State v. Corey R. Fugere

2019 WI 33

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP2258-CR

COMPLETE TITLE: State of Wisconsin,

Plaintiff-Respondent,

v.

Corey R. Fugere,

Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 381 Wis. 2d 142,911 N.W.2d 127

PDC No:2018 WI App 24 - Published

OPINION FILED: March 28, 2019

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: January 24, 2019

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Chippewa

JUDGE: Roderick A. Cameron

JUSTICES:

CONCURRED:

DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,

J. and DALLET, J. (opinion filed).

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs

filed by Kathilynne A. Grotelueschen, assistant state public

defender. There was an oral argument by Kathilynne A.

Grotelueschen.

For the plaintiff-respondent, there was a brief filed by

Luke N. Berg, deputy solicitor general. With whom on the brief

Tiffany M. Winter, assistant attorney general, Misha Tseytlin,

solicitor general, and Brad D. Schimel, attorney general. There

was an oral argument by Luke N. Berg.

2019 WI 33

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2016AP2258-CR

(L.C. No. 2015CF169)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED

v. MAR 28, 2019

Corey R. Fugere, Sheila T. Reiff

Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a

published decision of the court of appeals, State v. Fugere,

2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, affirming the

Chippewa County circuit court's order.1 The circuit court's

order denied Corey R. Fugere's ("Fugere") motion to withdraw his

plea of not guilty by reason of mental disease or defect

("NGI"), which was based on the circuit court providing

inaccurate information to Fugere concerning the maximum period

of civil commitment should he prevail on his affirmative defense

1 The Honorable Roderick Cameron presided.

No. 2016AP2258-CR

to the criminal charges. The court of appeals affirmed the

circuit court, and we affirm the court of appeals.

¶2 We conclude that a circuit court is not required to

inform an NGI defendant of the maximum possible term of civil

commitment at the guilt phase: (1) because a defendant who

prevails at the responsibility phase of the NGI proceeding has

proven an affirmative defense in a civil proceeding, avoiding

incarceration, and is not waiving any constitutional rights by

so proceeding in that defense; and (2) because an NGI commitment

is not punishment, but rather a collateral consequence to one

who successfully mounts an NGI defense to criminal charges. We

therefore decline to exercise our superintending and

administrative authority to require circuit courts to advise NGI

defendants of the maximum period of civil commitment.

¶3 Fugere also requests that this court conclude that the

circuit court's error was not harmless with respect to the

misinformation provided to him concerning potential civil

consequences should he prevail in his defense. The circuit

court here provided accurate information to Fugere regarding the

maximum possible term of imprisonment but inaccurate information

regarding commitment, so we thus address whether the circuit

court's error otherwise entitles Fugere to withdraw his NGI

plea. We conclude that the circuit court's error was harmless

because it was unrelated to the guilt phase of the NGI defense,

and instead, the inaccurate information pertained to the

potential civil commitment at the responsibility phase.

Additionally, Fugere received the benefit of his plea agreement

2

No. 2016AP2258-CR

with the State and otherwise understood the consequences of

prevailing on an NGI defense as he was already civilly committed

for an unrelated charge. Thus, there was no manifest injustice,

and we affirm the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 In April 2015 Fugere was charged with four counts of

first-degree sexual assault of a child under the age of 12. The

complaint alleged that in 2008, when Fugere was 17 years old, he

and another individual sexually assaulted an eight-year-old

girl. At the time these charges were filed, however, Fugere was

serving a commitment to the Mendota Mental Health Institute

because of a different sexual assault charge for which Fugere

had previously been found NGI.

