                                                        2017 WI 104

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2015AP2041-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Jose Alberto Reyes Fuerte,
                                 Defendant-Appellant.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 372 Wis. 2d 106, 887 N.W.2d 121
                              PDC No: 2016 WI App 78 - Published

OPINION FILED:         December 19, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 5, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Columbia
   JUDGE:              Alan J. White

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
                       J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-respondent-petitioner, there were briefs
filed by Nancy A. Noet, assistant attorney general, and Brad D.
Schimel, attorney general.         There was an oral argument by Lisa
E.F. Kumfer, assistant attorney general.


       For the defendant-appellant there was a brief filed by Ben
M. Crouse and Sesini Law Group, S.C., Milwaukee.           There was an
oral argument by Ben M. Crouse.
                                                                            2017 WI 104
                                                                        NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.     2015AP2041-CR
(L.C. No.      2012CF582)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent-Petitioner,
                                                                           FILED
        v.                                                           DEC 19, 2017

Jose Alberto Reyes Fuerte,                                              Diane M. Fremgen
                                                                     Clerk of Supreme Court

               Defendant-Appellant.




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



        ¶1     MICHAEL      J.    GABLEMAN,   J.    This      is    a     review    of    a

published decision of the court of appeals that reversed the

Columbia County Circuit Court's1 order denying Jose Alberto Reyes
Fuerte's ("Reyes Fuerte") motion to withdraw two guilty pleas

for     two     separate         criminal   violations.            The    motions      for

withdrawal were made pursuant to Wis. Stat. § 971.08(2) (2013-

14).2        State v. Reyes Fuerte, 2016 WI App 78, 372 Wis. 2d 106,

887 N.W.2d 121.

        1
            The Honorable Alan J. White presided.
        2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
                                                            No.    2015AP2041-CR



    ¶2      The State argues that motions to withdraw a guilty

plea pursuant to Wis. Stat. § 971.08(2) should be subject to

harmless error analysis pursuant to Wis. Stat. §§ 971.26 and

805.18, and thus this court should overrule its decision in

State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1.

The State asks this court to remand this matter to the circuit

court for a Bangert3 hearing in order to determine whether Reyes

Fuerte knew of the potential immigration consequences of his

plea at the time of the plea hearing.

    ¶3      We hold that Douangmala was objectively wrong because

it failed to properly consider the harmless error statutes, Wis.

Stat. §§ 971.26 and 805.18, and is thus overruled.                      Applying

harmless   error   analysis,     we   further     hold    that    the    circuit

court's error in this case was harmless as a matter of law and

thus reverse the decision of the court of appeals.

    ¶4      We   begin   with     a   description    of     the    facts     and

procedural history.      We then set forth the standard of review.

We begin our analysis by setting forth the decisions of this
court and the court of appeals considering the applicability of

Wis. Stat. §§ 971.26 and 805.18 to Wis. Stat. § 971.08(2).                    We

follow with our conclusion that Douangmala was wrongly decided

because    harmless   error     analysis   does    apply    to    § 971.08(2).

Finally, we conclude that the circuit court's error in this case

was harmless.


    3
        State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).


                                      2
                                                                 No.     2015AP2041-CR



                  I.    FACTUAL AND PROCEDURAL BACKGROUND

    ¶5      Reyes      Fuerte    entered       guilty   pleas   on     February   20,

2014, to two charges:           (1) attempting to flee or elude a traffic

officer, contrary to Wis. Stat. § 346.04(3), and (2) second-

offense operating with a restricted controlled substance in his

blood,      contrary       to      Wis.        Stat.     §§ 346.63(1)(am)         and

346.65(2)(am)2.        At the plea hearing, the circuit court gave the

following     advisement         regarding       the    potential       immigration

consequences of Reyes Fuerte's plea:

    Usually we're looking at felonies, but any conviction
    to a person who is not a resident of the United States
    could lead, at some point in the future, to that
    person either being denied re-entry or that person
    being required to leave this country.      And I'm not
    saying that's going to happen at all. I'm just saying
    that convictions can lead to those results.
Reyes    Fuerte     confirmed,      through        an   interpreter,       that    he

understood the circuit court's advisement.                      Reyes Fuerte was

also alerted to the potential immigration consequences of his

plea in the Plea Questionnaire/Waiver of Rights form, which was

in English and Spanish.           Further, defense counsel was bilingual,

and stated on the record that he also went over the form in

Spanish with Reyes Fuerte.

    ¶6      At all times relevant to this case, Reyes Fuerte was

in the United States illegally and spoke Spanish as his first

language.     At the time of his plea, Reyes Fuerte was in the




                                           3
                                                                    No.     2015AP2041-CR



midst of deportation4 proceedings.                     He asserted cancellation of

removal as a defense in those proceedings.                           Cancellation of

removal      allows       the   United     States      Attorney   General    to    cancel

removal       and     grant       lawful     permanent       residence      to     aliens

fulfilling certain criteria.                 8 U.S.C. § 1229b(b)(1).               One of

those criteria is that the alien has not been convicted of a

crime of moral turpitude.                8 U.S.C. § 1229b(b)(1)(C) (citing 8

U.S.C. § 1227(a)(2)(A)(i)).                At the time of Reyes Fuerte's plea,

whether either or both of his convictions were for crimes of

moral turpitude was unclear.

       ¶7     The United States Court of Appeals for the Seventh

Circuit resolved any ambiguities late in 2014.                        Cano-Oyarzabal

v.    Holder,       774    F.3d   914,     919    (7th    Cir.    2014).      In       Cano-

Oyarzabal, the court affirmed a determination by the Board of

Immigration Appeals that Wis. Stat. § 346.04(3), attempting to

flee or elude a traffic officer, is a crime of moral turpitude.

Id.         Thus,    Reyes      Fuerte     was    no     longer   eligible       for    the

cancellation of removal defense.
       ¶8     Reyes Fuerte moved to withdraw his plea pursuant to

Wis. Stat. § 971.08(2) in June 2015, alleging that the circuit

court's immigration consequences advisement was defective and

Reyes Fuerte's guilty plea resulted in losing the cancellation

of removal defense.             The circuit court denied the motion because


       4
       Federal immigration law uses the term "removal" to
describe the process traditionally known as "deportation." We
use those terms interchangeably in this opinion.


                                              4
                                                                      No.    2015AP2041-CR



it found the immigration consequences advisement substantially

complied with the statute under State v. Mursal, 2013 WI App

125, 351 Wis. 2d 180, 839 N.W.2d 173.                 Reyes Fuerte appealed.

      ¶9     The     court    of   appeals       reversed,        holding         that    the

circuit     court's     immigration       consequences         advisement          did    not

substantially        comply    with   Wis.      Stat.    § 971.08(1)(c).                 Reyes

Fuerte, 372 Wis. 2d 106, ¶23.                The court of appeals identified

two substantial deviations from the language of the statute.

