                                                                       2014 WI 83

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:                2012AP55
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Andres Romero-Georgana,
                                   Defendant-Appellant-Petitioner.




                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 347 Wis. 2d 549, 830 N.W.2d 722
                                   (Ct. App. 2013 – Unpublished)

OPINION FILED:           July 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           April 3, 2014

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Brown
   JUDGE:                Kendall M. Kelley

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


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Sara Kelton Brelie and Byron C. Lichstein, and law student
Diana Eisenberg,            and Frank J. Remington Center, University of
Wisconsin         Law   School,   Madison.   Oral   argument    by    Sara   Kelton
Brelie.


       For      the     plaintiff-respondent,     the   cause   was    argued   by
William L. Gansner, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
May 19

                                                                              2014 WI 83
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.   2012AP55
(L.C. No.   2006CF379)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                            FILED
      v.
                                                                      JUL 23, 2014
Andres Romero-Georgana,
                                                                         Diane M. Fremgen
            Defendant-Appellant-Petitioner.                           Clerk of Supreme Court




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



      ¶1    DAVID    T.    PROSSER,        J.      This     is    a    review       of    an
unpublished     decision    of   the       court    of     appeals.1          The    issue

presented    has    been   framed     by    the     defendant         as    whether      the

defendant is "entitled to an evidentiary hearing based on his

Wis. Stat. § 974.06 motion alleging ineffective assistance of

postconviction counsel for failing to raise a strong argument

for plea withdrawal[.]"



      1
       State v. Romero-Georgana, No. 2012AP55, unpublished slip
op. (Wis. Ct. App. Mar. 19, 2013).
                                                                                No.          2012AP55



     ¶2     This        somewhat          innocuous          statement       of        the     issue

requires    the        court    to   conduct        a     wide-ranging          discussion        of

postconviction          procedure         before        it    determines          whether        the

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

sufficient reason for failing to bring his present claims in an

earlier     postconviction           proceeding           and      whether      the         § 974.06

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

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

history is crucial to the court's conclusions.

     ¶3     We conclude the following.

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

that his postconviction counsel was ineffective for failing to

bring certain viable claims must demonstrate that the claims he

wishes     to        bring     are    clearly           stronger         than         the    claims

postconviction counsel actually brought.                            See State v. Starks,

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

evaluating       the    comparative         strength         of    the   claims,        reviewing

courts should consider any objectives or preferences that the
defendant conveyed to his attorney.                          A claim's strength may be

bolstered if a defendant directed his attorney to pursue it.

     ¶5     Second,          the   defendant        has      not    offered       a    sufficient

reason in his third postconviction motion for failing to raise

his § 974.06 claim in his second postconviction motion.                                      Without

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


     2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

                                                2
                                                                            No.      2012AP55



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

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

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

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

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

"sufficient     reason"        grounds,         the    motion     does        not     allege

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

relief.     The defendant failed to allege that the plea withdrawal

claim was clearly stronger than the resentencing claim.                              He does

not     specifically        state   which        postconviction          attorney        was

ineffective     and     instead      makes        an     ambiguous       reference          to

"postconviction        counsel."       The        motion       then     focuses       almost

exclusively     on     trial    counsel         and     does     not     provide       facts

regarding postconviction counsel's performance.                             Consequently,

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

the circuit court properly determined that he is not entitled to

an evidentiary hearing.

              I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      ¶7     On April 7, 2006, the State filed a complaint charging

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

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

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

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

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

assistant      state    public      defender           Carrie     LaPlant          (Attorney

LaPlant) was appointed to represent Romero-Georgana.                              On May 26,
2006,      Romero-Georgana      waived          his    right     to     a     preliminary
                                            3
                                                                            No.        2012AP55



examination,        and   an   information          repeating    the    charge         in   the

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

entered a plea of not guilty before Brown County Circuit Judge

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

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

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

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

English and Spanish Plea Questionnaire/Waiver of Rights form in

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

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

file any additional charges against the defendant and agreed not

to    make    any    specific     sentencing         recommendation.              At   a    plea

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

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

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

sexual assault of a child under the age of 13.

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

advise Romero-Georgana that he could be deported as a result of
his plea, as required by Wis. Sat. § 971.08(1)(c) (2005-06).

The    pertinent      portion     of    the        statute    provides       that      before

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

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


       3
           There was an interpreter assisting at the arraignment.

                                               4
                                                                           No.           2012AP55


       from admission to this country or                           the   denial          of
       naturalization, under federal law."
Wis. Stat. § 971.08(1)(c) (2005-06).

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

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

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

the    importance    of     the    statutory          requirement        to    advise         the

defendant about possible deportation as well as the statutory

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

06).

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

Georgana to 12 years of initial confinement and four years of

extended     supervision.          At     the       sentencing       hearing,           Attorney

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

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

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

to return home as soon as he can."

       ¶12   Unfortunately,         in     sentencing         Romero-Georgana,                the

court failed to consider the sentencing guidelines on the record
as was then required by Wis. Stat. § 973.017(2)(a) (2007-08).

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

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

was resentencing.

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

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

postconviction       relief,        and        he     requested          appointment           of
postconviction counsel.            Assistant state public defender Suzanne


                                               5
                                                                              No.          2012AP55



Hagopian (Attorney Hagopian) was appointed to represent Romero-

Georgana in postconviction and appellate proceedings.

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

Department     of    Justice       Immigration           and    Naturalization         Service

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

Dodge Correctional Institution where Romero-Georgana was serving

his sentence.            The form advised the institution that INS had

started an investigation to determine whether Romero-Georgana

was subject to deportation and required that INS be notified at

least 30 days before Romero-Georgana was released.

                  A. First Postconviction Motion and Appeal

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

extension of time to file a postconviction motion or notice of

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

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

discussed two possible postconviction claims: one regarding the

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

based   on    the    court's       failure          to   go    through       the    sentencing
guidelines on the record.

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

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

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

modification        in    the    alternative.             The    postconviction            motion

alleged      that    the    sentencing          court         failed    to    consider         the

relevant     sentencing         guidelines,         as   required       under       Wis.     Stat.

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


                                                6
                                                                             No.      2012AP55



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

mention any defect in the plea colloquy.

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

and denied Romero-Georgana's postconviction motion.                                  Attorney

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

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

order    reversing         the    judgment        and        remanding      the     case    for

resentencing        because       Judge       McKay      failed       to     consider       the

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

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

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

Attorney Hagopian sent Romero-Georgana a letter explaining the

decision      and     informing         him       of     his        right    to      judicial

substitution.        Several weeks later, Attorney Hagopian spoke to

Romero-Georgana            on     the     phone          and        discussed        judicial

substitution.          With       the   help      of     an     interpreter,         Attorney

Hagopian told Romero-Georgana that he should discuss judicial

substitution        with    the    attorney       who        would    represent       him   at
resentencing.

