State v. Negrete

PATIENCE DRAKE ROGGENSACK, J. ¶ 1 This is a review of an unpublished decision of the court of appeals, which affirmed the circuit court's denial of Abraham Negrete's postconviction motion to withdraw a guilty plea.1 The plea at issue was entered in 1992, and no transcript of the plea hearing is available. The sole issue on review is whether Negrete was entitled to an evidentiary hearing on his plea withdrawal motion under Wis. Stat. § 971.08(2) (2009-10).2 Resolution of this issue turns on the pleading requirements of a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2). Section 971.08(2) provides that a defendant has a statutory right to withdraw a guilty or no contest plea upon proving that: (1) the circuit court failed to personally advise the defendant of the potential deportation consequences of the plea; and (2) the plea is likely to result in one of the enumerated immigration consequences. 8 ¶ 2 In support of his motion, Negrete stated in an affidavit that he "do[es] not recall" whether the plea-accepting court advised him of the potential deportation consequences of his plea.3 Negrete's affidavit also states that he is now subject to deportation proceedings. However, Negrete's plea questionnaire indicates that he was advised of the immigration consequences prior to making his plea. ¶ 3 We conclude that Negrete's allegations are insufficient to warrant an evidentiary hearing. Where a defendant seeks to withdraw a guilty plea under Wis. Stat. § 971.08(2), but there is no transcript of the plea hearing, the pleading requirements for such motions are those set forth in State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). Under the applicable Bentley-type standard, Negrete's affidavit has not alleged sufficient facts that, if true, would entitle him to withdraw his guilty plea. Specifically, Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea. In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences. Therefore, Negrete's motion to withdraw his guilty plea under § 971.08(2) was properly denied. I. BACKGROUND ¶ 4 In April 1992, Abraham Negrete pleaded guilty to one count of second-degree sexual assault of a person under the age of 16 years, in violation of Wis. 9 Stat. § 948.02(2) (1991-92). As a result, Negrete was sentenced to 18 months of probation and ordered to pay restitution. After serving his probation and paying restitution, Negrete was discharged in April 1994. ¶ 5 On March 10, 2010, nearly 18 years after his conviction, Negrete moved to withdraw his guilty plea for the 1992 sexual assault charge. The motion was based on Wis. Stat. § 971.08(2),4 which allows a defendant to withdraw a guilty or no contest plea where a plea-accepting court fails to personally advise the defendant of the potential immigration consequences of the plea,5 and that plea is likely to result in an adverse immigration consequence listed in § 971.08(2). Negrete's motion alleged that when accepting Negrete's plea, the court "did not inform" him of the potential immigration consequences of his plea, and that Negrete is now "the subject of deportation proceedings." 10 ¶ 6 Whereas Negrete's motion affirmatively-stated that the court "did not inform Negrete" of the potential immigration consequences, his affidavit filed in support of the motion was equivocal. His affidavit stated, "I do not recall the court, or my lawyer, ever telling me of [the potential immigration consequences] of the plea." Negrete also averred that he had not understood the potential immigration consequences of his plea, and that had he known, he would not have entered the guilty plea. ¶ 7 At the time of his conviction in 1992, Negrete indicated that he did not intend to seek postconviction relief; accordingly, no transcript of the plea hearing was created from the court reporter's notes. Moreover, Negrete's attorney for the 1992 offense has died, and the presiding judge in that case, the Honorable Leo F. Schlaefer, has retired. Negrete stated in his motion to withdraw his plea that, if given the opportunity, he would testify that he was not warned on the record at the time he entered his plea. ¶ 8 In the circuit court, Negrete's argument for plea withdrawal relied largely on this court's decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, which rejected the harmless error approach when a defendant seeks to withdraw a plea under Wis. Stat. § 971.08(2). Id., ¶ 46. Under the harmless error approach, a defendant alleging error under § 971.08(2) would not have been allowed to withdraw his plea if the State could show that the defendant was otherwise aware of the likely immigration consequences of his plea. See State v. Chavez, 175 Wis. 2d 366, 368-71, 498 N.W.2d 887 (Ct. App. 1993). ¶ 9 In response to Negrete's motion, the State emphasized that, at the time of Negrete's