State v. Cesar Rivera

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 2, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP960 Cir. Ct. No. 2005CF69

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CESAR RIVERA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Calumet County:
ANGELA W. SUTKIEWICZ, Judge. Affirmed in part, reversed in part and cause
remanded.

Before Gundrum, P.J., Neubauer, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP960

¶1 PER CURIAM. Cesar Rivera appeals from a circuit court order
denying his postconviction motion. He contends that he was entitled to an
evidentiary hearing on it. For the reasons that follow, we affirm in part, reverse in
part, and remand the matter for further proceedings consistent with this opinion.

¶2 In 2007, Rivera was convicted following a no contest plea to
third-degree sexual assault. He was placed on probation and admitted to his agent
that he was not a United States citizen. Soon thereafter, he was deported to
Mexico.

¶3 Rivera later returned to the United States and was apprehended in
2016. His probation was revoked for failing to update his address with the state’s
sex offender registry and failing to report to his agent.

¶4 Prior to his sentencing after revocation, Rivera, by counsel, filed a
postconviction motion pursuant to WIS. STAT. § 974.06 (2023-24)1 to withdraw his
plea. In it, Rivera principally argued that his trial counsel was ineffective for
failing to inform him that his plea could result in having to register as a sex
offender.2 After an evidentiary hearing on the matter, the circuit court denied the
motion. It then sentenced Rivera to eighteen months of initial confinement and

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Rivera also complained that he was not informed of the potential immigration
consequences of his plea. However, it does not appear that Rivera intended to raise a claim based
on that alleged fact. Indeed, when pressed on the subject at the evidentiary hearing, Rivera’s
counsel clarified, “The issue isn’t whether he was advised of his immigration rights, the issue is
whether he accepted the plea with the promise he would not have to register as a sex offender.”
Counsel later added, “We don’t have the transcript. [Rivera’s] never indicated that [he was not
given the warning regarding immigration] to me. Based upon the records I have reviewed that
was not an issue.” Accordingly, the circuit court did not address the matter in its decision.

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No. 2023AP960

five years of extended supervision. Upon his release to extended supervision,
Rivera was again deported to Mexico.

¶5 In 2022, Rivera, now represented by new counsel, filed another
postconviction motion to withdraw his plea. The motion was brought pursuant to
WIS. STAT. §§ 974.06 and 971.08(2)3 and asserted that (1) trial counsel was
ineffective for failing to investigate Rivera’s case; and (2) the circuit court failed
to advise Rivera of the potential immigration consequences of his plea as required
by § 971.08(1)(c).4 This time, the circuit court denied the motion without an
evidentiary hearing.5 Rivera moved for reconsideration, and the court denied that
too. This appeal follows.

¶6 On appeal, Rivera contends that he was entitled to an evidentiary
hearing on his most recent postconviction motion. The State, meanwhile,
maintains that Rivera’s claims were procedurally barred. Whether a
postconviction motion is sufficient to warrant an evidentiary hearing and whether
3
WISCONSIN STAT. § 974.06 permits defendants to bring constitutional or jurisdictional
challenges to their sentences after the time for pursuing direct appeal has expired. WISCONSIN
STAT. § 971.08(2), by contrast, involves statutory error and allows defendants to withdraw their
pleas when the plea-accepting court fails to advise them of the potential immigration
consequences of a plea, as required by § 971.08(1)(c), and the plea is likely to result in an adverse
immigration consequence listed in § 971.08(2) such as deportation.
4
WISCONSIN STAT. § 971.08(1)(c) requires the circuit court, before accepting a plea of
guilty or no contest, to 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.
5
The circuit court did not believe that Rivera had standing to seek relief under WIS.
STAT. § 974.06. It did not address the portion of the motion brought under WIS. STAT.
§ 971.08(2).

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No. 2023AP960

a claim is procedurally barred are questions of law that we review independently.
See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433; State v.
Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).