Id., ¶17.          First, the circuit court used the term "resident"

rather      than    "citizen."          Id.,    ¶18.       This       difference          was

substantial to the court of appeals because each term has a

separate     and    distinct     meaning     under      federal    immigration           law.

Id.      United     States    citizens     do   not     face    any     immigration        or

citizenship consequences for their crimes.                         Id.       Conversely,

residents of the United States who are not citizens, even those

in    the    country     legally,        may     suffer        adverse       immigration

consequences.        Id., ¶19.

      ¶10    Second, the circuit court made no mention of "denial
of naturalization," one of the three warnings required by Wis.

Stat. § 971.08(1)(c).            Id., ¶22.       Though Reyes Fuerte was not

concerned      with     denial     of      naturalization          at       the     moment—

naturalization would be possible only if Reyes Fuerte was not

deported and was granted legal status at some point—the court of

appeals rejected the State's argument that the omission of this

warning was irrelevant because such a finding would constitute

harmless error analysis, which this court prohibited in State v.


                                           5
                                                                           No.    2015AP2041-CR



Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1.                                      Id.,

¶23.

       ¶11     Next, the court of appeals held that, under the second

prong of Wis. Stat. § 971.08(2), Reyes Fuerte had successfully

alleged that his plea was "likely" to result in deportation

because      the    cancellation             of    removal       defense   was     no    longer

available.         Id., ¶41.          The court of appeals then remanded to the

circuit court for a hearing to determine whether Reyes Fuerte

would have fulfilled the requirements for the cancellation of

removal defense except for his guilty plea in this case.                                    Id.,

¶42.

       ¶12     The State petitioned this court for review, which we

granted on January 18, 2017.

                                 II.    STANDARD OF REVIEW

       ¶13     This court reviews motions to withdraw guilty pleas

after   sentencing          in    one     of      two    ways,    known    as    the    Bentley

standard and the Bangert standard.                          State v. Negrete, 2012 WI

92, ¶¶16, 19, 343 Wis. 2d 1, 819 N.W.2d 749.
       ¶14     Under the Bentley standard, the reviewing court first

determines whether the motion "alleges sufficient material facts

that, if true, would entitle the defendant to relief."                                 Id., ¶17

(citing State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682

N.W.2d 433).         See also State v. Bentley, 201 Wis. 2d 303, 309-

10, 548 N.W.2d 50 (1996).                    If sufficient facts are alleged, the

court     then      looks        to    the        record    to    determine       whether     an

evidentiary hearing is required.                           Negrete, 343 Wis. 2d 1, ¶17
n.6.      An     evidentiary           hearing      is     required   if    the    record    is
                                                   6
                                                                              No.     2015AP2041-CR



insufficient to determine whether the defendant is entitled to

relief.         Id.   Conversely, no hearing is required if the record

"conclusively demonstrates" that the defendant is not entitled

to relief, even if the motion alleges sufficient facts.                                         Id.,

¶17.        These determinations are questions of law reviewed de

novo.       Id.

          ¶15     If the motion does not allege sufficient facts that,

if    true,       would   entitle        the    defendant         to     relief,        then    the

decision to grant an evidentiary hearing is discretionary.                                      Id.,

¶18.       As such, this court reviews the decision for an erroneous

exercise of discretion.                Id.

          ¶16     Under the Bangert standard, defendants may shift the

burden of proof to the State when:                       "(1) the defendant can point

to    a    plea     colloquy     deficiency            evident    in    the     plea     colloquy

transcript, and (2) the defendant alleges that he did not know

or understand the information that should have been provided in

the       colloquy."           Id.,     ¶19     (citing         State    v.         Bangert,    131

Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986)).                             This court applies
de    novo      review    to     both    elements:          whether       the        colloquy    is

sufficient and whether an evidentiary hearing is required.                                     Id.

          ¶17     We apply the Bangert standard in this case because

Reyes      Feurte     can      point     to    a       defect    in     the     plea     colloquy

transcript and Reyes Fuerte has alleged that he was unaware of

the immigration consequences of his plea.                             Therefore, we review

the       sufficiency       of    the    colloquy         and     the    necessity         of    an

evidentiary hearing de novo.                   Id.


                                                   7
                                                                      No.       2015AP2041-CR



    ¶18     This case also requires us to interpret Wis. Stat.

§§ 971.08, 971.26, and 805.18.                  Statutory interpretation is an

issue of law we review de novo.                 State v. Ozuna, 2017 WI 64, ¶9,

376 Wis. 2d 1, 898 N.W.2d 20.                 However, when a party asks this

court to overrule one of its prior decisions interpreting a

statute, as the State asks us to do in this case, we do not

interpret    the    statute      de    novo.       Progressive        N.    Ins.    Co.   v.

Romanshek, 2005 WI 67, ¶46, 281 Wis. 2d 300, 697 N.W.2d 417.

Rather,     the     party   seeking        we    overturn         a   prior       statutory

interpretation       must   show       that     the     prior     interpretation          was

"objectively wrong" and thus the court has a "compelling reason

to overrule it."        Id., ¶45 (quoting Wenke v. Gehl Co., 2004 WI

103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405).

                                  III.    DISCUSSION

    ¶19     Before we begin our analysis, we take a moment to

remind circuit court judges that simply reading the language of

the advisement from Wis. Stat. § 971.08(1)(c) is by far the best

option.       The     use   of     quotation          marks      (such     as    those    in
§ 971.08(1)(c))       is    "an       unusual     and      significant          legislative

signal" that should be given effect by circuit courts.                             State v.

Garcia, 2000 WI App 81, ¶16, 234 Wis. 2d 304, 610 N.W.2d 180.

In this instance, those quotation marks are best given effect by

reading   the     advisement      as     written      in   the    statute.         See    id.

Though, as a result of this opinion, harmless error now applies

as a "safety net" for circuit courts, the best practice remains

reading the exact language of the statute.                      Id.


                                            8
                                                                     No.     2015AP2041-CR



       ¶20    Our   analysis      first     discusses       the    three    statutes     at

issue and how Wisconsin courts previously construed them.                                We

next    discuss     why    Douangmala       was      wrongly    decided     and    why   we

overrule it.        Finally, we apply the harmless error analysis to

this     case     and   hold     that     the     circuit      court's      errors     were

harmless.

                            A.    Statutory Background

       ¶21    This case requires us to consider the interplay of

three    statutes:         Wis.     Stat.    §§ 971.08,         971.26,     and    805.18.