plea, motions to withdraw under Wis. Stat. § 971.08(2) were subject 11 to the harmless error approach established in Chavez. Id. The State relied on our decision in State v. Lagundoye, 2004 WI 4, 268 Wis. 2d 77, 674 N.W.2d 526, which provided that Douangmala's repudiation of the harmless error approach was not retroactively applicable because Douangmala's holding was a new rule of criminal procedure, and such rules are not applied to cases that were final before the rule's issuance. Id., ¶ 2. Because Negrete's case was final long before our decision in Douangmala, the State argued, harmless error applied to Negrete's motion. ¶ 10 In support of its argument that any error was harmless, the State primarily relied on Negrete's "Request to Enter Plea and Waiver of Rights" form ("plea questionnaire"), which Negrete submitted to the court at the time of his 1992 plea. That form includes numerous statements to which a pleading defendant must agree before entering a plea. Most statements include an adjacent blank space where a defendant must place his initials to indicate his understanding of the statement. The statement relevant to our discussion here, paragraph 20 of the plea questionnaire, provides in language substantially similar to the statutory warning in Wis. Stat. § 971.08(l)(c): If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest and a finding of guilty by the Court of the offense(s) with which you are charged in the Criminal Complaint or Information, may result in deportation, exclusion from admission to this Country or a denial of naturalization under federal law. ¶ 11 In the blank space adjacent to that paragraph, Negrete's initials appear. Also, near the end of the document, following the initialed paragraphs, there is a statement that "I have read this entire document 12 and I understand its contents." That provision is signed by "Abe Negrete," and dated April 29,1992, the same day as the plea hearing. Finally, the plea questionnaire is signed by Negrete's then-attorney, Gary McGregor, who acknowledged by his signature that he "discussed and explained the contents of the questionnaire to the defendant, that the defendant acknowledged his understanding of each item in this questionnaire, including any post-conviction relief procedures, and that [the attorney knows] the above signature to be the defendant's." ¶ 12 In deciding whether to grant Negrete's motion to withdraw, the circuit court concluded that, based on Lagundoye, the harmless error analysis applied. In light of the plea questionnaire, the circuit court determined that any failure by the plea-accepting court to personally advise Negrete of the deportation consequences of his plea was harmless because the questionnaire demonstrated that Negrete was independently aware of those consequences. Accordingly, the court denied Negrete's motion without an evidentiary hearing. ¶ 13 The court of appeals affirmed in an unpublished decision. That court assumed that Negrete had not been personally advised as required under Wis. Stat. § 971.08(l)(c), but that, nonetheless, such error was harmless. Given the conflict between Negrete's allegations and the plea questionnaire in the record, the court concluded that nothing would have been added by an evidentiary hearing at which Negrete would have been the sole witness. Therefore, based on the entirety of the record, the court held that there was no question that Negrete was aware of the potential immigration consequences of his plea, and that any failure to personally advise him, if such a failure occurred, was harmless. 13 ¶ 14 Negrete petitioned this court for review, which we granted. We now affirm the decision of the court of appeals. II. DISCUSSION A. Standard of Review ¶ 15 Negrete asserts that under Wis. Stat. § 971.08(2), he is entitled to withdraw his guilty plea. This requires us to interpret the language of that statute to determine what a defendant must plead in his motion to satisfy the statutory elements. Statutory interpretation presents a question of law that we review independently of the circuit court and the court of appeals, although benefiting from those courts' analyses. Rasmussen v. Gen. Motors Corp., 2011 WI 52, ¶ 14, 335 Wis. 2d 1, 803 N.W.2d 623. Where the meaning of the statute is plain from the words used, we ordinarily will not examine extrinsic sources such as legislative history. