ARGUMENT: January 24, 2019
CIRCUIT COURT CHIPPEWA COUNTY, L.C. No. 2015CF169) RODERICK
A. CAMERON JUDGE
OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis.2d
142, 911 N.W.2d 127');">911 N.W.2d 127 PDC No:2018 WI.App. 24 - Published
the defendant-appellant-petitioner, there were briefs filed
by Kathilynne A. Grotelueschen, assistant state public
defender. There was an oral argument by Kathilynne A.
the plaintiff-respondent, there was a brief filed by Luke N.
Berg, deputy solicitor general. With whom on the brief
Tiffany M. Winter, assistant attorney general, Misha
Tseytlin, solicitor general, and Brad D. Schimel, attorney
general. There was an oral argument by Luke N. Berg.
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of a published decision of the court of
appeals, State v. Fugere, 2018 WI.App. 24, 381
Wis.2d 142, 911 N.W.2d 127');">911 N.W.2d 127, affirming the Chippewa County
circuit court's order. The circuit court's order denied
Corey R. Fugere's ("Fugere") motion to withdraw
his plea of not guilty by reason of mental disease or defect
("NGI"), which was based on the circuit court
providing inaccurate information to Fugere concerning the
maximum period of civil commitment should he prevail on his
affirmative defense to the criminal charges. The court of
appeals affirmed the circuit court, and we affirm the court
We conclude that a circuit court is not required to inform an
NGI defendant of the maximum possible term of civil
commitment at the guilt phase: (1) because a defendant who
prevails at the responsibility phase of the NGI proceeding
has proven an affirmative defense in a civil proceeding,
avoiding incarceration, and is not waiving any constitutional
rights by so proceeding in that defense; and (2) because an
NGI commitment is not punishment, but rather a collateral
consequence to one who successfully mounts an NGI defense to
criminal charges. We therefore decline to exercise our
superintending and administrative authority to require
circuit courts to advise NGI defendants of the maximum period
of civil commitment.
Fugere also requests that this court conclude that the
circuit court's error was not harmless with respect to
the misinformation provided to him concerning potential civil
consequences should he prevail in his defense. The circuit
court here provided accurate information to Fugere regarding
the maximum possible term of imprisonment but inaccurate
information regarding commitment, so we thus address whether
the circuit court's error otherwise entitles Fugere to
withdraw his NGI plea. We conclude that the circuit
court's error was harmless because it was unrelated to
the guilt phase of the NGI defense, and instead, the
inaccurate information pertained to the potential civil
commitment at the responsibility phase. Additionally, Fugere
received the benefit of his plea agreement with the State and
otherwise understood the consequences of prevailing on an NGI
defense as he was already civilly committed for an unrelated
charge. Thus, there was no manifest injustice, and we affirm
the court of appeals.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
In April 2015 Fugere was charged with four counts of
first-degree sexual assault of a child under the age of 12.
The complaint alleged that in 2008, when Fugere was 17 years
old, he and another individual sexually assaulted an
eight-year-old girl. At the time these charges were filed,
however, Fugere was serving a commitment to the Mendota
Mental Health Institute because of a different sexual assault
charge for which Fugere had previously been found NGI.
A few months after Fugere was charged, the State and Fugere
reached a plea agreement. Pursuant to the agreement, Fugere
would plead NGI to one count of first-degree sexual assault
of a child under the age of 12, and the remaining charges
were dismissed but read in. As a result, Fugere would waive
his right to trial regarding guilt, admit that there was a
factual basis that he committed the sexual assault, and the
State and Fugere would stipulate that, based on the other
case information and findings, Fugere lacked substantial
capacity to appreciate the wrongfulness of his conduct or
conform his conduct to the requirements of the law due to a
mental disease or defect. The parties agreed to recommend
that the circuit court order a pre-dispositional
investigation report and that Fugere be civilly committed for
30 years to the State of Wisconsin Department of Health
On August 24, 2015, Fugere filed an initialed and signed
"Plea Questionnaire/Waiver of Rights" form and
entered an NGI plea to the single count. At the plea hearing,
the circuit court conducted a plea colloquy and, among other
things, confirmed with Fugere that he understood the nature
of the charges, that he was waiving his constitutional
rights, including his right to a jury trial, and that the
maximum penalty for first-degree sexual assault was 60 years.
During the plea colloquy, the circuit court also addressed
Fugere's NGI plea. The court, the State, and Fugere's
attorney all misinformed Fugere of the potential maximum
period of civil commitment. The following exchange occurred:
THE COURT: You are not actually going [to] be found guilty of
the charge today. You are going to be found [not] guilty by
reason of mental disease or defect, which is a bit different,
but it means you could be placed on supervision for up to 30
[THE STATE]: Sixty years is the maximum.
