State v. Lorenzo Estrada-Rosales

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.
January 14, 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. 2023AP144-CR Cir. Ct. No. 2017CF1501

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LORENZO ESTRADA-ROSALES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: JOHN P. ZAKOWSKI, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2023AP144-CR

¶1 PER CURIAM. Lorenzo Estrada-Rosales appeals from a judgment,
entered upon his Alford1 plea, convicting him of first-degree sexual assault of a
child who had not attained the age of thirteen. He also appeals from an order
denying his postconviction motion.2 On appeal, Estrada-Rosales contends
that: he did not knowingly, intelligently, and voluntarily enter his plea because he
misunderstood the deportation consequences of conviction; his trial counsel was
ineffective for failing to correct this misunderstanding; and the circuit court erred
by failing to establish the proof of guilt required to support his Alford plea. For
the reasons that follow, we affirm.

BACKGROUND

¶2 In October 2017, the State charged Estrada-Rosales with two counts.
In Count 1, the State charged Estrada-Rosales with repeated sexual assault of the
same child, Molly.3 In Count 2, the State charged Estrada-Rosales with
first-degree sexual assault of Sara, a child who had not attained the age of thirteen.

1
See North Carolina v. Alford, 400 U.S. 25 (1970).
2
In case No. 2020AP2019-W, Estrada-Rosales filed a petition for a writ of habeas
corpus alleging that he was denied the right to effective assistance of counsel when his trial
counsel failed to timely file a Notice of Intent to Pursue Postconviction Relief in this case.
Estrada-Rosales therefore requested an extension of the time to file a Notice of Intent to Pursue
Postconviction Relief. The State did not object to Estrada-Rosales’s proposed relief, and we
granted the petition. Estrada-Rosales then filed a Notice of Intent to Pursue Postconviction
Relief, and this appeal followed.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms instead of the victims’ names. The State refers to the victims as “Molly” and “Sara,”
and we do the same.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP144-CR

¶3 Estrada-Rosales, who was born in Nicaragua and is a native Spanish
speaker, claimed to have limited English proficiency throughout the circuit court
proceedings. Accordingly, the court provided him with an interpreter at each
hearing. Ultimately, the parties reached a plea agreement, and, as part of that
agreement, Estrada-Rosales agreed to enter an Alford plea to Count 2. In return,
the State agreed to dismiss and read in Count 1 and recommend that the court
impose a sentence consisting of no more than fifteen years’ initial confinement
followed by ten years’ extended supervision.

¶4 At a plea hearing, Estrada-Rosales’s trial counsel submitted several
documents, including a completed plea questionnaire and waiver of rights form
and the relevant pattern jury instruction. See WIS JI—CRIMINAL 2102E (2015).
Both of these documents were in English. The plea questionnaire and waiver of
rights form stated that Estrada-Rosales was forty-two years old, had completed
three years of schooling, and did not understand the English language.

¶5 Trial counsel informed the circuit court that she did not complete the
Spanish version of the plea questionnaire and waiver of rights form with
Estrada-Rosales. However, trial counsel also submitted an eight-page document,
that was in both English and Spanish, and told the court that she reviewed it with
Estrada-Rosales. According to trial counsel, the Spanish portions of this
document were obtained using Google Translate. Each page was initialed by
Estrada-Rosales. Trial counsel described this document as containing a “narrative
first, page one, and then the substance of the remaining seven pages … is
information from” the plea questionnaire and waiver of rights form and the pattern
jury instruction.

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No. 2023AP144-CR

¶6 The narrative portion of the document included an explanation of an
Alford plea, a statement that Estrada-Rosales met with his trial counsel and an
interpreter, and a statement that Estrada-Rosales “reviewed the [plea] form and the
attachments” with his trial counsel and the interpreter. That portion also included
a statement that Estrada-Rosales “understood everything contained in the
documents, and any questions that [he] had were answered.”

¶7 The remaining seven pages described, in relevant part: the
constitutional rights that Estrada-Rosales was giving up by entering an Alford
plea; the elements for Count 2; the maximum potential punishment for Count 2;
the impact of the read-in offense on Estrada-Rosales’s sentencing; that the circuit
court would rely “upon the facts in the criminal complaint and/or the preliminary
examination”; that “[n]o promises ha[d] been made to [Estrada-Rosales] other than
those contained in the plea agreement”; the plea agreement itself; and a statement
on the deportation consequences of conviction. Trial counsel stated that she had
met with Estrada-Rosales twice in person to discuss his plea—including the
aforementioned submitted forms—and that an interpreter had been present at each
of the meetings.

