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State v. Fugere

Supreme Court of Wisconsin

March 28, 2019

State of Wisconsin, Plaintiff-Respondent,
Corey R. Fugere, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: January 24, 2019


         REVIEW 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

          For the defendant-appellant-petitioner, there were briefs filed by Kathilynne A. Grotelueschen, assistant state public defender. There was an oral argument by Kathilynne A. Grotelueschen.

          For 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.


         ¶1 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.[1] 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 of appeals.

         ¶2 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.

         ¶3 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.


         ¶4 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.

         ¶5 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 Services ("DHS").[2]

         ¶6 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.

         ¶7 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 years.
[THE STATE]: Sixty years is the maximum.
THE COURT: Sixty years, but the recommendation is 30 years, do you understand that?
[FUGERE]: Yes.

         Fugere 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 years."

         ¶8 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 was serving.

         ¶9 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.

         ¶10 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.

         ¶11 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) .[3] 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.

         ¶12 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.

         ¶13 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.

         ¶14 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 his plea.

Id., ¶25.

         ¶15 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

         ¶16 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).

         ¶17 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 594, ¶19.

         ¶18 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

         ¶19 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) .

         ¶20 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 consequence").

         ¶21 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 the following:

(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 ...

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