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 45-46, 271 Wis. 2d 633, 681 N.W.2d 110. ¶ 16 In addition, as relevant here, there are two methods by which courts typically review motions to withdraw guilty or no contest pleas after judgment and sentence. The first method is based on the general rule that a defendant seeking to withdraw a guilty or no contest plea after sentencing must show " 'manifest injustice by clear and convincing evidence.'" State v. Hampton, 2004 WI 107, ¶ 60, 274 Wis. 2d 379, 683 N.W.2d 14 (quoting Bentley, 201 Wis. 2d at 311). This method, often referred to as the Bentley standard, see 14 id., ¶ 51, applies a two-step standard of review for motions to withdraw guilty or no contest pleas. Id., ¶ 55. ¶ 17 Under the first step of a Bentley-type review, a reviewing court must determine whether a defendant's postconviction motion alleges sufficient material facts that, if true, would entitle the defendant to relief. See State v. Allen, 2004 WI 106, ¶ 9, 274 Wis. 2d 568, 682 N.W.2d 433 (citing Bentley, 201 Wis. 2d at 309-10). This presents a question of law subject to independent review. Id. Where a defendant's motion alleges facts that would entitle him to withdraw his plea, but the record conclusively demonstrates that the defendant is not entitled to relief, no evidentiary hearing is required.6 Id. Whether the record conclusively demonstrates that the defendant is entitled to no relief is also a question of law, subject to independent review. Id. ¶ 18 Under the second step of a Bentley-type review, if the defendant's motion does not allege sufficient facts to entitle the defendant to relief, an appellate court reviews the circuit court's decision to grant or deny an evidentiary hearing under an erroneous exercise of discretion standard. Id. The circuit court's discretionary decision will be sustained if the court has examined the relevant facts of record, applied a proper legal standard, and reached a conclusion that a reasonable judge could reach. Miller v. Hanover Ins. Co., 2010 WI 75, ¶¶ 29-30, 326 Wis. 2d 640, 785 N.W.2d 493. 15 ¶ 19 Another method, alleged to be applicable here, is the standard of review for a guilty or no contest plea established under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). Under Bangert, we established an approach for plea withdrawals whereby a defendant may shift the burden of proof to the State when: (1) the defendant can point to a plea colloquy deficiency evident in the plea colloquy transcript, and (2) the defendant alleges that he did not know or understand the information that should have been provided in the colloquy. Id. at 274-75; see Hampton, 274 Wis. 2d 379, ¶ 46. When a defendant is able to make such a showing, the burden then shifts to the State to show by clear and convincing evidence that the defendant's plea was made knowingly, intelligently, and voluntarily. Bangert, 131 Wis. 2d at 275. Additionally, where a defendant makes such a showing, a reviewing court considers the sufficiency of the colloquy and the necessity of an evidentiary hearing as questions of law, subject to independent review, but benefiting from the discussions of the circuit court and the court of appeals. See State v. Hoppe, 2009 WI 41, ¶ 17, 317 Wis. 2d 161, 765 N.W.2d 794. ¶ 20 We conclude that the more broadly applicable Bentley-type plea withdrawal standard of review is appropriate here. In so concluding, we also hold that Bangert's burden shifting procedure is not applicable under these circumstances because the Bangert procedure is predicated on a defendant making "a pointed showing" of an error in the plea colloquy by reference to the plea colloquy transcript.7 See Hampton, 274 Wis. 2d 16 379, ¶ 46. Because Negrete has made no such showing, Bangert's burden shifting procedure is inapplicable. ¶ 21 Accordingly, in applying the Bentley-type standard of review, we independently review whether Negrete's motion alleges sufficient facts that, if true, would entitle him to withdraw his plea. Additionally, because we conclude that Negrete's motion did not allege sufficient facts to entitle him to relief, we review the circuit court's decision to deny his motion under an erroneous exercise of discretion standard. B. Wisconsin Stat. § 971.08(2) ¶ 22 To determine what a defendant must allege in a motion to withdraw a guilty plea under Wis. Stat. § 971.08(2), we examine the language of the statute: If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. ¶ 23 The statutory language is clear. As we recognized in Douangmala, 253 Wis. 2d 173, ¶¶ 23-25, where a defendant's motion establishes that a court failed to properly advise the defendant of the potential immigration consequences of his plea, the defendant 17 may withdraw his plea and enter a new plea, without regard to whether he was otherwise aware of such consequences. To employ Wis. Stat. § 971.08(2) to withdraw his plea, however, the defendant's motion must first allege two facts: (1) that the circuit court "fail[ed] to advise [the] defendant [of the deportation consequences of the defendant's plea] as required by [§ 971.08(l)(c)]"; and (2) that the defendant's "plea is likely to result in the defendant's deportation, exclusion from admission to this country[,] or denial of naturalization." Wis. Stat. § 