¶8 The circuit court then conducted a plea colloquy with
Estrada-Rosales with the assistance of an interpreter. At multiple points during
the colloquy, Estrada-Rosales raised the issue of deportation. The first instance
occurred after the court asked Estrada-Rosales if he had enough time to go “over
all of this information with” his trial counsel. Estrada-Rosales responded, “I
reviewed all the information but what … got my attention the most was that I was
promised that if I signed I would be deported and that’s why I signed it.”

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No. 2023AP144-CR

¶9 Later during the colloquy, the circuit court asked Estrada-Rosales if
he understood that he was giving up his constitutional rights. In response,
Estrada-Rosales stated that his trial counsel had “explained to me that I am giving
up the trial and all of this, always with an eye toward me going back to my
country.” Estrada-Rosales added, “If there is the condition … that I will go back
to my country[,] I accept not having a trial. That’s the basis on which I sign.”
When asked if he understood the meaning of an Alford plea, Estrada-Rosales
responded, “What I understood about the Alford plea was that it would reduce
everything. They would withdraw all the charges and turn me over to
immigration. That’s what I understood and that’s why I signed and why I’m here
today making this plea.”

¶10 Following Estrada-Rosales’s statements surrounding deportation,
and at the circuit court’s suggestion, the parties went off the record, and
Estrada-Rosales and his trial counsel had a private discussion. After the private
discussion, the parties went back on the record, and the circuit court again asked
Estrada-Rosales if he understood the meaning of an Alford plea, to which
Estrada-Rosales stated, “If they don’t have evidence that I even touched her that’s
what I don’t like, that they’re saying they have evidence.” The court responded by
explaining that by entering an Alford plea, Estrada-Rosales would maintain his
claim of innocence but recognize that “if we had a trial it is most likely that a jury
would return with a guilty verdict.” Estrada-Rosales stated that he understood the
court’s explanation.

¶11 The circuit court also asked Estrada-Rosales if anyone had made any
threats or promises to him in order to obtain his plea. Estrada-Rosales responded
by again raising the issue of deportation, stating that the “only promise is the one
that I signed for. The promise that this would be minimized and I would be

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No. 2023AP144-CR

deported.” The court replied, “In other words—and that’s part of the plea
negotiations. Is that right?” Estrada-Rosales answered, “Yes.”

¶12 The circuit court asked Estrada-Rosales’s trial counsel if in
accepting the Alford plea it could rely on the probable cause portion of the
criminal complaint, to which counsel responded in the affirmative. Later in the
hearing, the court relied on trial counsel’s response to find that a factual basis
existed for Estrada-Rosales’s plea. The court also found that Estrada-Rosales was
knowingly, intelligently, and voluntarily entering his plea. Accordingly, the court
found Estrada-Rosales guilty of Count 2 and dismissed and read in Count 1. The
court later sentenced Estrada-Rosales to sixteen years’ initial confinement
followed by eight years’ extended supervision.

¶13 Thereafter, Estrada-Rosales filed a postconviction motion to
withdraw his Alford plea, raising three issues. First, Estrada-Rosales argued that
he did not knowingly, intelligently, and voluntarily enter his plea because he
misunderstood the deportation consequences of his plea.4 In his postconviction
motion, Estrada-Rosales claimed he did not understand that “he could spend up to
[forty] years in prison … and would not be deported until after the imprisonment
was complete.” Estrada-Rosales also asserted that he was promised deportation
prior to his sentence being carried out. Second, Estrada-Rosales alleged that his
trial counsel was ineffective by failing to “ensure that he understood the potential

4
Estrada-Rosales also argued that he did not knowingly, intelligently, and voluntarily
enter his plea because the circuit court failed to inform him of the maximum potential penalty he
faced upon conviction. The court denied this claim in a written order. Estrada-Rosales does not
appear to challenge the court’s order in this respect, and we deem this issue abandoned. See A.O.
Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n
issue raised in the [circuit] court, but not raised on appeal, is deemed abandoned.”).

6
No. 2023AP144-CR

consequences” of his plea. Third, Estrada-Rosales argued that the circuit court
erred by accepting his Alford plea without adequately establishing that “strong
proof of guilt” existed. See State v. Nash, 2020 WI 85, ¶35, 394 Wis. 2d 238, 951
N.W.2d 404 (citation omitted).

