2016 WI 41
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2433-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Stephen LeMere,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No cite)
OPINION FILED: May 20, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 17, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Kristina M. Bourget
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. dissents, joined by
ABRAHAMSON, J.
NOT PARTICIPATING: BRADLEY, R. G., J. did not participate
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Edward J. Hunt and Hunt Law Group, S.C., Milwaukee, and oral
argument by Edward J. Hunt.
For the plaintiff-respondent, the cause was argued by Sarah
L. Burgundy, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
2016 WI 41
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2433-CR
(L.C. No. 2011CF333)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
MAY 20, 2016
Stephen LeMere,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals affirming the
circuit court's judgment convicting Stephen LeMere (LeMere) of
first-degree sexual assault of a child under the age of 13 and
affirming its order denying his postconviction motion to
withdraw his plea.1
1
State v. LeMere, No. 2013AP2433-CR, unpublished order
(Wis. Ct. App. Oct. 16, 2014).
No. 2013AP2433-CR
¶2 In Padilla v. Kentucky, 559 U.S. 356 (2010), the
Supreme Court of the United States held that the Sixth Amendment
requires defense counsel to inform a client whether his plea to
a criminal charge carries a risk of deportation. Here, we
assess Padilla in a different context: Does the Sixth Amendment
require defense counsel to inform a client about the possibility
of civil commitment, under Wis. Stat. ch. 980,2 when the client
enters a plea to a sexually violent offense? We conclude that
it does not and thus affirm the decision of the court of
appeals.
I. Factual and Procedural Background
¶3 The charges against LeMere arose out of events that
occurred after a gathering in the City of Eau Claire on Friday
evening, May 13, 2011, at the home of J.C. and his wife, A.C.
LeMere was then 24. During the gathering, LeMere and another
visitor drank the majority of two 30 packs of beer, in addition
to other alcohol in the house. LeMere also took a narcotic pain
killer. Although his memory of the evening became "fuzzy,"
LeMere recalled playing drinking games throughout the night.
¶4 Also present that evening was C.R.C., J.C.'s 12-year-
old sister. As Friday night wore on, C.R.C. fell asleep on the
couch in the living room. Around 5:30 on Saturday morning,
C.R.C. awoke to the sound of LeMere opening his cell phone.
2
All references to the Wisconsin Statutes are to the 2011-
12 version unless otherwise indicated.
2
No. 2013AP2433-CR
LeMere began sending text messages to A.C.'s phone, which C.R.C.
had borrowed from her sister-in-law.
¶5 LeMere's first message to C.R.C. said something
similar to "will you have sex with me?" C.R.C. responded with a
message saying, "No, I'm 12 years old, what are you doing,
creeped out." LeMere sent two more messages. Although LeMere
eventually took A.C.'s phone away from C.R.C. and deleted the
messages, C.R.C. later recalled that one message said something
to the effect of "I know you're young but you're cute for a
young girl," while the other said something along the lines of
"I want to have sex with you." C.R.C. sent messages back saying
"No."3
¶6 Feeling uncomfortable, C.R.C. left the living room and
went into the kitchen. While sitting on a chair, she heard the
floor creaking outside the kitchen door. She stood up and
walked over to investigate, whereupon LeMere suddenly popped out
and grabbed her by the throat, placing her in a choke hold in
the hallway. He placed the sharp edge of a knife against her
3
The next morning, J.C., who had been asleep with AC in
another room, discovered three messages from C.R.C. on his
phone. One message, received at 5:31 a.m., said, "Can one of
you guys come out here, I'm scared." Another, received at 5:57
a.m., said, "Can you let me in the room." Suspicious, J.C.
asked to see LeMere's phone. He found no messages in LeMere's
sent messages folder but reviewed four messages in the inbox.
One message from A.C.'s phone read, "I'm 12 years old, what are
you doing, I'm 12 years old, I'm going to tell [J.C.] and
[A.C.]"
3
No. 2013AP2433-CR
throat. C.R.C., struggling to breathe, asked him, "[P]lease
don't."
¶7 Telling her to shut up and not say anything, LeMere
grabbed her arm and brought her into the kitchen, where he
pushed her against the refrigerator. Holding the knife to her
neck with one hand, he used his other hand to fondle her vaginal
area and insert his finger into her vagina. At some point,
LeMere told C.R.C. that he would find her and kill her if she
told anyone about what had happened. Gathering her strength,
C.R.C. pushed LeMere away, grabbed A.C.'s cell phone from the
kitchen table, and ran outside. There, she used A.C.'s phone to
call her mother and asked to be picked up from the house.
¶8 In a criminal complaint filed May 18, 2011, the State
charged LeMere with one count of first-degree sexual assault of
a child under the age of 13, contrary to Wis. Stat.
§§ 948.02(1)(e) and 939.50(3)(b); one count of second-degree
reckless endangerment, contrary to
Wis. Stat. §§ 941.30(2) and
939.50(3)(g); and one count of strangulation and suffocation,
contrary to
Wis. Stat. §§ 940.235(1) and 939.50(3)(h). After
LeMere's initial appearance and a subsequent preliminary
hearing, the State filed an information, charging LeMere with
the same three counts.
¶9 At an arraignment in early June 2011, LeMere pleaded
not guilty. His counsel asked the court to reduce the $20,000
cash bond set at LeMere's initial appearance, but the court
denied the request.
4
No. 2013AP2433-CR
¶10 Although the court set an August 2011 trial date, that
date changed multiple times after a series of continuances.
LeMere's counsel sought the first continuance in early August
2011 after receiving medical records and a DNA report from the
State indicating the presence of LeMere's semen in C.R.C.'s
underwear and on a vaginal swab. The court granted the request
and adjourned the trial to give LeMere an opportunity to conduct
an independent review of the medical and DNA evidence. During
the status conference on the motion for continuance, the court——
at the request of LeMere's counsel——confirmed on the record that
LeMere did not feel that the adjournment would abridge his right
to a speedy trial.
¶11 In mid-September, LeMere requested that the court
appoint new counsel. At a status conference originally
scheduled for the purpose of setting a new trial date, the court
approved the request. A few days later, the State Public
Defender appointed George Miller as LeMere's new counsel.
Attorney Miller first appeared on LeMere's behalf in early
October 2011, at which time the court set a new trial date for
the first week of February 2012.
¶12 Before the February trial could go forward, Attorney
Miller filed a motion on LeMere's behalf requesting a competency
evaluation and a second adjournment of the trial. In an
attached affidavit, Attorney Miller explained that LeMere had
made a suicide attempt and had subsequently received treatment
in a hospital's behavioral health unit. Based on the suicide
attempt and statements that LeMere made to Attorney Miller and
5
No. 2013AP2433-CR
to guards at the Eau Claire County Jail, Attorney Miller
concluded that LeMere was not competent to stand trial. The
court approved the request and adjourned the trial for a second
time. However, by the middle of February 2012, LeMere's
competency no longer remained in doubt, so the court set an
April 2012 trial date.
¶13 A status conference scheduled for the middle of March
2012 became a plea hearing when counsel for the parties informed
the court4 that they had negotiated a plea agreement. Under the
agreement, LeMere agreed to plead guilty to first-degree sexual
assault of a child under the age of 13, contrary to Wis. Stat.
§§ 948.02(1)(e) and 939.50(3)(b). The State agreed to ask the
court to dismiss and read in not only the other two charges in
the information——for second-degree reckless endangerment and for
strangulation and suffocation——but also all charges against
LeMere in a separate case arising out of an incident that
occurred during LeMere's incarceration.5 Furthermore, while the
agreement allowed each party to argue for whatever sentence it
deemed appropriate, the State agreed to request an initial
confinement period no greater than 30 years, rather than the 40-
year maximum available to the court.
4
Lisa K. Stark, Judge.
5
The other case involved battery charges brought against
LeMere after he used a broom head to strike and seriously injure
a fellow inmate in the county jail.
6
No. 2013AP2433-CR
¶14 After Attorney Miller provided the court with LeMere's
plea questionnaire and waiver of rights form at the plea
hearing, the court engaged in a plea colloquy. The court
addressed potential consequences of LeMere's plea, including
possible immigration repercussions, loss of his right to vote,
prohibition of firearm possession, sex-offender registration
requirements, and other limits that would affect him as a sex
offender.
¶15 As part of its discussion about the consequences of
the plea, the court engaged in the following exchange with
LeMere:
[THE COURT:] In addition, although not
necessarily likely, I do have to tell you that if you
are incarcerated and the State thought it appropriate,
they could petition for what's called a Chapter 980,
or habitual——or that's not what it's called. It's a——
I'm sorry. I'm blanking on the name of the statute.
As a sexually violent person, which could require
further incarceration on a civil basis past criminal.
I don't know that will happen. I don't think that it
likely will, but I don't know that. I just want to be
sure you understand that that's a potential.
Now, did you understand what I just said to you
about probation, election, firearms, limitations on
your ability to work, sex offender registry, and the
sexually violent offender issue?
THE DEFENDANT: Yes, ma'am.
THE COURT: Has anything I've talked about changed
your mind about what you want to do here?
THE DEFENDANT: No, ma'am.
THE COURT: Do you have any questions for me?
THE DEFENDANT: No, ma'am.
7
No. 2013AP2433-CR
THE COURT: Anything you don't understand about
what we've talked about here?
THE DEFENDANT: No, ma'am.
