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Criminal convictions – collateral consequences

Jamerson v. Dep’t of Children and Families, 2013 WI 7

Wisconsin supreme court decision, affirming 2012 WI App 32, 340 Wis. 2d 215, 813 N.W.2d 221

This case is not directly applicable to SPD practice, but it is a useful reminder of the multitudinous collateral consequences that may attend a criminal conviction. Here’s the gist:

¶2   The new [2009] caregiver law [relating to child care licenses] imposes a lifetime ban on licensure, a harsh penalty on a license holder who had been convicted of a predicate offense many years before the new caregiver law went into effect.  In the present case, Ms. Jamerson had her license revoked on January 20, 2010, and her appeal of the revocation was dismissed without a hearing based on her conviction on a guilty plea of violating Wis. Stat. § 49.12(1) and (6) nearly 20 years before.

The state sought to revoke Jamerson’s child care license based on her 1991 convictions under § 49.12(1) and (6) relating to fraudulently securing public assistance. An ALJ revoked the license without a hearing, holding the convictions under § 49.12 are covered as a matter of law under the new list of prohibited convictions. The supreme court (aided, no doubt, by a change in the state’s position after briefing and oral argument, ¶¶15-17) concludes the record is insufficient to support the inference the convictions are predicate offenses as a matter of law, and so remands for a hearing to review evidence of what the convictions actually involved (¶¶18, 27, 67-77).

Counsel couldn’t have alerted Jamerson to this consequence of her conviction back in 1991 because, as the court notes, the law barring her from licensure didn’t exist then. Nonetheless, the case is a reminder to strive to keep up with the  ever-multiplying collateral consequences which spring, Hydra-like, from the heads of punitive-minded legislatures. It may be an Herculean labor, but one worth trying to the best of one’s ability if one wants to fully advise clients. This resource may help. Finally, it is true there is no remedy for the defendant if counsel fails to advise him or her of a collateral consequence. State v. Santos, 136 Wis. 2d 528, 401 N.W.2d 856 (Ct. App. 1987).  On the other hand, affirmatively–but incorrectly–advising a client that a conviction avoids a particular collateral consequence may be grounds for plea withdrawal. State v. Brown, 2004 WI App 179, 276 Wis. 2d 559, 687 N.W.2d 543.

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{ 1 comment… add one }
  • Robert R. Henak January 11, 2013, 8:34 am

    Actually, Santos was effectively overruled by Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010). While a defendant would not be entitled to vacate a plea due to the Court’s failure to advise him or her of collateral consequences, the defendant can attack the effectiveness of counsel for the unreasonable failure to advise of such consequences. The post is correct that the defendant is entitled to withdraw his or her plea if either the Court affirmatively but incorrectly advises the defendant concerning the collateral consequences or if it is obvious to everyone at the time that the defendant is pleading based on a misunderstanding of the collateral consequences and the attorneys and court fail to correct that misunderstanding.

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