State v. Fugere
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The Supreme Court affirmed the decision of the court of appeals affirming the order of the circuit court denying Defendant's motion to withdraw his plea of not guilty by reason of mental disease or defect (NGI), holding that a circuit court is not required to inform an NGI defendant of the maximum possible term of civil commitment at the guilt phase.
Defendant's motion to withdraw his NGI plea was based on the circuit court providing inaccurate information to him concerning the maximum period of civil commitment should he prevail on his affirmative defense to his criminal charges. The court of appeals affirmed the circuit court's denial of Defendant's motion. The Supreme Court affirmed, holding that, for two reasons given in this opinion, a circuit court is not required to inform an NGI defendant of the maximum possible term of civil commitment at the guilt phase.
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2019 WI 33 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP2258-CR State of Wisconsin, Plaintiff-Respondent, v. Corey R. Fugere, Defendant-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis. 2d 142,911 N.W.2d 127 PDC No:2018 WI App 24 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 24, 2019 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Chippewa Roderick A. Cameron JUSTICES: CONCURRED: DISSENTED: March 28, 2019 A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. and DALLET, J. (opinion filed). NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs filed by defender. Kathilynne There was A. Grotelueschen, an oral assistant argument by state public 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. 2019 WI 33 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP2258-CR (L.C. No. 2015CF169) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, v. MAR 28, 2019 Corey R. Fugere, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. 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, 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 ("NGI"), not guilty which was by reason based on of the mental disease circuit court or defect providing inaccurate information to Fugere concerning the maximum period of civil commitment should he prevail on his affirmative defense 1 The Honorable Roderick Cameron presided. No. to the criminal charges. 2016AP2258-CR 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. therefore decline to exercise our superintending We and administrative authority to require circuit courts to advise NGI defendants of the maximum period of civil commitment. ¶3 circuit Fugere also requests that this court conclude that the court's misinformation error was provided consequences should he not to harmless him prevail in with concerning his respect to potential defense. The the civil 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 plea. error otherwise entitles Fugere to withdraw his NGI We conclude that the circuit court's error was harmless because it was unrelated to the guilt phase of the NGI defense, and instead, potential the civil inaccurate commitment information at the pertained responsibility to the phase. Additionally, Fugere received the benefit of his plea agreement 2 No. with the State and otherwise understood the 2016AP2258-CR 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. I. ¶4 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 girl. serving individual sexually assaulted an eight-year-old At the time these charges were filed, however, Fugere was 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. Fugere assault would of plead a child NGI to under one the Pursuant to the agreement, count age of of charges were dismissed but read in. first-degree 12, and the sexual remaining 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 3 No. Fugere be civilly committed for 30 years to 2016AP2258-CR 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. court conducted a plea confirmed with Fugere charges, that he including his right colloquy that was to At the plea hearing, the circuit he waiving a jury and, among understood his the other things, nature of constitutional trial, and that the the rights, maximum penalty for first-degree sexual assault was 60 years. ¶7 During the plea addressed Fugere's NGI plea. colloquy, the circuit court also 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 30year recommendation even though 60 years is the maximum. 2 Fugere Additionally, as part of the plea agreement, Fugere agreed to submit a DNA sample, but that is not significant to this appeal. 4 No. 2016AP2258-CR confirmed that he had been on conditional release on another case and that he understood how conditional release Fugere indicated that he did not have any questions. worked. 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 October 15, the post-dispositional 2015, the institutional care. court placement ordered Fugere be hearing on placed in 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 psychologist, released. court who On ordered an examination recommended June 29, that 2016, the Fugere by be circuit an independent conditionally court granted conditional release subject to finding a suitable group home. The DHS was to provide a release plan within 60 days. 5 No. ¶11 2016AP2258-CR 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 recently notified the circuit court that Fugere had 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 motion On September 15, 2016, Fugere filed a postconviction to knowingly, withdraw his NGI intelligently, plea and arguing voluntarily that it was entered. not Fugere asserted that he was entitled to withdraw his plea because he was misinformed Specifically, he of the averred maximum that the civil circuit commitment court period. 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 knowingly, possible commitment intelligently, and to render voluntarily 3 Fugere's given. The plea State All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 6 No. 2016AP2258-CR further argued that under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), defendants must be informed maximum statutory punishment they face. only of the 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 colloquy. resulted The the State because Fugere term he bargained for. circuit argued court's that received the no duty at "manifest very 30-year the plea injustice" commitment 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. 