¶16 Earlier in the hearing, the court confirmed that
LeMere harbored no concerns about his own ability to understand
the proceedings. Attorney Miller similarly affirmed for the
court that he believed that LeMere could comprehend the exchange
with the court. The court added its own observation regarding
LeMere's demeanor and capabilities:
I would note that Mr. [LeMere] is sitting at counsel
table. He doesn't appear unduly anxious. He seems
very solemn. He from his——at least observing his
facial demeanor, he appears that he understands the
seriousness of this matter. He's answering my
questions appropriately, and I do find that he
understands what he's doing, and he's capable of
proceeding here today.
¶17 Based on LeMere's responses throughout the plea
colloquy, the court accepted his guilty plea for first-degree
sexual assault of a person under the age of 13. Consistent with
the plea agreement, the court dismissed and read in the other
charges. At a subsequent sentencing hearing, the court ordered
30 years of initial confinement followed by 15 years of extended
supervision. The court entered the judgment of conviction on
August 3, 2012.
¶18 One year later, LeMere filed a motion in the circuit
court6 seeking to withdraw his plea and vacate his conviction.7
6
Kristina M. Bourget, Judge.
7
LeMere's Wis. Stat. § 974.02 motion to withdraw his guilty
plea, filed August 22, 2013, was timely under Wis. Stat.
(continued)
8
No. 2013AP2433-CR
LeMere claimed that his guilty plea was neither informed nor
knowing. He argued that he did not receive effective assistance
of counsel because his attorney never informed him that, at the
end of the confinement portion of his sentence, he might be
subject to civil commitment under Chapter 980. In an
accompanying affidavit, LeMere set forth a detailed basis for
his withdrawal request:
Prior to the change of plea hearing, I met with George
Miller, the attorney appointed to represent me. We
discussed the case. However, Attorney Miller at no
time told me that a conviction for the crime of 1st
§ 809.30 despite the fact that he filed it more than a year
after his August 3, 2012 sentencing.
Just three days after sentencing, LeMere filed his Notice
of Intent to Seek Post-Judgment Relief, well within the 20-day
time limit for notice set forth in § 809.30(2)(b). But on
February 7, 2013, LeMere's postconviction attorney appointed by
the State Public Defender's office filed two motions: one motion
with the circuit court seeking permission to withdraw, pursuant
to Wis. Stat. § 809.30(4)(a), and one motion with the court of
appeals requesting an extension of time for LeMere to file a
postconviction motion or notice of appeal. The State Public
Defender agreed to appoint new counsel, who filed a notice of
appearance on March 21, 2013. The court of appeals granted the
extension, allowing LeMere's new counsel to file a notice of
appeal or a postconviction motion by April 29, 2013.
Over the succeeding months, LeMere's new counsel filed
three more motions for extension of time, each of which the
court of appeals granted. In response to the third request, the
court of appeals set an August 22, 2013 deadline for filing a
postconviction motion or notice of appeal. Thus, the extensions
kept LeMere's postconviction motion and subsequent appeal within
the Wis. Stat. § 809.30 timeline, meaning "the time for appeal
or postconviction remedy provided in s. 974.02" had not expired
such that LeMere would need to file his motion to withdraw his
guilty plea under
Wis. Stat. § 974.06.
9
No. 2013AP2433-CR
Degree Child Sexual Assault——Sexual Contact with
Person under Age of 13 could make me subject to
lifetime commitment as a sexually violent person under
Chapter 980. If I had been aware of the Chapter 980
consequence by counsel, I would not have entered a
plea of guilty on March 26, 2012. I would have
insisted on taking this case to trial. In the time
between my guilty plea and my sentencing hearing,
Attorney Miller never discussed with me that I could
be subject to lifetime commitment as a sexually
violent person under Chapter 980. If I had been made
aware of this consequence of my guilty plea in the
period between my plea of guilty and my sentencing
hearing, I would have insisted that Attorney Miller
file a motion to withdraw my guilty plea.
He also requested an evidentiary hearing pursuant to State v.
Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979).
¶19 The circuit court denied the motion for postconviction
relief on the grounds that the facts alleged in LeMere's
affidavit, "if true, [did] not constitute deficient performance
of counsel." In reaching that conclusion, the court read the
Padilla case as limited to deportation and inapplicable to the
possible consequence of civil commitment under Chapter 980.
LeMere filed his notice of appeal on October 23, 2013, appealing
from both the judgment of conviction entered in August 2012 and
the October 2013 order denying his motion for postconviction
relief.
¶20 The court of appeals summarily affirmed. State v.
LeMere, No. 2013AP2433-CR, unpublished order (Wis. Ct. App. Oct.
16, 2014). Relying on its decision in State v. Myers, 199
Wis. 2d 391,
544 N.W.2d 609 (Ct. App. 1996), that "a potential
Wis. Stat. ch. 980 commitment at some time in the future is
merely a 'collateral consequence' of a guilty plea," the court
10
No. 2013AP2433-CR
applied the rule that "no manifest injustice occurs when a
defendant is not apprised of consequences that are collateral to
the plea." LeMere, unpublished order at 2. As a result, the
court of appeals determined that LeMere was not denied the
effective assistance of counsel. Moreover, the court of appeals
concluded that it had no authority to overrule Myers by
extending Padilla beyond the deportation context to require
advice about Chapter 980 civil commitment. Id. at 3 (citing
Cook v. Cook,
208 Wis. 2d 166, 185-90,
560 N.W.2d 246 (1997)).
¶21 On November 17, 2014, LeMere filed a petition for
review, which we granted on March 16, 2015.
II. Standard of Review
¶22 Before sentencing, a circuit court should freely allow
a defendant to withdraw his plea for any fair and just reason,
unless the prosecution would be substantially prejudiced. State
v. Jenkins, 2007 WI 96, ¶2,
303 Wis. 2d 157,
736 N.W.2d 24;
State v. Bollig,
2000 WI 6, ¶28,
232 Wis. 2d 561,
605
N.W.2d 199. Where, as here, a defendant seeks plea withdrawal
after sentencing, the burden on the defendant is much higher:
"[A] defendant seeking to withdraw a guilty or no contest plea
after sentencing must prove manifest injustice by clear and
convincing evidence." State v. Negrete,
2012 WI 92, ¶29,
343
Wis. 2d 1,
819 N.W.2d 749.
¶23 "Ineffective assistance of counsel is one type of
manifest injustice." State v. Ortiz-Mondragon, 2015 WI 73, ¶28,
364 Wis. 2d 1,
866 N.W.2d 717. Claims for ineffective
assistance of counsel are mixed questions of fact and law, and
11
No. 2013AP2433-CR
we will uphold a circuit court's factual findings so long as
they are not clearly erroneous. State v. Shata, 2015 WI 74,
¶31,
364 Wis. 2d 63,
868 N.W.2d 93 (citing State v. Carter,
2010
WI 40, ¶19,
324 Wis. 2d 640,
782 N.W.2d 695). "Whether
counsel's performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law, which we
review de novo." State v. Thiel,
2003 WI 111, ¶21,
264
Wis. 2d 571,
665 N.W.2d 305.
III. Discussion
¶24 The Sixth Amendment to the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence." Article I, Section 7 of the Wisconsin Constitution
similarly prescribes that "[i]n all criminal prosecutions the
accused shall enjoy the right to be heard by himself and
counsel." As the Supreme Court explained in Strickland v.
Washington, 466 U.S. 668 (1984), "the right to counsel is the
right to the effective assistance of counsel." Strickland,
466
U.S. at 686 (quoting McMann v. Richardson,
397 U.S. 759, 771
n.14 (1970)). Criminal defendants have the right to effective
assistance of counsel not only at trial but also during the plea
bargaining process. Missouri v. Frye,
132 S. Ct. 1399, 1405-06
(2012) (citing Hill v. Lockhart,
474 U.S. 52, 57 (1985)).
¶25 To succeed on a claim that his counsel provided
ineffective assistance, a defendant must prove that (1) counsel
performed deficiently and (2) the defendant suffered prejudice
as a result of the deficient performance. Thiel, 264
12
No. 2013AP2433-CR
Wis. 2d 571, ¶18 (citing Strickland, 466 U.S. at 687).
Deficient performance occurred if "counsel's representation fell
below an objective standard of reasonableness." Strickland,
466
U.S. at 688.
¶26 "Judicial scrutiny of counsel's performance must be
highly deferential." Id. at 689. "Counsel need not be perfect,
indeed need not even very good, to be constitutionally
adequate." Thiel,
264 Wis. 2d 571, ¶19 (quoting State v.
Williquette,
180 Wis. 2d 589, 605,
510 N.W.2d 708 (Ct. App.
1993), which had quoted Dean v. Young,
777 F.2d 1239, 1245 (7th
Cir. 1985), cert. denied,
475 U.S. 1142 (1986)). But Padilla
made clear that "advice regarding deportation is not
categorically removed from the ambit of the Sixth Amendment" and
may be the basis for a claim that counsel provided ineffective
assistance. Padilla,
559 U.S. at 366; see also Chaidez v.
United States,
133 S. Ct. 1103, 1112 (2013).
¶27 Last term, in State v. Shata and State v. Ortiz-
Mondragon, we evaluated the scope of counsel's obligation to
provide effective assistance, as described in the second part of
Padilla. Given Padilla's conclusion that advice about
deportation is not categorically excluded from Sixth Amendment
protection, Shata and Ortiz-Mondragon examined the scope of an
attorney's obligation to provide advice about immigration
consequences. In particular, the cases focused on the
relationship between the advice an attorney must give and the
degree of certainty that serious immigration consequences will
result from a plea. See Shata, 364 Wis. 2d 63, ¶5 (holding that
13
No. 2013AP2433-CR
an attorney's advice that a "guilty plea carried a 'strong
chance' of deportation" constituted effective assistance where
"deportation was not an absolute certainty"); Ortiz-Mondragon,
364 Wis. 2d 1, ¶5 (concluding that an attorney's advice that a
plea carried a "risk" of adverse immigration consequences was
sufficient where federal immigration law was not "succinct,
clear, and explicit" that the pending charge "constituted a
crime involving moral turpitude" (quoting Padilla,
559 U.S. at
368)).