Section       971.08(1)(c)       requires        a    circuit     court     to,      before

accepting a plea of guilty or no contest:

       Address the defendant personally and advise the
       defendant as follows:    "If you are not a citizen of
       the United States of America, you are advised that a
       plea of guilty or no contest for the offense with
       which you are charged may result in deportation, the
       exclusion from admission to this country or the denial
       of naturalization, under federal law."
Wis. Stat. § 971.08(1)(c).              The next subsection then provides a

remedy       if   the     circuit    court        fails   to      give     the    required

advisement:

       If a court fails to advise a defendant as required by
       sub. (1)(c) and a defendant later shows that the plea
       is likely to result in the defendant's deportation,
       exclusion from admission to this country or denial of
       naturalization, the court on the defendant's motion
       shall vacate any applicable judgment against the
       defendant and permit the defendant to withdraw the
       plea and enter another plea. This subsection does not
       limit the ability to withdraw a plea of guilty or no
       contest on any other grounds.
Wis. Stat. § 971.08(2).             This court has construed § 971.08(2) to
require defendants prove two elements in order to withdraw their

                                             9
                                                              No.       2015AP2041-CR



pleas:       (1) the circuit court failed to give the immigration

advisement to the defendant as required by § 971.08(1)(c), and

(2) the plea is "likely" to result in deportation, exclusion

from admission, or denial of naturalization.                 State v. Valadez,

2016 WI 4, ¶28, 366 Wis. 2d 332, 874 N.W.2d 514.

       ¶22    Wisconsin Stat. §§ 971.26 and 805.18 serve as savings

clauses      for   judgments    affected     by   harmless   errors.        Section

971.26 applies exclusively to criminal actions:

       No indictment, information, complaint or warrant shall
       be invalid, nor shall the trial, judgment or other
       proceedings be affected by reason of any defect or
       imperfection in matters of form which do not prejudice
       the defendant.
Wis.   Stat.       § 971.26.     Section     805.18   is   part    of    the   civil

procedure code, but is made applicable to criminal actions by

Wis. Stat. § 972.11(1), and states:

       (1) The court shall, in every stage of an action,
       disregard any error or defect in the pleadings or
       proceedings which shall not affect the substantial
       rights of the adverse party.

       (2) No judgment shall be reversed or set aside or new
       trial granted in any action or proceeding on the
       ground of selection or misdirection of the jury, or
       the improper admission of evidence, or for error as to
       any matter of pleading or procedure, unless in the
       opinion of the court to which the application is made,
       after   an  examination  of   the  entire   action  or
       proceeding, it shall appear that the error complained
       of has affected the substantial rights of the party
       seeking to reverse or set aside the judgment, or to
       secure a new trial.
Wis. Stat. § 805.18.

       ¶23    Prior     to     this   court's     decision    in        Douangmala,
Wisconsin courts applied harmless error analysis to motions to

                                        10
                                                                 No.     2015AP2041-CR



withdraw pleas pursuant to Wis. Stat. § 971.08(2).                      E.g., State

v. Chavez, 175 Wis. 2d 366, 371, 498 N.W.2d 887 (Ct. App. 1993).

See also Douangmala, 253 Wis. 2d 173, ¶¶33-40 (discussing Chavez

and its progeny).            The Chavez court noted that the intersection

of    Wis.   Stat.     §§ 971.08(2)     and      971.265   created     an   ambiguity

because      both    statutes    use    mandatory     language    with      seemingly

contradictory commands.             Chavez, 175 Wis. 2d at 370-71.                The

court of appeals then utilized legislative history6 to hold that

the    legislature       intended      to   protect    only    "an     alien   [who]

unwittingly         pleads    guilty   or    no    contest . . . without        being


       5
       Chavez did not consider Wis. Stat. § 805.18.      State v.
Chavez, 175 Wis. 2d 366, 370-71, 498 N.W.2d 887 (Ct. App. 1993).
       6
       This legislative history consists of an article attached
to the drafting request by Senator John Norquist that stated
statutes like section 971.08 help "alleviate the hardship and
unfairness involved when an alien unwittingly pleads guilty or
nolo contendere to a charge without being informed of the
immigration consequences of such a plea."      (Emphasis added)
This language never made it into the Legislative Reference
Bureau analysis that was ultimately distributed with the draft
bill to the entire legislature.

     The State uses the same legislative history in its argument
in the present matter, but we do not need the legislative
history because we are tasked with giving effect to what the
legislature enacted, not necessarily what it intended. State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110.    Nonetheless, we are inclined to
agree with the Chavez court that "the legislature did not intend
a windfall to a defendant who was aware of the deportation
consequences of his plea," 175 Wis. 2d at 371, though we
emphasize that we resolve this case based solely on the plain
meaning of all statutes involved.




                                            11
                                                                        No.      2015AP2041-CR



informed of the consequences of such a plea."                                 Id. at 371.

Thus, harmless error could apply where the defendant otherwise

knew (i.e., was not "unwitting") about the consequences of the

plea.    Id.

       ¶24     This court rejected Chavez's conclusion in Douangmala,

instead holding that the legislative history merely indicated

that    the     legislature       said        what     it    intended      to:       if   all

conditions of Wis. Stat. § 971.08(2) are met, then the court

must vacate the judgment.                  Douangmala, 253 Wis. 2d 173, ¶31.

The Douangmala court found it highly relevant that the mention

of aliens who unwittingly enter a guilty or no-contest plea was

contained solely in the drafting file, which not all legislators

see.    Id., ¶¶28-29.

       ¶25     Further, the court noted that Wis. Stat. § 971.08(2)

uses mandatory "shall" language.                       Id., ¶31.        Thus, the court

held    that      harmless        error        does         not    apply      because     the

legislature's         use   of    mandatory          language     in   effect      precluded

harmless error analysis.               Id., ¶42.
  B.    Douangmala failed to harmonize the interplay between Wis.

                      Stat. §§ 971.08, 971.26, and 805.18.

       ¶26     This    court     set    out    the     basic      method   for     statutory

interpretation in State ex rel. Kalal v. Circuit Court for Dane

Cty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.                                 See also

Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L.

Rev. 969, 970 (2017).             Where the meaning of a statute is plain

based   on     the    language     of    the        statute,      analysis    ends    there.
Kalal, 271 Wis. 2d 633, ¶45.                    As part of our plain language
                                               12
                                                                      No.     2015AP2041-CR



analysis, we must consider the statute's context as well.                              Id.,

¶46.      This     means      we    read     "statutory     language . . . not             in

isolation, but as part of a whole; in relation to the language

of     surrounding       or     closely-related          statutes . . . ."                Id.

Accordingly, analyzing Wis. Stat. § 971.08(2) in a vacuum is

improper, and we must view it in light of its related statutes.

In this instance, that means we must read § 971.08(2) in light

of the statutory savings clauses in Wis. Stat. §§ 971.26 and

805.18.

       ¶27     Though    many      decisions      parrot    Kalal's     language       that

statutes are to be interpreted "in relation to the language of

surrounding or closely-related statutes," id., few provide any

definition of "closely-related."                   Statutes are closely related

when they are in the same chapter, reference one another, or use

similar terms.          City of Janesville v. CC Midwest, Inc., 2007 WI

93,     ¶24,     302     Wis. 2d 599,          734       N.W.2d 428         (interpreting

"comparable replacement property" in Wis. Stat. § 32.05(8)(b)-

(c) in light of Wis. Stat. § 32.19).                        Being within the same
statutory scheme may also make two statutes closely related.

