Id.
                          B. The Parties' Arguments
        ¶48   The State argues that Shata's trial counsel, Attorney
Toran, did not perform deficiently.                     The State contends that
Shata's deportation is not inevitable.                  The State contends that,

because the relevant immigration statute made Shata "deportable"
upon conviction, Padilla required Attorney Toran to inform Shata
"whether his plea carries a risk of deportation."                            Padilla, 559

U.S. at 374.        The State argues that Attorney Toran complied with
and, in fact, exceeded the requirements of Padilla by telling

                                          24
                                                                        No.    2013AP1437-CR



Shata        that     his    conviction       carried       a    "strong      chance"      of
deportation.           The State contrasts that advice with the false
assurance that Padilla received from his attorney that he would
not be deported.             The State relies on several cases in which
courts held that Padilla requires counsel to inform a defendant
that a conviction for a deportable offense carries a risk of
deportation.          See Com. v. Escobar, 70 A.3d 838 (Pa. Super. Ct.
2013); Chacon v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013);
Neufville v. State, 13 A.3d 607 (R.I. 2011).13
        ¶49     For    example,       in   Escobar     the      Pennsylvania      Superior
Court        held   that    Padilla    requires       counsel    to     inform    an    alien
criminal        defendant     that     a    drug-related        conviction       carries       a

"risk" of deportation.            In that case, Israel Escobar pled guilty
to possession with intent to deliver cocaine and was sentenced.
Escobar, 70 A.3d at 840.                   After the federal government began
deportation proceedings against him, he sought to withdraw his
plea on the basis of ineffective assistance of counsel.                            Id.        He
argued that his attorney performed deficiently by failing to
advise him that "deportation would, in fact, result from his
plea, and not just that deportation was likely to result."                              Id.
        ¶50     The   Pennsylvania         Superior    Court     held    that    Escobar's
trial counsel did not perform deficiently by advising him that
his guilty plea would "likely" result in deportation.                                  Id. at
842.         The court noted that the Supreme Court in Padilla held

        13
       In each of these cases,                        the    defendant        moved     post-
sentencing to withdraw his plea.



                                              25
                                                                         No.     2013AP1437-CR



that "when the deportation consequence is truly clear, 'the duty
to give correct advice is equally clear.'"                     Id. at 841 (emphasis
added in Escobar) (quoting Padilla, 559 U.S. at 369).                              The court
rejected the notion "that giving 'correct' advice necessarily
means counsel, when advising Escobar about his deportation risk,
needed to tell Escobar he definitely would be deported."                                   Id.
Although 8 U.S.C. § 1227(a)(2)(B)(i) made Escobar "deportable"
upon conviction, "whether the U.S. Attorney General and/or other
personnel       would      necessarily       take     all    the    steps        needed    to
institute and carry out Escobar's actual deportation was not an
absolute certainty when he pled."                   Id.     "Given that Escobar did
know deportation was possible, given that counsel advised him

there    was    a    substantial      risk    of    deportation,         and     given    that
counsel told Escobar it was likely there would be deportation
proceedings         instituted      against    him,    we    find    counsel's        advice
was, in fact, correct."              Id.     Although the Padilla Court stated
that     8    U.S.C.       § 1227(a)(2)(B)         made     Padilla       "eligible       for
deportation"         and     that     "his     deportation         was         presumptively
mandatory," the Supreme Court and that statute did not announce
"a guarantee that actual deportation proceedings are a certainty
such that counsel must advise a defendant to that effect."                                 Id.
at 842.
        ¶51    The Escobar court "acknowledge[d] that parts of the
Padilla opinion contain language arguably supporting the notion
that plea counsel in some cases may have a duty to provide a
rather certain indication of deportation."                         Id.     "For example,
at one point, the Padilla court agreed competent counsel would
                                              26
                                                             No.   2013AP1437-CR



have told Padilla he was 'subject to automatic deportation.'"
Id. (quoting Padilla, 559 U.S. at 360).               "At another point, the
[Padilla]    court     indicated     the    instant     deportation    statute
'commands' deportation for virtually all drug convictions."                 Id.
(quoting    Padilla,    559   U.S.   at    368).      "The   opinion   likewise
observes     that      deportation        for     certain    convictions     is
'practically inevitable.'"           Id. (quoting Padilla, 559 U.S. at
363-64).
      ¶52   Nevertheless, the Escobar court concluded that

      the [Padilla] court's overall emphasis was that the
      deportation statute in question makes most drug
      convicts subject to deportation in the sense that they
      certainly become deportable, not in the sense that
      plea counsel should know and state with certainty that
      the   federal  government  will,  in   fact,  initiate
      deportation proceedings.
Id.   The court reasoned that, "[u]ltimately, when announcing its
holding, the Padilla court opined, '[W]e now hold that counsel
must inform [the] client whether [the] plea carries a risk of
deportation.'"       Id. (quoting Padilla, 559 U.S. at 374).                The
court held that Escobar's trial attorney complied with Padilla

by informing him that "his plea carried a risk of deportation."
Id.   "In fact, counsel told Escobar deportation proceedings were
likely."    Id.
      ¶53   On the other hand, Shata argues that Attorney Toran
performed deficiently.         Shata argues that Attorney Toran was
required, under Padilla, to tell him that "his conviction would
absolutely result in deportation."              Shata contends that "[t]here
is no difference between Padilla's attorney, who affirmatively


                                      27
                                                                    No.    2013AP1437-CR



gave her client bad advice, and Shata's attorney, who told him
there was a 'strong chance' he would be deported when it was
actually inevitable."                According to Shata, Attorney Toran gave
him "misinformation" because "[t]here is a difference between a
'strong chance' and an 'absolute certainty.'"                    He notes that the
Supreme Court in Padilla stated that "constitutionally competent
counsel would have advised [Padilla] that his conviction for
drug distribution made him subject to automatic deportation."
Padilla, 559 U.S. at 360.                 He also relies on several cases in
which courts interpreted Padilla as requiring counsel to inform
an alien defendant that a conviction for a deportable offense
would necessarily result in deportation.                      See State v. Mendez,

2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895; see also United
States v. Bonilla, 637 F.3d 980 (9th Cir. 2011); Salazar v.
State, 361 S.W.3d 99 (Tex. App. 2011); State v. Sandoval, 249
P.3d 1015 (Wash. 2011) (en banc).
        ¶54     For example, in Mendez, Ivan Mendez moved to withdraw
his   guilty         plea     to    maintaining   a   drug    trafficking        place.14
Mendez, 354 Wis. 2d 88, ¶1.                In support of his motion he argued
that he received ineffective assistance of counsel because his
"attorney failed to inform him that conviction of this charge
would        subject    him    to    automatic    deportation       from   the    United
States        with     no   applicable     exception    and    no    possibility      of


        14
       The court of appeals' opinion did not state whether
Mendez moved to withdraw his guilty plea before or after being
sentenced.



                                            28
                                                                      No.     2013AP1437-CR



discretionary waiver."              Id. (citations omitted).             Mendez's trial
attorney "'basically' reiterated the general warning on the plea
questionnaire,         that    'a     conviction      may    make     [the     defendant]
inadmissible or deportable.'"                Id., ¶4 (alteration in original).
The Wisconsin Court of Appeals held that this advice constituted
deficient performance.              Id., ¶¶9-10.
        ¶55    The court of appeals in Mendez rejected Chacon, on
which the State relies in the present case.                         Id., ¶¶13-14.        In
Chacon the Missouri Court of Appeals held that the defendant's
attorney did not perform deficiently by advising him that upon
being    convicted      for    two     deportable     offenses        "he     'would   very
likely be deported and wouldn't be able to come back.'"                                Id.,