    ¶19       Assistant         state   public         defender      William       FitzGerald

(Attorney FitzGerald) was appointed to represent Romero-Georgana

at resentencing.            Attorney FitzGerald received a letter from

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

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

FitzGerald filed a motion requesting a judicial substitution.                                 A

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


                                              7
                                                                 No.      2012AP55



Brown County Circuit Judge Kendall M. Kelley was substituted for

Judge McKay.

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

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

presentence investigation, sentenced Romero-Georgana to 20 years

of initial confinement and eight years of extended supervision.

A revised judgment of conviction for first-degree sexual assault

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

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

of intent to pursue postconviction relief.

            B. Second Postconviction Motion and Appeal

    ¶21    Attorney        Tajara        S.       Dommershausen        (Attorney

Dommershausen) represented Romero-Georgana in postconviction and

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

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

Romero-Georgana.      The motion alleged that Attorney Hagopian had

provided ineffective assistance of counsel for failing to inform

    4
        Wisconsin Stat. § 974.02(1) (2009-10) states:

         A motion for postconviction relief other than
    under s. 974.06 or 974.07(2) by the defendant in a
    criminal case shall be made in the time and manner
    provided in s. 809.30. An appeal by the defendant in
    a criminal case from a judgment of conviction or from
    an order denying a postconviction motion or from both
    shall be taken in the time and manner provided in ss.
    808.04(3) and 809.30. An appeal of an order or
    judgment on habeas corpus remanding to custody a
    prisoner committed for trial under s. 970.03 shall be
    taken under ss. 808.03(2) and 809.50, with notice to
    the attorney general and the district attorney and
    opportunity for them to be heard.

                                         8
                                                                 No.        2012AP55



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

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

McKay were       substituted, the new judge could              impose a longer

sentence without having to justify the increase in time.                        The

postconviction motion did not allege that Attorney Hagopian was

ineffective for failing to move for plea withdrawal.

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

postconviction      motion     and    determined    that    neither        Attorney

Hagopian    nor    Attorney    FitzGerald    was   ineffective       in    advising

Romero-Georgana       about    judicial     substitution.        Judge      Kelley

issued a written order denying the postconviction motion on July

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

July 21, 2009.

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

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

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

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

appeals    affirmed    the    circuit   court's    judgment     in     a   decision
filed on September 9, 2010.

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

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

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

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

review to the resentencing issue and determined that because


    5
       Romero-Georgana's response to Attorney Dommershausen's no-
merit report is not in the record.

                                        9
                                                                       No.        2012AP55



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

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

Romero-Georgana        petitioned    this    court       for    review,      which      we

denied in an order filed December 8, 2010.

                C. Third Postconviction Motion and Appeal

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

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

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

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

counsel was ineffective for failing to raise the issue that the

circuit court failed to comply with the statutory mandate when

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

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

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

§ 974.06 motion alleged that when Romero-Georgana completed the

plea questionnaire, he did not fully understand what he was

signing because of his poor English, inadequate interpreters,

and Attorney LaPlant's failure to advise him of the deportation
risk.       Romero-Georgana       alleged    that   he    would       have    pled      not

guilty had he known that he could be deported.

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

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

claim of ineffective assistance of trial counsel for failing to

fully explain the deportation consequences of his no contest

plea . . . ."6        Romero-Georgana attached an Immigration Detainer—
      6
       Romero-Georgana concedes in his brief that                            he    cannot
prevail on this claim and has therefore abandoned it.

                                        10
                                                                        No.         2012AP55



—Notice of Action that indicated that an investigation had been

initiated to determine whether Romero-Georgana was subject to

deportation.

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

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

circuit court concluded that the § 974.06 motion did not contain

sufficient factual allegations to entitle Romero-Georgana to a

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

allegations of the ineffectiveness of trial counsel are relevant

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

trial     level.         For    the     Court        to     analyze     postconviction

ineffectiveness, it needs facts pertaining to why postconviction

counsel was ineffective."             Therefore, the court determined that

Romero-Georgana was not entitled to an evidentiary hearing.

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

appeal    from     his   judgments      of    conviction       and    from    the    order

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

court    of   appeals    affirmed       the       circuit    court's    order    denying
Romero-Georgana's § 974.06 motion without a hearing.                            State v.

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

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

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

assertions and did not demonstrate why the plea withdrawal claim

was     clearly    stronger      than    the        claims     raised    by     Attorney




                                             11
                                                                              No.      2012AP55



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

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

Escalona-Naranjo bar against successive postconviction motions

did not apply.       Id., ¶7.

     ¶29     Romero-Georgana            petitioned         this       court    for     review,

which we granted on December 19, 2013.

                                II. STANDARD OF REVIEW

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

sufficient reason for failing to bring available claims earlier

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

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

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

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

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

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

sufficient facts, "the circuit court must hold an evidentiary

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

Wis. 2d 568, 682 N.W.2d 433 (citations omitted).                               "However, if
the motion does not raise facts sufficient to entitle the movant

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

record   conclusively            demonstrates         that      the    defendant       is     not

entitled to relief, the circuit court has the discretion to


     7
       The court of appeals did not address the appeals of the
judgments of conviction and stated, "Because an appeal from an
order under Wis. Stat. § 974.06 is not governed by Wis. Stat.
[§ (Rule)] 809.30, the judgment of conviction is not the subject
of this appeal."      State v. Romero-Georgana, No. 2012AP55,
unpublished slip op., ¶1 n.1 (Wis. Ct. App. Mar. 19, 2013).

                                               12
                                                                             No.         2012AP55



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

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

hearing      under    the      erroneous      exercise     of      discretion       standard.

Id.

                                       III. DISCUSSION

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

involving         postconviction          claims    that        are      filed        after    a

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

apply fundamental principles of postconviction review, including

the principle that finality is important in the criminal justice

system.      Accordingly, not every mistake will justify relief.

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

habeas corpus as the primary method in which a defendant can

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

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

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

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

correcting errors when: (1) the sentence violated the United
States       or    Wisconsin           Constitution;       (2)       the     court        lacked

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

exceeded the maximum or was "otherwise subject to collateral

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

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

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

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

However, the following caveat applies:


                                              13
                                                                    No.         2012AP55


               All grounds for relief available to a person
          under this section must be raised in his or her
          original, supplemental or amended motion.   Any ground
          finally adjudicated or not so raised, or knowingly,
          voluntarily and intelligently waived in the proceeding
          that resulted in the conviction or sentence or in any
          other proceeding the person has taken to secure relief
          may not be the basis for a subsequent motion, unless
          the court finds a ground for relief asserted which for
          sufficient reason was not asserted or was inadequately
          raised in the original, supplemental or amended
          motion.
Wis. Stat. § 974.06(4) (emphasis added).