¶5 A few months after Fugere was charged, the State and

Fugere reached a plea agreement. Pursuant to the agreement,

Fugere would plead NGI to one count of first-degree sexual

assault of a child under the age of 12, and the remaining

charges were dismissed but read in. As a result, Fugere would

waive his right to trial regarding guilt, admit that there was a

factual basis that he committed the sexual assault, and the

State and Fugere would stipulate that, based on the other case

information and findings, Fugere lacked substantial capacity to

appreciate the wrongfulness of his conduct or conform his

conduct to the requirements of the law due to a mental disease

or defect. The parties agreed to recommend that the circuit

court order a pre-dispositional investigation report and that

3

No. 2016AP2258-CR

Fugere be civilly committed for 30 years to the State of

Wisconsin Department of Health Services ("DHS").2

¶6 On August 24, 2015, Fugere filed an initialed and

signed "Plea Questionnaire/Waiver of Rights" form and entered an

NGI plea to the single count. At the plea hearing, the circuit

court conducted a plea colloquy and, among other things,

confirmed with Fugere that he understood the nature of the

charges, that he was waiving his constitutional rights,

including his right to a jury trial, and that the maximum

penalty for first-degree sexual assault was 60 years.

¶7 During the plea colloquy, the circuit court also

addressed Fugere's NGI plea. The court, the State, and Fugere's

attorney all misinformed Fugere of the potential maximum period

of civil commitment. The following exchange occurred:

THE COURT: You are not actually going [to] be

found guilty of the charge today. You are going to be

found [not] guilty by reason of mental disease or

defect, which is a bit different, but it means you

could be placed on supervision for up to 30 years.

[THE STATE]: Sixty years is the maximum.

THE COURT: Sixty years, but the recommendation

is 30 years, do you understand that?

[FUGERE]: Yes.

Fugere informed the circuit court that he was aware of the 30-

year recommendation even though 60 years is the maximum. Fugere

2 Additionally, as part of the plea agreement, Fugere agreed

to submit a DNA sample, but that is not significant to this

appeal.

4

No. 2016AP2258-CR

confirmed that he had been on conditional release on another

case and that he understood how conditional release worked.

Fugere indicated that he did not have any questions. Fugere's

attorney confirmed that Fugere would be exposed "to some 30 more

years of supervision, could possibly be 60 years." His lawyer

confirmed that Fugere understood that "if he violates any rules

of supervision, he could end up back at Mendota or Winnebago

during the next 60 years."

¶8 The circuit court accepted Fugere's NGI plea, adopted

the parties' joint recommendation, and ordered that Fugere be

committed for 30 years and that a pre-dispositional investigation

be prepared. The order of commitment specified that Fugere's

commitment was to commence on August 24, 2015, and run concurrent

with any other NGI commitments he was serving.

¶9 At the post-dispositional placement hearing on

October 15, 2015, the court ordered Fugere be placed in

institutional care. At the hearing, Fugere did not contest the

report's findings and admitted he was "not ready" for conditional

release. Fugere stated that he hoped he would be fit for

conditional release in six months.

¶10 Just over six months later, on April 29, 2016, Fugere

filed a petition for conditional release with the circuit court.

The circuit court ordered an examination by an independent

psychologist, who recommended that Fugere be conditionally

released. On June 29, 2016, the circuit court granted

conditional release subject to finding a suitable group home.

The DHS was to provide a release plan within 60 days.

5

No. 2016AP2258-CR

¶11 On August 5, 2016, prior to the 60-day time period

elapsing, the DHS informed the circuit court that it was

"temporarily suspend[ing] planning for the conditional release"

because the State intended to file a complaint against Fugere

alleging that he should be separately committed as a sexually

violent person under Wis. Stat. ch. 980 (2015-16).3 The DHS

further notified the circuit court that Fugere had recently

committed a "new violation" by "having sexual relations with a

peer at Mendota." The DHS additionally stated that it intended

to revoke Fugere's conditional release following resolution of

the State's chapter 980 petition.

¶12 On September 15, 2016, Fugere filed a postconviction

motion to withdraw his NGI plea arguing that it was not

knowingly, intelligently, and voluntarily entered. Fugere

asserted that he was entitled to withdraw his plea because he

was misinformed of the maximum civil commitment period.

Specifically, he averred that the circuit court incorrectly

informed him that he faced a maximum of 60 years, when the

actual maximum was 40 years' commitment and that the circuit

court inaccurately referenced supervision. In response, the

State argued that an NGI commitment is not a punishment, and

therefore the circuit court is not required to advise Fugere of

his maximum possible commitment to render Fugere's plea

knowingly, intelligently, and voluntarily given. The State

3All subsequent references to the Wisconsin Statutes are to

the 2015-16 version unless otherwise indicated.