¶13 (quoting Chacon, 409 S.W.3d at 536).                     In Mendez the court of
appeals stated, "We reject Chacon.                  Its holding is contrary to
Padilla's plain statement that 'when the deportation consequence
is truly clear . . . the duty to give correct advice is equally
clear.'"        Id., ¶14 (quoting Padilla, 559 U.S. at 369).                            "In
addition       to   being     bad     law,   Chacon     is    distinguishable          from
Mendez's       case,    because      while   Chacon's        lawyer      at   least    told
Chacon that deportation was 'very likely,' Mendez's lawyer gave
only the same unclear warning that appears in the generic plea
questionnaire,         that   the     plea   'could    result       in   deportation.'"
Id., ¶14.
        C. Whether Shata's Trial Counsel Performed Deficiently
        ¶56    "To demonstrate deficient performance, the defendant
must    show    that    his    counsel's      representation          'fell     below    an
objective       standard      of      reasonableness'        considering         all    the
                                             29
                                                                        No.       2013AP1437-CR



circumstances."              Carter,        324     Wis. 2d 640,            ¶22      (quoting
Strickland, 466 U.S. at 688).                "In evaluating the reasonableness
of   counsel's           performance,        this       court        must     be      'highly
deferential.'"            Id.    (quoting     Strickland,         466      U.S.     at     689).
"Counsel enjoys a 'strong presumption' that his conduct 'falls
within the wide range of reasonable professional assistance.'"
Id. (quoting Strickland, 466 U.S. at 689).                           "Indeed, counsel's
performance       need    not    be   perfect,      nor    even      very     good,      to    be
constitutionally           adequate."             Id.      (citing            Thiel,          264
Wis. 2d 571,       ¶19).        Because     we     determine      that      Shata's        trial
counsel    did      not     perform        deficiently,         we    do      not     address
prejudice.

     ¶57     The Supreme Court in Padilla stated that "when the
deportation consequence is truly clear, . . . the duty to give
correct advice is equally clear."                       Padilla, 559 U.S. at 369
(emphasis added).           Shata and the State agree that his conviction
clearly made him deportable.                The parties disagree, however, as
to whether Shata's trial counsel gave correct advice.
     ¶58     At    the    outset,     we    note    that    the      advice       that     Shata
received is far better than the advice that Padilla received.
"Padilla's        counsel       provided     him     false      assurance           that      his
conviction would not result in his removal from this country."
Id. at 368 (emphasis added).                Thus, the Supreme Court determined
that "[t]his is not a hard case in which to find deficiency: The
consequences of Padilla's plea could easily be determined from
reading the removal statute, his deportation was presumptively
mandatory, and his counsel's advice was incorrect."                            Id. at 368-
                                             30
                                                                             No.    2013AP1437-CR



69     (emphasis        added).             In    contrast,       Shata     received      correct
immigration           advice.           Shata's        trial   counsel,      Attorney      Toran,
correctly        told       Shata       that     his    conviction        carried    a    "strong
chance" of deportation.15                    Accordingly, we disagree with Shata's
contention that the advice he received is "no differen[t]" than
the incorrect legal advice that Padilla received.
        ¶59     Although          a    controlled       substance     conviction         makes    an
alien         "deportable,"             8    U.S.C.       § 1227(a)(2)(B)(i),            such      a
conviction        will      not       necessarily        result    in     deportation.           The
Pennsylvania          Superior          Court     in     Escobar     correctly      noted       that
whether immigration "personnel would necessarily take all the
steps        needed    to    institute           and   carry   out    [an    alien's]      actual

deportation [i]s not an absolute certainty . . . ."                                 Escobar, 70
A.3d    at     841.         For       example,     prosecutorial        discretion        and    the
current administration's immigration policies provide possible
avenues for deportable aliens to avoid deportation.16                                    In fact,

        15
       Shata appears to have dropped his assertion that Attorney
Toran never told him that his guilty plea carried a strong
chance of deportation.   In any event, the circuit court found
that Attorney Toran told Shata that his guilty plea carried a
"strong likelihood" of deportation, and that finding is not
clearly erroneous.
        16
       Since at least the 1960s, the federal executive branch
has gone back and forth in adopting and rescinding policies
regarding deferred action on deportation.  See Texas v. United
States, No. CIV. B-14-254, 2015 WL 648579, at *7 & n.12 (S.D.
Tex. Feb. 16, 2015).     On June 15, 2012, the United States
Department of Homeland Security ("DHS") adopted the Deferred
Action for Childhood Arrivals ("DACA") program, which provided
relief from deportation for certain aliens who entered the
United States before age 16. Id. at *4. On June 5, 2014, the
United States Citizenship and Immigration Services, which is a
                                                    (continued)
                                                   31
                                                                        No.     2013AP1437-CR



the executive branch has essentially unreviewable prosecutorial
discretion with respect to commencing deportation proceedings,
adjudicating cases, and executing removal orders.                             Reno v. Am.-
Arab Anti-Discrimination Comm., 525 U.S. 471, 482-85 (1999).
        ¶60        Indeed, the secretary of the United States Department
of Homeland Security ("DHS") recently explained that the DHS,
which        is    "responsible      for    enforcing       the    nation's     immigration
laws,"            "must     exercise       prosecutorial           discretion      in     the
enforcement of the law."                   Jeh Charles Johnson, Policies for the
Apprehension, Detention and Removal of Undocumented Immigrants,
at   2        (Nov.        20,     2014)       (emphasis     added),      available        at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo

_prosecutorial_discretion.pdf.                       "Due    to     limited     resources,
DHS . . . cannot respond to all immigration violations or remove
all persons illegally in the United States."                             Id.      "DHS may
exercise prosecutorial discretion at any stage of an enforcement
proceeding."              Id.     "In the immigration context, prosecutorial
discretion          should       apply   not    only   to    the    decision     to     issue,
serve, file, or cancel a Notice to Appear,17 but also to a broad

component of DHS, expanded the DACA program to provide relief to
more aliens.   Id. at *5-6.   On November 20, 2014, DHS adopted
the Deferred Action for Parents of Americans ("DAPA") program,
which provided relief from deportation for certain undocumented
aliens who have a child who is a United States citizen or lawful
permanent resident.   Id. at *6-7.   In February 2015 the United
States District Court for the Southern District of Texas issued
a preliminary injunction prohibiting the implementation of the
2014 DACA expansion and the DAPA program.      Id. at *62.   The
court did not enjoin the original 2012 DACA program. Id.
        17
             A "notice to appear" initiates a removal proceeding.   8
                                                          (continued)
                                                32
                                                                         No.       2013AP1437-CR



range    of    other    discretionary          enforcement        decisions,         including
deciding"       "whether       to    settle    [or]     dismiss . . . a             case"   and
"whether        to     grant        deferred        action . . . or            a     stay    of
removal . . . ."         Id.        Deportation is not mandatory for a felony
conviction.          Rather, certain aliens, including those convicted
of a felony, are generally "prioritized for removal" unless,
"based on the totality of the circumstances," the alien "should
not . . . be an enforcement priority."                        Id. at 5-6.             Relevant
factors include an alien's "length of time in the United States"
and "family or community ties in the United States."                                Id. at 6.
Because deportation is not an absolutely certain consequence of
a conviction for a deportable offense, Padilla does not require

an attorney to advise an alien client that deportation is an
absolute       certainty       upon       conviction    of    a    deportable         offense,
including a controlled substance offense.                          Escobar, 70 A.3d at
841-42.
        ¶61    In fact, the Padilla Court never stated that Padilla
would absolutely be deported.                      The Padilla Court stated that
"the terms of the relevant immigration statute are succinct,
clear,    and       explicit    in    defining       the     removal     consequence        for
Padilla's conviction."               Padilla 559 U.S. at 368 (citing 8 U.S.C.
§ 1227(a)(2)(B)(i)).                The    clear    removal       consequence        was    that
Padilla       was    "eligible      for     deportation."          Id.     Two       sentences
later,        the    Court      stated       that      Padilla's         deportation         was


U.S.C. § 1229(a).