7 Id., No. ¶13. The court of appeals concluded that the 2016AP2258-CR 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, Noting which that implicates Wisconsin only courts the have guilt phase. routinely Id., "held that ¶19. 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. ¶14 As a result, the court of Id. 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 with this On March 27, 2018, Fugere filed a petition for review court. On September Fugere's petition. 8 4, 2018, this court granted No. II. ¶16 2016AP2258-CR 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). can meet that burden by showing that he or A defendant 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. plea colloquy that Whether Fugere shows deficiencies in the establish a violation of question of law that this court reviews de novo. Wis. 2d 594, ¶21. 9 § 971.08, is a See Brown, 293 No. III. A. 2016AP2258-CR ANALYSIS 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) disease or defect." to a criminal intelligent[ly]." "[n]ot § 971.06(1). charge guilty by 381 mental A defendant must enter a plea "knowing[ly], Muldrow, reason of Wis. voluntar[ily], 2d 492, Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). ¶1; see and also 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)). "one that has a A "direct consequence" is defined as 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 Warren, 219 indirect knowing and Wis. 2d do not and intelligent at 636). flow from plea." "Collateral the Id., ¶61 (citing consequences conviction." are Id. In evaluating whether a consequence of a defendant's plea is direct or collateral, courts look to 10 whether the consequence is a No. punishment. 2016AP2258-CR See Bollig, 232 Wis. 2d 561, ¶27 (holding "that Wisconsin's sex offender constitute punishment," registration requirements and are thus "a do not 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 defendant's voluntarily. contest, plea is in the given § 971.08(1)(a). interest knowingly, of ensuring that intelligently, the and 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 country or the denial of naturalization, under federal law." (d) Inquire of the district attorney whether he or she has complied with s. 971.095(2).[4] 4 Wisconsin Stat. § 971.095(2) states as follows: In any case in which a defendant has been charged with a crime, the district attorney shall, as soon as practicable, offer all of the victims in the case who have requested the opportunity an opportunity to confer with the district attorney concerning the (continued) 11 No. 2016AP2258-CR § 971.08(1). ¶22 As this court has explained, the plea colloquy duties imposed on courts constitutional Wis. Stat. requirement," imperative." faithful by Bangert, 131 discharge of § 971.08 but rather, duties is the not "a Wis. 2d at 266. these are statutory However, best "a "[t]he way . . . to demonstrate the critical importance of pleas in our system of justice and to avoid constitutional problems." Brown, 293 Wis. 2d 594, ¶23. ¶23 Although the language in Wis. Stat. § 971.08 does not indicate that it applies to NGI pleas, as § 971.08 expressly refers only to "plea[s] of guilty or no contest," this court has stated that contest." This of court "the punishment." ¶24 NGI plea "closely parallels a plea of no State v. Shegrud, 131 Wis. 2d 133, 137, 389 N.W.2d 7 (1986). informed an has nature concluded of the that charge" a defendant and the must be "potential Id. at 138. A defendant who wishes to withdraw a guilty plea after sentencing bears the heavy burden to demonstrate by "clear and convincing evidence" "manifest injustice." that withdrawal is necessary to avoid State v. Finley, 2016 WI 63, ¶58, 370 prosecution of the case and the possible outcomes of the prosecution, including potential plea agreements and sentencing recommendations. The duty to confer under this subsection does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant. 12 No. 2016AP2258-CR Wis. 2d 402, 882 N.W.2d 761; State v. Sulla, 2016 WI 46, ¶24, 369 Wis. 2d 225, 880 N.W.2d 659. A plea is "manifestly unjust" in violation of the Due Process Clause of the United States Constitution if it was not entered "knowingly, intelligently, and voluntarily." Stumpf, 545 U.S. at 182-83. While Bangert and Wis. Stat. § 971.08 inform a court's duties when it comes to properly taking a plea, an improper automatically mandate withdrawal. colloquy does not State v. Cross, 2010 WI 70, ¶¶32-40, 326 Wis. 2d 492, 786 N.W.2d 64; State v. Taylor, 2013 WI 34, ¶¶32-42, 48-54, 347 Wis. 2d 30, 829 N.W.2d 482. An improper colloquy may entitle a defendant to a hearing however, and there, the State bears the burden of establishing that the guilty plea was indeed voluntary. Brown, 293 Wis. 2d 594, ¶¶36- 41. ¶25 In the case at issue, Fugere argues that he, as a defendant who entered an NGI plea but was not properly informed of the accurate maximum length of a civil commitment, should be entitled to withdraw that plea on the grounds that it was not knowing, intelligent, and voluntary. B. ¶26 statutory NGI Procedures "[A] criminal defendant's right to an NGI defense is a right that is not guaranteed States or Wisconsin Constitutions." the United State v. Magett, 2014 WI 67, ¶32, 355 Wis. 2d 617, 850 N.W.2d 42. joined with a plea of not guilty." by either NGI pleas "may be Wis. Stat. § 971.06(1)(d). When a defendant enters this plea, the case is bifurcated into two phases: the guilt phase and the responsibility phase. 