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State v. LeMere

Supreme Court of Wisconsin

May 20, 2016

State of Wisconsin, Plaintiff-Respondent,
Stephen LeMere, Defendant-Appellant-Petitioner

         Argued September 17, 2015

Page 581

         REVIEW of a decision of the Court of Appeals. (L.C. No. 2011CF333). COURT: Circuit. COUNTY: Eau Claire. JUDGE: Kristina M. Bourget.

         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.

         DAVID T. PROSSER, J. Rebecca G. Bradley, J., did not participate. ANN WALSH BRADLEY, J. (dissenting).


Page 582

         [368 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          [¶1] This is a review of an unpublished decision of the court of appeals affirming the circuit court's judgment convicting Stephen LeMere (LeMere) of first-degree sexual assault of a child under the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.[1]

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          [¶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,[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. 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 [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 " 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 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

Page 584

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.

          [368 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 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 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[4] 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

Page 585

out of an incident [368 Wis.2d 634] 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.

          [¶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?
[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 COURT: Do you have any questions for me?
THE COURT: Anything you don't understand about what we've talked about here?

          [¶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.

Page 586

         [368 Wis.2d 636] [¶18] One year later, LeMere filed a motion in the circuit court[6] seeking to withdraw his plea and vacate his conviction.[7] 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:

[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.

         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,

Page 587

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.

         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.

          [368 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 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, 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)).

          [368 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, ¶ 18

Page 588

(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 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 [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

Page 589

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 ...

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