                                              33
                                                                            No.    2013AP1437-CR



"presumptively mandatory."                   Id. at 369.        Thus, the Court meant
that    Padilla      clearly       was       deportable       under        that    immigration
statute, not that he clearly would be deported.                                    Escobar, 70
A.3d at 842.         Shata emphasizes that the Padilla Court stated,
"[w]e agree with Padilla that constitutionally competent counsel
would have advised him that his conviction for drug distribution
made him subject to automatic deportation."                              Padilla, 559 U.S.
at 360.       However, by "subject to automatic deportation," the
Court    meant      that     Padilla         was    automatically           deportable         upon
conviction, not that he would be automatically deported.                                   As the
Court    explained         later,       a     conviction        for        drug    trafficking
automatically       makes     an    alien       deportable         because        the    Attorney

General has "limited" discretion to cancel removal of an alien
with such a conviction.                     See id. at 363-64 (explaining that
"removal      is    practically             inevitable"       if      "a     noncitizen        has
committed a removable offense" because the Attorney General has
"limited" discretion to cancel removal of such an alien).                                       The
Padilla Court did not require that counsel advise that the DHS
would necessarily initiate and prosecute a removal proceeding
against Padilla and enforce a removal order against him because
that    was   far     from     certain.             Rather,     the        Court's       "overall
emphasis was that the deportation statute in question makes most
drug    convicts     subject       to    deportation       in      the     sense        that   they
certainly become deportable, not in the sense that plea counsel
should know and state with certainty that the federal government
will, in fact, initiate deportation proceedings."                                  Escobar, 70
A.3d at 842.
                                               34
                                                                               No.    2013AP1437-CR



       ¶62    Likewise,         the        Supreme       Court's       ultimate       holding         in
Padilla      recognized             that     Padilla's         deportation           was    not       an
absolute certainty.                 The Padilla Court ultimately "[held] that
counsel must inform her client whether his plea carries a risk
of deportation."               Padilla, 559 U.S. at 374 (emphasis added).
The Court did not hold that an attorney must inform an alien
client       that     a       conviction       for       a     deportable        offense          will
absolutely result in deportation.                        The Court did not require an
attorney      to     use      any     particular         words,        such     as    "inevitable
deportation,"            or    to     even     convey          the     idea     of      inevitable
deportation.         See Chacon, 409 S.W.3d at 537 ("Padilla does not
require      that    counsel         use     specific        words     to    communicate         to    a

defendant the consequences of entering a guilty plea.                                       Rather,
it requires that counsel correctly advise his client of the risk
of deportation so that the plea is knowing and voluntary.").
       ¶63    The        Padilla      Court        did       not     require     that      criminal
defense lawyers function as immigration lawyers or be able to
predict what the executive branch's immigration policies might
be now or in the future.                       Immediately before announcing the
scope of a criminal defense attorney's duty to provide advice
regarding deportation, the Court noted that "[i]mmigration law
can be complex, and it is a legal specialty of its own.                                           Some
members      of     the       bar    who      represent            clients     facing      criminal
charges, in either state or federal court or both, may not be
well   versed       in     it."        Id.    at     369.          Accordingly,       "the    Court
appears      to     acknowledge            [that]    thorough         understanding         of     the
intricacies         of    immigration         law       is    not    'within     the       range      of
                                                   35
                                                                            No.     2013AP1437-CR



competence demanded of attorneys in criminal cases.'"                                     Id. at
385 (Alito, J., concurring) (quoting Strickland, 466 U.S. at
687).     "[R]easonably competent attorneys should know that it is
not     appropriate      or      responsible           to    hold     themselves          out   as
authorities on a difficult and complicated subject matter with
which they are not familiar," such as immigration law.                                          Id.
(Alito, J., concurring).
        ¶64   Instead       of     requiring      criminal         defense        attorneys      to
essentially         serve     as     immigration            lawyers     for       their     alien
clients,      Padilla         continued          the        longstanding          practice       of
Strickland     by     requiring          counsel       to    act    "'reasonabl[y]          under
prevailing professional norms.'"                       Id. at 366 (majority opinion)

(quoting Strickland, 466 U.S. at 688) ("'The proper measure of
attorney      performance           remains          simply        reasonableness           under
prevailing professional norms.'").                         The Court further explained
that "[t]he weight of prevailing professional norms supports the
view that counsel must advise her client regarding the risk of
deportation."            Id.        at    367        (emphasis        added)       (collecting
authorities).           The      Court     did       not     conclude       that    prevailing
professional        norms     require      attorneys          to   inform     alien       clients
that convictions for deportable offenses will absolutely result
in deportation.         See id.
        ¶65   The    Padilla       Court    suggested          that    an    attorney       would
give reasonably competent advice by providing a warning similar
to the one that Wis. Stat. § 971.08 requires a circuit court to
give: that an alien's conviction may result in deportation.                                     The
Padilla Court noted that "many States require trial courts to
                                                36
                                                                             No.    2013AP1437-CR



advise defendants of possible immigration consequences."                                   Id. at
374 n.15.         The Court cited to Wis. Stat. § 971.08 (2005-06),
among      similar      statutes       from   other           States.        Id.     The     Court
explained        that     these    statutes              were     "significant"         to     its
conclusion that an attorney must "inform her noncitizen client
that he faces a risk of deportation."                              Id. at 373-74 & n.15
(emphasis added).
        ¶66    In fact, we have previously stated that "by enacting
Wis.     Stat.       § 971.08(1)(c)           &        (2),     Wisconsin      codified        the
protections contemplated in Padilla, but placed the duty to warn
on   the      circuit    court,    rather          than       solely    on    the    attorney."
Negrete,       343    Wis. 2d 1,        ¶34       n.12        (emphasis       added).        That

statute, upon which the Padilla Court relied, provides:

              Before the court accepts a plea of guilty or no
        contest,    it   shall . . . [a]ddress the   defendant
        personally and advise the defendant as follows: "If
        you are not a citizen of the United States of America,
        you are advised that a plea of guilty or no contest
        for the offense with which you are charged may result
        in deportation, the exclusion from admission to this
        country or the denial of naturalization, under federal
        law."
Wis.    Stat.     § 971.08(1)(c)          (2005-06)             (emphasis      added).         The
legislature adopted § 971.08(1)(c) in 1985.                             See 1985 Wis. Act
252.
        ¶67    Accordingly, if Shata's position were correct, then an
alien defendant would receive inconsistent immigration warnings
when    pleading        guilty    or    no    contest.            The   alien's       attorney,
according to Shata, would be required to tell the alien that a
conviction will absolutely result in deportation.                                  However, the

                                                  37
                                                                     No.    2013AP1437-CR



circuit court would warn the defendant pursuant to Wis. Stat.
§ 971.08 that a conviction may result in deportation.                              Under
Shata's logic, if an alien defendant wants to enter a plea, the
circuit court would essentially have to act as an immigration
lawyer, because to ensure that the plea is knowing, intelligent,
and voluntary, the court would have to determine whether defense
counsel gave correct immigration advice.                      Thus, under Shata's
logic,      in   order      to     ensure      that   his     plea     was     knowing,
intelligent, and voluntary, the circuit court should have told
him that he absolutely would be deported upon conviction and
that his counsel's advice was incorrect.                    Circuit courts are not
required to inform aliens that they absolutely will be deported

upon conviction.           See Wis. Stat. § 971.08(1)(c).                  Moreover, if
an   attorney       were   to     give   the     advice   that   Shata       argues    is
required, the attorney may, in fact, be giving wrong advice.                          In
light of the Padilla Court's reliance on § 971.08, and in light
of   our     view     in    Negrete      that     this    statute      codified       the
protections of Padilla, we conclude that Padilla did not require
Shata's     attorney       to     tell   him      that    his    conviction       would
absolutely       result      in     deportation.            Shata's        argument    is
inconsistent with § 971.08.              In fact, unlike Padilla's attorney
whose advice was absolutely incorrect, Shata's attorney gave him
advice that there was a "strong chance" of deportation, which
was absolutely correct.            Correct advice is not deficient.
      ¶68    In addition to creating advice from counsel that is
inconsistent with the circuit court's immigration warning, if we
were to accept Shata's argument, a defendant like Shata would
                                            38
                                                                         No.    2013AP1437-CR



always be in a position to complain that counsel was ineffective
whether he was deported or not.                      Allow us to further explain how
Shata's conclusions would open the door for any alien to seek
postconviction relief regardless of deportation.                               Shata argues
that if deportation proceedings are subsequently brought against
a defendant, like Shata who pled pursuant to an agreement, the
defendant should be entitled to withdraw the plea in order to
avoid deportation even though that defendant entered the plea
knowing that there was a "strong chance" of deportation.                               Such a
defendant    would    be        able       to   enjoy      the    benefits      of     a    plea
agreement——such as the State's agreement to reduce, dismiss or
agree not to file charges and recommendation for a more lenient

sentence——and later seek relief if deportation proceedings are
commenced    even    though          the    defendant       knew       that    there       was   a
"strong chance" of deportation.
     ¶69    On the other hand, a defendant who, like Shata, is
warned    that   there     is    a     "strong        chance"     of    deportation        could
gamble by pleading guilty pursuant to an agreement reached with
the State.       Seemingly then, if deportation proceedings were not
brought against the defendant, then the defendant could complain
that he should have gone to trial with the hope of receiving a
more beneficial verdict from a jury.                             In other words, Shata
could also complain, if not deported, that he gave up his right
to a trial because he was told that he faced a "strong chance"

of deportation.18

     18
          Perhaps    deportation            may      not   come    because      a sentence
                                                                                (continued)
                                                39
                                                                No.    2013AP1437-CR



