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SCOW: Courts may misinform–or not inform–defendants pleading NGI of their maximum period of commitment

State v. Corey R. Fugere, 2019 WI 33, 3/28/19, affirming a published court of appeals decision; case activity (including briefs)

Pretend you’re a defendant trying to decide whether to enter a plea. You know that maximum term of imprisonment you face. You also know that pleading NGI is one of your options. However, the circuit court doesn’t tell you (or perhaps misinforms you) about the nature and length of the commitment that will follow from pleading NGI. How can you make a knowing, intelligent, and voluntary NGI plea if you don’t know the consequences of it?

The truth is you can’t. And in a 4-3 decision the majority opinion says essentially “too bad, so sad” a defendant pleading NGI isn’t entitled to that information, so it doesn’t matter if circuit courts misrepresent the consequences of an NGI plea to him.

Fugere was convicted of 4 counts of first degree child sexual assault and faced a maximum prison sentence of 60 years. He entered an NGI plea and at his plea hearing the court told him that by pleading NGI he could be placed “on supervision” for 60 years, though the State was recommending only 30 years. In reality, Fugere’s NGI plea exposed him to a 40 year commitment, which could mean commitment to an institution. Postconviction, Fugere moved to withdraw his NGI plea on the grounds that it was not knowing, intelligent and voluntary under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) and State v. Shegrud, 131 Wis. 2d 133, 389 N.W.2d 7 (1986).

The majority held that “while courts should provide accurate information,” they don’t have to tell the defendant the consequence of an NGI plea at all. Opinion, ¶32. (Emphasis supplied). The failure to convey or accurately convey this information “cannot render an NGI defendant’s plea unknowing, unintelligent, or involuntary.” Opinion, ¶51.

¶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. 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.

¶56 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.

Justice A.W. Bradley filed a dissent joined by Justices Abrahamson and Dallett. Bradley starts out: “Sixty . . . is not forty and supervision is not commitment to an institution.” Dissent, ¶58. She continues:

¶61 Here Fugere received only half of the story. Although he was accurately informed of the potential prison sentence in 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.

Seems like a total no brainer–especially if you want the criminal justice system to appear fair to those who pass through it.  A.W. Bradley also notes:  “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.” Dissent, ¶76 n.2.

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