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Guilty Pleas – Required Knowledge — Collateral & Direct Consequences — Sexually Violent Persons Commitment

State v. Robert L. Myers, Jr., 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996)

Issue/Holding:

We agree with the State that the potential for a future ch. 980, Stats., commitment was a collateral consequence of Myers’ guilty plea. Trial courts may not accept a guilty plea unless they are satisfied that the plea is knowing and voluntary. State v. James, 176 Wis.2d 230, 238, 500 N.W.2d 345, 348 (Ct. App. 1993). Those entering guilty pleas must have sufficient awareness of the relevant circumstances and likely consequences that could follow. Id. Although trial courts must inform defendants of the direct consequences of their pleas, trial courts have no obligation to inform defendants of their convictions’ collateral consequences. Id. Collateral consequences are those that have no definite, immediate or largely automatic effect on the range of the pleader’s punishment. Id.A future ch. 980, Stats., commitment will not automatically flow from Myers’ conviction for first-degree sexual assault of a child. Although such a commitment will require a prior predicate offense, Myers’ offense, by itself, will not trigger a commitment. Rather, a commitment will depend on Myers’ condition at the time of the ch. 980 proceeding and the evidence that the State will then present on his condition. If the State were to initiate such commitment proceedings, Myers will have the full benefit of the ch. 980 procedures, due process, and an independent trial, including the right to offer evidence to refute the State’s charges. Other courts have held that such potential future commitments will depend on future trials and evidence, not on prior guilty pleas, and therefore constitute collateral consequences of those guilty pleas, not immediate, direct consequences. See Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366-67 (4th Cir. 1973). We agree with the Cuthrell court’s analysis. In sum, Myers needed no knowledge of the potential for a future chapter 980 commitment in order to make his plea knowing and voluntary.

See also Steele v. Murphy, 365 F. 3d 14 (1st Cir. 2004) (“We believe that the possibility of commitment for life as a sexually dangerous person is a collateral consequence of pleading guilty”). But see, State v. Bellamy, 835 A.2d 1231 (N.J. 2003):

This Court has also recognized that commitment pursuant to the Act, like any civil commitment proceeding, demands a balancing between an individual’s liberty interests and well-recognized state interests, including the police power to protect the community and parens patriae power to care for citizens who are unable to care for themselves. In re Commitment of W.Z., supra, 173 N.J. at 125. Thus, “because of the significant restraint on the liberty of a committee, the commitment process is bounded by constitutional procedural guarantees . . . .” Id. at 125-26 (citations omitted).We continue to stress the necessity of determining whether a consequence is direct or penal when analyzing whether a defendant must be informed of a particular consequence. However, when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea. R. 3:9-2. In the future, prior to accepting a plea to a predicate offense under the Act, the trial court should ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment.

Note, however, that ignorance of SVP commitment is a basis for pre-sentencing plea withdrawal — see State v. Jarmal Nelson, 2005 WI App 113.

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