971.08(2); see also Cody Harris, Comment, A Problem of Proof: How Routine Destruction of Court Records Routinely Destroys a Statutory Remedy, 59 Stan. L. Rev. 1791, 1802 (2007) (discussing People v. Totari, 50 P.3d 781, 785-86 (Cal. 2002)), establishing similar pleading requirements for a motion to withdraw a guilty or no contest plea to avoid deportation consequences of the plea). ¶ 24 First, Wis. Stat. § 971.08(2) requires a defendant to allege that the plea-accepting court "fail[ed] to advise [the] defendant as required by [§ 971.08(l)(c)]." Therefore, a defendant must affirmatively assert that the plea-accepting court did not tell the defendant of the potential immigration consequences of his plea. See § 971.08(2). A defendant's allegation that he does not recall whether the judge told him of the potential immigration consequences of his plea, or that it is possible that the judge might have failed to do so, does not allege facts that, if true, would entitle the defendant to relief. See Hampton, 274 Wis. 2d 379, ¶ 55. ¶ 25 Such inconclusive assertions as "I do not recall" will not support plea withdrawal because the truth or falsity of the defendant's statement has no 18 bearing on whether the court actually advised the defendant of the potential immigration consequences of the plea. Whether the defendant remembers being told is not the operative fact upon which the right of withdrawal under Wis. Stat. § 971.08(2) is based; rather, the operative fact is whether the judge fulfilled the statutory requirement. Consequently, if the defendant does not allege that the court did not tell him of the potential immigration consequences of his plea, the defendant has not met the first element of § 971.08(2), and his motion to withdraw may be denied without an evidentiary hearing. See Allen, 274 Wis. 2d 568, ¶ 9. ¶ 26 The second allegation that a defendant must make when seeking to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2) is that the plea "is likely to result in the defendant's deportation, exclusion from admission to this country[,] or denial of naturalization." This requires that the defendant allege facts demonstrating a causal nexus between the entry of the guilty or no contest plea at issue and the federal government's likely institution of adverse immigration actions consistent with § 971.08(l)(c). Bare allegations of possible deportation are insufficient. ¶ 27 The immigration consequences flowing from a guilty or no contest plea are tied to federal law. See Andrew Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 Geo. Immigr. L.J. 665, 667-77 (2008). Accordingly, to satisfy Wis. Stat. § 971.08(2)'s "likelihood" of immigration consequences requirement, a defendant may allege that: (1) the defendant pleaded guilty or no contest to a crime for which immigration consequences are provided under federal law; and (2) because of his plea, the federal 19 government has manifested its intent to institute one of the immigration consequences listed in § 971.08(2), as to the defendant.8 As alternatives, a defendant may submit some written notification that the defendant has received from a federal agent that imports adverse immigration consequences because of the plea that was entered; or, a defendant may narrate verbal communications that the defendant has had with a federal agent advising that adverse immigration consequences were likely and that such consequences were tied to the crime for which the plea was entered. ¶ 28 To summarize, under the applicable pleading standards for motions to withdraw guilty or no contest pleas under Wis. Stat. § 971.08(2) where the plea hearing transcript is unavailable, a defendant must allege sufficient facts that, if true, would demon 20 strate satisfaction of the statute's two requirements. A defendant must allege that the court did not tell the defendant of the immigration consequences of his plea and that entry of the plea is likely to result in one of the consequences enumerated in § 971.08(2). However, if the record conclusively demonstrates that the defendant is not entitled to relief, no hearing is required; or, if the defendant does not allege sufficient facts that, if true, would entitle the defendant to relief, the circuit court is within its discretion to deny the defendant's motion without holding an evidentiary hearing. See State v. Balliette, 2011 WI 79, ¶ 18, 336 Wis. 2d 358, 805 N.W.2d 334. C. Applicability of Bentley-type Standard ¶ 29 Acknowledging that allegations of a defective plea colloquy are typically subject to analysis under Bangert, we briefly discuss our rationale for applying a Bentley-type pleading requirement to the circumstances of this case. First, the Bentley-type pleading standard embodies the general rule that a defendant seeking to withdraw a guilty or no contest plea after sentencing