¶28 In this case, LeMere turns our attention back to the
categorical analysis in the first part of Padilla. He argues
that Padilla's categorical reasoning with regard to deportation
applies with equal force to the possibility of civil commitment
under Chapter 980 for people convicted of sexually violent
offenses. Whether Padilla's reasoning extends to collateral
consequences beyond deportation is a matter of first impression
in Wisconsin.
¶29 To assess LeMere's claim, we must examine why the
Supreme Court concluded that deportation cannot be viewed as
"merely a 'collateral' consequence" of a criminal conviction.
Padilla, 559 U.S. at 359-60. We then discuss civil commitment
under Chapter 980 and determine that the Sixth Amendment does
not require counsel to advise defendants regarding the
possibility of civil commitment as a sexually violent person.
A. Padilla's Effect on Sixth Amendment Doctrine
¶30 Our discussion begins with an explanation of the Sixth
Amendment analytical framework that the Supreme Court altered in
14
No. 2013AP2433-CR
Padilla. Before Padilla, state and federal courts evaluating
the scope of the right to effective assistance of counsel
"almost unanimously concluded that the Sixth Amendment does not
require attorneys to inform their clients of a conviction's
collateral consequences, including deportation." Chaidez, 133
S. Ct. at 1109 & nn.7-8 (citing cases from 10 federal appellate
courts and appellate courts in 27 states and the District of
Columbia). Drawing on Due Process principles applicable to
courts accepting guilty pleas, courts had held that, to render
effective assistance, counsel needed to advise defendants about
direct consequences of a plea but not collateral consequences.
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance
of Counsel and the Consequences of Guilty Pleas,
87 Cornell L.
Rev. 697, 703-04 (2002).
¶31 Direct consequences are those that have a "definite,
immediate, and largely automatic effect on the range of a
defendant's punishment." State v. Byrge, 2000 WI 101, ¶60,
237
Wis. 2d 197,
614 N.W.2d 477 (citing State v. Bollig,
2000 WI 6,
¶16,
232 Wis. 2d 561,
605 N.W.2d 199); see also State ex rel.
Warren v. Schwarz,
219 Wis. 2d 615, 636,
579 N.W.2d 698 (1998).
Collateral consequences, on the other hand, "are indirect and do
not flow from the conviction"; rather, they "may be contingent
on a future proceeding in which a defendant's subsequent
behavior affects the determination" or may "rest[] not with the
sentencing court, but instead with a different tribunal or
government agency." Byrge,
237 Wis. 2d 197, ¶61; see also
Warren,
219 Wis. 2d at 636.
15
No. 2013AP2433-CR
¶32 In his Padilla dissent, Justice Scalia provided a
constitutional foundation for the distinction between direct
consequences and collateral consequences: "The Sixth Amendment
guarantees the accused a lawyer 'for his defence' against a
'criminal prosecutio[n]'——not for sound advice about the
collateral consequences of conviction." Padilla, 559 U.S. at
388 (Scalia, J., dissenting) (alteration in original).
We have until today at least retained the Sixth
Amendment's textual limitation to criminal
prosecutions. "[W]e have held that 'defence' means
defense at trial, not defense in relation to other
objectives that may be important to the accused."
Rothgery v. Gillespie County, 554 U.S. 191, 216 (2008)
(Alito, J., concurring) (summarizing cases). We have
limited the Sixth Amendment to legal advice directly
related to defense against prosecution of the charged
offense . . . .
There is no basis in text or in principle to
extend the constitutionally required advice regarding
guilty pleas beyond those matters germane to the
criminal prosecution at hand . . . .
Adding to counsel's duties an obligation to
advise about a conviction's collateral consequences
has no logical stopping point.
Id. at 389-90 (first alteration in original).
¶33 Of course, the Padilla majority, in the opinion
written by Justice Stevens, pointedly noted that the Court had
"never applied a distinction between direct and collateral
consequences to define the scope of constitutionally 'reasonable
professional assistance' required under Strickland." Padilla,
559 U.S. at 365. Nonetheless, the opinion artfully responded to
Justice Scalia's critique, not by "eschew[ing] the direct-
16
No. 2013AP2433-CR
collateral divide across the board," Chaidez, 133 S. Ct. at
1112, but by implying that deportation was a sui generis
consequence rather than a collateral consequence. Justice
Stevens wrote for the Court that "[d]eportation as a consequence
of a criminal conviction is, because of its close connection to
the criminal process, uniquely difficult to classify as either a
direct or a collateral consequence." Padilla,
559 U.S. at 366
(emphasis added).
¶34 Regardless of how it was argued, the Court's holding
in Padilla that the Sixth Amendment right to effective
assistance of counsel requires counsel to advise defendants
about the deportation consequences of their pleas was a
departure from precedent and "breach[ed] the previously chink-
free wall between direct and collateral consequences" for Sixth
Amendment purposes. Chaidez, 133 S. Ct. at 1110.
¶35 Padilla clearly affected Wisconsin law. Like courts
in other states, the Wisconsin court of appeals had applied the
distinction between direct and collateral consequences in the
Sixth Amendment context. State v. Santos, 136 Wis. 2d 528, 531,
401 N.W.2d 856 (Ct. App. 1987) ("Deportation is a collateral
consequence of a plea. . . . [D]efendants need not be informed
of the collateral consequences of a guilty plea."), abrogated by
Padilla, 559 U.S. 356; see also State v. Brown,
2004 WI App 179,
¶7 n.3,
276 Wis. 2d 559,
687 N.W.2d 543 ("[D]efense counsel's
failure to advise a defendant of collateral consequences is not
a sufficient basis for an ineffective assistance of counsel
claim.").
17
No. 2013AP2433-CR
¶36 LeMere now seeks to extend the holding in Padilla to a
consequence beyond deportation. This requires us to examine
what characteristics of deportation made it an exception to the
general direct-collateral framework under the Sixth Amendment.
¶37 Padilla involved a lawful permanent resident who had
lived in the United States for more than 40 years but faced
"virtually mandatory" deportation under federal law after he
pled guilty to transporting a substantial quantity of marijuana
in his tractor-trailer. Padilla, 559 U.S. at 359. Padilla had
agreed to plead guilty only after his counsel advised him that,
because he had been in the country for a long time, he did not
need to worry about the plea's deportation consequences.
Id.
During postconviction proceedings, Padilla alleged that he
received ineffective assistance of counsel and would have
insisted on proceeding to trial had he known the true
immigration consequences of his plea.
Id. The Supreme Court of
Kentucky concluded that Padilla had no Sixth Amendment claim for
ineffective assistance for faulty advice about the collateral
consequence of deportation.
Id. at 359-60. It then denied his
request to withdraw his plea.
¶38 The Supreme Court reversed, concluding that "[t]he
collateral versus direct distinction is . . . ill suited to
evaluating a Strickland claim concerning the specific risk of
deportation." Id. at 366 (emphasis added). "[B]ecause of its
close connection to the criminal process," deportation fits into
neither of the two traditional categories.
Id. Although not a
criminal punishment, the Court reasoned, deportation is
18
No. 2013AP2433-CR
nevertheless "particularly severe," unlike other civil
consequences frequently deemed collateral. Id. at 365. Most
collateral consequences do not amount to "the equivalent of
banishment or exile."
Id. at 373 (quoting Delgadillo v.
Carmichael,
332 U.S. 388, 391 (1947)). Moreover, the Court
noted, for many non-citizens deportation becomes "nearly an
automatic result" of a conviction. Id. at 366. Relevant
federal immigration statutes spell out in "succinct, clear, and
explicit" terms Padilla's immediate eligibility for deportation
as a result of his conviction. Id. at 368.
¶39 Three years later, the Supreme Court conducted a
valuable analysis of Padilla when asked to decide whether
Padilla applied retroactively. Chaidez involved a lawful
permanent resident whose conviction subjecting her to mandatory
deportation became final in 2004. Chaidez, 133 S. Ct. at 1105-
06. At the time she entered her guilty plea, her attorney never
advised her that the conviction could expose her to deportation.
Id. at 1106. Immigration officials commenced removal
proceedings in 2009 after Chaidez applied for citizenship and
her criminal conviction surfaced.
Id. Hoping to avoid removal,
she initiated a collateral attack against her guilty plea on
grounds that her counsel provided ineffective assistance by
failing to advise her of the deportation consequences of her
plea.
Id.
¶40 While the district court was considering her
challenge, the Supreme Court decided Padilla. Id. Therefore,
Chaidez sought retroactive application of Padilla, and the
19
No. 2013AP2433-CR
Supreme Court was required to consider Padilla under Teague v.
