Opinion
No. 2006AP001645.
August 14, 2007.
APPEAL from an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶ 1 Alil Azizi appeals from an order denying his motion for plea withdrawal predicated on State v. Douangmala , 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. The issue is whether failure to apply Douangmala to Azizi's 2006 plea withdrawal motion deprives him of due process and equal protection of the law. We conclude that it does not, and that this appeal is controlled by State v. Lagundoye , 2004 WI 4, ¶ 44, 268 Wis. 2d 77, 674 N.W.2d 526. Therefore, we affirm.
¶ 2 In 1993, Azizi entered Alford pleas to three counts of sexual assault of a child. The trial court imposed an aggregate thirty-year sentence, comprised of three consecutive ten-year sentences. Azizi, a Yugoslavian citizen, moved to withdraw his pleas because he claimed to have been unaware that, as a consequence of his Alford pleas, he could be deported. The trial court denied the motion. On appeal, we concluded that the trial court failed to advise Azizi of the potential risk of deportation as a result of his Alford pleas; we then remanded this matter for an evidentiary hearing to determine whether Azizi did in fact know that his Alford pleas subjected him to the risk of deportation. See State v. Azizi , No. 94-1636-CR, unpublished slip op. (Wis.Ct.App. Dec. 23, 1994). Following the evidentiary hearing, the trial court found that Azizi was aware that his Alford pleas subjected him to that risk. On appeal we affirmed, concluding that "[t]here [wa]s ample evidence in the record to support the trial court's finding that Azizi was aware of the potential for deportation as a result of his Alford pleas." State v. Azizi , No. 95-1191-CR, unpublished slip op. at 2 (Wis.Ct.App. Feb. 13, 1996).
An Alford plea waives a trial and constitutes consent to the imposition of sentence, despite the defendant's claim of innocence. See North Carolina v. Alford , 400 U.S. 25, 37-38 (1970); accord State v. Garcia , 192 Wis. 2d 845, 856, 532 N.W.2d 111 (1995) (acceptance of an Alford plea is discretionary in Wisconsin).
¶ 3 In 2002, the Wisconsin Supreme Court held that a defendant is entitled to plea withdrawal if the trial court fails to advise the defendant, prior to entering his or her plea, that a guilty or no-contest plea could subject that defendant to deportation (and the defendant can show that his or her plea is likely to result in deportation), regardless of whether that defendant was actually aware of those consequences. See Douangmala , 253 Wis. 2d 173, ¶¶ 3-4. In 2003, this court held that Douangmala did not apply retroactively. See State v. Lagundoye , 2003 WI App 63, ¶ 10, 260 Wis. 2d 805, 659 N.W.2d 501, aff'd, 268 Wis. 2d 77, ¶ 44. The following year, the Wisconsin Supreme Court affirmed. See id. , 268 Wis. 2d 77, ¶ 44.
¶ 4 In 2006, Azizi filed a postconviction motion, claiming that he was entitled to plea withdrawal pursuant to Douangmala. The trial court disagreed, ruling that Lagundoye controlled and that Douangmala did not apply retroactively. See Lagundoye , 260 Wis. 2d 805, ¶ 10, aff'd, 268 Wis. 2d 77, ¶ 44. Azizi appeals.
¶ 5 On appeal, Azizi contends that the trial court's ruling deprives him of due process and equal protection. Lagundoye controls Azizi's case. See id. , 268 Wis. 2d 77, ¶ 44. Azizi also urges us to apply Douangmala , and to overrule Lagundoye. "We are bound by decisions of the supreme court." Ottinger v. Pinel , 215 Wis. 2d 266, 278, 572 N.W.2d 519 (Ct.App. 1997), abrogated on other grounds by Bicknese v. Sutula , 2003 WI 31, 260 Wis. 2d 713, 660 N.W.2d 289. Consequently, any challenge Azizi has to Lagundoye must be pursued in and presented to the Wisconsin Supreme Court.
By the Court. — Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5. (2005-06).