¶14 The circuit court held an evidentiary hearing on Estrada-Rosales’s
postconviction motion at which Estrada-Rosales’s trial counsel testified. She
stated that she could not recall who the interpreter was for either of her
plea-related meetings with Estrada-Rosales but that it would have been one of two
individuals in her office—a paralegal or another individual who “work[ed] in an
office environment.” Trial counsel testified that neither of the individuals were
“court-certified” interpreters but that both spoke Spanish as their first language.
See WIS. STAT. § 885.38. She further testified that during her second meeting
with Estrada-Rosales to go through the plea forms, she read the forms in English,
and the interpreter repeated trial counsel’s statements to Estrada-Rosales in
Spanish. She also explained that she had discussed with Estrada-Rosales the
general process of criminal proceedings, including what occurs at a criminal trial,
how a jury is selected, and how the parties question witnesses. Trial counsel
testified that she discussed with Estrada-Rosales the facts of the case and the
“hurdles” that a trial would pose.

¶15 Trial counsel stated that she remembered from the meetings that
Estrada-Rosales expressed a desire to return to Nicaragua and had asked her “if he
pled and was sentenced if he would be deported.” However, trial counsel
informed Estrada-Rosales that she “had no idea what would happen after he signed
the [plea] form[s] and went to prison as far as once he was sentenced because [she
did not] handle things after … sentencing.” She added that “at no point did [she]
tell him if he pled he would be deported.” When asked if she would have

7
No. 2023AP144-CR

informed Estrada-Rosales that he needed to serve his sentence before being
deported, trial counsel stated that her understanding is that a defendant must serve
a sentence prior to deportation, “so that’s what [Estrada-Rosales] would have been
told.” Trial counsel testified that she did not have any concerns about
Estrada-Rosales understanding the plea agreement or the consequences of his plea.

¶16 When asked about Estrada-Rosales’s statements regarding
deportation at the plea hearing, trial counsel testified that she would never have
promised him that he would be deported prior to serving his sentence. Trial
counsel testified that she believed Estrada-Rosales “was attempting to divert or
derail what was going on” at the plea hearing “and lay the foundation for an
appeal if something went wrong.” She stated that she did not ask for a second
recess during the plea hearing after Estrada-Rosales made an additional statement
about deportation because she did not “necessarily think it was a
misunderstanding. There was a discussion of him being deported once his
sentence was served, whatever sentence that was.”

¶17 Estrada-Rosales also testified at the evidentiary hearing, again
through an interpreter. He testified that he could “[n]ow … speak … a little”
English, but he “only knew some words” at the time he was convicted. With
respect to his trial counsel’s assertions about what had occurred prior to his plea,
Estrada-Rosales stated that she “promised [him] that if [he] signed [he] would get
deported.” Additionally, Estrada-Rosales stated that his trial counsel told him that
if he entered the plea, he would “be able to go to” his “country to see” his family,
but if he did not sign, he could “forget about” his family and would “never see
them again.” The parties appeared to agree that Estrada-Rosales had no prior
criminal record in the United States, although he had previously been deported
twice.

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No. 2023AP144-CR

¶18 The State called Estrada-Rosales’s ex-girlfriend—the victims’
grandmother—to testify at the hearing. She stated that she met Estrada-Rosales in
2008 and that they began dating in 2011. According to the ex-girlfriend,
Estrada-Rosales “spoke very good English” at the time of his arrest in October
2017, and he would “go to bars all the time and talk to everybody.”

¶19 Ultimately, the circuit court issued a written decision denying
Estrada-Rosales’s postconviction motion for plea withdrawal. The court found
that Estrada-Rosales “had a better understanding of the English language than [he]
appeared [to have] at the time of the plea hearing.” According to the court,
“[c]oupled with the efforts made by [Estrada-Rosales’s trial counsel] to have the
plea form and its contents translated into Spanish and to have [the] attachments
translated into Spanish, it is clear … [Estrada-Rosales] understood the contents of
the plea form[s],” including that he could face a substantial period of initial
incarceration.

¶20 The circuit court further found Estrada-Rosales’s trial counsel
credible and that she had, indeed, not informed Estrada-Rosales that he would be
deported prior to him serving a prison sentence. Moreover, the court found that
Estrada-Rosales chose to enter into an Alford plea in the hope of receiving a
time-served sentence so that he would be immediately deported. The court stated
that Estrada-Rosales made the statements regarding deportation at the plea hearing
“as a means of attempting to be in control by dictating the terms of his sentence.”
Furthermore, the court found that Estrada-Rosales was claiming that he did not
know the consequences of his plea following his sentencing because he was
“obviously unhappy with the results.” The court characterized Estrada-Rosales’s
claim, that he thought he would be immediately deported upon his plea, as
“Monday morning quarterbacking.” As such, the court determined that

9
No. 2023AP144-CR

Estrada-Rosales knowingly, intelligently, and voluntarily entered into his plea and
that his trial counsel was not deficient.