Lane, 489 U.S. 288 (1989), to determine whether Padilla had
stated a "new rule" of law. Chaidez could not take advantage of
a decision rendered years after her conviction became final if
Padilla had articulated a new rule of law. Chaidez,
133 S. Ct.
at 1107.
¶41 In concluding that Padilla stated a new rule and that
Chaidez could not rely on it to challenge her plea, the Court
began by distinguishing Padilla from Strickland. Id. at 1108.
The Court observed that before the Padilla opinion engaged in
traditional Strickland analysis, it answered a "threshold
question":
Was advice about deportation 'categorically removed'
from the scope of the Sixth Amendment right to counsel
because it involved only a 'collateral consequence' of
a conviction, rather than a component of the criminal
sentence? In other words, prior to asking how the
Strickland test applied ("Did this attorney act
unreasonably?"), Padilla asked whether the Strickland
test applied ("Should we even evaluate if this
attorney acted unreasonably?").
Id. (citation and footnote omitted). In short, before the
Padilla Court ever addressed the first prong of the Strickland
test, it had to decide whether the Sixth Amendment applied at
all.
Id. at 1111.8
8
The Supreme Court of Utah has applied Chaidez in this
manner, citing Chaidez for the proposition that, "when the
alleged deficient performance is defense counsel's failure to
inform a client of a particular consequence of a guilty plea, we
must first consider whether Strickland applies at all." State
v. Trotter, 330 P.3d 1267, 1271 (Utah 2014) (holding that
Padilla does not extend the Sixth Amendment to require counsel
(continued)
20
No. 2013AP2433-CR
¶42 At one point, the Chaidez opinion appeared to focus on
two factors——"the severity of the penalty and the 'automatic'
way it follows from conviction"——to explain the "special 'nature
of deportation'" and why the "collateral versus direct
distinction" was "'ill-suited' to dispose of Padilla's claims."
Chaidez, 133 S. Ct. at 1112 (quoting Padilla,
559 U.S. at 366).
Upon reflection, we think the Court viewed deportation as
distinct from other consequences for multiple reasons.9
¶43 Central to the Padilla Court's analysis was its
emphasis on deportation as a "unique" consequence of conviction.
As the Chaidez Court explained, Padilla "did not eschew the
direct-collateral divide across the board." Id.10 On the
to advise defendants about the collateral consequence of sex
offender registration), cert. denied, 135 S. Ct. 944.
9
But see Trotter, 330 P.3d at 1272 ("[T]he Court determined
that deportation is uniquely ill-suited for the direct-collateral divide because (1) it results automatically from the
entry of the plea, and (2) it is a particularly severe penalty.
Accordingly, any rationale for extending Padilla's reasoning to
other contexts . . . must be rooted in both of these
justifications." (citation omitted)).
10
The Court's comment regarding the survival of the direct-collateral distinction as a general rule has important
consequences in Wisconsin in light of Padilla's abrogation of
State v. Santos, 136 Wis. 2d 528,
401 N.W.2d 856 (Ct. App.
1987). In Santos, the defendant, a Cuban immigrant, sought
postconviction withdrawal of his guilty plea to burglary
charges. Santos,
136 Wis. 2d at 529-30. He argued that his
counsel provided ineffective assistance by failing to inform him
that the guilty plea could form the basis for his deportation.
Id. at 530. The court of appeals held that Santos did not
receive ineffective assistance because deportation is a
collateral consequence of a conviction and counsel need not
inform defendants of collateral consequences.
Id. at 531-33.
(continued)
21
No. 2013AP2433-CR
contrary, the Padilla Court twice used the word "unique" to
describe the situation. Padilla, 559 U.S. at 365 (mentioning
"the unique nature of deportation" (emphasis added));
id. at 366
("Deportation as a consequence of criminal conviction
is . . . uniquely difficult to classify as either a direct or a
collateral consequence [of a criminal conviction]." (emphasis
added)). The Padilla Court understood the meaning of "unique."
To call something "unique" is to say that it is "the only one of
its kind." Webster's Third New International Dictionary 2500
(1986). Throughout Padilla, the Court identified a number of
factors that set deportation apart from other consequences.
¶44 Certainly, the severe and automatic nature of
deportation are both factors that contribute to its unique
character. The Padilla Court deemed deportation "a particularly
severe 'penalty,'" and the Court used other similar adjectives
and phrases——"harsh," "drastic," "unjust," the "equivalent of
banishment," "exile"——throughout the opinion. Padilla, 559 U.S.
at 360-62, 373. Additionally, the Court used some variation on
the word "automatic" four times, and it emphasized the
"virtually mandatory," "virtually inevitable," "practically
Notwithstanding Padilla's implicit abrogation of Santos with
regard to the specific consequence of deportation, see Chaidez,
133 S. Ct. at 1109 & n.8, the Court's reasoning in Chaidez
indicates that the general direct-collateral framework applied
in Santos persists,
id. at 1110-11; cf. Commonwealth v. Abraham,
62 A.3d 343, 350 (Pa. 2012) ("Padilla did not abrogate
application of [a direct versus collateral consequences]
analysis in cases that do not involve deportation.").
22
No. 2013AP2433-CR
inevitable," "automatic," "nearly . . . automatic" nature of
deportation after certain criminal convictions. Id. at 359-60,
364-66.
¶45 But beyond the severe and automatic aspects of
deportation, the Padilla Court also considered its "close
connection to the criminal process." Id. at 366. Several
times, the Court explained that, although removal proceedings
are civil in nature, "deportation is nevertheless intimately
related to the criminal process. Our law has enmeshed criminal
convictions and the penalty of deportation for nearly a
century."
Id. at 365-66. "[W]e find it 'most difficult' to
divorce the penalty from the conviction in the deportation
context."
Id. at 366 (quoting United States v. Russell,
686
F.2d 35, 38 (D.C. Cir. 1982)). In the past, federal and state
judges were able to make a binding recommendation against
deportation (JRAD) at the time of sentencing. Id. at 361-63.
Today, defense counsel "may be able to plea bargain creatively
with the prosecution in order to craft a conviction and sentence
that reduce the likelihood of deportation." Id. at 373.
¶46 Highlighting deportation's close connection to
criminal sanctions, the Padilla Court described deportation as a
"penalty" at least five times: (1) "[D]eportation is an integral
part——indeed, sometimes the most important part——of the penalty
that may be imposed on noncitizen defendants who plead guilty to
specified crimes." Id. at 364 (footnote omitted). (2) "We have
long recognized that deportation is a particularly severe
'penalty.'" Id. at 365 (citing Fong Yue Ting v. United States,
23
No. 2013AP2433-CR
149 U.S. 698, 740 (1893)). (3) "Our law has enmeshed criminal
convictions and the penalty of deportation for nearly a
century." Id. at 365-66 (citation omitted). (4) "[W]e find it
'most difficult' to divorce the penalty from the conviction in
the deportation context." Id. at 366 (quoting Russell,
686 F.2d
at 38). (5) "[T]he threat of deportation may provide the
defendant with a powerful incentive to plead guilty to an
offense that does not mandate that penalty in exchange for a
dismissal of a charge that does." Id. at 373.
¶47 Finally, it must be noted that not all people
convicted of certain crimes face deportation as a potential
consequence of conviction; only noncitizens face deportation's
penal effects. Indeed, the Padilla Court used the word
"noncitizen" 17 times and appeared to view noncitizens——"a class
of clients least able to represent themselves"——as a
particularly vulnerable class. Id. at 370-71.
¶48 A unique confluence of factors thus led the Padilla
Court to articulate an extraordinary exception to the direct-collateral framework——which the court otherwise declined to
disturb——for the "penalty" of deportation. In light of this
exception, we now examine whether the possibility of civil
commitment under Chapter 980 warrants a similar exception.
B. Evaluating the Consequence of Chapter 980 Commitment
¶49 To determine whether the Sixth Amendment requires
counsel to advise defendants about the possibility of
Chapter 980 commitment, we review the same factors that set
deportation apart from other consequences.
24
No. 2013AP2433-CR
1. Deportation's Unique Nature Weighs Against Creating an
Exception for Chapter 980 Commitment
¶50 At the outset, we reemphasize that Padilla created a
"new rule" when it determined that deportation was not
"categorically removed from the ambit of the Sixth Amendment's
right to counsel." Padilla, 559 U.S. at 366. The Court created
the new rule, in large part, because of "the unique nature of
deportation."
Id. at 365. Extending Padilla to embrace the
possibility of Chapter 980 commitment would initiate a more far-
reaching "new rule" not yet articulated by the Supreme Court.
It would deviate from the characterization of deportation as
"unique." And, inevitably, it would do more than widen the
breach in the substantially chink-free wall between direct and
collateral consequences——it would effectively tear down that
wall. Chapter 980 commitment cannot be described as anything
other than a classic collateral consequence. State v. Myers,
199 Wis. 2d 391, 394,
544 N.W.2d 609 (Ct. App. 1996). Thus,
without a directive and clear guidance from the 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 a collateral consequence. Padilla,
559
U.S. at 390 (Scalia, J., dissenting).11
11
For example, the National Inventory of Collateral
Consequences of Conviction, a database created by the American
Bar Association, identifies as many as 693 collateral
consequences of conviction in Wisconsin. Am. Bar Ass'n,
National Inventory of Collateral Consequences of Conviction
(continued)
25
No. 2013AP2433-CR
2. The Severity of Chapter 980 Commitment
¶51 Padilla emphasized the severity of deportation, using
such phrases as the "harsh consequences" of deportation, which
is a "drastic measure." Id. at 360 (majority opinion). Chaidez
reiterated that deportation is "particularly severe." Chaidez,
133 S. Ct. at 1117 & n.4. Non-citizens confronted with
deportation "face possible exile from this country and
separation from their families." Padilla,
559 U.S. at 370.
Deportation creates a permanent physical separation from the
United States and, to a lesser extent, from people who live
here. If a person confronted with removal wished to maintain
relationships with friends and family who live in this country,
deportation's permanent physical separation could create a more
onerous burden than time served in an American prison. The
person's friends and family likely would need to spend hundreds,
if not thousands, of dollars on international travel expenses
for a single physical reunion.