State     v.    Scruggs,      2017    WI     15,     ¶24,   373   Wis. 2d 312,            891

N.W.2d 786       (considering         a     statute's       presence        in     criminal

sentencing       statutes     as     part    of    its    context,     but       ultimately

concluding that other context took precedence in that case); cf

Homeward Bound Servs. v. Office of the Ins. Comm'r, 2006 WI App

208,    ¶34,     296    Wis. 2d 481,        724    N.W.2d 380     (considering         Wis.

Stat.     chs.     600-655         closely     related      because         they    are    a


                                             13
                                                                            No.     2015AP2041-CR



comprehensive statutory scheme intended to "ensure that policy

holders are treated fairly.").

       ¶28    We    conclude      that        Wis.   Stat.     §§ 971.08,          971.26,      and

805.18 are closely related, and thus must be construed together,

because they all appear in the same statutory scheme.                                    See id.

Sections      971.08      and     971.26       are     in   the    same      chapter,      which

strongly      indicates         they    are    related      and    should         be   construed

together.          CC    Midwest,       302    Wis. 2d 599,        ¶24.           Additionally,

though       § 805.18      is     not    in      the    same      chapter,         Wis.    Stat.

§ 972.11(1) incorporates § 805.18 for use in criminal cases, and

§ 972.11 is part of the criminal code.                            Chapters 971 and 972

both deal with criminal procedure; chapter 971 generally governs

pre-trial procedures while chapter 972 governs trial procedure.

Thus, chapters 971 and 972 are related as part of the same

statutory scheme.           See Homeward Bound Servs., 296 Wis. 2d 481,

¶34.        Finally,      this    court        acknowledged        post-Douangmala             that

reading § 971.08(2) in light of § 971.26 is "reasonable."                                      State

v.     Lagundoye,        2004     WI    4,     ¶26     n.17,      268       Wis. 2d 77,         674
N.W.2d 526 (stating "[b]oth statutes concern when a defendant

may    be    relieved      of     a     judgment       based      on    a    defect       in    the

proceedings"        in    deciding        whether       Douangmala          had     retroactive

effect).

       ¶29    Where multiple statutes are at issue, this court seeks

to harmonize them through a reasonable construction that gives

effect to all provisions.                State v. Delaney, 2003 WI 9, ¶13, 259

Wis. 2d 77, 658 N.W.2d 416.                   Where conflict between statutes is
unavoidable,        specific          statutes       take    precedence           over    general
                                                14
                                                            No.    2015AP2041-CR



statutes.      Rouse v. Theda Clark Med. Ctr., 2007 WI 87, ¶37, 302

Wis. 2d 358, 735 N.W.2d 30.

      ¶30   We hold that the State has met its high burden of

showing     that     this    court's    decision     in     Douangmala      was

"objectively       wrong."     See   Romanshek,    281    Wis. 2d 300,     ¶45.

Douangmala made no attempt to harmonize Wis. Stat. §§ 971.08(2)

and 971.26.        See Douangmala, 253 Wis. 2d 173, ¶¶32-33.             While

the decision makes mention of § 971.26, it did not analyze how

it   applied    in   that    case.     Id.,   ¶42.       Rather,    Douangmala

overruled Chavez and its progeny based on Chavez's reliance on

the legislative history that the court found unpersuasive and

the use of the mandatory "shall" in               § 971.08(2)      rather than

independently analyzing the interplay between the statutes.                Id.7


      7
       Navigating the reasoning in Douangmala is a challenge in
and of itself.    The court first held that the use of "shall"
indicated an intent that withdrawal be mandatory, contrary to
the legislative history proffered by the State:

      The legislative history therefore persuades us that
      the legislature intended what the statute explicitly
      states.    Section  971.08(2)   states   that   if  the
      conditions set forth therein are met (and they were in
      the present case), the circuit court "shall" vacate
      the judgment and shall permit the defendant to
      withdraw the plea. The word "shall" in a statute is
      presumed   to   be   mandatory   unless   a   different
      construction   is   necessary   to    carry   out   the
      legislature's clear intent.     Nothing in Wis. Stat.
      § 971.08 points to a different interpretation of the
      word "shall" than an interpretation that the word
      signifies a mandatory act.

State v. Douangmala, 2002 WI 62, ¶31, 253 Wis. 2d 173, 646
N.W.2d 1 (footnotes omitted).

                                                                   (continued)
                                       15
                                                        No.   2015AP2041-CR



    ¶31   Douangmala's   analysis   suffers   a   fatal    flaw    in   this

regard:   both of the harmless error savings statutes also use

the mandatory "shall" language.       Wis. Stat. § 971.26 ("[N]or

shall   the . . . judgment . . . be   affected     by     reason   of   any

defect or imperfection in matters of form which do not prejudice

the defendant.") (emphasis added); Wis. Stat. § 805.18 ("(1) The

court shall, in every stage of action, disregard any error or

defect in the pleadings or proceedings which shall not affect


     The court then mentions Wis. Stat. § 971.26, but
proceeds to discuss Chavez and its progeny.      Douangmala,
253 Wis. 2d 173, ¶32-40.     The analysis section concludes
with the court overruling Chavez, 175 Wis. 2d 366, State v.
Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994),
State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App.
1995), and State v. Garcia, 2000 WI App 81, 234
Wis. 2d 304, 610 N.W.2d 180:

    The principle of stare decisis is applicable to the
    decisions of the court of appeals.       Stare decisis
    requires us to abide by precedent established by the
    court of appeals unless a compelling reason exists to
    overrule the precedent.       The principle of stare
    decisis does not, however, require us to adhere to
    interpretations of statutes that are objectively
    wrong. That the legislature has not taken action with
    respect to a statute that a court has construed is
    entitled to some weight in determining legislative
    intent, but it is not conclusive.          As we have
    explained, we conclude that the Chavez harmless-error
    interpretation   of   Wis.   Stat.   §   971.08(2)  is
    objectively wrong under the language of the statute.
    Accordingly, we overrule Chavez, Issa, Lopez, and
    Garcia to the extent that these cases hold that
    harmless-error principles apply to a defendant who
    satisfies the conditions set forth in § 971.08(2).

Douangmala, 253 Wis. 2d 173, ¶42 (footnotes omitted).
Nowhere does the court analyze Wis. Stat. § 971.26 outside
of the context of Chavez.


                                16
                                                                        No.     2015AP2041-CR



the substantial rights of the adverse party.                            (2) No judgment

shall be reversed or set aside . . . unless in the opinion of

the   court    to     which      the    application        is    made . . . the          error

complained of has affected the substantial rights of the party

seeking to reverse . . . .") (emphasis added).                            We agree with

Douangmala that "[t]he word 'shall' in a statute is presumed to

be mandatory" and "[n]othing in Wis. Stat. § 971.08 points to

a[n] . . . interpretation [other] than that the word signifies a

mandatory      act."        Douangmala,          253     Wis. 2d 173,          ¶31.      More

particularly, we agree this analysis is true as far as it goes;

however, this analysis is incomplete in that it ignores the

presence of "shall" in Wis. Stat. §§ 971.26 and 805.18.