¶21 With respect to the factual basis to support Estrada-Rosales’s Alford
plea, the circuit court noted that Estrada-Rosales waived his preliminary hearing,
so the only evidence of guilt before the court was the allegations located in the
criminal complaint. The court described the complaint as containing a “significant
amount of information in the probable cause section,” “including reference to” the
victims’ forensic interviews “in which they described where and how
Estrada-Rosales was inappropriately touching them.” Moreover, the court
determined that “in taking [the] Alford plea,” it was not required “to regurgitate
the criminal complaint on the record.” Therefore, the court concluded that it
adequately determined at the plea hearing that there was “strong proof of guilt” to
support Estrada-Rosales’s Alford plea, and it denied his motion to withdraw his
plea. See Nash, 394 Wis. 2d 238, ¶35 (citation omitted). Estrada-Rosales now
appeals.

DISCUSSION

¶22 When a defendant seeks to withdraw a plea after sentencing, the
defendant “carries the heavy burden of establishing by, clear and convincing
evidence,” that allowing plea withdrawal “is necessary to correct a manifest
injustice.” Nash, 394 Wis. 2d 238, ¶32 (citation omitted). This standard of proof
is higher than the standard a defendant must meet to withdraw a plea prior to
sentencing. Id.

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No. 2023AP144-CR

I. Knowing, intelligent, and voluntary plea

¶23 Estrada-Rosales first contends that his plea was not knowing,
voluntary, and intelligent because he did not understand the actual sentencing
consequences he faced upon conviction, and he is therefore, entitled to withdraw
his plea based upon a manifest injustice. Estrada-Rosales argues that he entered
his plea based on the promise of deportation prior to prison, and his
misunderstanding that he would be deported prior to serving a prison sentence
rendered his plea involuntary.

¶24 One way a defendant can demonstrate manifest injustice is to prove
that his or her plea was not entered knowingly, intelligently, and voluntarily due to
“some factor extrinsic to the plea colloquy.” State v. Howell, 2007 WI 75, ¶74,
301 Wis. 2d 350, 734 N.W.2d 48. Whether a plea was entered knowingly,
intelligently, and voluntarily is a question of constitutional fact. State v. Brown,
2006 WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906. That is, we review the
circuit court’s findings of historical fact under the clearly erroneous standard of
review, and “we determine independently whether those facts demonstrate that the
defendant’s plea was knowing, intelligent, and voluntary.” Id. A finding of fact is
clearly erroneous when it “is against the great weight and clear preponderance of
the evidence. Under the clearly erroneous standard, ‘even though the evidence
would permit a contrary finding, findings of fact will be affirmed on appeal as
long as the evidence would permit a reasonable person to make the same
finding.’” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290
Wis. 2d 264, 714 N.W.2d 530 (citation omitted). “[W]e search the record not for
evidence opposing the circuit court’s decision, but for evidence supporting it.” Id.

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No. 2023AP144-CR

¶25 On appeal, Estrada-Rosales does not dispute the circuit court’s
finding that his trial counsel did not misinform him about the deportation
consequences of his plea. Rather, Estrada-Rosales argues that while “counsel did
not intend to promise anything,” Estrada-Rosales “perceived” his discussions with
counsel “as a promise” of deportation. Accordingly, Estrada-Rosales asserts that
he did not knowingly, intelligently, and voluntarily enter his plea because he
“believed that it was certain … he would be turned over to immigration and
deported” prior to serving any sentence in the United States. In support of this
position, Estrada-Rosales cites his statements made during the plea hearing
regarding deportation, a statement regarding deportation made to the author of a
presentence investigation report, his limited understanding of the English language
and the criminal justice system, and the fact that his trial counsel used a
noncertified interpreter at the plea meetings.

¶26 We assume without deciding that Estrada-Rosales is correct in
asserting that immigration officials are precluded from removing from the United
States an “alien” who is sentenced to prison until after that individual is released
from incarceration. Likewise, we assume without deciding that a defendant’s
genuine, but incorrect, belief that he or she would be immediately deported upon
conviction prior to serving an imposed prison term can make a plea infirm. See
generally Padilla v. Kentucky, 559 U.S. 356, 366-74 (2010).