13 See No. Magett, 355 Wis. 2d 617, ¶39. guilty in the first phase 2016AP2258-CR Only if a defendant is found does the court withhold entry of judgment of guilt and the trial proceeds to the responsibility phase. Wis. Stat. § 971.165(1)(d). The responsibility phase "is not a criminal proceeding," but "is something close to a civil trial." Magett, 355 Wis. 2d 617, ¶33. Unlike a criminal trial, the verdict need not be unanimous, the defendant bears the burden of proof to establish this affirmative defense by a preponderance of the evidence, and the circuit court may direct a verdict. ¶27 Id., ¶¶37–39. On the other hand, a defendant may choose to plead NGI without also pleading not guilty, also known as a "standalone NGI plea." defendant See Wis. Stat. § 971.06(1)(d). "admits that but for lack of In so doing, the mental capacity, the defendant committed all the essential elements of the offense charged in the indictment, information or complaint." Id. The defendant is then found guilty of the elements of the crime(s) and the responsibility phase is left for trial. State Lagrone, 2016 WI 26, ¶29, 368 Wis. 2d 1, 878 N.W.2d 636. v. As Fugere points out, this court has exercised its superintending and administrative authority with regard to plea requirements in the past in both Bangert and Shegrud. colloquy The court has concluded that in the first phase of an NGI plea, the court must "address the defendant personally to determine whether the defendant is understanding entering of the the plea nature voluntarily of the [and] an charge. . . . [T]he procedures delineated in Bangert shall apply . . . ." 14 with Shegrud, No. 131 Wis. 2d at 138. 2016AP2258-CR Also, as was the case here, the parties may agree to waive the trial on responsibility and stipulate that the defendant should be found NGI. ¶28 Under Wis. Stat. § 971.165(3)(b), if the defendant's NGI defense succeeds, "the court shall enter a judgment of not guilty by reason of mental disease or thereupon proceed under s. 971.17."5 defect," and "shall If the defendant's NGI defense is unsuccessful, "the court shall enter a judgment of conviction and shall either impose or withhold sentence under s. 972.13(2)." ¶29 are § 971.165(3)(a). Defendants in criminal cases who are later found NGI civilly sanctioned. committed rather than criminally sentenced or If commitment occurs, the length of that commitment is not to exceed the maximum sentence for the charged offense plus penalty provisions. length of enhancements subject to Wis. Stat. § 971.17(1)(b). commitment is about credit As a general rule, the two-thirds potential sentence of imprisonment.6 statutory of the maximum In addition, a defendant 5 Wisconsin Stat. § 971.17 governs the "[c]ommitment of persons found not guilty by reason of mental disease or mental defect." 6 Under Wis. Stat. § 971.17(1), an NGI defendant's maximum possible commitment period depends on the nature of the underlying offense. NGI defendants who commit a felony prior to July 30, 2002, or who commit a misdemeanor, may receive a maximum commitment period of two-thirds the maximum term of imprisonment that could be imposed. § 971.17(1)(a) & (d). NGI defendants who commit a felony on or after July 30, 2002, may receive a commitment term up to but not exceeding the maximum term of imprisonment that could be imposed. § 971.17(1)(b). (continued) 15 No. 2016AP2258-CR who succeeds on an NGI defense and is committed may file a petition for conditional release every six months, and if on conditional release, may file underlying order of commitment. C. ¶30 Fugere a petition to terminate the See §§ 971.17(4), (5). Bangert And Shegrud asserts that this court should exercise its superintending and administrative authority to clarify or extend Bangert and Shegrud. He argues that an NGI plea cannot be knowing, or intelligent, voluntary when a circuit court inaccurately informs an NGI defendant of the maximum term of commitment or refers to commitment as supervision. We consider the unique nature of an NGI plea and the fact that the first phase, the admission of guilt, must be knowing, intelligent, and voluntary as the defendant is waiving, among other things, the right to a jury trial and putting the State to its high burden of proving each and every element of the offense charged. In the guilt phase, the defendant waives constitutional rights and must understand the criminal punishment. nature of the charge and the potential This understanding is important because if the defendant's affirmative defense fails at the second phase, the defendant's criminal sentence could be the maximum term of imprisonment. Stated differently, a defendant who does not succeed in proving the affirmative defense at the responsibility Lastly, NGI defendants who commit a felony punishable by life imprisonment may receive up to a lifetime commitment term. § 971.17(1)(c). 16 No. 2016AP2258-CR phase is convicted and sentenced up to the maximum possible term of imprisonment. The circuit court here informed the defendant of possible the maximum questionnaire outlined term the of same, imprisonment, and the record the plea reflects a discussion of that maximum.7 ¶31 potential Fugere's argument, criminal penalty however, if his NGI relates defense not to fails. the His argument is that if he succeeds in his affirmative defense and is found NGI, the court must have previously informed him of the civil consequences of proving that defense. Fugere's argument focuses then not on whether the circuit court properly informed him of the consequences of the guilt phase of the plea. His argument centers on the circuit court being required, at the guilt phase, to advise not only of the maximum criminal penalty but also the potential maximum civil commitment. Civil commitment is the benefit Fugere seeks, but one that becomes available only if he succeeds in affirmatively proving his legal lack of responsibility. ¶32 is The responsibility phase of the proceedings, however, drastically different from the guilt phase. The responsibility phase is the defendant's opportunity to present an affirmative defense, a legislative preference provided in the statutory right to a separate 7 trial regarding mental See State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773; State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482; and State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64. 