      ¶32     We    hold   that        Wis.   Stat.      §§ 971.08(2),         971.26,     and

805.18 are most comprehensibly harmonized by applying harmless

error analysis.         All of the relevant statutes use "shall," and,

accordingly,        none    is    "more       mandatory"        than    any    other.      We

emphasize      that     applying         harmless        error    analysis       does     not

facially    violate        § 971.08(2),         but    failing     to    apply        harmless
error analysis does facially violate §§ 971.26 and 805.18.

      ¶33     Further, harmless error was plainly codified in the

two statutes ignored by Douangmala that we harmonize today, long

before Wis. Stat. § 971.08(2) was enacted into law.                               Wisconsin

Stat. § 971.26 was enacted in its current form in 1969, though

the concept goes back much further.                      See § 63, ch. 255, Laws of

1969;   Flynn      v.   State,     97     Wis.     44,    47,     72    N.W.    373    (1897)

(referencing         "harmless          error").           When        Wisconsin        Stat.
§ 971.08(2) was created in 1986, the legislature was well aware
                                              17
                                                             No.    2015AP2041-CR



of the concept of harmless error in criminal proceedings.                   1985

Wis. Act 252, §§ 3-4; see Villa Clement, Inc. v. National Union

Fire Ins. Co., 120 Wis. 2d 140, 147, 353 N.W.2d 369 (Ct. App.

1984)    (presuming   the   legislature       is   aware     of    pre-existing

statutes).

     ¶34   Our   holding    is   consistent    with    how    federal    courts

review   imperfect    immigration   advisements       in   plea    colloquies.8

Before 2013, federal courts were not required to give any sort

of immigration advisement.        See United States v. Matamula, 788

F.3d 166, 174 (5th Cir. 2015).           The Federal Rules of Criminal

Procedure were amended, effective December 1, 2013, to require

federal courts to give an immigration advisement substantially

identical to that of Wis. Stat. § 971.08(1)(c) before accepting

a guilty or no contest plea.9       Id.; Fed. R. Crim. P. 11(b)(1)(O).

     8
       "Federal cases are persuasive guides to the construction
of   state   law   when  state   and   federal   provisions are
similar . . . ." State v. Brady, 118 Wis. 2d 154, 157 n.1, 345
N.W.2d 533 (Ct. App. 1984). Cf State v. Cardenas-Hernandez, 219
Wis. 2d 516, 527-28, 579 N.W.2d 678 (1998) ("Wisconsin courts
look to federal cases interpreting and applying the federal
rules of evidence as persuasive authority" where federal rules
of evidence and Wisconsin rules of evidence are similar.).
     9
       The federal immigration advisement provides the same
substantive warnings as Wis. Stat. § 971.08(1)(c) with minor
linguistic differences:

     Before the court accepts a plea of guilty or nolo
     contendre . . . the court must address the defendant
     personally in open court . . . that, if convicted, a
     defendant who is not a United States Citizen may be
     removed from the United States, denied citizenship,
     and denied admission to the United States in the
     future.

                                                                   (continued)
                                    18
                                                                     No.    2015AP2041-CR



       ¶35        Imperfect      plea      colloquies     in    federal    courts    are

subject to harmless error analysis.                     Fed. R. Crim. P. 11(h) ("A

variance from the requirements of this rule is harmless error if

it    does        not   affect    substantial        rights.").      Federal     courts

consider          an    imperfect     immigration       advisement   harmless       error

where       the    defendant      otherwise     knew      of   potential   immigration

consequences.            United States v. Anderson, 624 F. App'x 106, 107

(4th Cir. 2015) (per curiam)10 ("[W]e conclude that any such

error is harmless because Anderson had actual notice of these

possible immigration consequences . . . .").                       This reasoning is

entirely          consistent        with    pre-Douangmala        court    of   appeals

decisions         applying    harmless       error   to    Wis.   Stat.    § 971.08(2),

e.g., State v. Lopez, 196 Wis. 2d 725, 731, 539 N.W.2d 700, and

our holding today.

       ¶36        In light of the foregoing, we hold that Douangmala was

objectively wrong because it failed to consider the mandatory

language in Wis. Stat. §§ 971.26 and 805.18 and thus overrule

it.     Additionally, we reinstate Chavez,11 Issa,12 Lopez,13 and

Fed. R. Crim. P. 11(b)(1)(O).
       10
       No published federal court decisions apply harmless error
under rule 11(h) to plea colloquies that imperfectly state the
immigration advisement required by rule 11(b)(1)(O) due to the
short time rule 11(b)(1)(O) has been in existence. We are thus
left with only unpublished decisions, of which United States v.
Anderson is the most analogous to Reyes Fuerte's situation, 624
F. App'x 106 (4th Cir. 2015) (per curiam). Anderson is citable
in federal courts.   Fed. R. App. P. 32.1(a) (allowing citation
to unpublished decisions issued on or after January 1, 2007).
       11
       State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct.
App. 1993).


                                              19
                                                               No.    2015AP2041-CR



Garcia14 as valid law and binding precedent.                    See     Steele v.

State, 97 Wis. 2d 72, 85, 294 N.W.2d 2 (1978) (reinstating cases

overruled by the case Steele overruled).15

             C.    The circuit court's errors were harmless.

      ¶37    The circuit court made two errors in its immigration

advisement:        (1) completely omitting any mention of denial of

naturalization       and   (2)   using   the   term    "resident"     instead   of

"citizen."        We hold both errors were harmless.

      ¶38    We identify three reasons these errors were harmless.

First, defense counsel testified at the plea withdrawal hearing

that he went over the Plea Questionnaire/Waiver of Rights form

in   Spanish      with   Reyes   Fuerte.       The    form   contains    language




      12
           State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App.
1994).
      13
           State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App.
1995).
      14
       State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610
N.W.2d 180 (Ct. App. 2000).
      15
       Since Douangmala, the court of appeals developed a line
of cases that applied the substantial compliance doctrine to
immigration advisements under Wis. Stat. § 971.08(1)(c).   State
v. Mursal, 2013 WI App 125, 351 Wis. 2d 180, 839 N.W.2d 180. An
immigration     advisement    substantially     complied    with
§ 971.08(1)(c) if it explained all elements of the statute.
Id., ¶16.    Thus, minor linguistic differences that did not
change the meaning of the advisement could not form the basis of
plea withdrawal under § 971.08(2). Id. Our decision today does
not affect the substantial compliance doctrine, as no error is
present in an immigration advisement that substantially complies
with § 971.08(1)(c).


