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SCOW will address whether defendants pleading NGI need to know maximum length of commitment

State v. Corey R. Fugere, 2016AP2258-CR, petition for review of a published court of appeals decision granted 9/4/18; case activity (including briefs)

Issue (composed by On Point):

When a person enters a guilty plea to a criminal charge coupled with the defense of not responsible due to mental disease or defect under § 971.15, is a circuit court required to advise the person of the maximum term of commitment under ¶ 971.17 in addition to the maximum penalties provided for the offense?

As explained in our post on the court of appeals decision, Fugere and the state stipulated that he satisfied the criteria for being found not guilty by reason of mental disease or defect under § 971.15(1), so he entered a plea of guilty to the crime and not responsible (or not guilty) due to mental disease or defect (NGI). During the plea colloquy the judge accurately informed Fugere of the maximum prison sentence for the crime (60 years), but inaccurately advised him that the maximum term of any NGI commitment was also 60 years when, in fact, it was 40 years (under § 971.17(1)(b), the maximum commitment for a person found NGI of a felony is the maximum term of initial confinement, plus any applicable penalty enhancers).

Fugere moved to withdraw his plea on the ground it wasn’t knowing and voluntary because he was incorrectly advised about the maximum term of commitment. The court of appeals held that, during a plea colloquy where the defendant is pleading guilty to the offense and also asserting an NGI defense, accurate advice about the maximum length of the NGI commitment is not required. While a judge has to correctly advise the defendant about the maximum penalty (imprisonment, fines) and any “direct” consequences of the plea, the court concluded an NGI commitment isn’t a “penalty” or a “direct” consequence, so it doesn’t matter if the judge misstated the maximum term of commitment, or, presumably, said nothing about the commitment at all.

The supreme court recently adopted the “intent-effects” test for whether something is a punishment or penalty that must be covered in a plea colloquy, State v. Muldrow, 2018 WI 52, and under that reasoning (and the cases finding the somewhat analogous ch. 980 commitment not to be a penalty) it is probably a tough row to hoe to get the supreme court to believe an NGI commitment is a punishment or penalty. Likewise, a “direct” consequence of a plea is limited to things that have “a definite, immediate, and largely automatic effect on the range of a defendant’s punishment,” State v. Kosina, 226 Wis. 2d 482, 486, 595 N.W.2d 464 (Ct. App. 1999); so if an NGI commitment isn’t punishment, then the commitment length isn’t a “direct” consequence of the plea, despite the fact that the outcome of the plea contemplated by everyone—defendant, prosecutor, judge—was Fugere’s commitment under § 971.17.

But there is another way to approach this issue, and that’s through State v. Shegrud, 131 Wis. 2d 133, 137-38, 389 N.W.2d 7 (1986), which is the case that mandated a plea colloquy in cases like Fugere’s. In requiring a plea colloquy Shegrud expressly disclaimed reliance on § 971.08, saying that statute, which governs criminal plea-taking, doesn’t apply to the entry of NGI pleas. Instead, it based its holding on the supreme court’s superintending authority over lower courts, and it mandated a colloquy to advance the salutary policy that defendants entering an NGI plea should do so knowingly and voluntarily, with an understanding of the nature of the charge. The court can advance the same policy by taking the next small step from Shegrud and requiring accurate advice about the maximum length of commitment.

Again, in a case like Fugere’s, commitment is the virtually certain outcome, so it makes sense the defendant should know the maximum. And even if the defendant is pleading guilty to the charge and proceeding to a trial on responsibility (as was the situation in Shegrud), advice about the commitment length makes sense because commitment is just as possible an outcome as being sent to prison. We’ll soon learn whether the supreme court can see the sound reasons to require advice about the maximum length of commitment and avoid elevating formalism about “punishment” and “direct consequences” over the substance of knowing NGI pleas.

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