must prove manifest injustice by clear and convincing evidence. See Bangert, 131 Wis. 2d at 283; Hampton, 274 Wis. 2d 379, ¶ 60. Accordingly, the Bentley-type, manifest-injustice-by-clear-and-convincing-evidence standard is the starting point from which we may determine whether any other pleading standards apply. ¶ 30 As an alternative pleading standard for motions to withdraw guilty or no contest pleas, Bangert contemplated a shift in the burden of proof from the defendant to the State based upon a showing of a deficiency in the plea colloquy transcript. See Bangert, 131 Wis. 2d at 274-75. As we have stated, the necessary 21 showing requires a defendant to point to specific deficiencies evident on the face of the plea colloquy transcript. See Hampton, 274 Wis. 2d 379, ¶ 51 (Bangert analysis is "confined to alleged defects in the record of the plea colloquy"). In addition, a defendant's motion must allege that he did not know or understand the information that should have been presented at the plea hearing. State v. Brown, 2006 WI 100, ¶ 36, 293 Wis. 2d 594, 716 N.W.2d 906. Once the defendant satisfies Bangert's preliminary requirements, the burden then shifts to the State to show by clear and convincing evidence at an evidentiary hearing that, notwithstanding the colloquy deficiencies, the defendant's plea was entered knowingly, intelligently, and voluntarily. Hampton, 274 Wis. 2d 379, ¶ 46. ¶ 31 Where the transcript of the plea hearing is unavailable, however, Bangert's burden shifting procedure does not apply, because: (1) the defendant will not be able to make the requisite showing from the transcript that the circuit court erred in the plea colloquy, and (2) the rationale underlying Bangert's burden shifting rule does not support extending that rule to situations where a violation is not evident from the transcript. Instead, the policy of finality counsels that a party seeking to disrupt a final judgment by withdrawing his plea must first allege facts which, if true, demonstrate that manifest injustice has occurred and that relief is therefore warranted.9 See Balliette, 336 Wis. 2d 358, ¶¶ 57-58; see also State v. Ernst, 2005 WI 107, ¶ 25, 283 Wis. 2d 300, 699 N.W.2d 92 ("Any claim of a violation on a collateral attack that does not detail such facts will fail."). 22 ¶ 32 First, practically speaking, where there is no transcript of the plea colloquy, the showing required under Bangert, relying on evidence in a transcript of defects in the plea colloquy, simply cannot be made. See Balliette, 336 Wis. 2d 358, ¶ 57. Second, and more fundamentally, the rationale underlying Bangert's low standard for burden shifting — that the State can avoid such burden by ensuring that the circuit court complies with the colloquy requirements — rings hollow, because there is no evidence in the record that the court did not comply. See Hampton, 274 Wis. 2d 379, ¶ 51. Without linking the shift of the burden of proof to a showing of error evident on the face of the transcript, we would ignore the general rule that a defendant seeking to withdraw his plea retains the burden of proving his claim by clear and convincing evidence. See id., ¶¶ 60, 63-64. ¶ 33 Accordingly, where a defendant is unable to point to a defect evident on the face of a plea colloquy transcript because such transcript is unavailable, the more appropriate review of a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2) is that set forth in Bentley, 201 Wis. 2d at 310.10 Allegations that are "less susceptible to objective confirmation in the record" are particularly suited to a Bentley-type analysis,11 because the defendant is required to allege particular facts that would entitle the defendant to relief before the court is obligated to hold an evidentiary 23 hearing on the motion. See Hampton, 274 Wis. 2d 379, ¶ 51. Therefore, a defendant seeking relief under §971.08(2) must allege sufficient facts in his motion that, if true, would demonstrate that the plea-accepting court failed to tell the defendant of the potential immigration consequences of his plea, and that the defendant's plea is likely to result in adverse immigration consequences.12 D. Application ¶ 34 Having set forth the applicable pleading requirements for motions to withdraw a plea of guilty 24 or no contest under Wis. Stat. § 971.08(2) where the plea hearing transcript is unavailable, we turn to the application of that standard to Negrete's motion. We conclude that under the applicable Bentley-type review, Negrete's motion does not set forth sufficient, nonconclusory facts that, if true, would entitle him to relief. See Allen, 274 Wis. 2d 568, ¶ 9. ¶ 35 With regard to the first pleading requirement under Wis. Stat. § 971.08(2), that the circuit court did not tell Negrete of the immigration consequences of his plea, Negrete alleges in