Opinion
No. 2014AP1874–CR.
2014-11-25
STATE of Wisconsin, Plaintiff–Respondent, v. Rohit CHAND, Defendant–Appellant.
Mursal, 351 Wis.2d 180, ¶ 20, 839 N.W.2d 173.Patel, 344 Wis.2d 405, ¶¶ 12–13, 824 N.W.2d 862 (emphasis omitted).
Appeal from an order of the circuit court for Milwaukee County: Clare L. Fiorenza, Judge. Affirmed.
Before FINE, BRENNAN and KESSLER, JJ. ¶ 1 PER CURIAM.
Rohit Chand appeals the order denying his petition for writ of coram nobis and the denial of his postconviction motion for plea withdrawal. Chand argues that he is entitled to withdraw his guilty plea because the circuit court did not state verbatim the immigration warning set forth in Wis. Stat. § 971.08(1)(c) (2011–12). Additionally, Chand argues that he is entitled to a writ of coram nobis as a result of factually erroneous information regarding the immigration ramifications of his guilty plea. The postconviction court concluded Chand was not entitled to plea withdrawal because the circuit court substantially complied with the immigration warning. In a separate order, the postconviction court denied Chand's petition for writ of coram nobis explaining that Chand was really making an ineffective-assistance-of-counsel claim, which exceeded the scope of the writ. We agree with both conclusions and affirm.
(Footnote omitted.)
All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
The Honorable Clare L. Fiorenza issued orders denying Chand's postconviction motion and his petition for writ of coram nobis. The Honorable Paul R. Van Grunsven presided over the plea proceedings, sentenced Chand, and entered the judgment of conviction.
Analysis
¶ 9 Chand presents two issues on appeal. He argues that he is entitled to withdraw his plea because the circuit court failed to properly advise him pursuant to Wis. Stat. § 971.08(1)(c). Additionally, he argues that he is entitled to a writ of coram nobis. We discuss each issue in turn.
I. Chand is not entitled to withdraw his plea because the circuit court substantially complied with the immigration warning of Wis. Stat. § 971.08(1)(c).
¶ 10 We independently consider whether the circuit court's warning complied with Wis. Stat. § 971.08(1)(c). See State v. Mursal, 2013 WI App 125, ¶ 11, 351 Wis.2d 180, 839 N.W.2d 173. Section 971.08(1)(c) provides, as relevant:
Before the court accepts a plea of guilty or no contest, it shall do all of the following:
....
Address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”
¶ 11 Here, the circuit court advised Chand as follows: “If you're not a citizen of the United States, I am advising you that upon a plea of guilty or no contest to this charge, you could be deported, excluded from admission to this country or denied naturalization under federal law.” Chand acknowledged his understanding.
¶ 12 As in Mursal, “the [circuit] court's warning given at the plea hearing complied completely with the statute's substance, but its language deviated—very slightly—from the exact language expressed by the statute.” Id., 351 Wis.2d 180, ¶ 14, 839 N.W.2d 173. Notwithstanding the deviation, in Mursal, we held:
the statute's purpose—to notify a non-citizen defendant of the immigration consequences of a criminal conviction—was undoubtedly effectuated, and the linguistic differences were so slight that they did not alter the meaning of the warning in any way; therefore, we conclude that the [circuit] court did in fact properly warn Mursal of the consequences of his plea pursuant to Wis. Stat. § 971.08(1)(c). Because the [circuit] court substantially complied with the mandate of § 971.08, Mursal is not entitled to withdraw his plea.
Mursal, 351 Wis.2d 180, ¶ 20, 839 N.W.2d 173.
¶ 13 The same reasoning applies here. The postconviction court properly concluded that Chand is not entitled to withdraw his plea.
To the extent Chand's argument can be construed as an attempt to have us overrule or ignore State v. Mursal, 2013 WI App 125, 351 Wis.2d 180, 839 N.W.2d 173, and require a verbatim reading of the statutory language of Wis. Stat. § 971.08(1)(c), we remind him that we have no authority to do so. See Cook v. Cook, 208 Wis.2d 166, 189–90, 560 N.W.2d 246 (1997) (only the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion).
II. Chand is not entitled to a writ of coram nobis because it is based on claims of ineffective assistance of counsel.
¶ 14 Additionally, Chand argues that the postconviction court erroneously exercised its discretion when it denied his petition for writ of coram nobis after concluding that his claim was outside the writ's scope.