17 No. responsibility. If defendant the bears successful burden at of this phase——at proving his 2016AP2258-CR which defense by the a preponderance of the evidence to a less than unanimous jury——the outcome is that he would be civilly committed, not criminally sentenced. The maximum civil commitment is of a shorter duration, less restrictive than imprisonment, subject to review on a regular basis, and is not "punishment" but rather, is "to treat the NGI acquittee's acquittee and dangerousness." society mental from illness the and to protect the acquittee's potential State v. Szulczewski, 216 Wis. 2d 495, 504, 574 N.W.2d 660 (1998). The defendant who succeeds in proving this affirmative defense is hoping for civil commitment rather than criminal punishment. This court has never required circuit courts to conduct a colloquy with defendants to inform them of the benefits of successfully proving an affirmative defense. While courts should provide accurate information, we decline to extend Bangert or Shegrud to require circuit courts to advise a defendant of the potential consequences of prevailing on an affirmative defense at the responsibility phase of an NGI trial. The circuit court has a duty to advise of punishment at the guilty plea phase of an NGI, namely, the potential maximum term of imprisonment. 1. ¶33 Constitutional rights are not waived at the responsibility phase. To be clear, defendants who submit a standalone NGI plea waive constitutional rights only at the guilt phase, not the responsibility phase. The defendant who chooses, by NGI 18 No. 2016AP2258-CR plea at the guilt phase, not to challenge that he committed the charged criminal offense, enters a plea which operates like a no contest plea. See Shegrud, 131 Wis. 2d at 137. The case then proceeds to the responsibility phase——a noncriminal proceeding—— where the defendant presents an affirmative defense that, if proven, may lead to civil commitment instead of incarceration.8 For those who might argue that a civil commitment is a significant consequence for which a defendant should be advised, they fail to recognize the unique position of an NGI defendant who otherwise faces imprisonment unless that defendant can prove he or she is instead entitled to a civil commitment. ¶34 This distinction——between criminal and civil proceedings and possible imprisonment versus civil commitment—— has significance. Consistent with Bangert and Shegrud, circuit courts must inform defendants who enter a standalone NGI plea of the nature rights the of the charges, defendant is the nature waiving, and of the the constitutional maximum punishment if the defendant's NGI defense fails. potential See Bangert, 131 Wis. 2d at 261–62; Shegrud, 131 Wis. 2d at 136–39. fulfills the constitutional requirements underlying defendant's plea at the guilt phase of the proceedings. does not dispute that the circuit court This fulfilled a Fugere these requirements at the guilt phase, and the record reflects that at the plea colloquy hearing the circuit court properly informed 8 In the case at issue, the State agreed that Fugere could successfully mount an NGI defense. 19 No. 2016AP2258-CR Fugere of the nature of the criminal charges against him, the nature of the constitutional rights maximum term of imprisonment. he was waiving, and the Fugere argues though that courts should be required to go further and advise not just of the potential punishment should his defense fail, but also of the potential civil consequence to him should his defense succeed. ¶35 Defendants do not waive any constitutional rights pertaining to the responsibility phase of an NGI proceeding. At the responsibility phase, defendants have the burden to prove a statutorily-created concession of any affirmative kind. defense See Wis. and are Stat. not making § 971.15. a NGI defendants hope to prove that they are not mentally responsible for the crime they have already been found guilty of committing. There is no requirement that any defendant raise an NGI defense. Defendants benefit from the successful presentation of an NGI defense. been At the responsibility phase, a defendant has already found guilty and absent success at criminal punishment not civil commitment. that phase, faces Indeed, a successful NGI defendant avoids incarceration in favor of civil commitment and may seek conditional release within six months of his initial commitment date, and commitment, unlike incarceration, could be terminated entirely. notably distinguishable from In addition, NGI proceedings are other forms of civil commitment such as those arising under Wis. Stat. ch. 51 or ch. 980, where the government, not the defendant, pursues the commitment and carries the burden of proof. In the context of an NGI proceeding, the defendant willfully seeks commitment and bears 20 No. 2016AP2258-CR the burden of proof to receive the benefit of a successful NGI defense. ¶36 Our conclusion that NGI defendants do not waive any constitutional rights at the responsibility phase of an NGI proceeding is buttressed by this court's decision in Lagrone, 368 Wis. 2d 1. There, as in this case, Lagrone did not challenge the plea colloquy that occurred regarding the guilt phase of the NGI proceedings. Id., ¶53. Instead, Lagrone argued that he was unaware that by entering a standalone NGI plea, he was waiving his fundamental right to testify at a criminal trial regarding the validity of the charges against him. Id. This court held that circuit courts are not required to conduct a colloquy with defendants regarding whether or not they wish to testify during the responsibility phase of an NGI proceeding. "the Id., ¶¶51–56. fundamental defendant in a right Specifically, this court stated that to testify criminal case in one's does own not behalf exist as at a the responsibility phase of bifurcated NGI proceedings because that phase is a noncriminal proceeding to which defendants possess no constitutional right." reasoning is constitutional Id., ¶51 (emphasis added). applicable rights in here. this Defendants do non-criminal, The same not waive responsibility phase. 