¶27 Even with these assumptions in mind, we must affirm the circuit
court’s order denying Estrada-Rosales’s plea withdrawal motion. The State aptly
postulates that Estrada-Rosales’s “argument rests on the acceptance of his
assertions about what he understood and what he believed when he entered his
plea.” These issues pose questions of fact, and we are bound by the circuit court’s
factual findings unless we deem them clearly erroneous.

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No. 2023AP144-CR

¶28 The circuit court held an evidentiary hearing, after which it rejected
Estrada-Rosales’s claims about what he in fact understood and believed at the time
he entered the plea. Estrada-Rosales testified that the only basis for his
misunderstanding of the deportation consequences of his plea was his trial
counsel’s alleged misinformation. He stated trial counsel told him that if he
entered the plea, he would “be able to go to” his “country to see” his family, but if
he did not sign, he could “forget about” his family and would “never see them
again.” However, the court found that trial counsel did not misinform
Estrada-Rosales of the deportation consequences of his plea, and Estrada-Rosales
does not attempt to argue that that finding is clearly erroneous. The court’s
finding in that regard precludes Estrada-Rosales from claiming on appeal that he
was promised and believed that he would be deported prior to serving his prison
sentence if he took the plea.

¶29 The circuit court’s other findings also support the determination that
Estrada-Rosales knew he would not be immediately deported until after he served
any imposed prison sentence. For example, the court found, consistent with the
testimony of Estrada-Rosales’s ex-girlfriend, that Estrada-Rosales
“obvious[ly] … had a better understanding of the English language than it
appeared at the time of the plea hearing.” Estrada-Rosales’s English-speaking
capabilities, coupled with the steps his trial counsel took to discuss the plea
agreement with him, led the court to find that Estrada-Rosales knew that he could
receive and serve a substantial period of initial incarceration upon conviction.

¶30 None of the plea documents suggested that Estrada-Rosales would
be deported immediately upon conviction. To the contrary, the plea forms
provided, in both English and Spanish, that Estrada-Rosales could face a
maximum bifurcated sentence of forty years’ initial confinement followed by

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No. 2023AP144-CR

twenty years’ extended supervision. Estrada-Rosales’s trial counsel testified that
she explained these legal terms to Estrada-Rosales with the interpreter.
Estrada-Rosales does not explain how he could have knowledge of the potential
imprisonment time if convicted while also maintaining the belief that he would
immediately return to Nicaragua regardless of whether he received a prison
sentence.

¶31 Moreover, the circuit court found that Estrada-Rosales’s statements
at the plea hearing regarding deportation were made in an effort to control the
sentencing—i.e., to influence the court’s decision by expressing his desire to avoid
a trial, obtain a time-served sentence, and return to Nicaragua—and were not
statements of genuine confusion. This finding is supported by, among other
evidence, the testimony of Estrada-Rosales’s trial counsel in which she stated that
she did not believe Estrada-Rosales had a misunderstanding about the plea or its
consequences. The finding is further supported by Estrada-Rosales’s own
statement at sentencing during his allocution, in which he asked the court to “give
[him] a chance to go back to [his] family.” The court found that Estrada-Rosales
was claiming, after sentencing, to have misunderstood the consequences of his
plea because he was unhappy with the sentence he actually received, which
prevented him from immediately leaving the United States.

¶32 Estrada-Rosales argues that the circuit court’s finding in this respect
was inconsistent with its finding that he understood that the court was the sole
determiner of his sentence. We disagree. Estrada-Rosales’s knowledge that the
court was not bound by the parties’ sentence recommendations in no way
undermines the court’s finding that Estrada-Rosales, nevertheless, was making
statements to the court in order to influence it to order a time-served sentence.

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No. 2023AP144-CR

¶33 The circuit court found that Estrada-Rosales could not have believed
that he would be immediately deported upon sentencing. Although the court, or
one of the parties, could have clarified Estrada-Rosales’s statements about
deportation at the plea hearing, the court found that he nevertheless understood the
plea forms and knew that he could be imprisoned for up to sixty years. His trial
counsel did not inform him otherwise, and the court found that he was feigning
any misunderstanding about his plea. Estrada-Rosales has failed to explain how
any of the court’s findings of fact are clearly erroneous.

