State v. Hatem M. Shata

2015 WI 74

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

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 App. 2014 – Unpublished)

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

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

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

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

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

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

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

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

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

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unpublished decision of the court of appeals,1 which reversed the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

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State v. Shata, No. 2013AP1437-CR, unpublished slip op.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

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

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

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

2
 No. 2013AP1437-CR

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

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

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

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

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

4
 No. 2013AP1437-CR

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

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

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

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

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

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

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

THE DEFENDANT: No.

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

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

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

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

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

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

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

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

THE DEFENDANT: Yes, sir.

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

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand everything on those
forms?

THE DEFENDANT: Yes, sir.

THE COURT: Are all of your answers truthful?

THE DEFENDANT: Yes, sir.

. . .

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

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

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

MR. TORAN: Yes, I have.

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

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

8
 No. 2013AP1437-CR

MR. TORAN: Yes, Your Honor.

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

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

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

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

9
 No. 2013AP1437-CR

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

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

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

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

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

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

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

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

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

12
 No. 2013AP1437-CR

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

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

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

13
 No. 2013AP1437-CR

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

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

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

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

15
 No. 2013AP1437-CR

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

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

16
 No. 2013AP1437-CR

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

assistance was ineffective is a question of law, which we review
de novo." Id.
III. ANALYSIS
¶32 "Both the United States Constitution and the Wisconsin
Constitution guarantee criminal defendants the right to
counsel." Carter, 324 Wis. 2d 640, ¶20 (citing U.S. Const.
amend. VI; Wis. Const. art. I, § 7). "The United States Supreme
Court has recognized that 'the right to counsel is the right to
the effective assistance of counsel.'" Id. (quoting Strickland
v. Washington, 466 U.S. 668, 686 (1984)) (quotation marks
omitted).
¶33 "Whether a convicted defendant received ineffective
assistance of counsel is a two-part inquiry." Id., ¶21 (citing
Strickland, 466 U.S. at 687). "First, the defendant must prove
that counsel's performance was deficient." Id. (citing
17
 No. 2013AP1437-CR

Strickland, 466 U.S. at 687). "Second, if counsel's performance
was deficient, the defendant must prove that the deficiency
prejudiced the defense." Id. (citing Strickland, 466 U.S. at
687). To succeed on a claim of ineffective assistance of
counsel, a defendant must prove both deficient performance and
prejudice. Id. (citing Strickland, 466 U.S. at 687). If a
defendant fails to prove deficient performance, a reviewing
court need not consider whether the defendant was prejudiced.
Id., ¶36; State v. Franklin, 2001 WI 104, ¶13, 245 Wis. 2d 582,
629 N.W.2d 289 (citing Strickland, 466 U.S. at 697).10
¶34 Prior to Padilla state courts and federal courts of
appeals almost universally held that defense counsel's failure

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

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

18
 No. 2013AP1437-CR

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

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

11
The Supreme Court noted that it has

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

Padilla, 559 U.S. at 365.

19
 No. 2013AP1437-CR

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

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

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

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

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

21
 No. 2013AP1437-CR

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

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

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

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

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

23
 No. 2013AP1437-CR

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

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

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

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

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

24
 No. 2013AP1437-CR

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

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

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

25
 No. 2013AP1437-CR

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

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

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

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

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

27
 No. 2013AP1437-CR

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

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

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

28
 No. 2013AP1437-CR

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

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

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

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

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

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

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

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

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

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

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

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

U.S.C. § 1229(a).

33
 No. 2013AP1437-CR

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

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

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

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

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

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

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

statute, upon which the Padilla Court relied, provides:

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

37
 No. 2013AP1437-CR

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

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

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

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

of deportation.18

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

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

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

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

40
 No. 2013AP1437-CR

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

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

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

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

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

42
 No. 2013AP1437-CR

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

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

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

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

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

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

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

46
 No. 2013AP1437-CR.awb

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

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

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

1
 No. 2013AP1437-CR.awb

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

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

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

2
 No. 2013AP1437-CR.awb

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

the Padilla Court observed that "the terms of the relevant

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

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

3
 No. 2013AP1437-CR.awb

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

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

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

4
 No. 2013AP1437-CR.awb

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

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

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

5
 No. 2013AP1437-CR.awb

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

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

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

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

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

6
 No. 2013AP1437-CR.awb

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

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

crime.

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

7
 No. 2013AP1437-CR.awb

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

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

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

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

8
 No. 2013AP1437-CR.awb

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

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

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

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

9
 No. 2013AP1437-CR.awb

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

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

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

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

10
 No. 2013AP1437-CR.awb

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

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

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

11
 No. 2013AP1437-CR.awb

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

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

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

the law is:

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

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

12
 No. 2013AP1437-CR.awb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

for noncitizens:

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

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

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