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Plea-Withdrawal – Pre-Sentence – “Fair and Just” Reason: Ignorance of Eligibility for Ch. 980 Commitment

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: Given that the record established Nelson’s ignorance of the potential for commitment as a sexually violent person (ch. 980) as a result of his guilty pleas, the trial court’s conclusion that he presented a “fair and just” reason for pre-sentencing plea withdrawal is sustained:

¶14      In determining whether the trial court properly determined that a fair and just reason was established, we find the holding in Bollig particularly instructive. There, Bollig pled no contest to a reduced charge of attempted sexual assault of a child under the age of thirteen. Before he was sentenced, he sought to withdraw his plea because he had not been told that a conviction would require him to register as a convicted sex offender. On appeal, the State conceded that Bollig had presented a fair and just reason for withdrawing his plea, and the supreme court agreed, stating: “When viewed liberally, as required under the Libke [v. State, 60 Wis. 2d 121, 208 N.W.2d 331 (1973),] standard, we conclude that Bollig’s lack of knowledge as to the consequences of his plea constituted a fair and just reason.” Bollig, 232 Wis. 2d 561, ¶31.

¶15      Nelson was also unaware of the consequence of his pleas—that he could be subject to a Chapter 980 commitment as a sexually violent person. Just like the lack of knowledge as to the sex offender registration requirement is a fair and just reason to withdraw one’s plea, so too is the lack of knowledge that one is now eligible for a Chapter 980 commitment a fair and just reason. In fact, eligibility for a Chapter 980 commitment has the potential for far greater consequences than registering as a sex offender.  Sex offender registration merely centralizes information already in the public domain. A Chapter 980 commitment, however, could be lifelong.

¶16      Thus, we, like the trial court, are satisfied that Nelson presented a fair and just reason for the withdrawal of his pleas to the three counts of first-degree sexual assault, and the burden accordingly shifted to the State to prove substantial prejudice. [3]

[3]   While in State v. Myers, 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996), this court affirmed the trial court’s refusal to permit withdrawal of a guilty plea to a first-degree sexual assault based upon Myers’ claim that he was never told of the possibility of a Wis. Stat. ch. 980 commitment, Myers’ request was made after sentencing in a postconviction motion and, thus, was subject to a different and more stringent test.


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