                                         20
                                                                                No.     2015AP2041-CR



substantially similar to that of Wis. Stat.                                    § 971.08(1)(c).16

Wisconsin        Court       System,       Circuit       Court           Form     CR-227,          Plea

Questionnaire/Waiver               of      Rights        (revised          May         1,        2004),

https://www.wicourts.gov/formdisplay/CR-227.pdf?formNumber=CR-

227&formType=Form&formatId=2&language=en.                                Thus,        we     conclude

that     Reyes     Fuerte         had    actual        knowledge          of     the       potential

immigration       consequences            of   his      plea       and    thus        the    circuit

court's errors were harmless.                         This is consistent with pre-

Douangmala court of appeals decisions applying harmless error to

§ 971.08(2).          The court of appeals in Lopez concluded the error

was    harmless       where       the    trial        court    completely             omitted      the

immigration       advisement            during    the     plea       colloquy,             but   trial

counsel testified to going over the Plea Questionnaire/Waiver of

Rights form in Spanish with the defendant.                               State v. Lopez, 196

Wis. 2d 725, 728-29, 539 N.W.2d 700 (Ct. App. 1995).                                       The facts

of    Lopez    are    even     more      extreme       than        this    case        because     the

circuit court at least gave Reyes Fuerte an advisement, albeit

an    imperfect       one.        Our     conclusion          is    further           bolstered     by
Garcia,       which    found      harmless       error        where       the     defendant        had

actual      knowledge        of    the     potential          immigration             consequences


       16
       The relevant language in the Plea Questionnaire/Waiver of
Rights form states: "I understand that if I am not a citizen of
the United States, my plea could result in deportation, the
exclusion of admission to this country, or the denial of
naturalization under federal law."      Wisconsin Court System,
Circuit Court Form CR-227, Plea Questionnaire/Waiver of Rights
(revised May 1, 2004), https://www.wicourts.gov/formdisplay/CR-
227.pdf?formNumber=CR-227&formType=Form&formatId=2&language=en.


                                                 21
                                                                            No.     2015AP2041-CR



through,       inter    alia,       going    over     the      plea       waiver     form       with

counsel.        State       v.     Garcia,    2000       WI    App       81,    ¶¶3,      14,    234

Wis. 2d 304, 610 N.W.2d 180.

      ¶39      Next,     Reyes       Fuerte        has    not        alleged       ineffective

assistance of counsel under Padilla v. Kentucky, 559 U.S. 356

(2010).     Padilla held that effective assistance of counsel under

the     Sixth       Amendment       requires        defense         attorneys       to     inform

criminal defendants of the potential immigration consequences of

a plea.        Id. at 374.          We do not hold that the mere lack of a

Padilla ineffective assistance claim is sufficient, on its own,

to prove actual knowledge and thus harmless error when a circuit

court fails to give the advisement as required by Wis. Stat.

§ 971.08(1)(c).             However, the lack of such a claim can be a

factor to be included in our consideration to support other

facts of record that show actual knowledge and harmless error.

      ¶40      Finally,       we    hold      the     circuit            court's    error       was

harmless because the immigration consequence at issue in this

case——deportation——was              raised     by    the       circuit         court.       Reyes
Fuerte brought his motion because he was concerned about being

deported,       not    because       he     was     concerned        about        being    denied

naturalization.             Reyes Fuerte never argues that the advisement

given    for    deportation         was     deficient         in   any     way.        Thus,    the

circuit court's error in omitting denial of naturalization is

harmless.

      ¶41      We hold that, under the circumstances of this case,

the     circuit       court's      errors     in     giving         the     plea    advisement
required       by    Wis.    Stat.    § 971.08(1)(c)               are    harmless.         Reyes
                                              22
                                                                    No.    2015AP2041-CR



Fuerte knew of the potential immigration consequences because

his counsel went over the plea waiver form, which contains a

substantially         similar      advisement,   with   him    in    Spanish.       The

failure to bring any ineffective assistance claim under Padilla

further indicates that counsel did inform Reyes Fuerte of the

potential immigration consequences of his plea.                           Finally, the

two   immigration           consequences    relevant    to     Reyes      Fuerte    were

raised by the circuit court, such that he had knowledge of those

potential consequences.17             To allow him to withdraw his plea now

would      be   to   allow    him    to   "manipulate   [Wisconsin's]         criminal

justice system in order to circumvent the immigration laws;" we

cannot accept that the legislature intended to, or actually did,

write § 971.08(2) to have such a result.                      State v. Issa, 186

Wis. 2d 199,         212,    519    N.W.2d 741   (Ct.   App.    1994)      (Fine,    J.,

concurring).

                                    IV.    CONCLUSION

      ¶42       We hold that Reyes Fuerte is not entitled to withdraw

his pleas of guilty to attempting to flee or elude a traffic
officer, contrary to Wis. Stat. § 346.04(3), and second-offense

operating with a restricted controlled substance in his blood,

      17
       The record reveals that Reyes Fuerte was in deportation
proceedings at the time of his guilty plea. However, the record
does not state why he was in deportation proceedings; it may
have been for the conduct underlying the charges in this case,
but it may not have. Thus, we leave for another case whether a
defendant who was already in deportation proceedings for the
conduct underlying the criminal charge is imputed with knowledge
that a guilty or no contest plea may bring adverse immigration
consequences.


                                            23
                                                             No.    2015AP2041-CR



contrary to Wis. Stat. § 346.63(1)(am), pursuant to Wis. Stat.

§ 971.08(2)    because   the    circuit   court's    error     in    giving   an

imperfect immigration advisement under Wis. Stat. § 971.08(1)(c)

was harmless.    In so doing, we overrule this court's decision in

State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1

because it was objectively wrong due to its failure to properly

address the harmless error statutes.

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

reversed.




                                     24
                                                                No.    2015AP2041-CR.ssa


      ¶43    SHIRLEY S. ABRAHAMSON, J.                 (dissenting).         The State

of   Wisconsin,      petitioner      in    the   instant      case,    presented     one

issue for review:

      Now that criminal defense attorneys are obligated to
      advise    their   clients    about   the    immigration
      consequences of their pleas, Padilla v. Kentucky, 559
      U.S. 356 (2010), should the Wisconsin Supreme Court
      overturn its decision in State v. Douangmala, 2002 WI
      62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the
      harmless error rule to prohibit a defendant who was
      aware of the potential immigration consequences of his
      plea from being able to withdraw the plea because the
      circuit court failed to give a statutory immigration
      warning that complied with Wis. Stat. § 971.08(1)(c)?
Rather than answer this single question limited to the effect of

Padilla v. Kentucky, 559 U.S. 356 (2010), the majority opinion

reaches     beyond    the   issue    presented      to   reinterpret         anew   Wis.

