May 26, 2016 – Criminal defense lawyers representing defendants accused of sexually violent crimes are not required to inform their clients that pleading guilty could result in the possibility of civil commitment, the Wisconsin Supreme Court has ruled (4-2).
Defense lawyers are required to inform clients of the immigration consequences of pleading guilty, under the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky. And other cases have addressed Padilla’s mandate (see “related articles” below).
But in State v. LeMere, 2016 WI 41 (May 20, 2016), the Wisconsin Supreme Court declined to impose a similar requirement for persons who face possible civil commitment after serving sentences for sexually violent crimes. Thus, the court concluded that defendant Stephen LeMere could not withdraw his plea.
“LeMere’s assertion that his counsel never informed him about the possibility of civil commitment under Chapter 980 does not form the basis for a claim of ineffective assistance of counsel,” wrote Justice David Prosser for the four-justice majority, which affirmed lower court rulings. “Consequently, LeMere cannot withdraw his guilty plea.”
Charges and Plea
LeMere, age 24, was convicted for holding a 12-year-old girl at knife point while he sexually assaulted her. The girl was the sister of LeMere’s acquaintance, who held a party at his house in May 2011. LeMere assaulted the girl in the early morning hours.
The state charged LeMere with first-degree sexual assault of a child under age 13, second-degree reckless endangerment, and strangulation and suffocation.
At his plea hearing, the court conducted the plea colloquy. The judge in Eau Claire County informed LeMere that the state could petition to require further incarceration “on a civil basis” beyond criminal, and LeMere indicated that he understood.
The court accepted the guilty plea and he was later sentenced to 30 years in prison, followed by 15 years of extended supervision.
A year later, LeMere filed a motion to withdraw the plea and vacate the conviction. He argued that his plea was not knowing, intelligent, and voluntary because his defense counsel never told him the state could petition for civil commitment, and possibly keep him there for life under Wis. Stat. ch. 980, if convicted for a sexually violent crime.
The circuit court concluded that a failure to inform LeMere about potential civil commitment under Chapter 980 did not constitute deficient performance.
The appeals court affirmed, concluding that “no manifest injustice occurs when a defendant is not apprised of consequences that are collateral to the plea.”
Majority: Collateral versus Direct Consequence
At the supreme court, LeMere continued to argue for an extension of the U.S. Supreme Court’s decision in Padilla, which held that criminal defense lawyers must tell clients about the potential immigration consequences of pleading guilty to a crime and failing to do so could violate the defendant’s right to receive effective assistance of counsel.
“Whether Padilla’s reasoning extends to collateral consequences beyond deportation is a matter of first impression in Wisconsin,” Justice Prosser wrote for the four-justice majority, which included Chief Justice Patience Roggensack and Justices Michael Gableman and Annette Ziegler. Justice Rebecca Bradley did not participate.
Before Padilla, Justice Prosser noted, state and federal courts did not require defense lawyers to inform clients about “collateral consequences” of guilty pleas, including deportation. Collateral consequences “are indirect and do not flow from the conviction” and “may be contingent on a future proceeding,” wrote Prosser, citing prior cases.
Defense lawyers only needed to explain “direct” consequences, those with a “definite, immediate, and largely automatic effect on the range of a defendant’s punishment.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The Padilla court noted that deportation is closely connected to the criminal process and is “uniquely difficult to classify as either a direct or a collateral consequence.” Prosser said Padilla breached the wall between direct and collateral consequences.
But the Wisconsin Supreme Court declined to extend the Padilla reasoning to potential civil commitments. Justice Prosser noted the “unique confluence of factors,” including the severity of deportation, that led the Padilla court to treat deportation differently.
But those unique factors aren’t present for civil commitments, Prosser noted, and extending Padilla to civil commitments would initiate a “far-reaching” new rule.
“Chapter 980 commitment cannot be described as anything other than a classic collateral consequence,” Justice Prosser wrote.
“Thus, without a directive and clear guidance from the [U.S.] Supreme Court, this court would be discarding any logical stopping point by establishing a new obligation under the Sixth Amendment to advise a defendant about collateral consequences.”
Prosser said LeMere overstated the severity of civil commitments compared to deportation, which involved a permanent exile from this country.
Even though a civil commitment could last a lifetime, Justice Prosser explained that commitments can end when a person is no longer a sexually violent person, those committed are reevaluated over time, and commitment is intended to be rehabilitative.
“[W]e acknowledge that civil commitment under Chapter 980 is a severe consequence,” Justice Prosser wrote. “[H]owever, it is not designed or intended to be permanent.”
He said the severity of Chapter 980 civil commitments are moderated by their rehabilitative function, which is care and treatment for those with mental disorders.
“The rehabilitative objective at the core of commitment ensures that commitment is not necessarily as permanent a consequence as deportation’s banishment would be,” wrote Justice Prosser, who is retiring at the end of July.
He also noted that the persons whose interests the court considered in Padilla shared a common attribute preceding conviction: deportability based on immigration status.
But not all persons convicted of violent sexual crimes are deemed to be sexually violent for civil commitment proposes. Prosser noted that fewer than 5 percent of people convicted of sexually violent crimes are recommended for civil commitment.
“The absence of a common precondition for eligibility for Chapter 980 commitment reinforces the conclusion that an exception would be inappropriate,” Prosser wrote.
Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding that a Chapter 980 commitment “is a particularly severe and automatic penalty of a guilty plea that is closely connected to the criminal process.”
“The majority errs in its attempt to minimize the severity of a Chapter 980 commitment,” A.W. Bradley wrote. “Not only does it run afoul of common sense, it turns a blind eye to the parallel punitive trajectories of deportation and Chapter 980 commitment.”
A.W. Bradley said the legislature, in the years since Chapter 980 was enacted, has made it easier to be committed and harder to get out.
She also noted that attorneys, under Padilla and other cases, must advise clients of the “risk of deportation,” not that deportation is certain to result. “Consequently, the correct focus for our analysis here is the risk of automatic eligibility for Chapter 980 commitment rather than whether commitment itself is automatic,” Justice A.W. Bradley wrote.
The dissenters would have followed the lead of the Illinois Supreme Court, which ruled in 2012 that defense attorneys have a minimal duty to advise sexually violent crime defendants that they could be involuntarily committed after completing a sentence.
Supreme Court Okays Plea Withdrawal, No Notice on Immigration Consequences – WisBar News (Jan. 28, 2016).
Plea Bargaining for Noncitizens Clients: What Defense Attorneys Should Know – InsideTrack (Oct. 21, 2015).
Counsel Not Required to Tell Client that Deportation was Certain if Convicted – WisBar News (July 9, 2015).
Defendant Facing Deportation Can’t Withdraw Guilty Plea, Supreme Court Says – WisBar News (Aug. 13, 2012).