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Appeals court reverses local ruling on Waukesha man's deportation

Man charged with drug trafficking says case sullied by lawyer

April 15, 2014

A Wisconsin appellate court ruled last week that a 32-year-old Waukesha man who faced automatic deportation on drug charges could withdraw a 2012 guilty plea.

According to the court's opinion, Ivan Mendez came to the United States in 1997 at the age of 14. He was married to a U.S. citizen with whom he had a child.

In May 2011, Mendez was charged with possession with intent to deliver THC and maintaining a drug trafficking place. He is accused of driving a vehicle for another man who sold marijuana to undercover officers.

Mendez denied knowing about the drug deal, according to the opinion, but the other man implicated Mendez, and one of his fingerprints was found on a bag of marijuana.

In January 2012, Mendez entered into a plea agreement with the Waukesha District Attorney's Office in which he agreed to plead guilty to one count of drug trafficking in exchange for probation.

Mendez later requested that his plea be withdrawn, arguing that his attorney did not make it clear that the felony conviction would impact his immigration status. He also said that his attorney never referred him to an immigration attorney.

Judge William Domina ruled in July 2013 that Mendez could not withdraw his plea, despite his lawyer's error.

Domina reasoned that the mistake made by Mendez's lawyer did not prejudice the case because Mendez failed to show that the outcome of the case would have been different, or that there would have been a viable challenge to the veracity of the underlying case.

The Wisconsin Court of Appeals reversed that decision in a published opinion released on April 9.

The court based its decision on the U.S. Supreme Court's ruling in Padilla v. Kentucky.

In that case, Jose Padilla, a lawful permanent resident for 40 years, faced deportation after pleading guilty to drug distribution charges in Kentucky. He claimed in post-conviction proceeding that his counsel had not informed him of the risk of deportation, and in fact had said not to worry about it because of his 40 years residency in the U.S.

The Kentucky Supreme Court denied Padilla post-conviction relief, arguing that his constitutional right to counsel was not violated because deportation is merely a "collateral" consequence of a conviction.

The U.S. Supreme Court reversed that decision, ruling that criminal defense attorneys are duty-bound to inform clients of the risk of deportation.

The Wisconsin Appeals Court wrote: "Under Padilla, the question in determining whether deficient counsel prejudiced a non-citizen defendant's plea deal is whether 'a decision to reject the plea bargain would have been rational under the circumstances.'"

The appellate court ruled that it would in fact have been rational for Mendez to reject the plea bargain, because of his U.S. residency, his familial ties to the nation, and concerns about his safety in Mexico.

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