Stat. §§ 971.08(1)(c), 971.08(2), and 971.26.                    In so doing, the

majority     overrules       State    v.     Douangmala,       2002     WI    62,    253

Wis. 2d 173, 646 N.W.2d 1, a unanimous decision of this court

that has gone unchallenged for fifteen years and has been cited

and relied upon in numerous cases.               As the majority makes clear,

Padilla has no effect on Douangmala.

      ¶44    The     majority's       errors      are      threefold.           First,

Douangmala     was   properly     decided,       and    the   majority's      contrary

conclusion is unpersuasive and objectively wrong.                         Second, the

majority announces a novel interpretation of the harmless error

statute with implications far beyond the present case, affecting

future      petitions       for   plea      withdrawal         under     Wis.       Stat.

§ 971.08(2).       Third, the majority flouts the generally accepted
rule of stare decisis that an appellate court adheres to its own


                                            1
                                                                   No.    2015AP2041-CR.ssa


prior decisions unless there are compelling reasons not to do

so.   Accordingly, I dissent.

                                             I

      ¶45     In     Douangmala,       the       unanimous     court           reached     two

conclusions:

      (1) The plain text of Wis. Stat. § 971.08(1)(c) directs and

      requires a circuit court to address a defendant personally

      and advise the defendant that his plea of guilty or no

      contest       for    the    offense    may    result    in     deportation,          the

      exclusion       from       admission    to    the    United        States,      or   the

      denial of naturalization; and

      (2) If the circuit court fails to so advise a defendant who

      later        shows    that     the     plea    is     likely        to     result     in

      deportation,         the    exclusion      from     admission       to    the   United

      States, or the denial of naturalization, the court shall

      vacate any applicable judgement and allow the defendant to

      withdraw his plea.

Douangmala, 253 Wis. 2d 173, ¶¶3, 4.
      ¶46     In reaching these conclusions, the                     Douangmala          court

examined Wis. Stat. §§ 971.08(1)(c), 971.08(2), and 971.26.

      ¶47     Wisconsin Stat. § 971.08(1)(c) directs a circuit court

to give a warning about immigration consequences.                                Before the

court accepts a plea of guilty or no contest, the legislature

requires the circuit court to do the following:

      Address the defendant personally and advise the
      defendant as follows: "If you are not a citizen of the
      United States of America, you are advised that a plea
      of guilty or no contest for the offense with which you
      are charged may result in deportation, the exclusion

                                             2
                                              No.   2015AP2041-CR.ssa

     from admission to this country or       the    denial   of
     naturalization, under federal law."
Wis. Stat. § 971.08(1)(c).

     ¶48   Wisconsin Stat. § 971.08(2) provides the remedy if the

circuit court fails to give the statutorily mandated warnings

about immigration consequences.     The remedy provision of the

statute reads as follows:

     If a court fails to advise a defendant as required by
     sub.(1)(c) and a defendant later shows that the plea
     is likely to result in the defendant's deportation,
     exclusion from admission to this country or denial of
     naturalization, the court on the defendant's motion
     shall vacate any applicable judgment against the
     defendant and permit the defendant to withdraw the
     plea and enter another plea. This subsection does not
     limit the ability to withdraw a plea of guilty or no
     contest on any other grounds.
Wis. Stat. § 971.08(2).

     ¶49   I turn now to Wis. Stat. § 971.26, the harmless error

statute.   This statute saves numerous proceedings in which an

error is made.    The harmless error statute applied in criminal

cases provides as follows:

     No indictment, information, complaint or warrant shall
     be invalid, nor shall the trial, judgment or other
     proceedings be affected by reason of any defect or
     imperfection in matters of form which do not prejudice
     the defendant.
Wis. Stat. § 971.26.1

     1
       The majority also invokes Wis. Stat. § 805.18, the
harmless error statute applicable to civil actions.        The
majority claims that § 805.18 is made applicable to criminal
actions by Wis. Stat. § 972.11(1).          Majority op., ¶22.
Wisconsin Stat. § 972.11(1) provides as follows:

     Except as provided in subs. (2) to (4), the rules of
     evidence and practice in civil actions shall be
     applicable in all criminal proceedings unless the
                                                   (continued)
                               3
                                                                     No.    2015AP2041-CR.ssa


       ¶50    I now return to Wis. Stat. § 971.08.                            Applying the

plain text rule of interpretation to § 971.08(2), the unanimous

Douangmala court concluded that if a circuit court fails to give

the statutory warning, the legislature explicitly directs that

the defendant is entitled to withdraw the plea upon a showing

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

deportation.       Douangmala, 253 Wis. 2d 173, ¶¶3, 4.

       ¶51    Relying on the text of Wis. Stat. § 971.08(2), the

unanimous     Douangmala         court    also      concluded        that     prior   cases

applying the harmless error rule to § 971.08 were "objectively

wrong    under    the     language       of   the   statute."              Douangmala,   253

Wis. 2d 173,       ¶42.         These     cases         were   explicitly        overruled.

Douangmala, 253 Wis. 2d 173, ¶42.

       ¶52    The justices joining the majority opinion——committed

to applying the same plain-text analysis to the identical text

of     the    statutes         interpreted         in     Douangmala——overrule           the

unanimous Douangmala decision believing it to be "objectively

wrong."      The majority faults the Douangmala court for failing to


       context of a section or rule manifestly requires a
       different construction. No guardian ad litem need be
       appointed for a defendant in a criminal action.
       Chapters 885 to 895 and 995, except ss. 804.02 to
       804.07 and 887.23 to 887.26, shall apply in all
       criminal proceedings.

Wis. Stat. § 972.11(1).

     The majority does not explain how or why § 805.18
constitutes a "rule[] of evidence or practice in civil actions."
Thus, § 805.18's applicability to criminal cases is, at best,
questionable. Regardless, there is nothing in my analysis that
would be affected by § 805.18's applicability.


                                              4
                                                                   No.    2015AP2041-CR.ssa


harmonize Wis. Stat. § 971.08(2) (remedy provision) with Wis.

Stat. § 971.26 (harmless error).                 Majority op., ¶¶26-36.

    ¶53     The    majority        acknowledges          that     when     two    statutes

conflict    with     one    another,      the     more    specific        statute       takes

precedence over the more general statute.                   Majority op., ¶29.2

    ¶54     The    majority        gets    around        this     rule,     however,       by

declaring    "that       applying     harmless       error        analysis       does     not

facially violate Wis. Stat. § 971.08(2), but failing to apply

harmless     error       analysis     does       facially       violate      Wis.       Stat.

§§ 971.26 and 805.18."            Majority op., ¶32.

    ¶55     Curiously,        the      majority          does     not      explain        its

assertion.         The     majority       recognizes       that     both     Wis.       Stat.

§ 971.08(2) and § 971.26 use the mandatory "shall," and neither

statute is "more mandatory" than the other, but the majority

somehow reaches the conclusion that applying the harmless error

rule to § 971.08(2) does not create a conflict.                              How?        Wis.