       ¶70    Similarly, consider a defendant who is told that he
will absolutely be deported upon conviction and so he proceeds
to trial instead of accepting a plea offer.                   If that defendant
is convicted, but is not then deported, should that defendant be
allowed postconviction relief because he asserts that if he had
not received that advice, he would have taken the State's plea
bargain offer instead of proceeding to trial?                    A defendant in
those circumstances very well could have given up a beneficial
plea    agreement        due   to   counsel's        advice     that     mandatory
deportation would occur.            As can been seen, Shata's argument
seems to hinge on whether a defendant is deported, instead of
whether the defendant knew that he was pleading to an offense

for which he could face deportation, exclusion from admission,
or   denial    of     naturalization.        Thus,    Shata's    argument     would
entitle him to relief whether he pleads or goes to trial and
whether he is deported or not.               Padilla did not create such an
impossible scenario for the State, counsel, the defendant, or
the courts.
       ¶71    Shata's    position——that      his   attorney     was    required   to
tell    him    that     "his   conviction     would    absolutely       result    in
deportation"——is unworkable and untenable.               That advice would be



imposed affects deportation, because the DHS has prosecutorial
discretion, or perhaps because a change in policy affecting
deportation occurs.     How certain must counsel be of the
likelihood   that  deportation   will   occur, considering the
immigration legal landscape and changing executive branch or
administration policies regarding deportation?



                                        40
                                                                        No.    2013AP1437-CR



incorrect because a defense attorney does not control and cannot
know with certainty whether the federal government will deport
an alien upon conviction.              If we were to adopt Shata's position,
the unintended consequence may be that an alien defendant could
be essentially precluded from ever pleading guilty or no contest
to a crime.         Why would the State make a plea bargain offer to
such     a    defendant      knowing      that     it     could     almost         always     be
withdrawn?       If we adopted Shata's position, then an alien might
not ever be able to knowingly, intelligently, and voluntarily
plead or even decide to proceed to trial.                               Padilla requires
advice to be correct and, unlike in Padilla, the advice that
Shata received was actually correct.                        Shata's arguments fail

because the advice that he received——that there was a "strong
chance" of deportation——was correct and accurate and he entered
a   knowing,        intelligent,          and     voluntary            plea    with         that
understanding.
        ¶72   The   case     law     on    which        Shata     relies      is     likewise
distinguishable.           For     example,      the     attorneys       in   Bonilla        and
Sandoval      rendered     assistance       that       Padilla     clearly         condemned.
The attorney in Sandoval gave wrong advice by telling his client
that he would not be deported upon conviction when, in fact, he
was deportable.          Sandoval, 249 P.3d at 1020.                    That advice was
identical to the advice that Padilla received, and the Padilla
Court    held    that     such     incorrect      advice        constitutes         deficient
performance.         Padilla,      559    U.S.     at    368-69.         In   Bonilla        the
attorney      failed    to    mention      anything       to     the    defendant       about
possible immigration consequences of a conviction.                            Bonilla, 637
                                            41
                                                                    No.     2013AP1437-CR



F.3d at 984.          The Padilla Court held that an attorney must
inform an alien client of possible immigration consequences of a
conviction.        Padilla, 559 U.S. at 369-71.19                In Mendez defense
counsel advised the defendant that "'a conviction may make [the
defendant]         inadmissible      or      deportable.'"                Mendez,    354
Wis. 2d 88, ¶4 (alteration in original).                      In Salazar defense
counsel advised the defendant that there was "a possibility" of
deportation upon conviction.                Salazar, 361 S.W.3d at 101.                By
contrast,    Shata's     attorney     provided         correct    advice     about    the
immigration consequences of his plea, telling Shata that there
was a "strong chance" of deportation upon conviction.
     ¶73     Bonilla        is    further      distinguishable            because    the

defendant     in     that    case    moved        to   withdraw     his     plea     pre-
sentencing, so the Ninth Circuit applied the "fair and just"
standard for pre-sentencing plea withdrawal.                      Bonilla, 637 F.3d
at 983.     By contrast, because Shata moved to withdraw his plea
post-sentencing, we must apply the higher "manifest injustice"
standard.     See Negrete, 343 Wis. 2d 1, ¶29.
     ¶74     The    cases    on   which     the    State   relies    are     much    more
persuasive and, unlike the cases cited by Shata, the cases cited
by the State analyzed Padilla in-depth.                    See Chacon, 409 S.W.3d


     19
        The Padilla Court rejected an argument, put forth by the
United States as amicus curiae, "that Strickland applies to
Padilla's claim only to the extent that he has alleged
affirmative misadvice."   Padilla, 559 U.S. at 369-71.    Unlike
the attorney in Padilla, Shata's attorney provided correct
advice.



                                          42
                                                                           No.    2013AP1437-CR



at 533-37; Escobar, 70 A.3d at 840-42.                           Those courts correctly
noted    that     a     conviction      for     a    deportable         offense       will     not
necessarily result in deportation.                         See Chacon, 409 S.W.3d at
534, 536-37; Escobar, 70 A.3d at 841-42.                               As a result, those
courts correctly held that counsel was not required to advise
the    defendants       that    they     would       necessarily        be   deported         upon
conviction.       See Chacon, 409 S.W.3d at 536-37; Escobar, 70 A.3d
at 841-42.        The courts correctly determined that the attorneys
gave correct advice, as required by Padilla, by advising the
defendants that deportation was "likely" or "very likely."                                    See
Chacon, 409 S.W.3d at 537 ("very likely"); Escobar, 70 A.3d at
842 ("likely").          Shata received similar and correct advice, that

there     was     a     "strong     possibility"            or     "strong       chance"       of
deportation.
        ¶75   We also disagree with Shata's argument that Attorney
Toran     performed        deficiently          by    not        reading       the     relevant
immigration statutes.             The Padilla Court did not hold that an
attorney must read those statutes in order to avoid performing
deficiently.          Rather, the Padilla Court focused on the advice
that    was     given    and    concluded       that       the    advice     was      deficient
because it was contrary to the clear language of the relevant
immigration       statutes.             See   Padilla,           559    U.S.     at     368-69.
Although        Attorney        Toran     did        not     specifically             read     the
immigration       statutes,       he     asked       several       federal        prosecutors
whether Shata could be deported upon conviction.                             Attorney Toran
also    sought    to     have    the    State       offer    deferred        prosecution        or
amend     the    charge     to    an     offense       that       carried        no    risk     of
                                              43
                                                                        No.   2013AP1437-CR



deportation, but the State was unwilling to do so.                                 Further,
Attorney Toran informed the court at both the plea hearing and
sentencing hearing that Shata was concerned that he would be
deported.     Attorney Toran testified at the Machner hearing that
he "know[s] the case Padilla v. Kentucky . . . ." Nowhere in
Padilla did the Court state that not specifically reading the
immigration    statutes       is    the     equivalent        of   giving        misadvice.
Most importantly, Attorney Toran gave correct advice when he
told Shata that the guilty plea carried a "strong chance" of
deportation.
     ¶76     Under    these       circumstances,        Attorney        Toran     did    not
perform     deficiently       when     advising         Shata      of     the     risk    of