2. ¶37 defendant Circuit of any NGI commitments are not punitive in intent or effect. courts direct are required consequence 21 only of to his "notify guilty the plea." No. 2016AP2258-CR Muldrow, 381 Wis. 2d 492, ¶1 (citing Brady, 397 U.S. at 755). "We have identified direct consequences of a plea as being those that impose punishment." Id. We next evaluate whether commitment is punitive and thus, a direct consequence of a plea. This court recently adopted the "intent-effects test" determining whether a consequence of a plea is punitive. for Id., ¶35. ¶38 The United States Supreme Court first articulated the intent-effects 144, 168–70 test in (1963). Kennedy The v. Mendoza-Martinez, intent-effects test 372 U.S. has two parts. Courts look to the "statute's primary function" to determine the statute's intent. Id. at 169. If a law's intent is not punitive, the court then considers whether it is nonetheless punitive in effect. Courts consider whether effect is "penal or regulatory in character." In evaluating effect, courts look to seven, the statute's Id. at 168-69. non-exhaustive factors: [1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment——retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned . . . . Id. 22 No. ¶39 We conclude that applying the 2016AP2258-CR intent-effects test further demonstrates that commitment resulting from a successful NGI defense is not a punishment, and thus consequence of a defendant's NGI plea. is not a The parties agree that NGI commitments are not intended to be punishments. this court has already held that direct NGI commitments Indeed, are not intended to be punishments, holding that their purpose is "twofold: to treat the NGI acquittee's mental illness and to protect the acquittee and society from the acquittee's potential dangerousness." Szulczewski, 216 Wis. 2d at 504 (citing State v. Randall, 192 Wis. 2d 800, 833, 532 N.W.2d 94 (1995)). By contrast, this court stated that judgments of conviction and sentences are "designed to accomplish the objectives deterrence, rehabilitation, retribution and segregation." of Id. (citing Wayne R. LaFave & Austin W. Scott, Jr., 1 Substantive Criminal Law § 1.5, at 30–36 (1986)). Thus, we conclude that NGI commitments are not intended to serve as punishment under the intent portion of the intent-effects test. ¶40 That leaves the question of whether NGI commitments have a punitive effect. Fugere focuses on factors (1), (5), and (7) in claiming that NGI commitments have a punitive effect. Applying all seven factors outlined by the United States Supreme Court in Mendoza-Martinez, we conclude that NGI commitments do not have a punitive effect. ¶41 "an First, Fugere is correct that NGI commitments involve affirmative disability or restraint." Defendants that successfully plead NGI are committed, which involves confinement 23 No. at a mental health institution for treatment. an affirmative restraint. The State 2016AP2258-CR This is plainly concedes as much, but argues that "the mere fact that a person is detained does not inexorably lead to the imposed punishment." conclusion We agree. that the government has However, that does not change the fact that NGI committees are affirmatively restrained. ¶42 Second, historically been measures such regarded as as NGI commitments non-punitive in nature. have In addition to this court's statement in Szulczewski regarding the purpose of NGI commitments, the United States Supreme Court has recognized dangerously that "measures mentally to ill" restrict serve a the freedom "legitimate of the nonpunitive governmental objective and has been historically so regarded." Kansas v. Hendricks, 521 U.S. 346, 363 (1997) (citing United States v. Salerno, 481 U.S. 739, 747 (1987)). further recognized "the confinement of The Supreme Court 'mentally unstable individuals who present a danger to the public' as one classic example of nonpunitive detention." Id. (citing Salerno, 481 U.S. at 748-49). ¶43 a Third, NGI commitments do not "come into play only on finding of scienter." As the State correctly notes, NGI commitments are necessarily premised on the absence of scienter, which renders an NGI defendant not underlying criminal conduct. ¶44 legally culpable for the See Wis. Stat. § 971.15(1). Fourth, NGI commitments do not serve the "traditional aims of punishment——retribution and deterrence." commitments serve to treat defendants' 24 mental Rather, NGI illness and No. protect the public. of retribution 2016AP2258-CR Such ends do not fit the traditional goals and deterrence associated convictions, judgments, and sentencing. with criminal See Szulczewski, 216 Wis. 2d at 504; see also Jones v. United States, 463 U.S. 354, 368–69 (1983) (explaining that "insanity acquittees" are not convicted, and thus not punished, and that "confinement rests on [an acquittee's] continuing illness and dangerousness"). ¶45 that Fifth, results NGI in defendant. criminal Though defendant's commitments criminal a require charges successful underlying being NGI responsibility, brought defense criminal behavior against the obviates the conduct is an inherent underpinning of an NGI commitment. ¶46 Sixth, NGI commitments certainly carry an alternative, non-punitive purpose. As this court stated in Muldrow, this "is considered the most significant factor in determining whether the effect of a sanction is punitive." Muldrow, Wis. 2d 492, ¶57 (internal quotation marks omitted). 381 Here, as noted above, the purpose of NGI commitments is to treat the defendant and protect the public. NGI commitments thus carry a strong alternative and non-punitive purpose. court in offenders the Muldrow had public held "[t]he from that lifetime non-punitive future sex GPS purpose offenses," Similarly, this tracking for sex of . . . protecting as it "ensures law enforcement will have ready access to evidence of an offender's whereabouts." Id., ¶¶57–59. The rationale here is even stronger——unlike GPS tracking, NGI commitments keep defendants 25 away from the public and provide treatment No. 2016AP2258-CR for defendants' mental illness. ¶47 Seventh, NGI commitments are not excessive in relation to their rehabilitative and protective purposes. In Wisconsin, NGI commitment terms may not exceed the maximum confinement term of the charged criminal offense. For felonies committed on or after July 30, 2002, NGI commitments may at most equal "the maximum term of confinement in prison that could be imposed" on a defendant if § 971.17(1)(b). his NGI defense failed. Wis. Stat. For crimes committed prior to July 30, 2002, courts may at most impose a term of commitment equaling twothirds of the maximum term of confinement that could be imposed if the NGI defense failed. § 971.17(1)(a). Sections 971.17(1)(a) and (1)(b) set the ceiling, but nothing in § 971.17 requires an NGI commitment term to mirror the maximum term of confinement a