Stat.   § 971.08(2)        sets    forth     a    simple    "if-then"        conditional

sentence:    If the circuit court fails to provide the immigration
consequence warning and the defendant shows that his plea is

likely to result in deportation, then the circuit court shall




    2
       The majority relies on Rouse v. Theda Clark Med. Ctr.,
2007 WI 87, ¶37, 302 Wis. 2d 358, 735 N.W.2d 30.       See also
Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159,
¶23, 286 Wis. 2d 252, 706 N.W.2d 110 ("[W]here a specific
statutory provision leads in one direction and a general
statutory provision in another, the specific statutory provision
controls.").


                                             5
                                                      No.   2015AP2041-CR.ssa


vacate   the   applicable   judgment   and   permit   the    defendant    to

withdraw his plea.    No exception is made for harmless errors.3

    ¶56    In my view, it is evident that there is a conflict

between Wis. Stat. §§ 971.08(2) and 971.26.             To resolve this

conflict, the more specific statute should control over the more

general statute.

                                  II

    ¶57    I must also call attention to the staggering breadth

of the majority's application of the harmless error statute in

the instant case, and therefore, in future cases.             See majority

op., ¶¶31-33.      According to the majority, in a battle between

competing "shall" directives, the harmless error statute will

always win out.      This conclusion is in part supported by the


    3
       The majority points out that harmless error statutes
existed long before Wis. Stat. § 971.08(2) was enacted.      So
what?   This court has given effect to specific statutes over
general statutes for at least a century.        See Chippewa &
Flambeau Improvement Co. v. R.R. Comm'n of Wis., 159 N.W. 739,
744, 164 Wis. 105 (1916).      Rather than explicitly excepting
§ 971.08(2) from the harmless error rule, the legislature has
relied on the courts to apply this century-old canon of
construction to give effect to § 971.08(2).

     Moreover, the majority relies in part on Federal Rule of
Criminal Procedure 11(b)(1)(O), which requires a federal
district court to inform defendants that their conviction may
result in adverse immigration consequences before accepting
their pleas of guilty or nolo contendere. Majority op., ¶34. A
defendant's claim that Rule 11(b)(1)(O) was violated is subject
to harmless error analysis.    Majority op., ¶35 (citing United
States v. Anderson, 624 F. App'x 106, 107 (4th Cir. 2015)).
However, there is no federal analogue to Wis. Stat. § 971.08(2),
and it is the remedy provision unique to Wisconsin that is at
issue in the instant case.   The federal rule is of no help to
the majority.


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fact that the harmless error statute, in one form or another,

existed      at    least      as   early    as       1897,    long    before        Wis.    Stat.

§ 971.08(2) was enacted.

       ¶58    Apparently, hereafter, every statute enacted and every

case decided after 1897 is subject to a mandatory harmless error

analysis (except perhaps when a violation of a constitutional or

statutory provision has been declared prejudicial per se).                                      This

poses a conundrum for legislative drafters:                            What words should

the drafter use if the legislature does not want the mandatory

harmless error statute to apply?                        The legislature explicitly

stated in the instant case that it did not want the mandatory

harmless      error      to    apply    but      the     majority          is    ignoring       the

legislative direction.

                                              III

       ¶59    I now turn to the issue of affording due respect to

precedent.         The court's interpretation and application of Wis.

Stat.    § 971.08        and   the     harmless        error       statute      has   not       been

challenged        or    changed     since     the     Douangmala        decision.           Since
Douangmala was decided, neither the text of § 971.08(2) nor the

text    of   the       harmless    error    statute          has    been     changed       by    the

legislature.           Generally speaking, legislative acquiescence to a

judicial construction of a statute gives rise to a presumption

that the judicial construction should stand.                               See, e.g., Force

ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶124

n.76,     356      Wis. 2d 582,         850      N.W.2d 866;          Milwaukee         Journal

Sentinel      v.    City      of   Milwaukee,         2012    WI     65,     ¶43,     n.21,      341
Wis. 2d 607, 815 N.W.2d 367; Wenke v. Gehl Co., 2004 WI 103,

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¶¶32-35, 274 Wis. 2d 220, 682 N.W.2d 405; State v. Hansen, 2001

WI 53, ¶38, 243 Wis. 2d 328, 627 N.W.2d 195; Reiter v. Dyken, 95

Wis. 2d 461, 471-72, 290 N.W.2d 510 (1980).

         ¶60   Furthermore,       litigants      and    courts       have    relied        on

Douangmala.       Douangmala has been cited 168 times.                  Though not an

absolute       rule,    stare   decisis    protects      litigants'         and    courts'

reliance on judicial decisions.

         ¶61   A court should not overrule a judicial interpretation

of a statute when the court simply disagrees with the rationale

of the prior decision.            Rather, the party seeking the overruling

must show "not only that [the decision] was mistaken but also

that      it   was     objectively      wrong,    so    that     the    court      has     a

compelling reason to overrule it."                Wenke, 274 Wis. 2d 220, ¶21.

As   I    explained      above,    there    are    no   compelling          reasons      for

overruling       Douangmala,      and    the     majority      reaches      a     contrary

conclusion overruling Douangmala by hoping that the reader will

not scrutinize the majority's baseless conclusion that applying

harmless error to Wis. Stat. § 971.08(2) does not give rise to a
conflict——even though it plainly does.

         ¶62   Though not an absolute rule, stare decisis promotes

stability, coherence, and the rule of law.                     By disregarding the

generally       accepted    interpretative        approach      of     adhering       to    a

prior judicial interpretation of a statute and by overruling the




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Douangmala decision, the majority scoffs at stare decisis and

jeopardizes finality and certainty in the law.4

                                      * * * *

       ¶63     The majority has no justification beyond its doctrinal

disposition to overrule Douangmala.                  The only change since the

Douangmala decision is the make up of the court.                       A change in

judges is not a valid reason to overturn a decision of the

court.       "A basic change in the law upon a ground no firmer than

a change in our membership invites the popular misconception

that this institution is little different from the two political

branches of the Government.                  No misconception could do more

lasting injury to this Court and to the system of law which it

is our abiding mission to serve."                Mitchell v. W.T. Grant Co.,

416 U.S. 600, 636 (1974) (Stewart, J., dissenting).

       ¶64     The      majority   opinion     represents    the    will   of     the

justices joining the opinion; it does not promote the rule of

law.       Accordingly, I dissent.

       ¶65     I   am    authorized   to     state    that   Justice    ANN     WALSH
BRADLEY joins this dissenting opinion.




       4
       See also Planned Parenthood of S.E. Penn. v. Casey, 505
U.S. 833, 864 (1992) (citing Mitchell) ("To overrule prior law
for no other reason than [a present doctrinal disposition to
come out differently from the previous court] would run counter
to the view repeated in our cases, that a decision to overrule
should rest on some special reason over and above the belief
that a prior case was wrongly decided."); Mapp v. Ohio, 367
U.S. 643, 677 (1961) (Harlan, J., dissenting).


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