deportation.         This     advice       is    significantly          different        than
counsel's deficient advice in Padilla.                       While the advice given
in Padilla was that the defendant would not face deportation,
the advice given to Shata was correct.                       Attorney Toran is not
deficient    for     giving      correct    advice      to   Shata,      even     if    Shata
ultimately is deported.            If we were to conclude that counsel was
deficient for giving this advice, it would place a defendant
like Shata in the position of being able to second-guess a plea
decision, even when that decision was knowing, intelligent, and
voluntary.
     ¶77     The bottom line is that an attorney's advice must be
adequate to allow a defendant to knowingly, intelligently, and
voluntarily decide whether to enter a guilty plea.                            See Wofford
v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (citations
omitted)     ("Because      [a     guilty       plea]   is    valid       only    if     made
                                            44
                                                                    No.    2013AP1437-CR



intelligently and voluntarily, an accused who has not received
reasonably    effective         assistance        from    counsel    in   deciding    to
plead guilty cannot be bound by his plea.").                            Attorney Toran
"adequately advised [Shata] of the risk of deportation so as to
allow [him] to make a knowing and voluntary decision to plead
guilty."      See    Chacon,      409    S.W.3d      at    537.      In   addition    to
Attorney Toran's advice, the plea questionnaire and the circuit
court's immigration warning helped to ensure that Shata entered
his guilty plea knowingly, intelligently, and voluntarily.                           See
Neufville, 13 A.3d at 610, 613-14.                  Shata understood the court's
admonition    that    he    could       be   deported      upon     conviction.       He
accepted the plea agreement, entered the plea, and was sentenced

to one year of confinement as the State recommended.                        He did not
see fit to complain until about four months later, on March 15,
2013, after he received a letter from the DHS.
     ¶78     We withdraw any language in Mendez, 354 Wis. 2d 88,
that suggests that Padilla requires an attorney to advise an
alien client that a conviction for a deportable offense will
necessarily    result      in    deportation.            The   remainder    of    Mendez
retains precedential value.              See State v. Ziegler, 2012 WI 73,
¶7 & n.3, 342 Wis. 2d 256, 816 N.W.2d 238.
                                  IV. CONCLUSION
     ¶79     We conclude that Shata is not entitled to withdraw his
guilty plea because he did not receive ineffective assistance of
counsel.       Specifically,         Shata's        attorney      did     not    perform
deficiently.        Shata's attorney was required to "give correct
advice" to Shata about the possible immigration consequences of
                                             45
                                                                No.    2013AP1437-CR



his conviction.      Padilla, 559 U.S. at 369.                Shata's attorney
satisfied that requirement by correctly advising Shata that his
guilty plea carried a "strong chance" of deportation.                      Shata's
attorney was not required to tell him that his guilty plea would
absolutely result in deportation.             In fact, Shata's deportation
was not an absolute certainty.              Executive action, including the
United    States   Department    of    Homeland       Security's      exercise   of
prosecutorial      discretion,        can     block     the     deportation      of
deportable aliens. Because Shata's trial counsel did not perform
deficiently, we do not address the issue of prejudice.
     By   the   Court.—The   decision        of   the   court    of    appeals   is
reversed.




                                       46
                                                                       No.    2013AP1437-CR.awb




        ¶80    ANN WALSH BRADLEY, J.                   (dissenting).          In Padilla v.
Kentucky, 559 U.S. 356, 360 (2010), the United States Supreme
Court determined that defense counsel should have informed his
client       "that    his    conviction          for    drug    distribution             made   him
subject to automatic deportation," and that counsel's failure to
do so constituted deficient performance.
        ¶81    This case involves the same type of crime and the same
immigration statute at issue in Padilla.                              It should have the

same result.
        ¶82    Yet,        rather      than          employing        a      straightforward
application          of     Padilla,       the       majority     conducts           a    lengthy
analysis, making several missteps along the way.                               I focus here
on two errors of substantial consequence.
        ¶83    First, the majority lowers the professional standard
for     Wisconsin         attorneys        below       that     required        by       national
standards and the United States Supreme Court.                             It contends that

when a client is concerned about immigration consequences of a
plea, his attorney need not even look at the statute governing
the     immigration         consequences         before        providing       advice.           It
states:       "we    []    disagree       with    Shata's      argument       that       Attorney
Toran     performed          deficiently         by     not     reading       the        relevant
immigration statutes."              Majority op., ¶75.
        ¶84    Second,       in     maintaining         that     an       attorney       provides
effective assistance by advising a client with the same language
that     a     court        uses     in     a     plea        colloquy,       the        majority
misunderstands            Padilla's       holding       and     conflates       the       court's

                                                 1
                                                                  No.    2013AP1437-CR.awb


obligations under the Fifth Amendment with the obligations of an
attorney under the Sixth Amendment.
      ¶85   Together these errors severely undermine the standards
for attorney conduct set forth in Padilla.                    The probable result
is that clients will be left with only vague and incomplete
advice about the immigration consequences of entering a plea.
Because I am confident that clients deserve more and recognize
that Wisconsin attorneys must do better, I respectfully dissent.
                                          I

      ¶86   The majority's position that an attorney need not even
look at the statute governing the immigration consequences at
issue before providing advice is untenable.                             Despite defense
counsel's    awareness       that     Shata     was    "very       concerned"        about
deportation,      the    majority     "disagree[s]        with     Shata's        argument
that Attorney Toran performed deficiently by not reading the
relevant immigration statutes."               Majority op., ¶75.
      ¶87   An attorney's failure to read the statute governing

the   immigration       consequences     of    a   plea    after        his   client     has
indicated        that    deportation      is       a      great         concern     is    a
quintessential example of deficient performance.                          As the United
States Supreme Court has explained, "an attorney's ignorance of
a point of law that is fundamental to his case combined with his
failure     to     perform    basic      research      on     that        point     is     a
quintessential          example     of   unreasonable          performance           under
Strickland."       Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
      ¶88   Strickland v. Washington provides that in determining
whether an attorney's performance is deficient, "[t]he proper

                                          2
                                                                            No.      2013AP1437-CR.awb


measure       of    attorney    performance             remains         simply       reasonableness
under prevailing professional norms."                          466 U.S. 668, 688 (1984).
The     standard       of    conduct       set          by    the       majority         is    neither
prevailing nor a recognized professional norm.
        ¶89    The United States Supreme Court sets the standard for
performance: it requires an attorney to be familiar with the
governing immigration statute before determining how to advise a
client.
        ¶90    In discussing the same statute at issue in this case,

the   Padilla        Court     observed        that       "the      terms       of    the     relevant

immigration          statute       are    succinct,           clear,           and     explicit      in
defining       the    removal      consequences              for    Padilla's          conviction."
Padilla, 559 U.S. at 368.                      It stated that "Padilla's counsel
could    have       easily     determined           that      his       plea      would       make   him
eligible for deportation simply from reading the text of the
statute."            Id.     Given       the    clarity            of   the       law,     the    Court
determined that the alleged failure of Padilla's attorney to

correctly inform him of the immigration consequences of a plea
was deficient performance.                Id. at 369.               In essence, an attorney
must read the statute and convey the information it contains to
the client.
        ¶91    National        standards            for      attorney          conduct         likewise
support       the    need    for    attorneys           to    investigate            the      governing
immigration law before providing immigration advice.
        ¶92    An      examination             of         deficient            performance           "is
necessarily linked to the practice and expectations of the legal
community."          Padilla, 559 U.S. at 366.                     Accordingly, "prevailing

                                                    3
                                                                         No.    2013AP1437-CR.awb


norms    of     practice         as     reflected     in    American          Bar     Association
standards and the like . . . are guides to determining what is
reasonable."         Id. (quoting Strickland, 466 U.S. at 688).
        ¶93    Standard         4-6.3     of    the    American          Bar     Association's
Standards        for       Criminal        Justice,         Prosecution             and     Defense
Functions (4th ed. 2015), states that "[d]efense counsel should
investigate         and    be    knowledgeable        about       sentencing          procedures,
law,     and     alternatives,            collateral        consequences             and        likely
outcomes,        . . .      and advise the client on these topics before

permitting the client to enter a negotiated disposition."
        ¶94    Likewise,          standard       14-3.2          of     the     American           Bar
Association's Standards for Criminal Justice, Pleas of Guilty
(3d ed. 1999), requires attorneys to investigate the law before
advising defendants about pleas.                       The commentary advises that
"defense counsel should be active, rather than passive, taking
the initiative to learn about rules in this area rather than
waiting       for    questions        from     the    defendant."              Id.    at    126-27.