II. Ineffective assistance of counsel

¶34 Estrada-Rosales next claims that his plea was not knowingly,
intelligently, or voluntarily entered because his trial counsel was ineffective when
she failed to correct his misunderstanding of the deportation consequences of his
plea. According to Estrada-Rosales, his trial counsel should have interjected at the
plea hearing following his statements about deportation to clarify that “she did not
promise him deportation, no one could promise deportation, and if he was entering
the plea based on this erroneous belief, he needed to reconsider.”

¶35 Ineffective assistance of counsel is another type of manifest injustice
that can warrant plea withdrawal. State v. Shata, 2015 WI 74, ¶29, 364 Wis. 2d
63, 868 N.W.2d 93. To succeed on a claim of ineffective assistance of counsel, a
defendant must prove both that his or her trial counsel’s performance was deficient
and that counsel’s deficiency prejudiced the defense. Id., ¶33. To establish
prejudice in the plea withdrawal context, a defendant must demonstrate that but
for trial counsel’s errors, he or she would not have entered a plea and would have
insisted on going to trial. State v. Burton, 2013 WI 61, ¶50, 349 Wis. 2d 1, 832
N.W.2d 611. “A claim of ineffective assistance of counsel is a mixed question of

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No. 2023AP144-CR

fact and law.” Shata, 364 Wis. 2d 63, ¶31 (citation omitted). We will uphold a
circuit court’s findings of fact unless they are clearly erroneous, but we
independently determine whether counsel’s assistance was ineffective. Id.

¶36 A defendant’s trial counsel has a “duty to give correct advice”
regarding deportation consequences of a plea if those consequences are “truly
clear.” Padilla, 559 U.S. at 369. Similar to our earlier assumption, see supra ¶26,
we assume without deciding that it was “truly clear” at the time of
Estrada-Rosales’s plea hearing that immigration officials are precluded from
removing from the United States an “alien” who is sentenced to prison until after
that individual is released from incarceration.

¶37 We reject Estrada-Rosales assertion that his trial counsel was
ineffective. As an initial matter, we again note that the circuit court found that
Estrada-Rosales’s trial counsel did not misinform him of the deportation
consequences of his plea. As explained earlier, this finding is not clearly
erroneous. Thus, trial counsel did not perform deficiently in this respect.

¶38 Relatedly, we have already concluded that the record supports the
circuit court’s findings regarding Estrada-Rosales’s knowledge of the
consequences of his plea, including that he would not be immediately deported if
he received a prison sentence. Trial counsel testified that she did not believe that
Estrada-Rosales actually misunderstood the consequences of his plea agreement.
Accordingly, trial counsel was not deficient by failing to interject at the plea
hearing because there was no misunderstanding regarding deportation
consequences. Further, because the court found that Estrada-Rosales had actual
knowledge of the deportation consequences of his plea, he cannot show that he
was prejudiced by any alleged deficient performance. That is, Estrada-Rosales

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No. 2023AP144-CR

cannot demonstrate that had his trial counsel interjected at the plea hearing, he
would not have entered into an Alford plea.

III. Sufficient factual basis for the plea

¶39 Lastly, Estrada-Rosales claims that he is entitled to withdraw his
plea because the circuit court failed to establish a sufficient factual basis to support
his Alford plea. A circuit court’s failure “to establish a sufficient factual basis that
the defendant committed the offense to which he or she pleads” can constitute a
manifest injustice warranting plea withdrawal. Nash, 394 Wis. 2d 238, ¶32.

¶40 “An Alford plea is a conditional guilty plea, which allows [a]
defendant to maintain his or her innocence outright, but nonetheless accept a
conviction and sentence for the crime.” Nash, 394 Wis. 2d 238, ¶33. Our state
supreme court has held that “the circuit courts of Wisconsin may, in their
discretion, accept Alford pleas.” State v. Garcia, 192 Wis. 2d 845, 856, 532
N.W.2d 111 (1995).

¶41 To accept an Alford plea, a circuit court must, among other duties,
“determine that the summary of the evidence the [S]tate would offer at trial
constitutes ‘strong proof of guilt’” as to each element of the alleged crime. Nash,
394 Wis. 2d 238, ¶¶35-36 (alteration in original; citation omitted). “‘Strong proof
of guilt’ is not the equivalent of proof beyond a reasonable doubt, but it is ‘clearly
greater than what is needed to meet the factual basis requirement under a guilty
plea.’” Id. (citation omitted). A circuit court must “be satisfied that the facts in
the record, as a whole, are sufficient to provide strong proof of guilt and overcome
a defendant’s protestations of innocence.” Id., ¶36.