¶52 LeMere argues that commitment under Chapter 980 is
even more severe than removal from the country because
commitment could last for the remainder of his lifetime. He
observes that a person deported from the United States remains
entirely free outside this country and retains substantial
personal liberty. A person committed under Chapter 980, he
argues, is confined under state control for an indefinite period
(2013), http://www.abacollateralconsequences.org/search/?jurisdi
ction=50.
26
No. 2013AP2433-CR
of time, even after serving time in prison. By focusing on the
worst case scenario as though it were the norm, however, LeMere
overstates, to a degree, the severity of Chapter 980 commitment.
Although a person will remain committed "until such time as the
person is no longer a sexually violent person," Wis. Stat.
§ 980.06, Chapter 980 delineates numerous and regular procedures
for reevaluating whether a person's commitment should continue.
¶53 Chapter 980 commitment is not intended to be
permanent. Within the first year after the person's commitment,
the Department of Health Services (DHS) must conduct a new
examination of the person's mental condition to determine
whether discharge or supervised release would be appropriate.
Wis. Stat. § 980.07(1). Similar reevaluations follow annually
after the first year.
Wis. Stat. § 980.07(1). Furthermore, a
person may bring a petition for discharge from commitment at any
time,
Wis. Stat. § 980.09(1), and may file a petition for
supervised release on an annual basis,
Wis. Stat. § 980.08(1).
These frequent reevaluations assure that a person remains
committed no longer than is necessary for treatment purposes.12
¶54 Nevertheless, any time spent civilly committed results
in a deprivation of liberty for the person subject to
12
A 2012 DHS report regarding discharge and supervised
release from Chapter 980 commitments indicates that the 59
patients discharged between 2009 and 2011 experienced
commitments lasting approximately 8 to 9 years, on average.
Gina Olson, WI Chapter 980 SVP Discharge & Supervised Release
3, 8 (2012), https://www.dhs.wisconsin.gov/sites/default/files/l
egacy/SandRidge/InformationalPapers/C980Discharge1.pdf.
27
No. 2013AP2433-CR
commitment. See State v. Post, 197 Wis. 2d 279, 302,
541 N.W.2d
115 (1995). Despite regular reviews, the possibility undeniably
exists that a person, once committed, will receive annual
reports indicating that he or she remains a sexually violent
person and has not made sufficient progress in treatment to earn
outright discharge or even supervised release. As Justice
Kennedy described Kansas's civil commitment framework,
"Notwithstanding its civil attributes, the practical effect of
the . . . law may be to impose confinement for life." Kansas v.
Hendricks,
521 U.S. 346, 372 (1997) (Kennedy, J, concurring);
see also State v. Nelson,
2005 WI App 113, ¶15,
282 Wis. 2d 502,
701 N.W.2d 32 ("A Chapter 980 commitment . . . could be
lifelong.").
¶55 Accordingly, we acknowledge that civil commitment
under Chapter 980 is a severe consequence. Chapter 980
commitment's continued deprivation of liberty after the end of a
prison sentence makes it severe, particularly when it becomes
"potentially indefinite." Post, 197 Wis. 2d at 314; see also
Hendricks,
521 U.S. at 364. Once again, however, it is not
designed or intended to be permanent. Chapter 980 commitment's
rehabilitative function——"provid[ing] care and treatment to
those with mental disorders that predispose them to sexual
violence," Post, 197 Wis. 2d at 302——moderates its severity.
The rehabilitative objective at the core of commitment ensures
that commitment is not necessarily as permanent a consequence as
deportation's banishment would be. In sum, Chapter 980
28
No. 2013AP2433-CR
commitment, though severe, is not as uncompromisingly severe a
consequence as deportation.
3. Chapter 980 Commitment Is Not Penal
¶56 The rehabilitative aspect of Chapter 980 commitment
also takes it out of the "penalty" category. Chapter 980
"creates a civil commitment procedure primarily intended to
protect the public and to provide concentrated treatment to
convicted sexually violent persons, not to punish the sexual
offender." State v. Carpenter, 197 Wis. 2d 252, 258,
541
N.W.2d 105 (1995) (emphasis added). "The emphasis on treatment
in ch. 980 is evident from its plain language."
Id. at 266.
"[T]reatment is a bona fide goal of this statute . . . ." Post,
197 Wis. 2d at 308.
¶57 In upholding a similar statute from Kansas, the
Supreme Court explained that "commitment under the Act does not
implicate either of the two primary objectives of criminal
punishment: retribution or deterrence." Hendricks, 521 U.S. at
361-62. The Court added:
Hendricks focuses on his confinement's potentially
indefinite duration as evidence of the State's
punitive intent. That focus, however, is misplaced.
Far from any punitive objective, the confinement's
duration is instead linked to the stated purposes of
the commitment, namely, to hold the person until his
mental abnormality no longer causes him to be a threat
to others.
Id. at 363. The Supreme Court could not characterize civil
commitment under Chapter 980 and similar statutes as a "penalty"
29
No. 2013AP2433-CR
without jeopardizing the now well-established constitutionality
of these statutes.
4. Chapter 980 Commitment Is Not an Automatic Result of the
Underlying Conviction
¶58 Under federal law, a non-citizen convicted of certain
offenses, like the drug offense in Padilla, automatically
satisfies a statutory condition that serves as the basis for
deportation. In contrast, a person convicted of a sexually
violent offense in Wisconsin does not automatically meet the
definition of "sexually violent person," which requires proof of
dangerousness beyond the fact of conviction. Indeed,
Chapter 980 requires a second trial regarding the person's
dangerousness and mental condition, and that trial occurs only
if the Wisconsin Department of Justice or a district attorney
petitions for commitment. These procedural requirements
distinguish commitment under Chapter 980 from deportation under
federal law and show that even a Chapter 980 petition is not an
inevitable consequence of a conviction for a sexually violent
offense.
¶59 In Padilla, the Court explained that, under current
federal law, "if a noncitizen has committed a removable
offense . . . , his removal is practically inevitable."
Padilla, 559 U.S. at 363-64 (emphasis added). As we explained
in Shata, "[T]he Court meant that Padilla was automatically
deportable upon conviction, not that he would be automatically
deported." Shata,
364 Wis. 2d 63, ¶61. Nevertheless, had
immigration officials chosen to initiate removal proceedings
30
No. 2013AP2433-CR
against Padilla, his conviction would already have made him
"eligible for deportation" under the federal statutes. Padilla,
559 U.S. at 368 (citing
8 U.S.C. § 1227(a)(2)(B)(i)). A person
who meets one of the "grounds of deportability under section
1227(a)" may be subject to removal proceedings under 8 U.S.C.
§ 1229a(a)(2) (2012). To secure removal, the government "has
the burden of proving by clear and convincing evidence that, in
the case of an alien who has been admitted to the United States,
the alien is deportable." 8 U.S.C. § 1229a(c)(3)(A).
Sufficient evidence based on a conviction includes an "official
record of judgment and conviction" and an "official record of
plea, verdict, and sentence," among other documents. Id.
§ 1229a(c)(3)(B). Though a person facing deportation does
receive a hearing on the matter, the Supreme Court had good
reason to describe deportation as "practically inevitable" upon
conviction. Padilla,
559 U.S. at 364.
¶60 An examination of the procedures in Chapter 980
demonstrates that, in contrast, proof of conviction of a
sexually violent offense does not alone provide a sufficient
basis for a court to determine that a person qualifies as a
sexually violent person for civil commitment purposes.
Chapter 980 "prescribes a detailed procedure that the State must
follow in order to commit a sexually violent person." State v.
Gilbert, 2012 WI 72, ¶21,
342 Wis. 2d 82,
816 N.W.2d 215. A
sexually violent person is someone convicted of a sexually
31
No. 2013AP2433-CR
violent offense specified under Wis. Stat. § 980.01(6)13 who also
has been determined to be "dangerous because he or she suffers
from a mental disorder that makes it likely that the person will
engage in one or more acts of sexual violence."
Wis. Stat.
§ 980.01(7).
¶61 When a person convicted of a sexually violent offense
comes due for release from the confinement portion of a sentence
of imprisonment, the Wisconsin Department of Justice or a
district attorney may choose to file a petition alleging that
the person meets the definition of "sexually violent person."
Wis. Stat. § 980.02(1). Shortly after the filing, a court must
determine whether probable cause exists to believe that the
person fits the definition.
Wis. Stat. § 980.04. If the court
finds probable cause and orders the person's continued
detention, the person will receive a trial, which may be to a
jury, to determine whether he or she is sexually violent.
Wis.
Stat. § 980.05(1)-(2). The person enjoys many procedural
rights. See, e.g.,
Wis. Stat. §§ 980.031, 980.034, 980.036.
Furthermore, a person will not be found a "sexually violent
person" unless the State persuades the finder of fact beyond a
reasonable doubt.