defendant faces if his NGI defense is unsuccessful. ¶48 Further, NGI defendants have the ability to petition for conditional release six months after initial confinement, and every six months after a previous petition was denied or revoked. on Wis. Stat. § 971.17(4). conditional petition for § 971.17(5). Six months after being placed release, an NGI defendant may even termination of the underlying commitment file a order. Therefore, if the NGI defendant shows that he is no longer dangerous and is fit to re-enter society, he will be permitted to do so. This indicates 26 direct ties to the No. 2016AP2258-CR rehabilitative and protective purposes of NGI commitments in a manner that is not excessive. ¶49 An application of the intent-effects test to NGI commitments strongly confirms that NGI commitments do not have a punitive intent or effect. Therefore, NGI commitments collateral consequences of a defendant's plea. are On that basis, we also decline to use our superintending and administrative authority to extend Bangert and Shegrud to require circuit courts to inform NGI defendants of the maximum possible term of commitment they face if their NGI defense succeeds. D. ¶50 The Circuit Court's Error Does Not Entitle Fugere To Withdraw His NGI Plea. Having concluded that circuit courts have no duty to inform NGI defendants of the maximum possible term of commitment they face, we still must address the circuit court's undisputed error in this case. The circuit court did not use the correct terminology, nor did it advise Fugere as to the correct civil commitment length. in this case. The parties argue over the proper standard The State asserts that this court should adopt a harmless-error framework for considering plea colloquy defects where a defendant does not have a right to be informed of the information Fugere underlying argues that the this circuit court court's should purported employ the error. "manifest injustice" standard set forth in Bangert and its progeny. ¶51 We conclude that infected the plea. provided did not The relate the error information to the 27 here was that maximum the not one which circuit court potential criminal No. 2016AP2258-CR penalty should Fugere not succeed in his affirmative defense. Courts are not required to inform NGI defendants of the maximum possible term of commitment if their defense succeeds. This case is distinguishable from Bangert and its progeny, where we have applied a "manifest injustice" standard to determine whether a defendant's plea was given knowingly, intelligently, and voluntarily. As we have concluded that there is no requirement for a circuit court to inform NGI defendants of the maximum possible term of commitment, a circuit court's failure to convey, defendant's or to accurately plea convey unknowing, it cannot unintelligent, render or an NGI involuntary. While we do not condone providing misinformation regarding the civil outcome should a defendant be found NGI and we caution courts to be careful to properly advise defendants, the circuit court's error here was harmless. ¶52 possible Though term the of circuit commitment court by 20 overstated years and the said maximum the word "supervision" instead of "commitment," the circuit court's error here was harmless. First, the correct information was given regarding the maximum term of imprisonment. Fugere entered into a plea agreement with the State, and the parties agreed that they would ask the circuit court to determine whether to impose institutional commitment or conditional release. Thus, it was specifically contemplated that Fugere may face commitment if his NGI defense succeeded. Second, at the time the at-issue proceedings occurred, Fugere was already committed pursuant to a case which charged other sexual assault crimes. 28 The circuit No. 2016AP2258-CR court addressed Fugere's committed status on the record at the hearing and confirmed that commitment process Fugere was familiar with worked. Third, at another how the point in the hearing, Fugere's attorney stated on the record that Fugere was aware that if he violates the terms of any conditional release he may receive, he would be sent back to Mendota Mental Health Institute. Fourth, given the circuit court's errant statement that the maximum term would be 60 years, Fugere certainly would have thus been aware that he could have been subject to a 40year term. Fifth, the circuit court adopted the parties' joint recommendation of 30 years' confinement. Fugere exactly what he bargained for regarding his NGI plea: received a 30-year term of commitment as an alternative to a prison sentence of 40 years with 20 years of extended supervision. ¶53 erred in As a result, stating supervision that the would though wrong the circuit maximum result if term Fugere's court of undoubtedly commitment NGI defense or was successful, the circuit court's error was, at most, harmless.9 9 We note the court of appeals' conclusion "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." State v. Fugere, 2018 WI App 24, ¶19, 381 Wis. 2d 142, 911 N.W.2d 127. This statement should not be construed as allowing courts to provide inaccurate information to defendants. Certainly, courts should exercise caution to ensure that information they provide defendants is correct. 29 No. IV. ¶54 2016AP2258-CR CONCLUSION The circuit court provided inaccurate information to Fugere concerning the maximum period of civil commitment should he prevail on his affirmative defense to the criminal charges. Fugere's motion, which sought withdrawal of his NGI plea as a result of the inaccurate information, was denied by the circuit court. ¶55 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, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. therefore decline to exercise our superintending We and administrative authority to require circuit courts to advise NGI defendants of the maximum period of civil commitment. ¶56 circuit Fugere also requests that this court conclude that the court's misinformation error was provided consequences should he to not harmless him prevail in with concerning his respect to potential defense. The the civil 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 30 Fugere to withdraw his NGI No. plea. 2016AP2258-CR We conclude that the circuit court's error was harmless because it was unrelated to the guilt phase of the NGI defense, and instead, potential the civil inaccurate commitment information at the pertained responsibility to the 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. By the Court.