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No. 2023AP144-CR

¶42 “[W]hat constitutes an adequate record in a particular case is specific
to the facts and circumstances of that case, and such determinations are left to the
discretion of the circuit court.” Id., ¶38. A circuit court erroneously exercises its
discretion if it applies the wrong legal standard or if the facts of record fail to
support the court’s decision. State v. Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351,
785 N.W.2d 448.

¶43 Estrada-Rosales does not contend that the complaint failed to allege
facts sufficient to prove each element of Count 2. Instead, he argues that
“[r]eviewing courts have approved several means of establishing a factual basis
for an Alford plea, but have not held that the probable cause portion of [a] criminal
complaint [is] sufficient alone to establish strong proof of guilt.” See, e.g., State v.
Spears, 147 Wis. 2d 429, 438-40, 433 N.W.2d 595 (Ct. App. 1988) (concluding
that witness testimony at a plea hearing offered a sufficient factual basis for an
Alford plea); State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 646, 579 N.W.2d
698 (1998) (stating that preliminary hearing testimony from a victim and an
officer constituted a sufficient factual basis for an Alford plea). Estrada-Rosales
contends that allegations within a criminal complaint do not constitute “evidence”
the State could offer at “trial,” see Nash, 394 Wis. 2d 238, ¶35 (citation omitted),
and, therefore, he suggests that a circuit court can never rely solely on a criminal
complaint in ascertaining the factual basis for an Alford plea. Additionally,
Estrada-Rosales argues that a criminal complaint cannot be used to form the basis
for an Alford plea because such a plea entails a more stringent factual basis

18
No. 2023AP144-CR

requirement, and “post-charging discovery and pretrial rulings may completely
change the evidentiary picture.”5

¶44 We reject Estrada-Rosales’s arguments. There is no authority for the
proposition that a circuit court can never rely on the probable cause portion of a
criminal complaint to determine the factual basis for an Alford plea, regardless of
the particular circumstances of a given case. Courts routinely rely on criminal
complaints to establish the factual basis for pleas, particularly when defense
counsel stipulates, on the record, that in accepting a plea the court may rely upon
the facts alleged in the complaint as evidence of the defendant’s guilt. See, e.g.,
State v. Black, 2001 WI 31, ¶¶12-13, 242 Wis. 2d 126, 624 N.W.2d 363; State v.
Sutton, 2006 WI App 118, ¶17, 294 Wis. 2d 330, 718 N.W.2d 146 (“Generally,
the factual basis for a guilty plea may be established by reference to the allegations
set forth in the criminal complaint.”). Indeed, Estrada-Rosales concedes that this
court and our state supreme court have upheld circuit court factual basis
determinations for Alford pleas that relied, in part, on the probable cause sections
of criminal complaints. See Nash, 394 Wis. 2d 238, ¶¶3, 42; State v. Annina,
2006 WI App 202, ¶¶7, 16-17, 296 Wis. 2d 599, 723 N.W.2d 708.

¶45 In addition, Estrada-Rosales entered into a negotiated plea
agreement. “Because an Alford plea often results from agreed-upon plea

5
In his reply brief, Estrada-Rosales also argues that the circuit court erroneously
exercised its discretion by “never stat[ing] that it was finding strong proof of guilt.” However, a
court need not use “magic words” when accepting an Alford plea—instead, all that is required is
that a court “be satisfied that the facts in the record, as a whole, are sufficient to provide strong
proof of guilt and overcome a defendant’s protestations of innocence.” State v. Nash, 2020 WI
85, ¶36, 394 Wis. 2d 238, 951 N.W.2d 404. Here, the court clearly addressed the issue of
whether there was a factual basis to accept the Alford plea, and we reject Estrada-Rosales’s
argument to the contrary.

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No. 2023AP144-CR

negotiations between a defendant and the State, a court ‘need not go to the same
length to determine whether the facts would sustain the charge as it would [where]
there is no negotiated plea.’” Nash, 394 Wis. 2d 238, ¶36 (alteration in original;
citation omitted).

¶46 Under the facts of this case, the circuit court did not erroneously
exercise its discretion by relying on the criminal complaint in ascertaining whether
there was a sufficient factual basis to support Estrada-Rosales’s Alford plea that
was entered as part of a negotiated plea agreement. Estrada-Rosales, “having had
the benefit of reviewing discovery materials and charging documents with
counsel, accepted the plea offer of the State.” See Nash, 394 Wis. 2d 238, ¶3.
“He acknowledged that he understood the elements of the offense and agreed that
the State’s evidence was sufficient to prove him guilty.”6 See id. His trial counsel
stipulated on the record that the probable cause section of the criminal complaint
provided an adequate factual basis to support his Alford plea, and Estrada-Rosales
does not argue that his trial counsel was ineffective by doing so.