Wis. Stat. § 980.05(3).
¶62 In treating Chapter 980 commitment as a collateral
consequence of conviction, the court of appeals has similarly
13
LeMere pleaded guilty to first-degree sexual assault of a
child under the age of 13 contrary to Wis. Stat. § 948.02(1)(e),
a sexually violent offense under
Wis. Stat. § 980.01(6)(a).
32
No. 2013AP2433-CR
described how "commitment will not automatically flow
from . . . conviction":
Although such a commitment will require a prior
predicate offense, [the defendant's] offense, by
itself, will not trigger a commitment. Rather, a
commitment will depend on [the defendant's] condition
at the time of the ch. 980 proceeding and the evidence
that the State will then present on his condition. If
the State were to initiate such commitment
proceedings, [the defendant] will have the full
benefit of the ch. 980 procedures, due process, and an
independent trial, including the right to offer
evidence to refute the State's charges.
Myers, 199 Wis. 2d at 394.
¶63 The nature of the second round of proceedings——which
require proof beyond a reasonable doubt that a person convicted
of a sexually violent offense also is a sexually violent person—
—distinguishes Chapter 980 commitment from deportation. By
virtue of his drug-trafficking conviction alone, Padilla became
deportable under federal law. Padilla, 559 U.S. at 359 n.1
(citing
8 U.S.C. § 1227(a)(2)(B)(i)). Mere proof of the fact of
his conviction would be sufficient for the federal government to
secure removal. Conviction of an offense defined as sexually
violent under Chapter 980 does not similarly bring a person
within the definition of "sexually violent person" by default.
Instead, the State must still prove the second element of the
definition of sexually violent person——that the person convicted
of the sexually violent offense also is "dangerous because he or
she suffers from a mental disorder that makes it likely that the
person will engage in one or more acts of sexual violence."
Wis. Stat. § 980.01(7). Given that the state must prove not
33
No. 2013AP2433-CR
just the fact of conviction but also a degree of dangerousness,
it is far from "inevitable" that a person convicted of a
sexually violent offense will also be adjudged a sexually
violent person.
¶64 LeMere urges us to adopt the reasoning applied by the
Supreme Court of Illinois in People v. Hughes, 983 N.E.2d 439
(Ill. 2012), a decision that extended Padilla to require advice
about the possibility of commitment as a sexually violent person
under Illinois law.14 Evaluating Illinois's civil commitment
statute, the court observed that "it is certain that a person
convicted of a sexually violent offense is eligible for
commitment and the conviction alone will definitely subject the
defendant to a mandatory comprehensive evaluation for commitment
nearing the end of his prison term."
Id. at 455 (emphasis
added).
¶65 We disagree with the Hughes court's analysis, which
focused on the "possibility of" or "eligibility for" commitment.
Statistics discussed in one case before our court of appeals
indicated that no more than 4.5 percent of people convicted of
sexually violent offenses are even recommended for commitment
proceedings under Chapter 980. State v. Budd, 2007 WI App 245,
14
Unlike the Supreme Court of Utah, which decided Trotter,
330 P.3d 1267, on May 20, 2014, the Supreme Court of Illinois
did not have the benefit of Chaidez's February 20, 2013
assessment of Padilla when it decided Hughes on November 29,
2012, and denied rehearing on January 28, 2013.
34
No. 2013AP2433-CR
¶16, 306 Wis. 2d 167,
742 N.W.2d 887.15 Properly considering the
"possibility" of Chapter 980 commitment as part of the
evaluation of whether commitment follows "automatically" from a
conviction actually demonstrates how unlikely commitment is for
the vast majority of people convicted of a sexually violent
offense.
5. Chapter 980 Commitment Is Not Enmeshed in the Criminal
Process
¶66 Our evaluation of the nature of Chapter 980 commitment
further counsels in favor of the conclusion that Chapter 980
commitment is not "intimately related to the criminal process."
Padilla, 559 U.S. at 365. To be sure, conviction of a sexually
violent offense is a precondition to Chapter 980 commitment.
But commitment is not an "integral part . . . of the penalty
that may be imposed" on persons convicted of sexually violent
offenses. Padilla,
559 U.S. at 364. Rather, it is a
rehabilitative program that is unlikely to affect the vast
majority of people convicted of qualifying offenses. In the
rare event that the state does pursue Chapter 980 commitment,
the state must prove the person's "dangerousness" in addition to
15
A recent DHS report with data through 2013 regarding
Chapter 980 commitments includes statistics similar to those
mentioned in Budd. According to the report, the Department of
Corrections refers only 3.3 percent of eligible inmates to DHS
for possible Chapter 980 commitment. See Deborah McCulloch,
Chapter980 Overview 19 (2014), https://www.dhs.wisconsin.gov/sit
es/default/files/legacy/SandRidge/InformationalPapers/980Overvie
w2014.pdf (indicating only 657 referrals for commitment among
19,689 eligible inmates screened by Department of Corrections).
35
No. 2013AP2433-CR
the fact of the underlying conviction. Though future
eligibility for Chapter 980 commitment may be a factor that a
defendant considers when contemplating a plea, possible
commitment requiring proof of dangerousness beyond a reasonable
doubt is not part and parcel of a conviction or its resultant
punishment.
6. No Special Vulnerability or Class Status Warrants
Particularized Consideration for Persons Convicted of Sexually
Violent Offenses
¶67 Unlike the "noncitizens" whose interests the Court
considered in Padilla, people convicted of sexually violent
offenses share no independent characteristic that provides a
basis for developing an individualized exception for them.
Noncitizens face deportation as a consequence of certain
convictions because of their immigration status, a status that
precedes any criminal proceedings against them. Deportation
becomes "an integral part . . . of the penalty that may be
imposed" for any conviction because of the noncitizen status.
Padilla, 559 U.S. at 364. A certain immigration status thus
makes noncitizens uniquely vulnerable to a punitive consequence
of conviction above and beyond traditional punishments such as
confinement.
¶68 Persons convicted of sexually violent offenses share
no such common attribute that precedes conviction. Although
some persons convicted of sexually violent offenses may have a
history of serious mental illness that could serve as the basis
for the "dangerousness" element in the Wis. Stat. § 980.01(6)
36
No. 2013AP2433-CR
definition of "sexually violent persons," serious mental
disorder is not a prerequisite for conviction of a sexually
violent offense. The absence of a common precondition for
eligibility for Chapter 980 commitment reinforces the conclusion
that an exception would be inappropriate.
IV. Conclusion
¶69 Padilla specifically brought advice about the unique
consequence of deportation within the Sixth Amendment's
guarantee of effective assistance of counsel. We decline to
create a similar exception for Chapter 980 civil commitment.
Chapter 980 commitment is a collateral consequence of a plea
resulting in conviction of a sexually violent offense. Myers,
199 Wis. 2d at 394. The Sixth Amendment does not require
defense counsel to inform a client about the possibility of
civil commitment. To reach this conclusion, we rely on the many
factors that differentiate the possibility of Chapter 980
commitment from the unique consequence of deportation.
¶70 We are mindful of defendants' reasonable desires to
make informed choices about the consequences of any plea they
might make. Certainly, the best practice for defense counsel is
to discuss with the defendant any consequences of a plea that
will have a meaningful impact on the defendant's decision to
accept or reject a plea agreement. But the Sixth Amendment
makes no guarantee of perfect advocacy, Maryland v. Kulbicki,
136 S. Ct. 2, 5 (2015) (per curiam) (citing Yardborough v.
Gentry,
540 U.S. 1, 8 (2003) (per curiam)), and a best practice
37
No. 2013AP2433-CR
does not rise to the level of implicating the constitutional
interest set forth in Padilla.
¶71 Therefore, we conclude that 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. Consequently, LeMere
cannot withdraw his guilty plea.
By the Court.—The decision of the court of appeals is
affirmed.
¶72 Rebecca G. Bradley, J., did not participate.
38
No. 2013AP2433-CR.awb
¶73 ANN WALSH BRADLEY, J. (dissenting). I agree that
the criminal conduct described by the majority is heinous. If
we were called upon as a court to condemn such conduct, I am
confident that there would be immediate and unanimous
condemnation.1
¶74 Our task in this review, however, is not to assess the
defendant's conduct. Rather, we are called upon to analyze and
apply a rule of law.
¶75 At issue is whether LeMere's counsel should have
advised him that he is automatically eligible for involuntary,
indefinite civil commitment after serving his criminal sentence.
The precise issue is whether the Sixth Amendment requires
defense counsel to inform a client about the possibility of
civil commitment, under Wis. Stat. Chapter 980, when the client
enters a plea to a qualifying sexually violent offense.
¶76 The majority concludes that "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." Majority op., ¶71.
¶77 In reaching its conclusion, the majority fails to
recognize that like the deportation consequences analyzed in
1
LeMere pleaded guilty to first-degree sexual assault of a
child under the age of 13, contrary to Wis. Stat.
§§ 948.02(1)(e) and 939.50(3)(b). Majority op., ¶13. He was
sentenced to thirty years of initial confinement, followed by
fifteen years of extended supervision.
Id., ¶17. A "sexually
violent offense" that qualifies a defendant for Chapter 980
commitment includes any crime specified in Wis. Stat. 948.02(1).
See
Wis. Stat. § 980.01(6)(a).
