State v. Kurt D. Neis, No. 2009AP1287-CR, District IV, 7/15/10
court of appeals decision (1-judge, not for publication); for Neis: Jacquelyn L. Wolter; BiC; Resp.; Supp. Resp.
Guilty Pleas – Collateral Consequence – Federal Gun Ban
Although Neis’s guilty plea to disorderly conduct, § 947.01, subjected him to the automatic federal firearm ban given the circuit court’s finding that the conduct related to domestic violence, the ban was a collateral consequence of the plea and therefore the circuit court didn’t need to inform Neis of it before taking his plea. State v. Kosina, 226 Wis. 2d 482, 485, 595 N.W.2d 464 (Ct. App. 1999), deemed controlling:
¶11 We conclude that Kosina is controlling, and therefore Neis is not entitled to an evidentiary hearing on his motion to withdraw his plea. Under Kosina, the circuit court need not inform a defendant of the application of the federal firearm ban to comply with WIS. STAT. § 971.08. We need not address Neis’s argument that his case is distinguishable from Kosina because here the circuit court made an explicit finding that his conviction was for disorderly conduct related to domestic violence; regardless, it remains that the federal firearm ban arises under federal law, which we explained in Kosina was an independent basis for our conclusion that it was a collateral consequence. Because the effect of the federal firearm ban is a collateral consequence of Neis’s plea, the circuit court did not err under § 971.08 in failing to inform Neis of that consequence.
It would be a serious mistake to take this as the final word. Indeed, the court itself seems to be troubled by the result, ¶13 n. 4:
The distinction between direct and collateral consequences as determinative of the constitutional validity of a plea seems to be problematic. “The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent.” State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). State v. Brown, 2006 WI 100, ¶29, 293 Wis. 2d 594, 716 N.W.2d 906, speaks of a “full understanding of the charges against [the defendant].” A full understanding of charges against Neis would include that by pleading guilty, Neis would lose the right to possess a firearm, and would be prosecuted for a federal crime if he did so. This is a significant enough right for United States and Wisconsin citizens that we have included it in both constitutions. It is difficult to conclude that this right is nonetheless so insignificant that it is only a “collateral” consequence of pleading guilty to a disorderly conduct charge. But that is all it is. See State v. Kosina, 226 Wis. 2d 482, 489, 595 N.W.2d 464 (Ct. App. 1999).
Eugene Volokh covers the decision: “We Affirm, But Only Because We Are Unable to Write a Principled Opinion Reversing.” The court full well sees the difficulty labeling the gun ban a collateral consequence of conviction but perceives that it is bound by prior precedent. It is counsel’s job to explain why that is not so, and it’s not clear that was done here. The Kosina holding that a consequence imposed by the feds is necessarily “collateral” to a Wisconsin conviction at least seemingly can’t be squared with Padilla v. Kentucky (deportation by the feds as a consequence of conviction must be imparted to a guilty-plea defendant). Indeed, at least one federal court held that immigration effects are “collateral consequences” because under the authority “of another agency over which the trial judge has no control and for which he has no responsibility,” Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005). Same logic as employed by Kosina, and if it had any viability, Padilla would have come out differently.
Note that the court of appeals has authority to determine that its prior, otherwise binding precedent, has been “effectively” overruled by Supreme Court caselaw, e.g., State v. Forbush, 2010 WI App 11, ¶2. But first you have to make the court of appeals aware of the argument.
As for “categorical” (which is to say, automatic) nature of ban as consequence of conviction, see post on U.S. v. Skoien, 7th Cir No. 08-3770, 7/13/10.
In commenting on Dykman’s Neis one-judge opinion, “On Point” says: “Eugene Volokh characterizes the court’s analysis as, ““We Affirm, But Only Because We Are Unable to Write a Principled Opinion Reversing.” That seems a tad unfair.”
Actually, that is the way Dykman characterized it:
“DYKMAN, P.J. Kurt Neis appeals from his conviction following his guilty plea to disorderly conduct under Wis. Stat. § 947.01, with a domestic abuse surcharge under Wis. Stat. § 973.055(1). Neis argues that the circuit court erred in denying his motion to withdraw his guilty plea without an evidentiary hearing. He argues that the circuit court did not establish that he understood the nature of the charge and his potential punishment if convicted as mandated under Wis. Stat. § 971.08, because (1) the circuit court did not inform him that he would be subject to the federal firearm ban following domestic violence convictions, 18 USC §§ 921(a)(33)(A)(i) and (ii) and 922(g)(9), upon conviction; and (2) the court did not inform him that “domestic abuse,” as defined under § 968.075(1)(a), was an element of his conviction. We conclude that the record establishes that the circuit court properly informed Neis of all required information before accepting his guilty plea, and therefore Neis is not entitled to an evidentiary hearing or plea withdrawal. Accordingly, we affirm, but only because we are unable to write a principled opinion reversing. (bolding added by me.)
Judge Fine’s comment is much-appreciated, and the post has been updated.
Padilla, it must be stressed, has irrevocably altered the guilty plea landscape. Not merely on its particular facts (which deal with deportation, something already covered by statute in Wisconsin) but with respect to the distinction altogether between any supposed collateral and direct consequences of a plea. An often artificial distinction, as exemplified by Neis. Gun ownership is now a constitutionally protected right; its automatic loss upon conviction of certain offenses may or may not be as consequential as deportation, but it is no longer possible to say that it is merely “collateral” and therefore of no legal consequence. The sooner necessary challenges are launched under appropriate theories, the better.