THE COURT: Sixty years, but the recommendation is 30 years,
do you understand that?
informed the circuit court that he was aware of the 30-year
recommendation even though 60 years is the maximum. Fugere
confirmed that he had been on conditional release on another
case and that he understood how conditional release worked.
Fugere indicated that he did not have any questions.
Fugere's attorney confirmed that Fugere would be exposed
"to some 30 more years of supervision, could possibly be
60 years." His lawyer confirmed that Fugere understood
that "if he violates any rules of supervision, he could
end up back at Mendota or Winnebago during the next 60
The circuit court accepted Fugere's NGI plea, adopted the
parties' joint recommendation, and ordered that Fugere be
committed for 30 years and that a pre-dispositional
investigation be prepared. The order of commitment specified
that Fugere's commitment was to commence on August 24,
2015, and run concurrent with any other NGI commitments he
At the post-dispositional placement hearing on October 15,
2015, the court ordered Fugere be placed in institutional
care. At the hearing, Fugere did not contest the report's
findings and admitted he was "not ready" for
conditional release. Fugere stated that he hoped he would be
fit for conditional release in six months.
Just over six months later, on April 29, 2016, Fugere filed a
petition for conditional release with the circuit court. The
circuit court ordered an examination by an independent
psychologist, who recommended that Fugere be conditionally
released. On June 29, 2016, the circuit court granted
conditional release subject to finding a suitable group home.
The DHS was to provide a release plan within 60 days.
On August 5, 2016, prior to the 60-day time period elapsing,
the DHS informed the circuit court that it was
"temporarily suspend[ing] planning for the conditional
release" because the State intended to file a complaint
against Fugere alleging that he should be separately
committed as a sexually violent person under Wis.Stat. ch.
980 (2015-16) . The DHS further notified the circuit court
that Fugere had recently committed a "new
violation" by "having sexual relations with a peer
at Mendota." The DHS additionally stated that it
intended to revoke Fugere's conditional release following
resolution of the State's chapter 980 petition.
On September 15, 2016, Fugere filed a postconviction motion
to withdraw his NGI plea arguing that it was not knowingly,
intelligently, and voluntarily entered. Fugere asserted that
he was entitled to withdraw his plea because he was
misinformed of the maximum civil commitment period.
Specifically, he averred that the circuit court incorrectly
informed him that he faced a maximum of 60 years, when the
actual maximum was 40 years' commitment and that the
circuit court inaccurately referenced supervision. In
response, the State argued that an NGI commitment is not a
punishment, and therefore the circuit court is not required
to advise Fugere of his maximum possible commitment to render
Fugere's plea knowingly, intelligently, and voluntarily
given. The State further argued that under State v.
Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986),
defendants must be informed only of the maximum statutory
punishment they face. The State contended that the circuit
court correctly informed Fugere of the maximum statutory
punishment he faced if his NGI defense failed, and therefore
fulfilled the circuit court's duty at the plea colloquy.
The State argued that no "manifest injustice"
resulted because Fugere received the very 30-year commitment
term he bargained for. At a hearing on November 9, 2016, the
circuit court agreed with the State and denied Fugere's
motion. The court concluded:
I think, given the fact that there's no requirement to
provide a defendant the maximum amount of time for a
confinement or commitment time on an NGI when he's told
he's going to get a certain amount against that amount, I
think that's distinguishable from the maximum amount of
time partly because confinement is not a sentence and partly
because he's getting exactly what he expected to get
regardless of how much more time he could have gotten. So I
believe under that analysis, that the motion is to be denied.
Fugere appealed the circuit court's ruling. In an opinion
issued on March 6, 2018, the court of appeals affirmed the
circuit court. Fugere, 381 Wis.2d 142, ¶2. It
held "that circuit courts need not advise a defendant
pleading NGI of the potential range of civil commitment he or
she will face if found not mentally responsible for his or
her crimes, much less do so correctly." Id.,
¶19. The court of appeals explained the unique process
that occurs with NGI pleas, which consists of two phases: the
guilt phase, and the responsibility phase. Id.,
¶13. The court of appeals concluded that the
requirements established by Bangert and its progeny
apply only to the guilt phase of an NGI proceeding. In other
words, the court of appeals concluded that a defendant must
be informed only of the maximum punishment the defendant
faces if he were to be found guilty, which implicates only
the guilt phase. Id., ¶19. Noting that
Wisconsin courts have routinely "held that the
responsibility phase of an NGI trial is not part of a
criminal trial," the court of appeals further concluded
that "[t]he same constitutional rights are not
implicated or waived during the mental responsibility
phase." Id. The court of appeals also expressed
that a defendant's right to assert an NGI defense is a
statutory right, not a constitutional right. Id.