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

efficiency by requiring defendants to bring all available claims

in a single proceeding unless there exists a sufficient reason

for       not    raising    some     claims     in   that   initial      proceeding.

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

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

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

successive motions for relief by requiring a defendant to raise

all grounds for relief in one motion.").

          ¶34   Thus, without a sufficient reason, a movant may not
bring a claim in a § 974.06 motion if it "could have been raised

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

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

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

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

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

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

N.W.2d 756;        Loop     v.   State,    65    Wis. 2d 499,      222    N.W.2d 694
(1974).         But if the defendant did file a motion under § 974.02

                                           14
                                                                          No.        2012AP55



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

defendant is barred from making a claim that could have been

raised previously unless he shows a sufficient reason for not

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

     ¶36     In     some       instances,          ineffective           assistance       of

postconviction counsel may be a sufficient reason for failing to

raise   an   available        claim    in    an    earlier      motion    or    on    direct

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

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

ineffective assistance of postconviction counsel as the reason

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

perform the necessary factfinding function and directly rule on

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

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

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

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

postconviction          counsel     was     constitutionally        ineffective——that

is, if the defendant asserts a mere conclusory allegation that
his counsel was ineffective——his "reason" is not sufficient.

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

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

claim for relief, a defendant must allege "sufficient material

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

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

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

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


                                             15
                                                                               No.         2012AP55



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

entitled to an evidentiary hearing.

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

alleges      that    his     postconviction            counsel    provided          ineffective

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

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

         A. Ineffective Assistance of Postconviction Counsel

       ¶39    The     Sixth       and    Fourteenth       Amendments          to    the    United

States Constitution guarantee criminal defendants the right to

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

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

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

performance          was     deficient;          and     (2)      that        the     deficient

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

668, 687 (1984).

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

counsel's         representation         fell    below    an     objective         standard     of

reasonableness."            Id. at 688.           The defendant must overcome the
"strong presumption that counsel's conduct falls within the wide

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

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

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

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

The    prejudice         inquiry        asks    whether    "there        is    a     reasonable

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

result       of    the     proceeding          would    have     been     different.             A


                                                 16
                                                                   No.     2012AP55



reasonable probability is a probability sufficient to undermine

confidence in the outcome."           Id. at 694.8

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

ineffective       assistance     of     postconviction        counsel      because

postconviction     counsel     failed    to    bring   a   claim   that    Romero-

Georgana now wishes to assert.                 This allegation is different

from an allegation that postconviction counsel did not comply

with the defendant's requests or instructions after trial or

that postconviction counsel failed to bring any claims at all.

Romero-Georgana       acknowledges      that    his    postconviction      counsel

brought     claims;   he    contends    now    that    postconviction      counsel

brought the wrong claims.

      ¶43    An allegation that postconviction counsel failed to

bring a claim that should have been brought is an allegation

that counsel's performance was constitutionally deficient, that

it fell below the services required by an objective standard of

reasonableness under prevailing professional norms.                  Strickland,

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

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

situation in which postconviction counsel failed to file any

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

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

¶4.   When postconviction counsel's performance was subsequently

      8
       The Strickland analysis and the presumption of effective
assistance apply to postconviction counsel. State v. Balliette,
2011 WI 79, ¶28, 336 Wis. 2d 358, 805 N.W.2d 334.

                                        17
                                                                            No.      2012AP55



attacked, this court disregarded counsel's nonperformance in the

circuit       court      and       instead       evaluated        his   performance         as

"appellate counsel."               Id.

       ¶45     Starks     adopted          a    "clearly     stronger"       standard        in

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

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

standard for the deficiency prong of the                           Strickland       test in

Wisconsin for criminal defendants alleging in a habeas petition

that they received ineffective assistance of appellate counsel

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

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

nonfrivolous issue was clearly stronger than issues that counsel

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

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

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

than     those       presented,          will     the     presumption       of     effective

assistance of counsel be overcome.").

       ¶46     We think this "clearly stronger" standard is equally
appropriate       in      evaluating            the     alleged     deficiency       in      an

attorney's        performance              as     postconviction           counsel         when

postconviction counsel is accused of ineffective assistance on

account of his failure to raise certain material issues before

the     circuit       court.             The    "clearly     stronger"       standard        is

appropriate       when       postconviction           counsel     raised    other     issues

before the circuit court, thereby making it possible to compare

the    arguments       now     proposed         against    the    arguments       previously
made.         However,       the    clearly       stronger       standard    may     not    be
                                                 18
                                                                        No.      2012AP55



adequate when counsel has valid reasons for choosing one set of

arguments     over   another.          These       reasons       may     include     the

preferences, even the directives, of the defendant.

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

consider whether Romero-Georgana provided a sufficient reason

for failing to bring his claims in his earlier postconviction

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

consider     the     allegations       of         ineffective        assistance         of

postconviction counsel to determine whether Romero-Georgana has

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

relief.

                          B. Sufficient Reason

    ¶48     Romero-Georgana     acknowledges            that    he     must    allege   a

sufficient    reason   for     failing       to     raise      his   § 974.06      claim

earlier.      He correctly states that ineffective assistance of

counsel may, in some cases, provide the requisite sufficient

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

Romero-Georgana      implies    that     his       § 974.06      motion       alleges   a
sufficient    reason   for     failing       to    bring       the   claims     earlier

because    the   motion   alleges      that       his    postconviction         counsel




                                        19
                                                                           No.          2012AP55



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

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

point, Romero-Georgana focuses on the wrong attorney.

       ¶49    There were three postconviction motions in this case:

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

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

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

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

       ¶50    Attorney Hagopian's alleged ineffective assistance in

filing       the    first       postconviction           motion   might        have     been   a

sufficient         reason       for   failing       to    bring   the    plea     withdrawal

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

Hagopian's alleged ineffective assistance is an underlying claim

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

or    provide       a    sufficient      reason      for    Attorney      Dommershausen's

failure      in     the     second      postconviction          motion    to     argue     that

Attorney      Hagopian          was   ineffective         for   failing    to     seek     plea

withdrawal in the first postconviction motion.



       9
       Romero-Georgana's Wis. Stat. § 974.06 motion does not
specify which of his two postconviction attorneys provided
ineffective assistance.   Thus, we are uncertain as to where we
should direct our analysis——a good indication that the motion
contains fatal flaws.    Because Romero-Georgana's brief focuses
on Attorney Hagopian, we assume, for the purpose of addressing
Romero-Georgana's arguments, that he intended to allege in his
§ 974.06 motion that Attorney Hagopian provided ineffective
assistance of counsel as the underlying claim. However, in our
analysis of the motion itself, we note that the reference to
"postconviction counsel" is ambiguous and renders his motion
insufficient.