1
No. 2013AP2433-CR.awb
Padilla v. Kentucky, 559 U.S. 356 (2010), a Chapter 980
commitment is a particularly severe and automatic penalty of a
guilty plea that is closely connected to the criminal process.
Its elimination of procedural protections results in indefinite
and even permanent civil commitment. And like deportation, upon
entry of a guilty plea there is automatic eligibility for this
severe consequence.
¶78 Contrary to the majority, I conclude that the Sixth
Amendment requires counsel to advise a client of the consequence
of Chapter 980 commitment. I would reverse the court of appeals
and remand to the circuit court for an evidentiary hearing.2
Accordingly, I respectfully dissent.
I.
¶79 The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to the assistance of
counsel. This right has been interpreted to mean a defendant is
entitled to the effective assistance of competent counsel. See,
e.g., Strickland v. Washington, 466 U.S. 668, 686 (1984). The
right to effective assistance of counsel extends to the
negotiation of a plea agreement. Hill v. Lockhart,
474 U.S. 52,
57 (1985). Effective assistance of counsel requires that the
2
Pursuant to State v. Machner, 92 Wis. 2d 797, 804,
285
N.W.2d 905 (Ct. App. 1979), a defendant alleging ineffective
assistance of counsel is entitled to an evidentiary hearing
where trial counsel will testify. The circuit court determines
if trial counsel provided ineffective assistance of counsel, and
if so, whether it was prejudicial. See Strickland v.
Washington,
466 U.S. 668, 687 (1984).
2
No. 2013AP2433-CR.awb
defendant be provided sufficient information upon which to make
a knowing and intelligent plea. See id. at 56.
¶80 Prior to Padilla, courts "almost unanimously concluded
that the Sixth Amendment does not require attorneys to inform
their clients of a conviction's collateral consequences,
including deportation." Chaidez v. U.S., 133 S. Ct. 1103, 1109
(2013). Defense counsel's only obligation was to advise clients
of direct consequences of conviction.3
Id.
¶81 Padilla, however, presented a paradigm shift. In
Padilla, the Supreme Court determined that the Sixth Amendment
requires counsel to provide advice to a criminal defendant about
the risk of deportation arising from a guilty plea. 559 U.S. at
366.
¶82 Although Padilla did not eliminate the
collateral/direct consequence test generally, it rejected the
application, concluding that deportation's close connection to
the criminal process makes it uniquely difficult to classify as
either a direct or collateral consequence. Id. at 365-66; see
also Chaidez,
133 S. Ct. at 1112. The Padilla court explained
that deportation, although technically a civil proceeding, is a
particularly severe penalty and that eligibility for deportation
3
Typically, a collateral consequence is indirect, does not
automatically flow from the conviction, and may depend on the
subsequent conduct of a defendant. State v. Brown, 2004 WI App
179, ¶7,
276 Wis. 2d 559,
687 N.W.2d 543. In contrast, a direct
consequence of a plea has a definite, immediate, and largely
automatic effect on the range of a defendant's punishment.
State v. Byrge,
2000 WI 101, ¶60,
237 Wis. 2d 197,
614 N.W.2d
477.
3
No. 2013AP2433-CR.awb
is nearly automatic for non-citizen offenders. 559 U.S. at 365-
66.
¶83 Following Padilla's analysis, we examine whether
Chapter 980's close connection to the criminal process makes it
uniquely difficult to apply a collateral-direct analysis. As in
Padilla, the determination rests on an examination of the
severity of the penalty and the nearly automatic eligibility for
deportation.
II.
¶84 The majority concludes that the consequence of a
Chapter 980 commitment "does not rise to the level of
implicating the constitutional interest set forth in Padilla."
Majority op., ¶70. In its effort to distinguish involuntary
civil commitment from deportation, the majority contends that
"LeMere overstates, to a degree, the severity of Chapter 980
commitment." Majority op., ¶52.
¶85 Before embarking on a legal analysis of the severity
of the consequence of Chapter 980 commitment, I pause to observe
that this is not merely a matter of legal analysis, it is also
one of common sense. The Sixth Amendment guarantees the right
to effective assistance of counsel. To be effective, counsel
must provide sufficient information to enable the defendant to
make a knowing and intelligent plea.
¶86 When assessing whether to accept a plea agreement,
would a defendant want to be informed that upon entering the
plea, he faces the consequence of a possible lifetime civil
commitment after serving his criminal sentence? Of course!
4
No. 2013AP2433-CR.awb
¶87 I agree with the sentiment expressed by Justice
Gableman at oral argument that the severity of Chapter 980
commitment is essentially a given here. In transitioning the
focus from the severity inquiry to the automatic eligibility
part of the analysis, he commented:
Justice Gableman: "The part of this case that jumps
out to me is not the severity of the possible
consequence. I don’t think anyone could argue about
the severe restrictions on the liberty of the person
committed under Chapter 980.
¶88 Nevertheless, the majority endeavors to persuade the
reader that Chapter 980 consequences are really not all that
severe. Relying on the procedural protections of Chapter 980
proceedings, the majority determines that Chapter 980 commitment
is not as severe a penalty as deportation because the commitment
is not necessarily permanent and does not always last for a
lifetime. Majority op., ¶55.
III.
¶89 The majority errs in its attempt to minimize the
severity of a Chapter 980 commitment. 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.
In both, important procedural protections under the statute have
been eliminated. Similarly, the consequences for both are
severe, and may even last for a lifetime.
¶90 As we saw in Padilla, the elimination of procedural
protections may heighten the severity of a civil proceeding to
such an extent that counsel has an obligation under the Sixth
Amendment to advise a client about the consequences of a guilty
5
No. 2013AP2433-CR.awb
plea. Just as the legislature eliminated important procedural
protections from Chapter 980, important procedural protections
that minimized the risk of deportation were eliminated from
federal immigration law. See Padilla, 559 U.S. at 360-64.
¶91 In the past, federal immigration law "included a
critically important procedural protection to minimize the risk
of unjust deportation." Id. at 361. Under prior law, the
sentencing judge in both state and federal prosecutions had the
power to make a recommendation against deportation.
Id. This
procedure, known as judicial recommendation against deportation
("JRAD") was eliminated in 1990. Id. at 362-63. In 1996, the
Attorney General's authority to grant discretionary relief from
deportation was also eliminated.
Id. at 363. The Padilla court
explained, "[t]hese changes to our immigration law have
dramatically raised the stakes of a noncitizen's criminal
conviction."
Id. at 364.
¶92 Similarly, over the years, "the legislature has
steadily chipped away at those aspects of chapter 980 upon which
we relied in determining that the statute was constitutional."
In re Commitment of West, 2011 WI 83, ¶123,
336 Wis. 2d 578,
800
N.W.2d 929 (Bradley, J., dissenting). As previously explained,
the elimination of important procedural protections from Chapter
980 has made it easier to commit an individual, the nature of
the commitment is now more restrictive, and the duration of
institutionalization is longer.
Id. Accordingly, "chapter 980
increasingly resembles a punitive scheme." Id., ¶129.
6
No. 2013AP2433-CR.awb
¶93 It is now easier to commit an individual under Chapter
980 than in the past because a jury must conclude only that it
is "likely" an individual will engage in acts of sexual
violence. Wis. Stat. § 980.01(7) (2013-14). When Chapter 980
was first enacted, a jury was required to find beyond a
reasonable doubt that it was "substantially probable that the
person will engage in acts of sexual violence."
Wis. Stat.
§ 980.01(7) (1993-94).
¶94 Additionally, the nature of the commitment has become
more restrictive. When Chapter 980 was enacted, a commitment
order could specify "institutional care in a secure mental
health unit or facility . . . or other facility or supervised
release." Wis. Stat. § 980.06(2)(b) (1993–94). The nature of
the commitment is more restrictive today because the requirement
that the Department of Health Services ("DHS") commit an
individual in the "least restrictive manner" has been
eliminated. Now, a commitment order "shall specify that the
person be placed in institutional care," and the DHS "shall
place a person committed under s. 980.06 at the secure mental
health facility." Wis. Stat. §§ 980.06, 980.065(1m) (2013-14).
¶95 Today, the duration of institutionalization at the
outset is also longer because reexamination need not occur until
twelve months after initial confinement. Wis. Stat. § 980.07(1)
(2013-14). When the statute was first enacted, DHS was required
to reexamine committed persons "within 6 months after an initial
commitment."
Wis. Stat. § 980.07(1) (1993–94). The erosion of
procedural protections has raised the stakes of a defendant's
7
No. 2013AP2433-CR.awb
guilty plea as the length of commitment and the number of
individuals committed continue to increase.
¶96 Historical data on Chapter 980 indicates that the
number of individuals committed under the statute has grown well
beyond expectation. When Chapter 980 was enacted in 1994, it
was "[a]nticipated at the time of adoption that the program
would be small." Deborah McCulloch, Sand Ridge Secure Treatment
Center: History of Chapter 980 at 14.4 After implementation,
however, "commitment rates significantly exceeded expectations."
Id. at 15. By 2001, Sand Ridge Secure Treatment Center, the
entity responsible for detaining individuals committed under
Chapter 980, opened a $39 million facility with another $22
million expansion planned in 2009.
Id. at 10.