—The decision affirmed. 31 of the court of appeals is No. ¶57 ANN WALSH BRADLEY, J. 2016AP2258-CR.awb There (dissenting). is no dispute in this case that the circuit court gave Corey Fugere incorrect information regarding the length and nature of the commitment he faced upon pleading not guilty by reason of mental disease or defect (NGI). Fugere was told that he faced a maximum 60 year term of "supervision," when he actually faced a maximum 40 year term of commitment to an institution. ¶58 Sixty, however, is not forty and supervision is not commitment to an institution. ¶59 incorrect Nevertheless, information the majority matters not, opportunity to withdraw his plea. indicates and denies that the Fugere the It concludes first that "a circuit court is not required to inform an NGI defendant of the maximum possible phase . . . ." term of Majority civil op., commitment ¶2. Second, at the the guilt majority concludes that the misinformation provided by the circuit court with regard to the length and nature of the commitment he faced was harmless. ¶60 In State Id., ¶3. I disagree with both of these erroneous conclusions. v. Brown this court previously stated, "[i]f a defendant does not understand the nature of the charge and the implications of the plea, he should not be entering the plea, and the court should not be accepting the plea." ¶37, 293 Wis. 2d 594, 716 N.W.2d 906. 2006 WI 100, This statement is just as true in the NGI context as it is in a criminal case. ¶61 Here Fugere received only half of the story. Although he was accurately informed of the potential prison sentence in 1 No. 2016AP2258-CR.awb the event his NGI defense was unsuccessful, he was deprived of essential information regarding the implications of his NGI plea. As we have done in the past to remedy such a violation, I would invoke this court's superintending authority to ensure that NGI defendants receive full and accurate information about the consequences of their pleas. ¶62 harmless. Further, the errors in this case were not necessarily The circuit court was off the mark by 20 years and incorrectly advised the defendant that he would be placed on supervision rather than confined to an institution. ¶63 Because we do not know based on the record before us how the errors affected Fugere's calculations in entering his plea, we hearing. should remand to the circuit court for a Bangert See State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). Accordingly, I respectfully dissent. I ¶64 The majority's first error lies in its determination that "a circuit court is not required to inform an NGI defendant of the maximum possible term of civil commitment at the guilt phase . . . ." ¶65 that the See majority op., ¶2. In Bangert, this court established a mandatory rule circuit court must "determine a defendant's understanding of the nature of the charge at the plea hearing by following any one or a combination methods." Bangert, 131 Wis. 2d at 267. of the [denominated] This rule encompasses a requirement that a circuit court must, in its plea colloquy, "[e]stablish the defendant's understanding of the nature of the 2 No. 2016AP2258-CR.awb crime with which he is charged and the range of punishments to which he is subjecting himself by entering a plea." Brown, 293 Wis. 2d 594, ¶35. ¶66 The procedures established in Bangert apply equally to the NGI context. that In State v. Shegrud, this court determined "a court faced with a defendant entering a plea of not guilty by reason of mental disease or defect must address the defendant personally entering nature the of plea the to determine voluntarily charge." 131 with whether an the defendant understanding Wis. 2d 133, 138, of is the 389 N.W.2d 7 a knowing, (1986). ¶67 Bangert's intelligent, judge and explore decisions." chief voluntary the aim was plea" defendant's by to "ensure requiring capacity Brown, 293 Wis. 2d 594, ¶30. to "that a trial make informed As the Brown court explained, "[t]he duties established . . . in Bangert . . . are designed to intelligent ensure and that voluntary. a defendant's The faithful plea is discharge knowing, of these duties is the best way we know for courts to demonstrate the critical importance of pleas in our system of justice and to avoid constitutional problems." Id., ¶23. Put simply, "[i]f a defendant does not understand the nature of the charge and the implications of the plea, he should not be entering the plea and the court should not be accepting the plea." ¶68 Neither the Constitution nor Id., ¶37. Wis. Stat. § 971.08 require the sort of plea colloquy for which Bangert provides. Instead, Bangert and its requirements 3 act as a prophylactic No. measure "[t]o head off withdrawals . . . ." ¶69 Thus, postconviction 2016AP2258-CR.awb hearings on plea Brown, 293 Wis. 2d 594, ¶33. rather than relying on constitutional or statutory principles, the court in Bangert and Shegrud forged its procedure authority. 138; see as a function of this court's superintending Bangert, 131 Wis. 2d at 267; Shegrud, 131 Wis. 2d at Wis. Const. art. VII, § 3(1) (granting this court "superintending and administrative authority over all courts"); Koschkee v. Evers, 2018 WI 82, ¶8, 382 Wis. 2d 666, 913 N.W.2d 878. Our superintending authority is "as broad and as flexible necessary justice as in the to courts of insure the due this state." administration In re Kading, of 70 Wis. 2d 508, 520, 235 N.W.2d 409 (1975). ¶70 wise to As in Shegrud and Bangert, here the court would be utilize its superintending authority. Specifically, Shegrud should encompass not only an advisement of the potential prison sentence an NGI defendant faces, but be extended to encompass the potential period of mental health commitment as well. are This minimal extension would ensure that NGI defendants provided with all relevant information on which to base their decision to enter a plea. ¶71 Such appropriate a use because the of our superintending principles Shegrud apply with equal force here. justice" requires that