                                               20
                                                                       No.         2012AP55



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

required to allege two instances of ineffective assistance of

postconviction       counsel      because    his   attorneys     filed       two     prior

postconviction       motions       that     did    not   raise    the        issue     now

presented.10        Moreover, the Brown County Circuit Court granted

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

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

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

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

Dommershausen       was    constitutionally        ineffective    in     the       second

postconviction       motion       for   failing     to   raise    a     claim        about

Attorney Hagopian's ineffectiveness for failing to bring a plea

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

Attorney Hagopian was constitutionally ineffective in the first

postconviction motion for failing to raise the plea withdrawal

claim.

     ¶52     The     first     required      allegations     (against          Attorney

Dommershausen), if properly pleaded, might provide the requisite
sufficient reason for failing to bring the claim earlier.                              The

     10
       Romero-Georgana must provide a sufficient reason for
failing to bring the claims he now wishes to raise in an earlier
postconviction proceeding. Because he offers no reason, and the
only claims in his § 974.06 motion are for ineffective
assistance of counsel, we assume that if he were to offer a
sufficient reason, it would be Attorney Dommershausen's alleged
ineffective assistance.     It is possible that he had other
reasons, but none were advanced.      Thus, when we say Romero-
Georgana was required to allege ineffective assistance of
Attorney Dommershausen as a sufficient reason for failing to
bring his claims earlier, we say that because we can see no
other reason for failing to bring the present claim earlier.

                                            21
                                                                         No.      2012AP55



second    required      allegations     (against         Attorney       Hagopian),      if

properly pleaded, might provide grounds for relief.                             However,

the required allegations have not been properly pleaded.                               The

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

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

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

statutory     mandate     when   it    did       not     address        Romero-Georgana

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

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

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

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

does not even identify that attorney.                    Moreover, the statement

is conclusory inasmuch as both attorneys made other arguments.

    ¶53     When    a   defendant     has    two       attorneys    that       share   the

classification of "postconviction counsel," a general reference

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

third postconviction motion was bound to fail if it did not

allege and explain why his second postconviction motion did not
make the claim he now seeks to make.                   Attorney Dommershausen is

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

a sufficient reason for failing to bring the current claim in

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

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

    ¶54     Having concluded that Romero-Georgana is barred from

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

However, we will discuss briefly the insufficiency of Romero-


                                        22
                                                                      No.       2012AP55



Georgana's        § 974.06    motion     to    provide      guidance    for     future

movants.

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

                       Assistance of Postconviction Counsel

       ¶55    Romero-Georgana        faced       an      unusually      complicated

situation when he filed the third postconviction motion.                            His

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

judgment against him on grounds that the circuit court made an

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

because      of   his    conviction.      This    would     have   been     a   simple

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

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

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

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

potential justification appears to be the alleged ineffective

assistance        of   Attorney   Dommershausen       for   failing    to     complain

about the alleged ineffective assistance of Attorney Hagopian in

raising Romero-Georgana's statutory right to withdraw his plea.
       ¶56    Because Romero-Georgana's claim is one of ineffective

assistance of counsel, he was required to sufficiently allege

that each attorney provided deficient representation and that

each        attorney's       deficient        performance      prejudiced          him.

Strickland, 466 U.S. at 687.




       11
            State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

                                          23
                                                                                  No.      2012AP55



       ¶57        In     making     his       ineffective        assistance         of    counsel

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

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

additional             charges    against       Romero-Georgana            even     though       the

complaint suggested that there were numerous occasions in which

he   committed           sexual    offenses         against      the   victim.           Thus,    if

Romero-Georgana             had     gone       to        trial   after     successful           plea

withdrawal, the State would have been free to bring additional

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

initial       sentencing           that       Romero-Georgana          was     eager       to     be

deported,          which         conflicts          with     Romero-Georgana's            current

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

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

motion       to    the     court       that    she        discussed    a     potential         claim

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

that        she        talked     to      Romero-Georgana          about       seeking          plea

withdrawal.             Finally, Attorney Hagopian gave a valid reason for

bringing          the     resentencing          claim       when   she       stated       at     the
evidentiary hearing for the second postconviction motion that

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


       12
       Although our analysis in this section focuses on the
sufficiency of the underlying ineffective assistance of counsel
claim against Attorney Hagopian, it applies also to the
sufficient reason requirement.     As discussed above, because
Romero-Georgana did not offer any reason for failing to bring
his present claim in his second postconviction motion, he did
not adequately provide a sufficient reason for raising his claim
of ineffective assistance of postconviction counsel in a
§ 974.06 motion.

                                                    24
                                                                               No.         2012AP55



would receive a shorter sentence at resentencing.                                  In light of

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

sufficiency.

                                1. Deficient Performance

       ¶58     The       clearly       stronger          standard       applies           to    the

deficiency         prong    of    each      required      allegation          of   ineffective

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

Attorney       Hagopian's          representation           was       deficient,          Romero-

Georgana was required to show that the plea withdrawal claim was

clearly stronger than the resentencing claim.                              See Starks, 349

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

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

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

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

sometimes run together, but a sufficient motion will answer all

six questions.

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

is about because his assertion ambiguously refers to a single
"[p]ostconviction counsel."                  Although the motion indicates that

Attorneys          Hagopian      and    Dommershausen           did    represent          Romero-

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

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

and     discusses          facts       regarding          trial       counsel's            alleged

ineffectiveness.            If Romero-Georgana wanted to make allegations

against Attorney Hagopian, he should have done so specifically

in     his     motion       by      stating        that     "Attorney          Hagopian         was
ineffective"             rather        than         ambiguously            claiming             that
                                               25
                                                                           No.      2012AP55



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

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

ineffective assistance.

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

provides the basis for the ineffective assistance claim when it

states, "Postconviction counsel was ineffective for failing to

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

statutory       mandate    when        it    did    not   address      Romero-Georgana

personally to advise him . . . of the deportation consequences

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

what Attorney Hagopian did that made her failure to raise the

plea withdrawal claim ineffective.                   Did she act contrary to his

directive?      Did she fail to advise him?

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

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

assistance      occurred.         It    is    unclear     whether     his    allegations

focus on the first postconviction proceeding or the second.

      ¶62   Similarly,       the       motion      does   not   say    "why"       Attorney
Hagopian was ineffective.               The mere fact that Attorney Hagopian

did not pursue a plea withdrawal claim does not demonstrate

ineffectiveness because she could have had, and presumably did

have,    good    reasons     for       not    pursuing    plea     withdrawal.           For

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

for   resentencing        after    Attorney        Hagopian     advised      him    of   his

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

wanted to be deported, and Attorney Hagopian believed he would
receive     less    time     on    resentencing.              We    will     not     assume
                                              26
                                                                          No.       2012AP55



ineffective        assistance         from    a     conclusory      assertion;     Romero-

Georgana must say why the claim he wanted raised was clearly

stronger than the claims actually raised.                          His motion is devoid

of any such explanation.