¶97 Not only have commitment rates exceeded expectations,
but statistical data indicates that individuals have been
subject to indefinite and even lifetime commitment under Chapter
980. In 2004, ten years after Chapter 980 was enacted, the
author of Sand Ridge's informational paper on recidivism
acknowledged that "[t]o date comparatively few patients have
been released...." David Thornton, Sand Ridge Secure Treatment
Center, Wisconsin Dep't of Health Servs., Projecting the Amount
of Sexual Recidivism Prevented by the Chapter 980 Program
4
Available at: https://www.dhs.wisconsin.gov/sites/
default/files/legacy/SandRidge/InformationalPapers/980Overview20
14.pdf.
8
No. 2013AP2433-CR.awb
(Wisconsin's Civil Commitment for Sex Offenders) at 1.5 A later
study released in 2013 reported that 24 people were discharged
"due to death." See State of Wisconsin Department of Health
Services, Supervised Release Placements and Expenditures,
Legislative Audit Bureau Report 13-12, 13 (Aug. 2013).6 For the
24 people discharged due to death, Chapter 980 commitment was
indeed permanent.
IV.
¶98 The majority attempts next to distinguish Chapter 980
commitment from deportation by arguing that it is not as
"automatic" as deportation. Majority op., ¶¶58-65.
¶99 It contends that the consequence of deportation is
automatic because "if a noncitizen has committed a removable
offense . . ., his removal is practically inevitable." Id., ¶59
(citing Padilla
559 U.S. at 363-64). In contrast, the majority
alleges that "a Chapter 980 petition is not an inevitable
consequence of a conviction for a sexually violent offense."
Majority op., ¶58.
¶100 Reaching its conclusion, the majority ignores this
court's interpretation of Padilla discussed in an opinion issued
just last term. The court in State v. Shata, 2015 WI 74, ¶101,
364 Wis. 2d 63,
868 N.W.2d 93, concluded that Padilla did not
5
Available at: https://www.dhs.wisconsin.gov/sites/
default/files/legacy/SandRidge/InformationalPapers/PROJECTINGTHE
AMOUNTOFRECIDIVISMSAVEDBYTHE980PROGRAMSeptember2004Version.pdf.
6
Available at: http://legis.wisconsin.gov/lab/reports/13-
12full.pdf.
9
No. 2013AP2433-CR.awb
require Shata's attorney to tell him that his conviction would
absolutely result in deportation. Instead, Shata interpreted
Padilla to mean that counsel was required to advise the
defendant that he was eligible for deportation.
¶101 Shata stated "[a]lthough a controlled substance
conviction makes an alien 'deportable,' such a conviction will
not necessarily result in deportation."7 Id., ¶59 (internal
citation omitted). "Thus, the Court meant that Padilla clearly
was deportable under that immigration statute, not that he
clearly would be deported." Id., ¶61 (citing Com. V. Escobar,
70 A.3d 838, 842 (Pa. 2013)).
¶102 Likewise, the majority disregards an essential part of
Chaidez that further explains the holding in Padilla as it
relates to the automatic nature of the consequence. Chaidez
clarified that "[i]n Padilla v. Kentucky, this Court held that
the Sixth Amendment requires an attorney for a criminal
defendant to provide advice about the risk of
deportation arising from a guilty plea." Chaidez, 133 S. Ct. at
1105 (internal citation omitted). In case there was any
question about its holding in Padilla, the United States Supreme
Court in Chaidez again emphasized that it was the risk of
deportation that was the automatic consequence:
While Chaidez's petition was pending, this Court
decided Padilla. Our ruling vindicated Chaidez's view
7
The term "alien" is used here because I quote directly
from Shata. As the Sixth Circuit recognized in Flores v. U.S.
Citizenship and Immigration Services, 718 F.3d 548, 551 n.1.
(6th Circuit 2013), using the term "alien" to refer to other
human beings may be "offensive and demeaning."
10
No. 2013AP2433-CR.awb
of the Sixth Amendment: We held that criminal defense
attorneys must inform non-citizen clients of the risks
of deportation arising from guilty pleas.
Chaidez, 133 S. Ct. at 1106.
¶103 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. Eligibility
for commitment was the focus employed in People v. Hughes, 983
N.E.2d 439 (Ill. 2012), which is particularly instructive here
because it analyzed the very issues we now confront in
Wisconsin.
¶104 In Hughes, the Illinois Supreme Court concluded "that
defense counsel has a minimal duty to advise a defendant who
pleads guilty to a triggering offense subject to the provision
of the Sexually Violent Persons Commitment Act that he will be
evaluated for and may risk involuntary commitment after
completing his prison term." Id. at 457. As the Hughes court
explained, "it is certain that a person convicted of a sexually
violent offense is eligible for commitment and the conviction
alone will definitely subject the defendant to a mandatory
comprehensive evaluation for commitment nearing the end of his
prison term."
Id. at 455.
¶105 Ignoring our analysis in Shata and the holding in
Chaidez, the majority casts away Hughes, explaining: "We
disagree with the Hughes court's analysis, which focused on the
'possibility of' or 'eligibility for' commitment. Statistics
discussed in one case before our court of appeals indicated that
no more than 4.5 percent of people convicted of sexually violent
11
No. 2013AP2433-CR.awb
offenses are even recommended for commitment proceedings under
Chapter 980." Majority op., ¶65 (citing State v. Budd, 2007 WI
App 245, ¶16,
306 Wis. 2d 167,
742 N.W.2d 887).
¶106 However, the majority presents no supporting
statistics with respect to deportation. In fact, as Shata
explained in detail, the United States cannot and does not
remove all persons who might be deportable. Due to
prosecutorial discretion, limited resources and the government's
removal priorities, there are avenues for non-citizens to avoid
deportation. Shata, 364 Wis. 2d 63, ¶60 (citing Jeh Charles
Johnson, Policies for the Apprehension, Detention and Removal of
Undocumented Immigrants, at 2 (Nov. 20, 2014).8
¶107 Given reduced procedural protections, indefinite and
even permanent commitment, as well as automatic eligibility for
Chapter 980 commitment, I determine that Chapter 980 is
analogous to deportation. It is a uniquely severe and automatic
consequence of a criminal plea that is closely connected to the
criminal process.
¶108 Accordingly, I conclude that under Padilla, the Sixth
Amendment required counsel to advise LeMere that upon entering a
plea, he was subject to Chapter 980 consequences. In assessing
whether to accept the plea, LeMere should have been informed by
his counsel that by entering the plea he could face an
involuntary——and possible lifetime civil commitment——after
completing his criminal sentence.
8
Available at: http://www.dhs.gov/sites/default/files/
publications/14_1120_memo_prosecutorial_discretion.pdf.
12
No. 2013AP2433-CR.awb
V.
¶109 Although the majority concludes that the Sixth
Amendment does not require counsel to advise a defendant
regarding Chapter 980 commitment, it recommends that it would be
the best practice for counsel to discuss any meaningful
consequence of a plea. Majority op., ¶70.
¶110 Most criminal cases are now resolved by the plea
process. Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). In
Frye, the Unites States Supreme Court emphasized defense
counsel's important duties and responsibilities in the plea
process.
Id. The Frye court explained that 94 percent of state
convictions are resolved with a guilty plea and that "the
negotiation of a plea bargain, rather than the unfolding of a
trial, is almost always the critical point for a defendant."
Id.
¶111 Hughes, 982 N.E.2d at 453, is consistent with a
growing national movement toward providing defendants more
13
No. 2013AP2433-CR.awb
information about the collateral consequences of conviction.9
See generally, Symposium Issue: Beyond the Sentence: Collateral
Consequences of Conviction, 2015 Wis. L. Rev. 181-420 (2015).10
For example, the American Bar Association (ABA has assembled a
tool by which lawyers and defendants can easily search potential
collateral consequences by state and offense type.11
¶112 In contrast to the majority, I would follow Hughes and
conclude that under Padilla, the Sixth Amendment requires
counsel to advise a client regarding the consequence of a
Chapter 980 commitment. Accordingly, I respectfully dissent.
9
According to the Hughes court, "in recent years several
scholars and commentators have brought to light potential
problems inherent in a rigid categorical system of
distinguishing between direct and collateral consequences,
especially in the Sixth Amendment context, given this new
landscape and the framework for analyzing claims of ineffective
assistance." People v. Hughes, 983 N.E.2d 439, 543-44 (Ill.
2012) (citing McGregor Smyth, From “Collateral” to “Integral”:
The Seismic Evolution of Padilla v. Kentucky and Its Impact on
Penalties Beyond Deportation,
54 How. L.J. 795 (2011); Gabriel
J. Chin & Margaret Love, Status as Punishment: A Critical Guide
to Padilla v. Kentucky,
25 Crim. Just. 21, 27–28 (2010); Jenny
Roberts, Ignorance Is Effectively Bliss: Collateral
Consequences, Silence, and Misinformation in the Guilty–Plea
Process,
95 Iowa L. Rev. 119, 124–25 (2009); Jenny Roberts, The
Mythical Divide Between Collateral and Direct Consequences of
Criminal Convictions: Involuntary Commitment of “Sexually
Violent Predators”,
93 Minn. L. Rev. 670, 673–77 (2008); Gabriel
J. Chin & Richard W. Holmes, Jr., Effective Assistance of
Counsel and the Consequences of Guilty Pleas,
87 Cornell L. Rev.
697, 701-02, 712-13 (2002)).
10
Available at: http://wisconsinlawreview.org/volume-2015-
no-2/.
11
See Am. Bar Ass’n, ABA Collateral Consequences,
http://www.abacollateralconsequences.org/.
14
No. 2013AP2433-CR.awb
¶113 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
15
No. 2013AP2433-CR.awb
1
