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Must a defendant be informed that a guilty plea will result in a loss of the 2nd Amendment right to bear arms?

State v. Amanda L. Longley, 2017AP659-CR, District 4, 2/8/18 (1-judge opinion. ineligible for publication); case activity (including briefs)

The court of appeals here answers this questions “no,” based on SCOW’s recent and narrow reading of Padilla in State v. Le Mere, 2016 WI 41, 368 Wis. 2d 624, 879 N.W.2d 580. See Mike Tobin’s post on Le Mere here). But Wisconsin’s case law is conflicting, suggesting that this issue may be worthy of scrutiny by a higher court.

Longley pled guilty to 1 count of disorderly conduct involving domestic abuse and 1 count of misdemeanor battery. After sentencing, she moved to withdraw her pleas because her lawyer failed to inform her that a plea to domestic abuse crimes would result in her being prohibited from possessing firearms. Longley said that if she had known of this prohibition she would not have pled guilty.

Longley’s appellate brief acknowledged State v. Kosina, 226 Wis. 2d 482, 595 N.W.2d 464 (Ct. App. 1999), which holds that defense counsel need not advise a defendant that a firearms possession prohibition is a collateral consequence of pleading guilty. She argued that the issue should be revisited in light of Padilla v. Kentucky, 559 U.S. 356 (2010) and State v. LeMere.  The court of appeals rejected this argument because:

¶7 The problem for Longley is that neither Padilla nor LeMere expressly or impliedly overruled Kosina. On the contrary, both the Padilla Court’s reasoning and the LeMere court’s reasoning provide strong indications that both courts would continue to uphold case law such as Kosina.

¶8 I acknowledge, as Longley asserts, that the court in LeMere identified several “factors” underlying the Padilla decision, and then went on to apply those factors to support its conclusion that counsel need not inform a defendant that a plea may result in a Chapter 980 commitment. See LeMere, 368 Wis. 2d 624, ¶¶49-69. The court in LeMere did not, however, indicate that courts are now generally free, let alone required, to apply these factors to expand counsel’s duties as to all manner of collateral consequences. If anything, LeMere says the opposite. For example, the LeMere court stated: “[W]ithout a directive and clear guidance from the Supreme Court, this court would be discarding any logical stopping point by establishing a new obligation under the Sixth Amendment to advise a defendant about a collateral consequence.” Id., ¶50.

Here’s the problem. In other cases the court of appeals has allowed plea withdrawal where the defendant either did not know that his plea to a domestic abuse crime  would result in a loss of gun rights (State v. Kennedy, 2015 WI App. 82, 365 Wis. 2d 349, 871 N.W.2d 693) or where he was misadvised about that consequence. (State v. Koll, 2009 WI App 77, 319 Wis. 2d 234, 769 N.W.2d 573). But see State v. Neis, 2010 WI App 120, 329 Wis. 2d 270, 789 N.W.2d 754 (citing Kosina with approval). Thus, this issue wants a petition for review.

{ 1 comment… add one }
  • Peter Heyne February 13, 2018, 2:23 pm

    For the sake of completeness, the Ct App in Kennedy remanded the case for an evidentiary Machner hearing to see if trial counsel actually informed the defendant of the collateral consequence of the plea. [And per CCAP, after said Machner hearing, the trial court allowed defendant to withdraw the plea].

    And also a practical pointer: Law enforcement agencies like the ATF do not really care about labels. On the agency website FAQ:
    “Must a misdemeanor crime of domestic violence (MCDV) be designated as a ‘domestic violence’ offense?

    No. A qualifying offense need not be designated as a domestic violence offense. For example, a conviction for assault may qualify as an MCDV even if the offense is not designated as a domestic violence assault.”

    [18 U.S.C. 921(a)(33) and 922(g)(9); 27 CFR 478.11 and 478.32(a)(9)]
    Last Reviewed September 10, 2015

    See https://www.atf.gov/firearms/qa/must-misdemeanor-crime-domestic-violence-mcdv-be-designated-%E2%80%9Cdomestic-violence%E2%80%9D-offense

    See also Judge Anderson’s concurrence in Koll v. Dep’t of Justice, 2009 WI App 74, ¶ 21, 317 Wis. 2d 753, 769 N.W.2d 69 (“Therefore, the DOJ properly went behind the judgment of conviction and based its decision to deny Koll a permit on the contents of the complaint and police report.”)

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