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

only conclusory allegations and almost no facts relating to the

relevant postconviction counsel, he has not demonstrated "how"

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

have copies or records of communications with his postconviction

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

Blanket assertions of ineffective assistance are not sufficient

to alert the court or opposing counsel how the defendant will

prove   his    claim        at    a   hearing,       especially       when   the    record

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

       ¶64    In    sum,    defendants        must    allege       sufficient    facts   in

their § 974.06 motions so that reviewing courts do not grant

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

allegations that are not within the four corners of the motion.
Therefore,     Romero-Georgana             has     failed   to     sufficiently     allege

that Attorney Hagopian was deficient.

       ¶65    Because we have determined that the § 974.06 motion

does    not        allege        sufficient         facts     to     demonstrate       that

postconviction counsel was deficient, we do not need to consider

whether the motion sufficiently alleged prejudice.                           However, we

consider      prejudice          briefly     to     provide      guidance    for     future

movants.
                                       2. Prejudice
                                               27
                                                                No.      2012AP55



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

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

counsel's unprofessional errors, the result of the proceeding

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

Romero-Georgana          alleges    in        his   § 974.06    motion       that

postconviction counsel was ineffective for failing to argue that

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

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

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

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

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

timely brought a § 971.08(2) motion.13



     13
          Wisconsin Stat. § 971.08(2) provides in relevant part:

          If a court fails to advise a defendant as
     required by sub. (1)(c) and a defendant later shows
     that the plea is likely to result in the defendant's
     deportation, exclusion from admission to this country
     or denial of naturalization, the court on the
     defendant's   motion   shall  vacate    any   applicable
     judgment   against   the  defendant   and   permit   the
     defendant to withdraw the plea and enter another plea.

     In his brief, Romero-Georgana discusses the standards for
pleading under Wis. Stat. § 971.08(2) at length.      However,
because this case falls under Wis. Stat. § 974.06, the plea
withdrawal claim under Wis. Stat. § 971.08 is relevant only to
the question of prejudice in the context of Romero-Georgana's
ineffective assistance claim against Attorney Hagopian.    The
State responded to Romero-Georgana's argument relating to
§ 971.08 by stating that "a response by the State to——and this
court's   consideration  of——Argument section   I  of  Romero-
Georgana's brief is unnecessary. Had Romero-Georgana pursued a
Wis. Stat. § 971.08(2) claim in a timely manner, he might well
have prevailed on it."

                                         28
                                                            No.          2012AP55



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

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

Georgana's counsel explicitly stated that Romero-Georgana was

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

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

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

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

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

    14
       Justice Bradley asked at oral argument, "Why does
971.08(2) have to be a 974.06 motion at all?" Romero-Georgana's
counsel responded:

         I believe that it could have been raised as a
    straight 971.08(2) motion.    As this court knows we
    were appointed . . . after the petition for review was
    filed and the case had been decided up to that point
    under 974.06 and we believe that our client is
    entitled to relief on that basis, and so that's how
    we've construed the motion and argued it.

     Chief Justice Abrahamson continued Justice Bradley's line
of questioning and suggested that Romero-Georgana could have
pursued an argument based on Wis. Stat. § 971.08.      The Chief
Justice then asked, "But you didn't take that position?"
Romero-Georgana's counsel responded, "It's true your honor. We
did not." Thus, despite being prodded at oral argument, Romero-
Georgana was clear: he is not asking this court to construe his
Wis. Stat. § 974.06 motion as a Wis. Stat. § 971.08(2) motion.
Indeed, such a request would appear improper under the facts of
this case and in light of the history of § 971.08(2).     In the
1981-82 version of the Wisconsin Statutes, § 971.08(2) contained
a time limit that stated, "The court shall not permit the
withdrawal of a plea of guilty or no contest later than 120 days
after conviction." Wis. Stat. § 971.08(2) (1981-82). The 120-
day time limit was repealed in 1983 Wis. Act 219.     A judicial
council note explained:

         Section 971.08(2), stats., providing a 120-day
    time limit for withdrawing a guilty plea or a plea of
    no   contest   after  conviction,   is   repealed  as
                                    29
                                                          No.     2012AP55



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

argued for plea withdrawal in previous postconviction motions,

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

Stat. § 974.06 motion.

    ¶68   A   proper   allegation    of   prejudice   would   state   that

Romero-Georgana would have told Attorney Hagopian to pursue the

    unnecessary. Withdrawal of a guilty plea or plea of
    no contest may be sought by postconviction motion
    under s. 809.30(1)(f), stats., or under s. 974.06,
    stats.

Judicial Council Note, 1983 Wis. Act 219, § 43.   The Judicial
Council Note suggests that, in general, the proper method for
raising § 971.08 plea withdrawal claims after conviction is
through a motion under Wis. Stat. § (Rule) 809.30, Wis. Stat.
§ 974.02, or Wis. Stat. § 974.06.

     In the present case, the notice that INS had started an
investigation to determine whether Romero-Georgana was subject
to deportation was dated March 20, 2007——four months before
Attorney Hagopian filed the first postconviction motion.      In
addition, the petitioner's brief demonstrates that Romero-
Georgana's   Final   Administrative   Removal  Order  from   the
Department of Homeland Security was dated October 22, 2007, and
he appears to have received it on November 5, 2007——almost a
year and a half before he filed his second postconviction
motion.   When a defendant has notice that he is likely to be
deported and subsequently brings postconviction claims unrelated
to Wis. Stat. § 971.08(2), we think it would be unwise to allow
him to bring his claim as a § 971.08(2) motion at a later time,
although he may be able to bring his claim as a Wis. Stat.
§ 974.06 motion if he has a sufficient reason for the delay.
Removing all time constraints on a Wis. Stat. § 971.08(2) motion
would frustrate judicial efficiency by encouraging defendants to
delay bringing those motions.    In the absence of a time limit,
if a defendant were indifferent to deportation or wanted to be
deported, the defendant would have incentive to keep a
§ 971.08(2) motion in his back pocket while pursuing relief on
other grounds. However, that issue is not before us. In this
case, we need only address Romero-Georgana's motion under Wis.
Stat. § 974.06 because that is the motion he brought.

                                    30
                                                                             No.      2012AP55



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

option because he wanted to avoid deportation.                             That allegation

would demonstrate that there is a reasonable probability that

the proceedings would have been different if Attorney Hagopian

had provided effective assistance of counsel.                          In the absence of

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

Georgana would not have pled had Attorney LaPlant informed him

of    the   deportation          consequences           of    his    plea.         Thus,    the

prejudice allegation is at the wrong stage of the proceeding.