NGI that drove authority Bangert is and The "due administration of defendants are properly accurately informed of the potential commitments they face. and If the court is truly concerned with ensuring that a defendant's 4 No. 2016AP2258-CR.awb plea is the result of informed decision-making, then circuit courts should be required to ascertain whether the defendant understands the consequences of a successful NGI defense. requirement understands includes the maximum ascertaining possible whether term of the commitment This defendant and its nature. ¶72 However, under the majority's rule, Fugere and future defendants who enter stand-alone NGI pleas can receive incomplete information regarding what could happen to them as a result of their pleas. When the circuit court informs an NGI defendant of the maximum prison sentence only, the defendant receives just half of the information needed to make an informed decision. ¶73 In other words, if the defendant is found to be not guilty by reason of mental disease or defect, then the prison sentence is merely hypothetical. imprisonment, that It will actually come is commitment, to fruition. and not Yet the defendant is only informed of one possible sanction when there are two distinct possibilities——commitment or prison. ¶74 This court should ensure that defendants pleading NGI are provided with information that is actually useful to them and will assist in making informed decisions regarding their pleas. Accordingly, I would invoke this court's superintending authority to minimally extend Shegrud. Circuit courts should be required not only to inform defendants of the maximum penalty if found guilty of the charge, but also to accurately inform NGI defendants of the maximum commitment they face. 5 No. 2016AP2258-CR.awb II ¶75 The majority's second error lies in its conclusion that the misinformation given by the circuit court was harmless. See majority op., ¶3. Two significant pieces of inaccurate information marred the plea colloquy in this case.1 I address each in turn. ¶76 First, the circuit court commitment Fugere could receive. misstated the maximum The circuit court told Fugere he faced a maximum commitment of sixty years, when he actually faced forty years.2 ¶77 defendant Such an error is not necessarily harmless. is told that he faces a higher "When a punishment than provided by law and pleads guilty, the plea colloquy is on its face defective under Bangert." State v. Cross, 2010 WI 70, ¶48, 1 The majority bases its determination that the errors were harmless on the assertion that they were "unrelated to the guilt phase of the NGI defense . . . ." Majority op., ¶3. However, the record reflects that there was a single plea colloquy instead of two separate proceedings. The guilt and responsibility phases were addressed by the circuit court during the span of the single twenty-minute plea hearing. 2 The majority paints with a very broad brush in appearing to declare that a circuit court's errors in inaccurately conveying the maximum period of commitment will always be harmless. See majority op., ¶51 ("As we have concluded that there is no requirement for a circuit court to inform NGI defendants of the maximum possible term of confinement, a circuit court's failure to convey, or to accurately convey it cannot render an NGI defendant's plea unknowing, unintelligent, or involuntary.") (emphasis added). Such a pronouncement is ill-advised and eyebrow-raising. If Fugere were told that he faced a maximum of one year of "supervision" when he actually faced a forty year commitment to an institution, would the error really be harmless? The majority appears to say that it would. 6 No. 2016AP2258-CR.awb 326 Wis. 2d 492, 786 N.W.2d 64 (Abrahamson, C.J., concurring). Likewise, because I determine that a circuit court should be required to advise a defendant pleading NGI of the maximum term of commitment, the same principle applies here. ¶78 Fugere was told he faced a longer period of commitment than he actually faced. not know how this At this stage of the proceedings, we do error affected Fugere's calculations in entering his plea. ¶79 Second, the circuit court mistakenly stated that Fugere faced a period of "supervision," when he actually faced "commitment." ¶80 Just Again, such an error is not necessarily harmless. as there is a significant difference between sixty years and forty years, there likewise can be a significant difference between supervision and commitment. Although supervision is often served in the community, commitment can involve institutional care. Compare Wis. Stat. § 302.113 with § 971.17(3). ¶81 The majority indicates that "[t]he circuit court addressed Fugere's committed status on the record at the hearing and confirmed that Fugere was familiar with how the commitment process worked." Majority op., ¶52. An experience of a prior commitment proceeding presents a slim reed upon which to rest a conclusion that voluntarily made.3 a plea But is even knowingly, if the intelligently, majority were and correct, 3 The circuit court's "confirmation" of Fugere's understanding was quite cursory. The transcript of the plea hearing reflects the following brief exchange: (continued) 7 No. 2016AP2258-CR.awb wouldn't the specification that he faced "supervision" instead of "commitment" be particularly relevant to an individual familiar with the commitment process? ¶82 Again, given the current state of the record we do not know if or how these errors affected Fugere's calculations in entering his plea. Accordingly, I would remand to the circuit court for a Bangert hearing at which the State has the burden of proof to demonstrate by clear and convincing evidence that the defendant's plea was knowingly, intelligently, and voluntarily entered despite the deficiencies in the plea hearing. See Bangert, 131 Wis. 2d at 274-75. ¶83 For the reasons set forth above, I respectfully dissent. ¶84 I am authorized to state that Justices SHIRLEY ABRAHAMSON and REBECCA FRANK DALLET join this dissent. THE COURT: You've been on a conditional release on a different case here before, right? THE DEFENDANT: THE COURT: Yes. Do you understand what that's all about? THE DEFENDANT: Yes. 8 S. No. 1 2016AP2258-CR.awb
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