As a result, the court of appeals concluded as follows:
In all, the record demonstrates that the circuit court
informed Fugere of the direct consequences of his plea,
including the potential sixty-year prison sentence. The
circuit court's incorrect statement regarding
Fugere's maximum potential period of civil commitment
does not render Fugere's NGI plea unknowing,
unintelligent, or involuntarily [sic]. As such, there was no
manifest injustice, and Fugere is not entitled to withdraw
On March 27, 2018, Fugere filed a petition for review with
this court. On September 4, 2018, this court granted
Fugere's petition. II. STANDARD OF REVIEW
When a defendant seeks to withdraw a guilty plea after
sentencing, the defendant must prove "by clear and
convincing evidence, that a refusal to allow withdrawal of
the plea would result in 'manifest injustice.'"
State v. Brown, 2006 WI 100, ¶18, 293 Wis.2d
594, 716 N.W.2d 906 (citing State v. Thomas, 2000 WI
13, ¶16, 232 Wis.2d 714, 605 N.W.2d 836) . A defendant
can meet that burden by showing that he or she did not
knowingly, intelligently, and voluntarily enter the plea.
Id. (citing State v. Trochinski, 2002 WI
56, ¶15, 253 Wis.2d 38, 644 N.W.2d 891; State ex
rel. Warren v. Schwarz, 219 Wis.2d 615, 635-36, 579
N.W.2d 698 (1998); State v. Krawczyk, 2003 WI.App.
6, ¶9, 259 Wis.2d 843, 657 N.W.2d 77).
Whether a guilty plea was entered knowingly, intelligently,
and voluntarily is a question of constitutional fact.
State v. Muldrow, 2018 WI 52, ¶24, 381 Wis.2d
492, 912 N.W.2d 74. This court upholds a circuit court's
findings of fact unless clearly erroneous, and
"[d]etermines independently whether those facts
demonstrate that the defendant's plea was knowing,
intelligent, and voluntary." Brown, 293 Wis.2d
Fugere asserts that there were deficiencies in the plea
colloquy conducted by the circuit court in violation of
Wis.Stat. § 971.08. Whether Fugere shows deficiencies in
the plea colloquy that establish a violation of §
971.08, is a question of law that this court reviews de novo.
See Brown, 293 Wis.2d 594, ¶21. III. ANALYSIS
A. General Principles Of Pleas And Plea Colloquies
We begin by addressing the basic principles underlying pleas
and plea colloquies. Wisconsin Stat. § 971.06 recognizes
four distinct pleas that can arise from criminal matters: (1)
guilty; (2) not guilty; (3) no contest, which is subject to
the court's approval; and (4) "[n]ot guilty by
reason of mental disease or defect." § 971.06(1) .
A defendant must enter a plea to a criminal charge
"knowing[ly], voluntar[ily], and intelligent [ly]
." Muldrow, 381 Wis.2d 492, ¶1; see also
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). For a
defendant's plea to be "knowing, intelligent, and
voluntary," the defendant must be fully aware of
"any direct consequences" of the plea.
Muldrow, 381 Wis.2d 492, ¶1 (citing Brady
v. United States, 397 U.S. 742, 755 (1970)) . A
"direct consequence" is defined as "one that
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 (citing State v. Bollig, 2000 WI 6, ¶16,
232 Wis.2d 561, 605 N.W.2d 199) .
On the other hand, information regarding "collateral
consequences" of a defendant's plea "is not a
prerequisite to entering a knowing and intelligent
plea." Id., ¶61 (citing Warren,
219 Wis.2d at 636) . "Collateral consequences are
indirect and do not flow from the conviction."
Id. In evaluating whether a consequence of a
defendant's plea is direct or collateral, courts look to
whether the consequence is a punishment. See Bollig,
232 Wis.2d 561, ¶27 (holding "that Wisconsin's
sex offender registration requirements do not constitute
punishment," and thus are "a collateral
The Wisconsin Statutes also impact a circuit court's role
in a plea colloquy. Under Wis.Stat. § 971.08(1), circuit
courts must conduct a plea colloquy with a defendant who
pleads guilty or no contest, in the interest of ensuring that
the defendant's plea is given knowingly, intelligently,
and voluntarily. § 971.08(1) (a) . Before the circuit
court accepts a guilty or no contest plea, it must do all of
(a) Address the defendant personally and determine that the
plea is made voluntarily with understanding of the nature of
the charge and the potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in
fact committed the crime charged.
(c) Address the defendant personally and advise the defendant
as follows: "If you are not a citizen of the United
States of America, you are advised that a plea of guilty or
no contest for the offense with which you are charged may
result in deportation, the exclusion from admission to this