September 17, 2015
of a decision of the Court of Appeals. (L.C. No. 2011CF333).
COURT: Circuit. COUNTY: Eau Claire. JUDGE: Kristina M.
defendant-appellant-petitioner, there were briefs by Edward
J. Hunt and Hunt Law Group, S.C., Milwaukee, and oral
argument by Edward J. Hunt.
plaintiff-respondent, the cause was argued by Sarah L.
Burgundy, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
T. PROSSER, J. Rebecca G. Bradley, J., did not participate.
ANN WALSH BRADLEY, J. (dissenting).
Wis.2d 629] DAVID T. PROSSER, J.
[¶1] This is a review of an unpublished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.
[¶2] In Padilla v. Kentucky, 559
U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Supreme
Court of the United States held that the Sixth Amendment
requires defense counsel to inform a [368 Wis.2d 630] 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, 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.
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. LeMere began sending text messages to
A.C.'s phone, which C.R.C. had borrowed from her
[¶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 [368 Wis.2d 631] 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 "
[¶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 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.
Wis.2d 632] [¶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.
[¶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 [368 Wis.2d
633] 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
[¶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 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 court 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 [368 Wis.2d 634] that occurred during
LeMere's incarceration. 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.
[¶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
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
[368 Wis.2d 635] 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.
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
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.
Wis.2d 636] [¶18] One year later, LeMere
filed a motion in the circuit court seeking to withdraw his
plea and vacate his conviction. 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
[368 Wis.2d 637] 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 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.
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
[¶20] The court of appeals summarily
affirmed. State v. LeMere, No. 2013AP2433-CR,
unpublished order (Wis. Ct.App. Oct. 16, 2014). Relying on
its [368 Wis.2d 638] 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 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.
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
Wis.2d 639] [¶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 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');">264 Wis.2d 571, 665
[¶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, 104 S.Ct. 2052, 80 L.Ed.2d 674
(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, 90 S.Ct. 1441, 25 L.Ed.2d 763 (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,
182 L.Ed.2d 379 (2012) (citing Hill v. Lockhart, 474
U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Wis.2d 640] [¶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 Wis.2d 571');">264 Wis.2d 571,
(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, 106 S.Ct. 1794, 90
L.Ed.2d 339 (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, 185
L.Ed.2d 149 (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 [368 Wis.2d 641] and the
degree of certainty that serious immigration consequences
will result from a plea. See Shata,
364 Wis.2d 63, ¶ 5 (holding that 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, 2015 WI 73, 364
Wis.2d 1, ¶ 5, 866 N.W.2d 717 (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
[¶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.
Padilla's Effect on Sixth Amendment Doctrine
[¶30] Our discussion begins with an
explanation of the Sixth Amendment analytical framework that
the [368 Wis.2d 642] Supreme Court altered in 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.
[¶32] In his Padilla dissent, Justice Scalia
provided a constitutional foundation for the distinction
between direct consequences and collateral consequences: [368
Wis.2d 643] " 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, 128 S.Ct. 2578, 171 L.Ed.2d
366 (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 ...