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OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN    53701-1688
Telephone (608) 266-1880
Facsimile (608) 267-0640
Web Site:   www.wicourts.gov
DISTRICT II
                                                                                                     June 8, 2011
To:
Hon. Andrew T. Gonring                                                                               Mark Bensen
Circuit Court Judge                                                                                  District Attorney
Washington County Courthouse                                                                         Washington County
P.O. Box 1986                                                                                        P.O. Box 1986
West Bend, WI 53095-1986                                                                             West Bend, WI 53095-7986
Theresa Russell                                                                                      Thomas E. Dietrich
Clerk of Circuit Court                                                                               Assistant Attorney General
Washington County Courthouse                                                                         P.O. Box 7857
P.O. Box 1986                                                                                        Madison, WI 53707-7857
West Bend, WI 53095-1986
                                                                                                     Jeffrey W. Jensen
735 W. Wisconsin Ave., 12th Fl.
Milwaukee, WI 53233
You are hereby notified that the Court has entered the following opinion and order:
2010AP1702                                                                                           State of Wisconsin v. Abraham C. Negrete (L.C. #1992CF41)
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Abraham  C.  Negrete  appeals  from  an  order  denying  his  postconviction  motion  to
withdraw his plea—filed eighteen years after entering his plea—on grounds that he had not
understood that a guilty plea could result in deportation.   Upon our review of the briefs and the
record, we conclude at conference that this case is appropriate for summary disposition.   See
WIS. STAT. RULE 809.21 (2009-10).1   We affirm the order.
1  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.




No.   2010AP1702
In 1992, Negrete, a native of Mexico, pled guilty to second-degree sexual assault.   In
2010, he filed a postconviction motion alleging that he did not understand and does not recall his
lawyer or the judge informing him of a guilty plea’s deportation consequences, that he was
facing deportation proceedings and that his sole remedy, therefore, was plea withdrawal.   See
WIS. STAT. § 971.08(2).   He represented that no plea hearing transcript was available because the
court  reporter  had  died.     The  State’s  letter  brief  responded  that  Negrete  indicated  his
understanding by initialing and signing the Request to Enter Plea and Waiver of Rights form.
The trial court decided the matter without a hearing.   It found that there was no transcript
and that both the court reporter and Negrete’s attorney from the plea hearing were deceased.   It
also found that Negrete was informed of the potential for deportation because Negrete’s lawyer
acknowledged by his signature that he discussed with and explained to Negrete the contents of
the  Plea/Waiver  form;  and  that,  per  directions  to  enter  one’s  initials  “to  indicate  that  you
understand the statement,” Negrete initialed the box next to the paragraph on the form warning
that a noncitizen’s guilty plea could result in deportation.   The court concluded that any failure to
orally warn Negrete on the record was harmless error and denied the motion without a hearing.
As a threshold matter on appeal, the State urges that Negrete’s claim is barred by laches,
a defense that operates  “as a bar upon the right to maintain an action by those who unduly
slumber upon their rights.”   See Flejter v. Estate of Flejter, 2001 WI App 26, ¶41, 240 Wis. 2d
401,  623  N.W.2d  552  (citation  omitted).    The  State  argues  that  an  eighteen-year  delay  is
unreasonable, that it logically did not anticipate an appeal because Negrete indicated early on he
did not intend to seek postconviction relief and that it was prejudiced by the loss of witnesses
and no transcript.   See Coleman v. McCaughtry, 2006 WI 49, ¶¶28-29, 290 Wis. 2d 352, 714
N.W.2d 900.   Negrete responds that he did not unduly delay because he did not know his claim
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No.   2010AP1702
existed until deportation proceedings began.    While the State makes a sound argument, we
nonetheless address the merits of Negrete’s appellate issue.
As part of ensuring that a defendant’s plea is knowingly and voluntarily entered, a court
must warn a defendant during the plea colloquy that, for noncitizens, a plea of guilty has possible
deportation consequences under federal law.   See WIS. STAT. § 971.08(1)(c).   Whether a plea was
knowingly and voluntarily entered is a legal issue, which we review de novo.    See State v.
Bangert, 131 Wis. 2d 246, 283-84, 389 N.W.2d 12 (1986).   We accept the trial court’s finding of
evidentiary or historical facts on this point, however, unless they are clearly erroneous.   Id. at
283-84
Negrete asserts that whether the court advised him of possible deportation presents an
issue of fact meriting an evidentiary hearing.   We accept for the purpose of discussion Negrete’s
claims  that  the  court  did  not  properly  advise  him,  that  no  transcript  can  be  had  and  that
deportation is  “likely.”   See WIS. STAT.  § 971.08(2).   The court’s alleged failure is harmless
error, however, if, when he entered his plea, Negrete was aware that deportation could result.
See State v. Lagundoye, 2004 WI 4, ¶44, 268 Wis. 2d 77, 674 N.W.2d 526.2   We conclude that
he was.
Negrete  averred in the affidavit supporting his  motion to withdraw his plea that he
“do[es] not recall” the court or his lawyer advising him of the deportation consequences.   There
2                                                                                                           “Harmless error” no longer is the rule in these cases.   See State v. Douangmala, 2002 WI 62,
¶¶42, 46, 253 Wis. 2d 173, 646 N.W.2d 1.   The new rule, however, is not retroactive to cases like
Negrete’s that were final before Douangmala was decided or to collateral appeals.    See State v.
Lagundoye, 2004 WI 4, ¶¶31, 42, 268 Wis. 2d 77, 674 N.W.2d 526.
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No.   2010AP1702
is no transcript and no chance of obtaining one.   The court reporter and Negrete’s lawyer are
deceased.   The judge is retired.   Negrete is the only one who possibly could testify, and he
already has sworn that he “do[es] not recall.”
It is proper, then, to look to the entire record to assess Negrete’s awareness when he
entered his plea of the deportation consequences.   See Bangert, 131 Wis. 2d at 275.   Negrete
initialed the box next to the clearly stated deportation warning on the Plea/Waiver form and
affixed his signature below a line reading:                                                       “I have read the entire document and I understand its
contents.”   Negrete’s lawyer signed the Plea/Waiver form acknowledging that he “discussed and
explained the contents” of it to Negrete and that Negrete “acknowledged his understanding of
each item” on the form.    There is nothing for an evidentiary hearing to resolve.    Negrete’s
“do[es] not recall” testimony does not, in any way, constitute a different historical basis and
there is, as a result, no disputed fact.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is summarily affirmed, pursuant to
WIS. STAT. RULE 809.21.
A. John Voelker
Acting Clerk of Court of Appeals
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