¶7 Here, we agree with the State that Rivera’s claim against trial
counsel for ineffective assistance was procedurally barred. That is because Rivera
could have raised the claim in his original postconviction motion and did not
demonstrate a sufficient reason for failing to do so.6 See WIS. STAT. § 974.06(4);7
State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994)
(interpreting § 974.06(4)). Accordingly, we affirm the portion of the circuit court
order denying that claim.

¶8 However, we cannot conclude that Rivera’s claim against the circuit
court was also procedurally barred. That is because WIS. STAT. § 971.08(2) is a
standalone statutory claim that is not subject to the restrictions of WIS. STAT.
§ 974.06(4) and Escalona-Naranjo, 185 Wis. 2d at 185.

6
Rivera suggests that his ignorance of the law was a sufficient reason for not raising his
claim against trial counsel earlier. However, if ignorance of the law were to constitute a
sufficient reason, it would effectively eviscerate the procedural bar of WIS. STAT. § 974.06(4) and
State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994).
7
WISCONSIN STAT. § 974.06(4) provides as follows:

All grounds for relief available to a person under this section
must be raised in his or her original, supplemental or amended
motion. Any ground finally adjudicated or not so raised, or
knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief may not be
the basis for a subsequent motion, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the original, supplemental or
amended motion.

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No. 2023AP960

¶9 As for the WIS. STAT. § 971.08(2) claim itself, we are satisfied that it
was sufficiently pled to warrant an evidentiary hearing. That is, Rivera alleged
sufficient facts that, if true, would demonstrate that (1) the plea-accepting court
failed to advise him of the potential immigration consequences of his plea as
required by § 971.08(1)(c); and (2) the plea is likely to (and in fact did) result in an
adverse immigration consequence listed in § 971.08(2) such as deportation. See
State v. Negrete, 2012 WI 92, ¶33, 343 Wis. 2d 1, 819 N.W.2d 749. Accordingly,
we reverse the portion of the circuit court order denying that claim and remand the
matter for an evidentiary hearing. Because there is no transcript of the plea
hearing, Rivera will have the burden of proving the above elements by clear and
convincing evidence. Id., ¶¶31-32.

¶10 Finally, we reject the State’s assertion that it is entitled to argue
harmless error at the evidentiary hearing. At the time of Rivera’s conviction,
claims under WIS. STAT. § 971.08(2) were subject to State v. Douangmala, 2002
WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, which rejected a harmless error analysis.
Although Douangmala has since been overruled by State v. Reyes Fuerte, 2017
WI 104, 378 Wis. 2d 504, 904 N.W.2d 773, Reyes Fuerte was not made
retroactive to cases such as Rivera’s that were final at the time of the decision.
We are not persuaded that the rule announced in Reyes Fuerte, which allows the
State to argue harmless error in defending against § 971.08(2) claims, falls within
any exception to the general rule of nonretroactivity.8 As such, Rivera’s claim
will be litigated without reference to harmless error.

8
The State submits that the rule announced in State v. Reyes Fuerte, 2017 WI 104, 378
Wis. 2d 504, 904 N.W.2d 773, should be made retroactive because it constitutes a “watershed
rule of criminal procedure,” which is a recognized exception to the general rule of
nonretroactivity. See State v. Lagundoye, 2004 WI 4, ¶¶31, 33, 268 Wis. 2d 77, 674 N.W.2d
(continued)

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No. 2023AP960

By the Court.—Order affirmed in part, reversed in part and cause
remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

526. We are not convinced by the State’s argument. To begin, our supreme court declined to
view the related case of State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1 as
announcing a watershed rule. See Lagundoye, 268 Wis. 2d 77, ¶37. Moreover, watershed rules
are exceedingly rare in retroactivity jurisprudence—often proving more theoretical than real. See
Edwards v. Vannoy, 593 U.S. 255, 267 (2021) (noting that the United States Supreme Court has
identified only one procedural rule as watershed: the right to counsel recognized in Gideon v.
Wainwright, 372 U.S. 335 (1963)).

6