Because the immigration consequence of a guilty plea may well be
a client's greatest priority, "counsel should be familiar with
the    basic     immigration            consequences       that       flow     from       different
types     of     guilty         pleas,    and    should          keep    this        in    mind     in
investigating law and fact and advising the client."                                        Id. at
127.
        ¶95    The     performance         standard        set    by    the     United          States
Supreme        Court      and     the     national     standards          convey          the     same
message:       before      advising       a    non-citizen         client       on    whether       to
accept a plea, attorneys must investigate the immigration law

                                                 4
                                                                     No.    2013AP1437-CR.awb


implicated by the plea.              The most basic investigation is to read
the governing immigration statute.
       ¶96   By suggesting that an attorney need not look at and be
familiar     with       the   specific      governing          statute,    the     majority's
standard fails the Strickland test.                   It is simply unrecognizable
as a "prevailing professional norm."                      Padilla, 559 U.S. at 366.
       ¶97   Nevertheless,          the   majority         transforms       what       would    be
deficient        performance        elsewhere       into       acceptable        professional
conduct here.           It puts its stamp of approval on the conduct of

Wisconsin attorneys who give substandard legal advice.                                  This is
especially        troublesome        in   an       area     of    law      that    has     such
significant and life altering consequences for their clients and
the clients' families.
                                             II
       ¶98   A cornerstone of the majority's analysis rests on its
erroneous contention that attorneys provide effective assistance
when they advise clients with the same language that a court

uses   in    a    plea    colloquy.         It     states:       "[t]he     Padilla       Court
suggested        that    an   attorney       would        give    reasonably       competent
advice by providing a warning similar to the one that Wis. Stat.
§   971.08   requires         a   circuit    court        to    give:     that    an    alien's
conviction        may    result      in   deportation."             Majority       op.,        ¶65
(emphasis in original).
       ¶99   This analysis reveals both a serious misunderstanding
of Padilla's holding and conflates the court's obligations under
the Fifth Amendment with the obligations of an attorney under
the Sixth Amendment.              I address each in turn.

                                               5
                                                             No.    2013AP1437-CR.awb


                                         A
       ¶100    Padilla addressed the same type of crime at issue in
this case and its holding clearly stated what advice should have
been     given    to   Shata.         However,     the    majority     appears      to
misunderstand the holding.
       ¶101 Padilla instructs: "constitutionally competent counsel
would have advised him that his conviction for drug distribution
made him subject to automatic deportation."                 559 U.S. at 360. It
explained that "[t]his is not a hard case in which to find

deficiency: the consequences of Padilla's plea could easily be
determined from reading the removal statute."                       Id. at 368-69.

The    Court     described      the    governing      immigration      statute     as
"succinct,       clear,    and    explicit       in      defining     the     removal
consequences [of a controlled substances conviction]."                        Id. at
368.
       ¶102 Padilla set forth a test for determining the amount of
advice     a     defense   attorney      needs     to     provide.          When   the

immigration consequences are clear, as here, the consequences
must be clearly conveyed to the client, and when they are not,
more general advice is sufficient:

       When     the     law     is    not     succinct    and
       straightforward . . . a criminal defense attorney need
       do no more than advise a noncitizen client that
       pending criminal charges may carry a risk of adverse
       immigration consequences.   . . . when the deportation
       consequence is truly clear, . . . the duty to give
       correct advice is equally clear.




                                         6
                                                           No.   2013AP1437-CR.awb


Id.        Because    Padilla    conclusively        established      that    the
immigration consequences of a controlled substances offense are
clear, Shata should have been given more than general advice.1
      ¶103 Yet,      the   language   in    Wis.   Stat.   § 971.08    that   the
majority     deems    sufficient      provides     only    general,    equivocal
information:

      If you are not a citizen of the United States of
      America, you are advised that a plea of guilty or no
      contest for the offense with which you are charged may
      result in deportation, the exclusion from admission to
      this country or the denial of naturalization, under
      federal law.
Wis. Stat. § 971.08.         This warning is equivalent to the warning
that Padilla permits when the law is not clear.                  The majority's
suggestion that this warning necessarily fulfills an attorney's
Padilla obligations ignores the Court's directive that such a
warning is unacceptable when more specific advice is available,
and ignores Padilla's determination that more specific advice is
available when the defendant pleads to a controlled substances

crime.



      1
        Any question about the possible exercise of prosecutorial
discretion is answered by a recent memo from the Department of
Homeland Security.     It lists aggravated felonies, such as
illicit trafficking in a controlled substance, as "Priority 1"
and states "[a]liens described in this priority represent the
highest priority to which enforcement resources should be
directed."   Jeh Charles Johnson, Polices for the Apprehension,
Detention and Removal of Undocumented Immigrants, at 3 (Nov. 20,
2014),                        available                        at
www.dhs.gov/sites/default/files/publications/14_1120_memo_prosec
utorial_discretion.pdf (emphasis added). Once Shata entered his
plea, it appears his deportation fate was sealed.


                                        7
                                                                        No.    2013AP1437-CR.awb


     ¶104 In       an    attempt       to     explain       why    it     does          not    follow
Padilla,     the     majority         insists       that    this     case       is       different
because    unlike       Padilla's       attorney,          Shata's      attorney              did   not
provide incorrect advice.                Majority op., ¶58.               This distinction
reveals     a      further       misunderstanding            of      Padilla's            holding.
Padilla    directly      stated        that    its    holding       was       not       limited      to
affirmative      misadvice        from      counsel.         559     U.S.      at        370.        It
explained       that    a    contrary         holding       would       lead        to        "absurd
results": "First, it would give counsel an incentive to remain

silent on matters of great importance, even when answers are
readily     available.       . . . Second,            it    would       deny        a    class       of
clients least able to represent themselves the most rudimentary
advice on deportation even when it is readily available."                                           Id.

at 370-71.       The majority's disregard for the warning required by
Padilla    in    favor      of    a    general       warning       in     a    plea       colloquy
illustrates its misunderstanding of that case.
                                                B

     ¶105 Additionally,               the     majority's          suggestion             that       the
court's warning pursuant to Wis. Stat. § 971.08 should be the
same as an attorney's advice during plea negotiations conflates
the distinct roles served by attorneys and the courts.
     ¶106 The          majority        repeatedly          asserts        that          attorneys'
immigration      warnings        should       match    the    court's          colloquy.            For
example,    in     response       to    Shata's       argument       that       his       attorney
should have provided more information, the majority states, "if
Shata's position were correct, then an alien defendant would
receive inconsistent immigration warnings when pleading guilty

                                                8
                                                              No.    2013AP1437-CR.awb


or no contest."       Majority op., ¶67.            The majority even suggests
that if an attorney were to offer more advice, the court would
have to as well: it states "[if Shata was correct then] the
circuit court should have told [Shata] that he absolutely would
be   deported     upon     conviction         . . . . Shata's         argument         is
inconsistent with § 971.08."         Id.
      ¶107 The majority's insistence that the court and a defense
attorney give matching warnings fails to recognize that they
undertake different roles in relation to a defendant's choice to

enter a plea.     Defense counsel's role, as dictated by the Sixth
Amendment, is to assist the defendant in deciding whether to
enter the plea.        Padilla, 559 U.S. at 370 (referring to "the

critical    obligation    of    counsel       to    advise    the    client     of    the
advantages and disadvantages of a plea agreement").
      ¶108 The court plays a more limited role under the Fifth
Amendment of ensuring that the plea is knowing, intelligent and
voluntary. See Danielle M. Lang, Padilla v. Kentucky: The Effect

of   Plea   Colloquy     Warnings    on       Defendants'      Ability     to    Bring
Successful Padilla Claims, 121 Yale L. J. 944, 954 (2012).                            As
the United States Supreme Court has explained, a judge "cannot
investigate     the    facts, advise          and    direct    the     defense,       or
participate in those necessary conferences between counsel and
accused which sometimes partake of the inviolable character of
the confessional."       Powell v. Alabama, 287 U.S. 45, 61 (1932);
see also United States v. Batamula, No. 12-20630 (5th Cir. June
2, 2015) ("the Supreme Court has long contrasted the unique and
critical    obligations        of   defense         counsel    during     the        plea