¶47 We determine that the circuit court did not erroneously exercise its
discretion by concluding that the probable cause section of the criminal
complaint—which was particularly detailed and was based on the review of police

6
Estrada-Rosales contends that he did not admit that the State’s evidence was sufficient
to convict him. In support of this stance, he cites his statements during the plea hearing in which
he said that “[t]here is no evidence that I committed any crime” and “[i]f they don’t have
evidence that I even touched her that’s what I don’t like, that they’re saying they have evidence.”
But when questioned by the circuit court following these statements, Estrada-Rosales agreed that
“if we had a trial it is most likely that a jury would return with a guilty verdict.” This language
was also on a page of the plea forms, translated into Spanish, which Estrada-Rosales initialed.
The court reasonably relied on Estrada-Rosales’s belief that he would be found guilty at trial.
Although the court initially expressed concern that Estrada-Rosales did not understand the basis
of an Alford plea, the court provided time for Estrada-Rosales and his trial counsel to meet and
discuss the topic further before proceeding.

20
No. 2023AP144-CR

reports from two officers and a detective with the Green Bay Police Department—
constitutes strong proof of guilt as to each element of the alleged crime.
According to the complaint, Sara informed her parents that Estrada-Rosales had
“touch[ed] her body parts.” Sara demonstrated where Estrada-Rosales had
touched her using a doll, and she made a “tickling type motion” below the doll’s
“beltline.”

¶48 Upon learning of Sara’s allegations, Molly’s mother—the sister of
Sara’s mother—then asked Molly whether Estrada-Rosales “had ever touched
her.”7 Molly “busted out crying when [she] was asked this question,” and she
stated, “Yes, he has touched me a lot of times.” Molly further explained that the
touching occurred “between the legs” and that Estrada-Rosales had “put a finger
inside a hole down there and put it in and out.” Molly alleged that
Estrada-Rosales had assaulted her approximately twenty times beginning when the
family had returned from a vacation in August 2017. In addition, Molly provided
locations of where the assaults would typically occur, which, according to her
mother, matched instances when Estrada-Rosales was with Molly. Law
enforcement also learned from a family member of the victims that

7
Although there was never a pretrial ruling on the admissibility of evidence related to
Count 1 because both counts were charged in the same case, see Nash, 394 Wis. 2d 238, ¶42,
evidence need not be ruled admissible at a trial to form the factual basis for a plea, see Edwards
v. State, 51 Wis. 2d 231, 236, 186 N.W.2d 193 (1971); WIS JI—CRIMINAL SM-32 (2021). Even
if evidence must be admissible to support a factual basis for an Alford plea, Estrada-Rosales cites
no authority for the proposition that a circuit court must rule on the admissibility of all evidence
before using it to ascertain whether a factual basis exists to support a plea. We believe it is
sufficient to conclude that the court would have reasonably exercised its discretion by permitting
the State to present evidence of Molly’s allegations at a trial on Count 2. See State v. Marinez,
2011 WI 12, ¶20, 331 Wis. 2d 568, 797 N.W.2d 399 (“Because this is a child sexual assault case
with a young victim, the greater latitude rule ‘permit[s] a more liberal admission of other crimes
evidence.’” (alteration in original; citation omitted)). Estrada-Rosales does not explain why the
evidence underlying Count 1 would not have been admissible at trial even if he had proceeded to
trial only on Count 2.

21
No. 2023AP144-CR

Estrada-Rosales had watched Molly and Sara “every day when he [was] not
working.”

¶49 Furthermore, Sara and Molly were forensically interviewed. The
criminal complaint outlined those interviews in detail, and the statements provided
during the interviews matched what the victims initially alleged to their parents.
Molly further alleged during her forensic interview that Estrada-Rosales would
touch his “private part” to her private part when he was assaulting her. Molly
added that “slime” would come from Estrada-Rosales’s private part.

¶50 On this record, Estrada-Rosales has failed to show that the circuit
court did not establish a sufficient factual basis to support his Alford plea. In all,
Estrada-Rosales has not met his burden to prove, by clear and convincing
evidence, that a manifest injustice would result if he were not permitted to
withdraw his plea.

By the Court.—Judgment and order affirmed.

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

22