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

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

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

sufficient       reason     for    raising        his    current     claim       earlier    and

because     he    did     not     sufficiently          allege      Attorney       Hagopian's

deficient performance, we do not need to determine whether he

was prejudiced.

      ¶69    Although       we     liberally        construe        filings      by   pro    se

litigants,       bin-Rilla        v.    Israel,         113    Wis. 2d 514,         520,    335
N.W.2d 384       (1983),        there   is    a    limit       to    our     lenience.       A

reviewing    court      might      avert     its    eyes      from    the    flaws    on    the

peripheries, but it will not ignore obvious insufficiencies at

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

sufficiently allege that Attorney Dommershausen was ineffective

for failing to raise the ineffectiveness of Attorney Hagopian in

the second postconviction motion.                   He has failed to sufficiently

allege that Attorney Hagopian was ineffective for failing to


                                             31
                                                                            No.       2012AP55



raise the issue of plea withdrawal in the first postconviction

motion.

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

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

represented      by      counsel;    sometimes          he     has        filed      previous

postconviction motions.             He has progressed through proceedings

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

error    must   point     particularly        to    the      facts     surrounding          the

alleged constitutional or jurisdictional flaws that supposedly

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

§ 974.06 motion falls far short of what is required.

                D. Circuit Court's Exercise of Discretion

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

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

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

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

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

erroneous exercise of discretion.
                                 IV. CONCLUSION

    ¶72     We conclude the following.

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

that his postconviction counsel was ineffective for failing to

bring certain viable claims must demonstrate that the claims he

wishes    to     bring     are      clearly        stronger       than        the        claims

postconviction        counsel    actually         brought.           See      Starks,       349

Wis. 2d 274,       ¶6.      However,        in     evaluating          the        comparative
strength of the claims, reviewing courts should consider any
                                           32
                                                                        No.         2012AP55



objectives or preferences that the defendant conveyed to his

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

directed his attorney to pursue it.

     ¶74    Second,    the   defendant          has   not    offered    a     sufficient

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

postconviction motion.           Without a sufficient reason, a defendant

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

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

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

Consequently, the defendant's claim is barred.

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

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

entitle the defendant to relief.                The defendant failed to allege

that the plea withdrawal claim was clearly stronger than the

resentencing       claim.        He    does     not   specifically         state     which

postconviction      attorney      was    ineffective         and   instead      makes    an

ambiguous     reference     to    "postconviction           counsel."         The   motion

then focuses almost exclusively on trial counsel and does not
provide    facts    regarding         postconviction        counsel's      performance.

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

required, and the circuit court properly determined that he is

not entitled to an evidentiary hearing.

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

affirmed.




                                           33
                                                             No.   2012AP55-CR.awb




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

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

dealt with imposing consequences and holding people accountable.

They were required to follow the law.

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

reviewed thousands of cases which have imposed consequences and

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

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

come    to   this    case   with      what   should    be    the    unremarkable

observation that circuit court judges and supreme court justices

should be held to follow the law.

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

defendants of deportation consequences when entering a guilty

plea.    With unusual emphasis underscoring the requirement, the

legislature actually sets forth the explicit wording, detailing

what the judge is to say.           Judges are to:

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

       ¶80   The legislature mandates the remedy of plea withdrawal

if     the   judge     fails    to       personally     explain     deportation

consequences.        If the prerequisites are met, the statute does

not provide for a remedy of "maybe plea withdrawal" or "plea
withdrawal upon compliance with a maze of conditions."                   Rather,
                                         1
                                                                   No.    2012AP55-CR.awb


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

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

      If a court fails to advise a defendant as required by
      sub. (1)(c) and a defendant later shows that the plea
      is likely to result in the defendant's deportation,
      exclusion from admission to this country or denial of
      naturalization, the court on the defendant's motion
      shall vacate any applicable judgment against the
      defendant and permit the defendant to withdraw the
      plea and enter another plea.
Wis. Stat. § 971.08(2).

      ¶81    Here the circuit court judge failed to follow the law.
He did not give the deportation warning as mandated.

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

the   law.    Instead     of    following       the     clear       remedy      of    plea

withdrawal set forth in the statute, the majority engrafts all

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

"Philadelphia     lawyer"      to   follow     the    byzantine         maze   of     added

conditions that the majority embraces.

       ¶83 The        consequence       of     the         majority         opinion      is

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

affects life and liberty.

      ¶84    For this defendant and others similarly situated, the

majority     appears     to    erase     from        the     statutory         text     the

legislatively mandated remedy.               In reaching its conclusion, the

majority     ignores    the    express       language       of    the     statute,     the

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

interpreting it.




                                         2
                                                                No.    2012AP55-CR.awb


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

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

dissent.

                                        I

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

receive the required deportation warning.1                     Paramount to the

analysis is the language of the statute.

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

has failed to personally inform a defendant that a plea may

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

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

motion     shall   vacate     any     applicable          judgment     against     the

defendant and      permit the defendant to withdraw the plea                       and

enter another plea."        (Emphasis supplied.)

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

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

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

without    questioning      whether    they        apply.      In      superimposing
§ 974.06    and    Escalona-Naranjo         onto    the     clear     words   of   the

statute, the majority rewrites the statute for the defendant and

others similarly situated.            Now they are required to meet a


    1
       Wisconsin's non-citizens include people who have lawful
permanent resident status (a "green card"), refugees and asylees
and certain legal nonimmigrants (including those on student,
work, or some other temporary visas). In addition, as of 2010,
Wisconsin   is   home to    an estimated   100,000   undocumented
immigrants. Jeffrey S. Passel & D'Vera Cohn, "Unauthorized
Immigrant Population: National and State Trends, 2010" (Feb. 1,
2011),     available     at     http://www.pewhispanic.org/files/
reports/133.pdf.

                                        3
                                                                   No.    2012AP55-CR.awb


multitude of conditions that cannot be found anywhere in the

statute.

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

legislative mandate is as follows:

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

      the defendant alleges that second postconviction counsel

      "was        constitutionally            ineffective        in       the       second

      postconviction motion for failing to raise a claim about

      [first       postconviction         counsel's]          ineffectiveness          for

      failing      to   bring    a     plea   withdrawal       claim     in   the    first

      postconviction motion."            Majority op., ¶51.

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

      defendant alleges that [first postconviction counsel] "was

      constitutionally          ineffective       in    the    first     postconviction

      motion for failing to raise the plea withdrawal claim."

      Id., ¶51.

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

      the    defendant     alleges       "why     and    how    his      postconviction
      counsel was constitutionally ineffective."                      Id., ¶36.