                                          9
                                                             No.    2013AP1437-CR.awb


bargaining process with the far more limited role of a district
court to ensure a minimally valid guilty plea").
       ¶109 Precedent clearly establishes that although the role
of an attorney and the role of a court overlap, they are not
equivalent:

       A district court's duty to ensure a knowing and
       voluntary plea arises from the Fifth Amendment's
       guarantee of due process and thus affords defendants a
       right distinct from the Sixth Amendment right to
       effective   assistance   of   counsel.   While  we   have
       recognized the inter-relationship between the two
       amendments in the context of guilty pleas, we have
       never suggested that the sufficient protection of one
       right   automatically    corrects    any   constitutional
       deficiency of the other.
United States v. Akinsade, 686 F.3d 248, 255 (4th Cir. 2012)
(internal citations omitted); see also Lang, 121 Yale L. J. at
948   ("these    two   protections         serve   complementary     but   distinct
functions in our constitutional structure——neither can replace
the other").
       ¶110 The Supreme Court has been clear that the inquiry into
whether an attorney has provided effective assistance of counsel
is different from the inquiry into whether a plea is knowing,
intelligent, and voluntary:

       The [Padilla] Court made clear that "the negotiation
       of a plea bargain is a critical phase of litigation
       for purposes of the Sixth Amendment right to effective
       assistance of counsel." It also rejected the argument
       made by petitioner in this case that a knowing and
       voluntary plea supersedes errors by defense counsel.
Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012); see also Lafler

v.    Cooper,    132   S.   Ct.    1376,    1390    (2012)   ("An    inquiry    into
whether    the    rejection       of   a   plea    is   knowing    and   voluntary,

                                           10
                                                                       No.   2013AP1437-CR.awb


however, is not the correct means by which to address a claim of
ineffective assistance of counsel.").
        ¶111 Consistent with that guidance, courts have declined to
conclude that the generic warning in a plea colloquy rescues
inadequate advice from defense attorneys.                              See, e.g., United
States    v.     Kayode,    777    F.3d     719,   728       (5th      Cir.       2014)   ("[A]
district court's admonishments are 'irrelevant' in determining
whether error has occurred under the first Strickland prong.");
Akinsade, 686 F.3d at 255 (finding that a trial court's general

admonishment concerning immigration consequences could not cure
misadvice by counsel, unless specific); Ortega-Araiza v. State,
331 P.3d 1189, 1196 (Wyo. 2014) ("We find that the district
court's    generic        advisement      could    not       compensate           for   defense
counsel's failure to adequately advise his client as required by
Padilla.");        Hernandez v. State, 124 So. 3d 757, 763 (Fla. 2012)
("[A]n equivocal warning from the trial court . . . cannot, by
itself, remove prejudice resulting from counsel's deficiency.");

State v. Sandoval, 249 P.3d 1015, 1020-21 (Wash. 2011) ("[T]he
guilty plea statement warnings . . . cannot save the advice that
counsel gave."); State v. Favela, 311 P.3d 1213, 1214 (N.M. Ct.
App. 2013) ("judicial statements made during the plea colloquy
about     the     immigration      consequences         of    a     plea      do    not    cure
counsel's deficient representation").
        ¶112 By    suggesting      that     the    warning        in    Wisconsin's        plea
colloquy        statute     is    sufficient       to        fulfill         an    attorney's
responsibility       under       Padilla,    the    majority           ignores      Padilla's
holding:        when the relevant immigration statute is clear, as

                                            11
                                                             No.   2013AP1437-CR.awb


here, "constitutionally competent counsel would have advised him
that his conviction for drug distribution made him subject to
automatic deportation."        559 U.S. at 360.
      ¶113 The      majority's      suggestion        likewise     rings    hollow
because    it     fails   to   recognize        the   difference     between      the
defendants' Fifth and Sixth Amendment rights.                  It conflates the
role of an attorney with the role of the court.                     The infirmity
of the majority's suggestion is exacerbated because it comes at
a   time   when    "the   importance       of    accurate    legal    advice      for

noncitizens accused of crimes has never been more important."
Id. at 364.

                                         III
      ¶114 In contrast to the majority, I conclude that Padilla
requires more than what the defense attorney did in this case.
As discussed above, under Padilla, the amount of information an
attorney   must     provide    to   a    non-citizen    client     regarding      the
immigration consequences of a plea is dependent upon how clear

the law is:

      When the law is not succinct and straightforward (as
      it is in many of the scenarios posited by Justice
      Alito), a criminal defense attorney need do no more
      than advise a noncitizen client that pending criminal
      charges may carry a risk of adverse immigration
      consequences. But when the deportation consequence is
      truly clear, as it was in this case, the duty to give
      correct advice is equally clear.
Padilla, 559 U.S. at 369.
      ¶115 Padilla explicitly held that the law setting forth the

immigration       consequences      of    a     conviction       relating    to     a
controlled substance is clear: "[8 U.S.C. § 1227(a)(2)(B)(i)]

                                         12
                                                               No.   2013AP1437-CR.awb


specifically    commands      removal      for      all   controlled       substances
convictions except for the most trivial of marijuana possession
offenses."      Id.    at   368.        Given       the   clarity     of    the   law,
"constitutionally competent counsel would have advised [Padilla]
that his conviction for drug distribution made him subject to
automatic deportation."        Id. at 360.
     ¶116 In this case, Shata faced a charge of possession with
intent to deliver marijuana, as party to a crime.                          The state
offered to recommend a short sentence if Shata pled guilty to

that crime.     The plea implicated the same immigration statute
that was at issue in Padilla.              See 8 U.S.C. § 1227(a)(2)(B)(i)

("Any alien who at any time after admission has been convicted
of a violation of . . . any law or regulation of a State, the
United States, or a foreign country relating to a controlled
substance . . . ,      other       than        a    single     offense      involving
possession for one's own use of 30 grams or less of marijuana,
is deportable.").

     ¶117 Because the same statute and immigration consequences
applied   to   Shata   that    applied         to   Padilla,   Padilla's      holding
applies as well.        "[C]onstitutionally competent counsel would
have advised him that his conviction for drug distribution made
him subject to automatic deportation."                 Id. at 360.       Yet that is




                                          13
                                                                   No.    2013AP1437-CR.awb


not the advice that he gave.                Instead, Shata's attorney informed
                                                                                   2
him only that there was a "strong chance" of deportation.
        ¶118 Advising a client that there is a "strong chance" of
deportation is not equivalent to advising that the client is
"subject       to    automatic      deportation."            The   court     of    appeals
addressed this issue in State v. Mendez, 2014 WI App 57, 354
Wis. 2d 88, 847 N.W.2d 895.                     There, Mendez sought to withdraw
his    plea,     asserting        that    his    counsel    had    been    deficient        by
failing     to      tell    him   the    clear       deportation   consequences        of    a

plea.       At the hearing, his attorney testified that he did not
tell    Mendez       that    he   would    be    deported,    instead      he     basically
reiterated the general warning on the plea questionnaire that a
conviction may make Mendez inadmissible or deportable.                            Id., ¶4.

        ¶119 In response to Mendez' motion, the State cited Chacon
v. State, 409 S.W.3d 529 (Mo. Ct. App. 2013) (as it does here).
Id., ¶13.        In Chacon, the Missouri court of appeals determined
that an attorney's advice to a client that he "would very likely

        2
       In this case the circuit court made a finding of fact that
Shata's attorney told him that "there was a strong likelihood
that he would be deported."    This appears to be an error.     A
review of the record reveals that the attorney never used those
words.   At the plea hearing he told the judge he had informed
Shata "that there's a potential he could be deported." Likewise,
on direct examination at the Machner hearing, the attorney
stated that he did not use the word "mandatory" in informing
Shata of the deportation consequences; the word he used was
"potential."   Then, on cross-examination, the attorney revised
his statement: "I advised him prior to the plea that he may be
deported, that there's a strong chance that he could be
deported."   Neither the attorney nor Shata ever testified that
the attorney used the phrase "strong likelihood."




