State v. Hank J. Merten, 2003 WI App 171
For Merten: Dana W. Duncan
¶8. Accordingly, the resolution of this appeal requires us to determine whether the effect of 42 U.S.C. § 1320a-7(a)(4), which excludes individuals convicted of a felony related to a controlled substance from participating in federal health care programs, is a direct or a collateral consequence of Merten’s no contest plea. A direct consequence of a plea has a definite, immediate and largely automatic effect on the range of a defendant’s punishment. James, 176 Wis. 2d at 238, 500 N.W.2d at 348. A collateral consequence, in contrast, does not automatically flow from the plea. Under this standard, collateral consequences have been held to include sex offender registration, Bollig, 232 Wis. 2d 561, 27; the effect of a presumptive mandatory release date, State v. Yates, 2000 WI App 224, ¶11, 239 Wis. 2d 17, 619 N.W.2d 132; permanent prohibition on possession of firearms under federal law, Kosina, 226 Wis. 2d at 488, 595 N.W.2d at 468; and probation revocation for failure to admit guilt during sex offender treatment, Warren, 219 Wis. 2d at 638, 579 N.W.2d at 709. The distinction between “direct” and “collateral” consequences of a plea is affected by whether the complained of consequence has an “effect on the range of the defendant’s punishment.” Warren, 219 Wis. 2d at 636, 579 N.W.2d at 708 (citation omitted) (emphasis added). And an additional factor affecting whether the consequence of a plea is collateral or direct is whether the consequence rests in the hands of another government agency or different tribunal. Kosina, 226 Wis. 2d at 486, 595 N.W.2d at 467; Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988).
¶9. Merten argues that 42 U.S.C. § 1320a-7(a)(4) takes effect at the moment the felony conviction is entered and therefore is a direct and automatic consequence of his plea. We disagree, in part because any potential effect of § 1320(a)(4) is in the hands of another tribunal. This difference is significant, as we explained in Kosina, where we held that the effect of 18 U.S.C. § 922(g)(9) (West Supp. 1999), which prohibits those convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition, was a collateral consequence of a plea. Kosina, 226 Wis. 2d at 488, 595 N.W.2d at 468….
¶10. 42 U.S.C. § 1320a-7(a)(4) authorizes the Secretary to exclude certain individuals and entities from participation in federal health care programs, including Medicare and Medicaid. The Secretary has delegated enforcement of the regulations implementing the exclusion statute to the Inspector General. Pennington v. Thompson, 249 F. Supp. 2d 931, 934 n.3 (W.D. Tenn. 2003). An individual that is excluded under § 1320a-7 is entitled to reasonable notice, an opportunity for a hearing by the Secretary and to judicial review of the Secretary’s final decision. Section 1320a-7(f)….