6

No. 2016AP2258-CR

further argued that under State v. Bangert, 131 Wis. 2d 246, 389

N.W.2d 12 (1986), defendants must be informed only of the

maximum statutory punishment they face. The State contended

that the circuit court correctly informed Fugere of the maximum

statutory punishment he faced if his NGI defense failed, and

therefore fulfilled the circuit court's duty at the plea

colloquy. The State argued that no "manifest injustice"

resulted because Fugere received the very 30-year commitment

term he bargained for. At a hearing on November 9, 2016, the

circuit court agreed with the State and denied Fugere's motion.

The court concluded:

I think, given the fact that there's no requirement to

provide a defendant the maximum amount of time for a

confinement or commitment time on an NGI when he's

told he's going to get a certain amount against that

amount, I think that's distinguishable from the

maximum amount of time partly because confinement is

not a sentence and partly because he's getting exactly

what he expected to get regardless of how much more

time he could have gotten. So I believe under that

analysis, that the motion is to be denied.

¶13 Fugere appealed the circuit court's ruling. In an

opinion issued on March 6, 2018, the court of appeals affirmed

the circuit court. Fugere, 381 Wis. 2d 142, ¶2. It held "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." Id., ¶19. The court of appeals explained the

unique process that occurs with NGI pleas, which consists of two

phases: the guilt phase, and the responsibility phase. Id.,

7

No. 2016AP2258-CR

¶13. The court of appeals concluded that the requirements

established by Bangert and its progeny apply only to the guilt

phase of an NGI proceeding. In other words, the court of

appeals concluded that a defendant must be informed only of the

maximum punishment the defendant faces if he were to be found

guilty, which implicates only the guilt phase. Id., ¶19.

Noting that Wisconsin courts have routinely "held that the

responsibility phase of an NGI trial is not part of a criminal

trial," the court of appeals further concluded that "[t]he same

constitutional rights are not implicated or waived during the

mental responsibility phase." Id. The court of appeals also

expressed that a defendant's right to assert an NGI defense is a

statutory right, not a constitutional right. Id.

¶14 As a result, the court of appeals concluded as

follows:

In all, the record demonstrates that the circuit

court informed Fugere of the direct consequences of

his plea, including the potential sixty-year prison

sentence. The circuit court's incorrect statement

regarding Fugere's maximum potential period of civil

commitment does not render Fugere's NGI plea

unknowing, unintelligent, or involuntarily [sic]. As

such, there was no manifest injustice, and Fugere is

not entitled to withdraw his plea.

Id., ¶25.

¶15 On March 27, 2018, Fugere filed a petition for review

with this court. On September 4, 2018, this court granted

Fugere's petition.

8

No. 2016AP2258-CR

II. STANDARD OF REVIEW

¶16 When a defendant seeks to withdraw a guilty plea after

sentencing, the defendant must prove "by clear and convincing

evidence, that a refusal to allow withdrawal of the plea would

result in 'manifest injustice.'" State v. Brown, 2006 WI 100,

¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citing State v. Thomas,

2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836). A defendant

can meet that burden by showing that he or she did not

knowingly, intelligently, and voluntarily enter the plea. Id.

(citing State v. Trochinski, 2002 WI 56, ¶15, 253 Wis. 2d 38,

644 N.W.2d 891; State ex rel. Warren v. Schwarz, 219

Wis. 2d 615, 635-36, 579 N.W.2d 698 (1998); State v. Krawczyk,

2003 WI App 6, ¶9, 259 Wis. 2d 843, 657 N.W.2d 77).

¶17 Whether a guilty plea was entered knowingly,

intelligently, and voluntarily is a question of constitutional

fact. State v. Muldrow, 2018 WI 52, ¶24, 381 Wis. 2d 492, 912

N.W.2d 74. This court upholds a circuit court's findings of

fact unless clearly erroneous, and "[d]etermines independently

whether those facts demonstrate that the defendant's plea was

knowing, intelligent, and voluntary." Brown, 293 Wis. 2d 594,

¶19.