his motion that "the court did not inform Negrete, on the record, of the immigration consequences of his guilty plea." However, Negrete's affidavit, filed simultaneously with his motion, alleges that Negrete "do[es] not recall" whether he received the necessary warning. We have recognized that evidentiary facts stated in an affidavit supplant allegations in a pleading. Moutry v. Am. Mut. Liab. Ins. Co., 35 Wis. 2d 652, 659, 151 N.W.2d 630 (1967). Therefore, Negrete's motion, when taken together with his affidavit, fails to satisfy the first requirement of § 971.08(2).13 ¶ 36 The second pleading requirement for motions under Wis. Stat. § 971.08(2) is that a defendant must allege that the plea at issue "is likely to result" in one of the enumerated immigration consequences. To this end, Negrete's motion states the offense for which 25 he entered the plea ("second degree sexual assault of a child") and alleges that "Negrete is now the subject of deportation proceedings." These bare allegations are insufficient to demonstrate that Negrete's "plea is likely to result in [his] deportation." See Xiong v. INS, 173 F.3d 601, 604-08 (7th Cir. 1999). ¶ 37 To comply with the Bentley-type pleading standard in the context of Wis. Stat. § 971.08(2), a defendant may set forth the crime of conviction, the applicable federal statutes establishing his potential deportability, and those facts admitted in his plea that bring his crime within the federal statutes. In so doing, a defendant may submit some written notification that the defendant has received from a federal agent that imports adverse immigration consequences because of the plea that was entered; or, a defendant may narrate verbal communications that the defendant has had with a federal agent advising that adverse immigration consequences were likely and that such consequences were tied to the crime for which the plea was entered. A defendant's motion should not require the circuit court or a reviewing court to speculate about the factual basis for the requisite nexus. ¶ 38 Accordingly, we conclude that Negrete's motion fails to allege facts sufficient to entitle him to relief because he has not satisfied the two necessary requirements of Wis. Stat. § 971.08(2). Therefore, under the first step of the Bentley-type analysis, we conclude that Negrete is not entitled to relief as a matter of law. ¶ 39 We now turn to the second step of the Bentley-type analysis; that is, whether the circuit court properly exercised its discretion in denying Negrete's motion. Here, the circuit court examined Negrete's motion as the parties had framed the issue, under the 26 harmless error analysis; specifically, the court concluded that under Lagundoye, harmless error applied to Negrete's 1992 plea. Consequently, although the circuit court applied a proper legal standard, it cannot be said that the circuit court exercised its discretion under identical legal standards as those set forth herein. ¶ 40 Nothing in our analysis, however, suggests that Lagundoye is no longer good law; accordingly, we would be mistaken to say that the circuit court applied an erroneous legal standard. Rather, the court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion. See Miller, 326 Wis. 2d 640, ¶¶ 29-30. We conclude, therefore, that the circuit court did not erroneously exercise its discretion in denying Negrete's motion. III. CONCLUSION ¶ 41 We conclude that Negrete's allegations are insufficient to warrant an evidentiary hearing. Where a defendant seeks to withdraw a guilty plea under Wis. Stat. § 971.08(2), but there is no transcript of the plea hearing, the pleading requirements for such motions are those set forth in Bentley, 201 Wis. 2d at 310. Under the applicable Bentley-type standard, Negrete's affidavit has not alleged sufficient facts that, if true, would entitle him to withdraw his guilty plea. Specifically, Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea. In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences. Therefore, Negrete's motion to withdraw his guilty plea under § 971.08(2) was properly denied. By the Court. — The decision of the court of appeals is affirmed. Footnotes [1] The Honorable Andrew T. Gonring presided in this post-conviction proceeding in the Washington County Circuit Court; the Honorable Leo F. Schlaefer presided in the underlying action in which Negrete entered his plea. [2] All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. [3] We use the term "plea-accepting court" to refer to the circuit court in which Negrete entered his plea in 1992; "the circuit court" refers to the court in which the present postconviction proceeding was initiated in 2010. [4] When accepting a defendant's plea, Wis. Stat. § 971.08(l)(c) directs that: 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." Additionally, Wis. Stat. § 