State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)
Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.
Fugere pleaded no contest to first degree sexual assault of a child and the state stipulated that he was not responsible for the crime due to a mental disease or defect under § 971.15(1). The parties agreed to jointly recommend he be committed for 30 years. During the plea colloquy the circuit court advised Fugere he could be committed for up to 30 years, but the lawyers piped up to correct the judge and said he could be committed for up to 60 years. In fact, he was subject to a maximum of 40 years, which is the term of initial confinement for the offense, § 971.17(1)(b). Fugere moved to withdraw his plea under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), saying he’d been misadvised by the court of the maximum term of commitment and that he didn’t know the correct maximum was 40 years. (¶¶4-8).
The rules governing a plea colloquy apply when a defendant claiming to be NGI waives the right to a trial on guilt, State v. Shegrud, 131 Wis. 2d 133, 137-38, 389 N.W.2d 7 (1986), so the judge must advise the defendant of the direct consequences of the plea, including the maximum possible penalties. (¶¶14-15). But unlike the waiver of trial rights or the imposition of potential punishment, a term of civil commitment is not a direct consequence of the plea of guilty or no contest but the result of a separate proceeding focused on treatment and public protection. (¶¶20-24). Thus:
¶19 We conclude 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. We further hold that the requirements established under Bangert and its progeny for a valid plea apply only to matters involving an NGI defendant’s admission of guilt. Stated differently, these requirements apply to the defendant’s admission that, but for his or her lack of mental capacity, he or she is guilty of the charged offense. When a defendant pleads NGI, there are no greater burdens imposed on the circuit court than those for otherwise accepting a guilty or no-contest plea. See State v. Duychak, 133 Wis. 2d 307, 314, 395 N.W.2d 795 (Ct. App. 1986). These conclusions derive from the fact that the procedures set forth in Bangert apply when a defendant enters an NGI plea only because, by entering such a plea, the defendant waives several constitutional rights. Shegrud, 131 Wis. 2d at 137-38. These constitutional rights are only attendant to the guilt phase. See State v. Francis, 2005 WI App 161, ¶¶15-21, 285 Wis. 2d 451, 701 N.W.2d 632 (considering whether a defendant’s withdrawal of his or her NGI plea requires the circuit court to conduct an on-the-record colloquy). The same constitutional rights are not implicated or waived during the mental responsibility phase. Indeed, our courts have long held that the responsibility phase of an NGI trial is not part of a criminal trial, [State v.] Magett, [2014 WI 67,] 355 Wis. 2d 617, ¶40[, 850 N.W.2d 42] (citing State v. Koput, 142 Wis. 2d 370, 395, 418 N.W.2d 804 (1988)), and the right to an NGI defense is purely statutory, not constitutional, id., ¶32.