                                                14
                                                                      No.   2013AP1437-CR.awb


be deported and wouldn't be able to come back" was sufficient.
After observing Chacon's holding, the Wisconsin Court of Appeals
stated explicitly: "We reject Chacon. Its holding is contrary to
Padilla's plain statement that 'when the deportation consequence
is truly clear . . . the duty to give correct advice is equally
clear.'"     Id., ¶14 (quoting Padilla, 559 U.S. at 369).                            In other
words, informing a client that deportation is "very likely" is
not good enough when deportation is presumptively mandatory.
        ¶120 I     agree     with     the        Mendez        court        that     advising

"deportation       is     very   likely"      is        not    the    same     as    advising
"deportation is presumptively mandatory."                            It does not convey
the same degree of certainty.                Like the advice given in Mendez
and     Padilla,    the     advice    given        to     Shata      did     not    meet    the
prevailing         professional       norm         and        constituted           deficient
performance.
        ¶121 I turn next to the second part of the Strickland test:
whether that deficiency prejudiced Shata.                            466 U.S. 668.           In

this    case,     the   circuit      court    determined             that    there    was    no
prejudice as a result of the advice that Shata received.                                     It
explained "I don't find Mr. Shata's testimony to be credible
today that he would've gone to trial under any circumstance had
he known that removal, deportation was a presumptive mandatory."
        ¶122 The circuit court's analysis of prejudice misses the
mark.     The test for prejudice when an attorney fails to advise a
client    about     immigration      consequences             is   distinct        from    other
scenarios.       It is not whether the defendant would have gone to
trial had the defendant received the adequate advice.                                 Rather,

                                            15
                                                                      No.     2013AP1437-CR.awb


the test "in determining whether deficient counsel prejudiced a
noncitizen      defendant's          plea    deal       is    whether       'a    decision     to
reject    the    plea     bargain         would       have   been    rational       under     the
circumstances.'"          Mendez, 354 Wis. 2d 88, ¶12 (quoting Padilla,
559 U.S. at 372).
      ¶123 This test recognizes that the ability to remain in the
United States may be more important to a defendant than the
length of a potential sentence.                       The desire to avoid deportation
can   dramatically        affect      a     rational         noncitizen's         decision     to

accept or reject a plea offer.
      ¶124 Therefore, under Padilla's test, a defendant can show

prejudice by establishing that it would have been rational to
reject a plea offer in hopes of obtaining a different plea offer
that would not result in deportation, even if doing so exposes
him to a longer sentence.                   As Mendez acknowledges, "an alien
defendant might rationally be more concerned with removal than
with a term of imprisonment.'"                         Mendez, 354 Wis. 2d 88, ¶16

(quoting United States v. Orocio, 645 F.3d 630, 643 (3d Cir.
2011), abrogated in part on other grounds by Chaidez v. United
States,    133    S.    Ct.        1103    (2013)).           Such    a   defendant        might
rationally       choose       to    risk     a        lengthier      prison       sentence    in
exchange for another plea offer to an amended charge that does
not   carry     automatic      deportation             consequences.             Indeed,   "[i]n
numerous post-Padilla cases, courts have concluded that despite
the benefit of a great reduction in the length of the potential
prison    sentence,       a    rational       noncitizen          defendant        might     have



                                                 16
                                                             No.   2013AP1437-CR.awb


rejected    a    plea   bargain   and   risked    trial      for   the     chance    of
avoiding deportation."        Mendez, 354 Wis. 2d 88, ¶16.
      ¶125 An objective standard is applied to the determination
of whether it would be rational to reject a plea bargain.                           See
Bonney v. Wilson, 754 F.3d 872, 884 (10th Cir. 2014); United
States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012); Pilla v.
United States, 668 F.3d 368, 373 (6th Cir. 2012); Zemene v.
Clarke, 768 S.E.2d 684, 692 (Va. 2015).
      ¶126 Here, in addition to failing to consider whether a

decision to reject the plea bargain would have been rational,
the circuit court's discussion of what it thought Shata would
have done reveals that it took a subjective approach to the
prejudice       analysis.      Accordingly,      the    court      erred    in   both
employing the wrong test and in applying a subjective standard.
      ¶127 Under the objective standard we consider the totality
of the circumstances.         In its brief prejudice analysis, however,
the circuit court focused solely on the risk Shata would have

faced had he gone to trial: "the risk [Shata] ran had this
matter gone to trial and more adverse facts came out, that the
Court wasn't necessarily aware of at the time of sentencing, the
sentence could've been much longer and a more significant period
of   incarceration      or   imprisonment which        may   ultimately      reflect




                                        17
                                                               No.   2013AP1437-CR.awb


upon a presumptive mandatory removal."3                  A prejudice analysis
should not be so limited.
       ¶128 Mendez      stressed      that    a   defendant     facing     potential
deportation may show that his decision to reject a plea offer
would have been rational without showing that he would likely
have       succeeded   at    trial.     It    provides      guidance     by   listing
factors       to   consider      in    assessing      the      totality       of   the
circumstances.          In     determining        prejudice,     the    court      must
consider the length of time a defendant has lived in the United

States in comparison to the length of time lived in another
country, whether he has married a United States citizen and has
a child here, and whether he has a reason to fear harm upon
returning to his country:

       Mendez has lived in the United States since he was
       fourteen years old, longer than he ever lived in
       Mexico, and is married to a United States citizen here
       with whom he has a young child—also a United States
       citizen. He also asserted at the hearing that he fears
       retribution by his codefendant's family should he be
       deported to Mexico. Under Padilla, a court's analysis
       of prejudice must take those factors into account in
       measuring whether, properly informed of the automatic,
       irreversible, and permanent deportation consequences
       of his plea, Mendez might rationally have rejected the
       plea bargain in favor of trial despite the risk of
       four and one-half years of initial confinement.
Mendez, 354 Wis. 2d 88, ¶12.

       3
       The circuit court's suggestion that the length of
incarceration   would   have  affected   whether   removal  was
presumptively mandatory was also in error. Although the length
of incarceration is a factor for determining deportation based
on general crimes, it is not a factor in determining whether an
individual is deportable for having committed a crime relating
to a controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i).


                                         18
                                                                        No.    2013AP1437-CR.awb


        ¶129 Here, the circuit court applied the wrong test and
failed     to     consider       circumstances             relevant       to       a    prejudice
determination.           Given      this     failure,       a   remand        to    the   circuit
court    for     further       proceedings      on     the      issue     of       prejudice     is
required.
                                               IV
        ¶130 In sum, the majority erroneously holds that attorneys
need    not     even    look    at    the     statute       governing         the       applicable
immigration consequence and that attorneys need not give any

more    advice     than      that    contained        in    a   plea     colloquy.            These
holdings defy precedent.
        ¶131 The       Padilla       court     well        understood         that      effective

assistance       of     counsel       during     the       plea    stage           is   critical.
Padilla, 599 U.S. 356; see also Frye, 132 S. Ct. at 1406; Hill
v. Lockhart, 474 U.S. 52 (1985).                       It emphasized that accurate
legal advice about deportation consequences has never been more
important and that it often is the most critical consideration

for noncitizens:

        The   importance   of   accurate   legal advice  for
        noncitizens accused of crimes has never been more
        important. . . . [D]eportation is an integral part——
        indeed, sometimes the most important part——of the
        penalty that may be imposed on noncitizen defendants
        who plead guilty to specified crimes.
Padilla, 559 U.S. at 364.
        ¶132 For       the   reasons        discussed        above,      I     conclude       that
Shata's       attorney's       performance          was     deficient.              Because     the
circuit court failed to employ the proper test and apply the
correct standard for prejudice caused by inadequate immigration


                                               19
                                                     No.   2013AP1437-CR.awb


advice during the plea stage of trial, the correct course of
action is to remand to the circuit court for further proceedings
to address the issue of prejudice.
     ¶133 Accordingly, I respectfully dissent.
     ¶134 I   am   authorized   to   state   that   Justice   SHIRLEY    S.
ABRAHAMSON joins this dissent.




                                     20
    No.   2013AP1437-CR.awb




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