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

      the defendant shows "sufficient reason" for not bringing

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




                                              4
                                                            No.   2012AP55-CR.awb


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

      the    defendant      demonstrates     that   the   claim   now   made   is

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

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

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

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

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

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

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

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

motion      to   withdraw    can   be    brought    under   another     statute.

Indeed, courts have repeatedly considered motions to withdraw

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

      2
       In its analysis, the majority extends the "clearly
stronger" standard from State v. Starks, 2013 WI 69, 349 Wis. 2d
274, 833 N.W.2d 146. Majority op., ¶¶45-46. As I explained in
my dissent to Starks, the "clearly stronger" standard is too
rigid and cannot practically be applied in many situations.
Starks, 349 Wis. 2d 274, ¶¶94, 98-102 (Bradley, J., dissenting).
The standard runs counter to United States Supreme Court
precedent, which has declined to adopt bright-line standards for
evaluating deficiency.   Cullen v. Pinholster, 131 S. Ct. 1388,
1406 (2011).    Further, it is inconsistent with Strickland v.
Washington, 466 U.S. 668, 695 (1984), which requires an
evaluation of the reasonableness of an attorney's performance
under the totality of the circumstances.

     Although the "clearly stronger" is one factor to consider
in applying Strickland, it is not the test.       There are many
situations in which the standard will prove unworkable. This
case is one of those situations.      Given that it appears the
defendant would have been successful in both the resentencing
motion and the Wis. Stat. § 971.08(2) motion, a court cannot
determine   whether   his   postconviction   representation  was
deficient without considering whether she adequately informed
Romero-Georgana of his options and what, if anything, Romero-
Georgana asked her to do on his behalf.

                                         5
                                                                              No.    2012AP55-CR.awb


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

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

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

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

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

       ¶91    The    apparent          reason      the       majority         incorporates       the

§ 974.06      and        the     Escalona-Naranjo             standard         is     because     it

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

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

statutory      procedures            for    postconviction            motions,        Wis.     Stat.

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

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

appeal or motion seeking postconviction relief within 60 days

after service of transcript or court record).

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

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

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

statute anticipates that the motion to vacate the judgment and
withdraw the plea will be submitted following a qualifying event

in     the   future        and       reserves         the     right      to    defendants        who

demonstrate they have suffered the particular harm."

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

will     often      be     long       after       the       timeframes        for     filing     for

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

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

decade       for     the       INS     (now        ICE)       to      initiate        deportation
proceedings."        Cody      Harris,        Comment,        A    Problem      of     Proof:    How

                                                  6
                                                                      No.    2012AP55-CR.awb


Routine     Destruction           of   Court        Records   Routinely       Destroys     a

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

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

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

practicality nor by the text of the statute.

                                               II

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

undermines not only the legislative intent as expressed by the

clear     words    of   the       statute,     but     also   the    important      purpose

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

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

defendant not unwittingly plead guilty because he was unaware of

the   significant       potential         consequences        of    deportation.4        The


      3
       The majority attempts to justify its timeliness argument
by referencing in a footnote the legislative history of Wis.
Stat. § 971.08.    Majority op., ¶67 n.14.   It observes that in
1983 the statute was amended to eliminate a 120-day time limit
for filing motions to withdraw under Wis. Stat. § 971.08(1)
because those claims could be brought under Wis. Stat.
§§ 809.30, 974.02, or 974.06.       Contrary to the majority's
suggestion, the 1983 amendment provides no illumination to our
analysis because it predates the enactment of the current Wis.
Stat. § 971.08(2).    It was not until 1985 that the legislature
mandated the deportation warning along with its required remedy.
As discussed above, its very language suggests that no time
limit was intended.


      4
       The drafting files to Wis. Stat. § 971.08 note that the
enactment of similar legislation in other states "go[es] a long
way to alleviate the hardship and unfairness involved when an
alien unwittingly pleads guilty or nolo contendere to a charge
without being informed of the immigration consequences of such a
plea." Drafting files, 1985 Wis. Act 252, on file with the Wis.
Legislative Reference Bureau.

                                               7
                                                                No.   2012AP55-CR.awb


landscape     of    immigration      policy     and     practice      has      changed

dramatically       over   the   ensuing       years    making      the      need   for

safeguards even more pronounced.5

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

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

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

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

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

committed only minor infractions, including traffic violations.7

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

of their lives in the United States are subject to immigration

detention and deportation as a consequence of criminal arrest

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

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

L. Rev. 105, 113 (2012).

      ¶96   Commenting on the change in the immigration landscape,

the United States Supreme Court observed how the changes have

exacerbated the importance for non-citizens to be aware of the
deportation consequences when entering a guilty plea:



      5
       The changes in the legal landscape are discussed in
Vivian Chang, Where Do We Go from Here: Plea Colloquy Warnings
and Immigration Consequences Post-Padilla, 45 U. Mich. J.L.
Reform 189, 193 (2011).
      6
       DHS Office of Immigration Statistics Annual Report:
"Immigration   Enforcement    Actions:   2012,"    available   at
http://www.dhs.gov/sites/default/files/publications/ois_enforcem
ent_ar_2012_1.pdf.
      7
       Ginger Thompson, More Deportations Follow Minor Crimes,
Records Show, New York Times, Apr. 6, 2014.

                                        8
                                                                   No.    2012AP55-CR.awb

    The importance of accurate legal advice for non-
    citizens accused of crimes has never been more
    important. . . . [D]eportation is an integral part——
    indeed, sometimes the most important part——of the
    penalty that may be imposed on non-citizen defendants
    who plead guilty to specified crimes.
Padilla v. Kentucky, 559 U.S. 356, 364 (2010).

    ¶97     The     Padilla   court     focused         on   the   obligation        of    a

defense    attorney     under    the    Sixth          Amendment   to     advise     non-

citizens    about    potential     deportation           consequences       that   arise

from criminal convictions.            Id.       It determined that the absence

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

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

address the obligation of the court when presiding over the plea

of a non-citizen in a criminal proceeding.

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

Wisconsin    Court      of      Appeals         also     referenced        the     severe

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

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

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

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

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

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

    8
        The court observed:

    Immigration law can be complex, and it is a legal
    specialty of its own. Some members of the bar who
    represent clients facing criminal charges, in either
    state or federal court or both, may not be well versed
    in it. . . . But when the deportation consequence is
    truly clear, as it was in this case, the duty to give
    correct advice is equally clear.

Padilla, 559 U.S. at 369.

                                            9
                                                                  No.    2012AP55-CR.awb


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

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

defendant might have rejected a plea bargain and risked trial

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

Padilla, the Mendez court focused on the ineffective assistance

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

when accepting a guilty plea.