971.08(2) provides that: If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. [5] Throughout this opinion, we refer to "immigration consequences" as shorthand for the various adverse immigration actions referred to under Wis. Stat. § 971.08(l)(c) & (2). [6] Where a defendant alleges sufficient facts and the record does not conclusively demonstrate that the defendant is not entitled to relief, the circuit court is without discretion, and must grant an evidentiary hearing. State v. Douangmala, 2002 WI 62, ¶¶ 23-25, 253 Wis. 2d 173, 646 N.W.2d 1; State v. Hampton, 2004 WI 107, ¶ 55, 274 Wis. 2d 379, 683 N.W.2d 14. [7] We discuss our reasoning for this conclusion in greater depth in Section II.C., below, where we address the applicable 16 pleading standard for motions to withdraw under Wis. Stat. § 971.08(2) where the plea hearing transcript is unavailable. In that section, we examine the rationale underlying Bangert's burden shifting procedure and discuss why such rationale is unavailing where a defendant does not point to an error in the plea hearing transcript. [8] More specifically, if a defendant chooses to establish that the crime to which the defendant pleaded is one for which the defendant would have been subject to potentially adverse immigration consequences under controlling federal law, the defendant should cite the federal law upon which reliance is placed. For example, under federal law, 8 U.S.C. § 1227 (2006) delineates numerous categories of aliens who are potentially deportable. Relevant to motions under Wis. Stat. § 971.08(2) is the federal statute providing that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deport-able." 8 U.S.C. § 1227(a)(2)(A)(iii). See State v. Baeza, 174 Wis. 2d 118, 127, 496 N.W.2d 233 (Ct. App. 1993). In addition, in such a motion, a defendant should allege that the federal government has conveyed its intent to impose one of the enumerated immigration consequences set out in Wis. Stat. § 971.08(2). This required nexus between the crime to which a plea was made and adverse immigration consequences can be demonstrated by alleging facts that show that, because of his plea, the defendant has become subject to deportation proceedings, has been excluded from admission to the country, or has been denied naturalization. [9] Here, the legislature has effectively provided that "manifest injustice" is established by satisfying the elements of Wis. Stat. § 971.08(2). [10] Indeed, this standard largely corresponds to the general statutory requirement for particularity in motion pleading. See Wis. Stat. § 971.30(2)(c). [11] The Bentley-type standard has been characterized, by reference to Bangert, as applying to errors in the pleading process "extrinsic to the plea colloquy," such as ineffective assistance of counsel. See, e.g., State v. Howell, 2007 WI 75, ¶ 74, 301 Wis. 2d 350, 734 N.W.2d 48. Although this distinction between matters within the plea colloquy and matters extrinsic to the 23 colloquy often provides sufficient guidance, the distinction departs from Bangert's original holding and is therefore not entirely accurate. Because Bangert provided a method by which defendants could shift the burden of proof to the State when the defendant could show from the face of the transcript that the circuit court had erred in the plea colloquy and that he did not understand the information that should have been provided, we now reaffirm that where a defendant is not able to make such a showing under Bangert, the defendant may nonetheless avail himself of the Bentley-type procedure to prove that he is entitled to withdraw his guilty or no contest plea. [12] Our decision in this case is not affected by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). First, Padilla held that a defense attorney's failure to properly inform his client of potential immigration consequences may constitute deficient performance under the Sixth Amendment. Id. at 1483-84. Here, Negrete does not allege that counsel's performance was deficient. Second, and more to the point, by enacting Wis. Stat. § 971.08(l)(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. Accordingly, because the right at issue here, § 971.08(l)(c)'s right to be informed of the immigration consequences of a guilty or no contest plea, is a court-oriented, statutorily protected right, our analysis is distinct from that of Padilla. [13] By failing to satisfy one of the requirements of Wis. Stat. § 971.08(2), Negrete has failed to demonstrate that he is entitled to relief as a matter of law. We nonetheless examine Negrete's motion under § 971.08(2)’s second requirement to provide guidance for defendants seeking relief in the future under that section, and to provide support for our conclusion that the circuit court properly exercised its discretion in denying Negrete's motion.