¶ 15 In State ex rel. Patel v. State, 2012 WI App 117, 344 Wis.2d 405, 824 N.W.2d 862, we addressed the scope of the writ of coram nobis in Wisconsin:
The writ of coram nobis is a discretionary writ of “very limited scope” that is “addressed to the [circuit] court.” Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685 (1980). “The purpose of the writ is to give the [circuit] court an opportunity to correct its own record of an error of fact not appearing on the record and which error would not have been committed by the court if the matter had been brought to the attention of the [circuit] court.” Id. at 213–14, 290 N.W.2d 685; see also Ernst v. State, 179 Wis. 646, 652, 192 N.W. 65 (1923) (“[T]he principal aim of the writ of error coram nobis [is] to afford the court in which the action was tried an opportunity to correct its own record.”).
“A person seeking a writ of coram nobis must pass over two hurdles.” State v. Heimermann, 205 Wis.2d 376, 384, 556 N.W.2d 756 (Ct.App.1996). First, the individual must establish that no other remedy is available. Id. For example, a criminal defendant seeking the writ must not be in custody because in that case Wis. Stat. § 974.06 would provide a remedy. See Heimermann, 205 Wis.2d at 376, 556 N.W.2d 756. “Second, the factual error that the petitioner wishes to correct must be crucial to the ultimate judgment and the factual finding to which the alleged factual error is directed must not have been previously visited or ‘passed on’ by the [circuit] court.” Id. In other words, “there must be shown the existence of an error of fact which was unknown at the time of [the plea] and which is of such a nature that knowledge of its existence at the time ... would have prevented the entry of judgment.” See Jessen, 95 Wis.2d at 214, 290 N.W.2d 685.
Patel, 344 Wis.2d 405, ¶¶ 12–13, 824 N.W.2d 862 (emphasis omitted).
¶ 16 The State concedes that Chand passes the first hurdle, but argues that he cannot pass the second because the error he relies on amounts to a claim of ineffective assistance of counsel, which is not a factual error but a legal one.
¶ 17 In an effort to escape the conclusion that his claim is one of ineffective assistance of counsel, Chand asserts:
Chand pleaded guilty for two reasons. First, because his trial attorney ... told him to plead guilty because doing so was the way to avoid an imposed but stayed sentence which sentence, according to [his trial attorney], would have resulted in removal. Second, he pleaded guilty because [the circuit court] adopted the parties' recommendation as to disposition to avoid his removal.
The fact that Chand had two sources of assurances that his guilty plea would protect him from removal contradicts [the postconviction court]'s conclusion that Chand's is nothing but a Padilla claim.
¶ 18 We are not persuaded by Chand's attempt to convert this into something other than what it is: an ineffective-assistance-of-counsel claim. To succeed on a claim of ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This is a legal issue. See State v. Thiel, 2003 WI 111, ¶ 23, 264 Wis.2d 571, 665 N.W.2d 305 (“ ‘The ultimate determination of whether counsel's performance was deficient and prejudicial to the defense are questions of law.’ ”) (brackets and citation omitted). As such, it is outside the scope of the writ.
Chand's averments in the affidavit he submitted in support of his postconviction motion include the following:
I believe that it is clear that my defense attorney was mistaken about several aspects of this case and its ultimate impact on me with Immigration. My defense attorney stated that I was a permanent resident alien, despite the fact that I never was. I had indicated that there was a process that was pending that might eventually result in permanent residence but it was not in a finished mode. Furthermore, it is clear that I was misadvised about the impact of this conviction on me, with my immigration status.
....
... When the judge followed the recommendation for being eligible to expunge upon completion of my probation, I felt positive and good that this would not harm me with Immigration, based upon what I had been led to understand from my attorney at that time.?
¶ 19 Despite Chand's efforts to distinguish it on its facts, Patel's holding controls the outcome here. In that case, Patel sought a writ of coram nobis, urging this court to take an expansive view of the scope of the writ and apply it “to legal errors of fundamental and constitutional dimension, particularly when there are ‘serious collateral consequences.’ “ Id., 344 Wis.2d 405, ¶ 14, 824 N.W.2d 862 (citation omitted). We declined the invitation to take this expansive view and explained that doing so “would require us to inappropriately broaden the law.” Id., ¶¶ 15, 18.
¶ 20 Following Patel, we agree with the postconviction court that Chand's claim of ineffective assistance of counsel is outside the limited scope of a writ of coram nobis.
Order affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.