       ¶99   The importance of deportation warnings and the duty of

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

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

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

upon    a    felony     conviction       "is    practically       inevitable,"       and

described        this   as     an     "enormous       penalty     upon    non-citizen

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

       After being removed from the country, the defendant
       rarely, if ever, has further in-person contact with
       any family members remaining in America. Additionally,
       deportation effectively strips the defendant of any
       employment he or she had in this country, thus
       depriving the defendant and his or her family of
       critical financial support.
Id. at 630-32.           Accordingly, it determined that a court was

required     to    inform      a    defendant    of    the   possible     deportation

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

       ¶100 Several          states    have     legislation       like    Wisconsin's

affirmatively       requiring         courts    to    take   an    active     role    in

informing defendants of the possible deportation consequences of

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

§ 1016.5; Conn. Gen. Stat. § 54-1j; D.C. Code § 16-713; Fla.
Rule Crim. Proc. 3.172(c)(8); Ga. Code Ann. § 17-7-93(c); Haw.
                                           10
                                                                No.    2012AP55-CR.awb


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

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

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

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

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

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

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

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

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

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

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

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

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

duty and undermines the purpose of the statute.

                                       III

    ¶102 Our precedent interpreting the statute                        has strictly

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

In State v. Douangmala, this court determined that Wis. Stat.
§ 971.08(2) means what it expressly states: if the defendant

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

the judgment and shall permit the defendant to withdraw the

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

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

different       construction      is   necessary         to     carry      out       the

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

points to a different interpretation of the word 'shall' than an
interpretation that the word signifies a mandatory act."                       Id.

                                       11
                                                   No.   2012AP55-CR.awb


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

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

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

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

§ 971.08(2):

    To employ Wis. Stat. § 971.08(2) to withdraw his plea,
    however, the defendant's motion must first allege two
    facts: (1) that the circuit court "fail[ed] to advise
    [the] defendant [of the deportation consequences of
    the    defendant's   plea]   as    required   by    [§
    971.08(1)(c)]"; and (2) that the defendant's "plea is
    likely to result in the defendant's deportation,
    exclusion from admission to this country[,] or denial
    of naturalization."
Id., ¶23 (quoting Wis. Stat. § 971.08(2)).

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

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

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

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

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

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

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

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

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

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

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

attached affidavit makes any reference to a § 974.06 motion.

Even the majority recognizes that "Romero-Georgana likely could

have withdrawn his plea if he had timely brought a § 971.08(2)
motion."   Majority op., ¶66.


                                  12
                                                              No.    2012AP55-CR.awb


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

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

because    of    the   defendant's        failure    to   correctly    label    the

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

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

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

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

to his claim.

    ¶107 Wisconsin         courts     have       a   well-settled      policy    of

liberally    construing     the     pro    se    pleadings    of    prisoners    to

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

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

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

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

judging the sufficiency of pro se complaints filed by unlettered

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

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

we note that it is well-settled that pro se complaints are to be
liberally construed to determine if the complaint states any

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

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

complaints      of     prisoners    must        be   construed      liberally    in

determining whether the stated facts give rise to a cause of

action.").

    ¶108        This court has explicitly instructed courts to look

to the contents of a pleading, not its label, to determine if
the prisoner is entitled to relief:

                                          13
                                                       No.     2012AP55-CR.awb

    We re-emphasize today what we have said previously. A
    court presented with a prisoner's pro se document
    seeking relief must look to the facts stated in the
    document to determine whether the petitioner may be
    entitled to any relief if the facts alleged are
    proved. Neither a trial nor an appellate court should
    deny a prisoner's pleading based on its label rather
    than on its allegations.     If necessary the court
    should relabel the prisoner's pleading and proceed
    from there.
bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983)

(emphasis supplied).

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

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

attached   affidavit   relate   to   the   circuit   court's     failure   to

inform him of the possible deportation consequences of his plea

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

    9
        The motion states:

    Romero-Georgana is a native of Mexico and is not a
    citizen of the United States of America.    Romero-
    Georgana contends that the trial court failed to
    advise him that if he pleas no contest he may be
    deported.

    Romero-Georgana pled no contest to one count of first
    degree sexual assault of a child. Romero-Georgana did
    through the use of the Plea Questionnaire/Waiver of
    Rights form verify that he did understand the question
    regarding    deportation.   However,   Romero-Georgana
    contends that at the time he completed the Plea
    Questionnaire/Waiver of Rights Form that he did not
    fully understand what he was initialing due to his
    limited English skills, poor quality of interpreters
    being employed by his attorney at the time, and the
    failure of counsel to advise him of the consequences.
    Romero-Georgana contends that had he known he would be
    deported upon entering the no contest plea he would
    have instead entered a plea of not guilty and went to
    trial.

    At no time did the court during the plea colloquy
    (Plea Hearing Transcripts dated November 17, 2006,
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citation to Wis. Stat. § 974.06 in the motion is in its pre-

printed labels.

    ¶110 In an apparent attempt to deflect from the circuit

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

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

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

quotes   in    both    text   and   footnote      the    comment       of   Romero-

Georgana's attorney who was appointed after the petition for

review   was    granted     and   who   felt    constrained       by    the   order

granting the petition which she interpreted as precluding her

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

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

failed   to    give   the   statutorily      mandated   deportation         warning.

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

duty of the circuit court to give it.

    pages 2-4) advise Romero-Georgana of                 the deportation
    consequences of his entering a plea                  of no contest.
    Again, Romero-Georgana contends he                  would not have
    entered a plea of no contest had he                 fully understood
    he would have been deported.

    To verify that Romero-Georgana is indeed facing
    deportation back to his native land of Mexico he
    submits the Immigration Detainer-Notice of Action Form
    File #A097-838-176, dated March 20, 2007. (Exhibit 1)


    10
       At oral argument Romero-Georgana's attorney stated "[a]s
this court knows we were appointed . . . after the petition for
review was filed and the case had been decided up to that point
under 974.06."    The attorney further stated "[t]his court's
order granting review specifically asked us to stay within the
arguments made in the petition for review, and that did not
include an argument that this case should be decided as a
971.08(2) motion by itself."

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

the petition for review was granted that this court fails to

follow     the    remedy      mandated     by     the   clear       statutory     language.

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

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

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

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

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

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

to rewrite the words of a statute or circumvent the clearly

mandated legislative remedy.

                                             IV

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

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

him of the possible deportation consequences of a plea and that

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

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

      ¶115 The statute includes no requirement that the defendant
follow Wis. Stat. § 974.06 to obtain such relief.                            Its directive

to the courts is mandatory and should be strictly construed.

Accordingly, because the circuit court did not inform Romero-

Georgana of the possible deportation consequences of his plea

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

requires that he be permitted to withdraw his plea.

      ¶116 For       the      reasons      set    forth       above,    I     respectfully

dissent.



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

ABRAHAMSON joins this dissent.




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