¶18 Fugere asserts that there were deficiencies in the

plea colloquy conducted by the circuit court in violation of

Wis. Stat. § 971.08. Whether Fugere shows deficiencies in the

plea colloquy that establish a violation of § 971.08, is a

question of law that this court reviews de novo. See Brown, 293

Wis. 2d 594, ¶21.

9

No. 2016AP2258-CR

III. ANALYSIS

A. General Principles Of Pleas And Plea Colloquies

¶19 We begin by addressing the basic principles underlying

pleas and plea colloquies. Wisconsin Stat. § 971.06 recognizes

four distinct pleas that can arise from criminal matters: (1)

guilty; (2) not guilty; (3) no contest, which is subject to the

court's approval; and (4) "[n]ot guilty by reason of mental

disease or defect." § 971.06(1). A defendant must enter a plea

to a criminal charge "knowing[ly], voluntar[ily], and

intelligent[ly]." Muldrow, 381 Wis. 2d 492, ¶1; see also

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). For a defendant's

plea to be "knowing, intelligent, and voluntary," the defendant

must be fully aware of "any direct consequences" of the plea.

Muldrow, 381 Wis. 2d 492, ¶1 (citing Brady v. United States, 397

U.S. 742, 755 (1970)). A "direct consequence" is defined as

"one that has a definite, immediate, and largely automatic

effect on the range of a defendant's punishment." State v.

Byrge, 2000 WI 101, ¶60, 237 Wis. 2d 197, 614 N.W.2d 477 (citing

State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605

N.W.2d 199).

¶20 On the other hand, information regarding "collateral

consequences" of a defendant's plea "is not a prerequisite to

entering a knowing and intelligent plea." Id., ¶61 (citing

Warren, 219 Wis. 2d at 636). "Collateral consequences are

indirect and do not flow from the conviction." Id. In

evaluating whether a consequence of a defendant's plea is direct

or collateral, courts look to whether the consequence is a

10

No. 2016AP2258-CR

punishment. See Bollig, 232 Wis. 2d 561, ¶27 (holding "that

Wisconsin's sex offender registration requirements do not

constitute punishment," and thus are "a collateral

consequence").

¶21 The Wisconsin Statutes also impact a circuit court's

role in a plea colloquy. Under Wis. Stat. § 971.08(1), circuit

courts must conduct a plea colloquy with a defendant who pleads

guilty or no contest, in the interest of ensuring that the

defendant's plea is given knowingly, intelligently, and

voluntarily. § 971.08(1)(a). Before the circuit court accepts

a guilty or no contest plea, it must do all of the following:

(a) Address the defendant personally and

determine that the plea is made voluntarily with

understanding of the nature of the charge and the

potential punishment if convicted.

(b) Make such inquiry as satisfies it that the

defendant in fact committed the crime charged.

(c) Address the defendant personally and advise

the defendant as follows: "If you are not a citizen

of the United States of America, you are advised that

a plea of guilty or no contest for the offense with

which you are charged may result in deportation, the

exclusion from admission to this country or the denial

of naturalization, under federal law."

(d) Inquire of the district attorney whether he

or she has complied with s. 971.095(2).[4]

4 Wisconsin Stat. § 971.095(2) states as follows:

In any case in which a defendant has been charged

with a crime, the district attorney shall, as soon as

practicable, offer all of the victims in the case who

have requested the opportunity an opportunity to

confer with the district attorney concerning the

(continued)

11

No. 2016AP2258-CR

§ 971.08(1).

¶22 As this court has explained, the plea colloquy duties

imposed on courts by Wis. Stat. § 971.08 are not "a

constitutional requirement," but rather, "a statutory

imperative." Bangert, 131 Wis. 2d at 266. However, "[t]he

faithful discharge of these duties is the best way . . . to

demonstrate the critical importance of pleas in our system of

justice and to avoid constitutional problems." Brown, 293

Wis. 2d 594, ¶23.

¶23 Although the language in Wis. Stat. § 971.08 does not

indicate that it applies to NGI pleas, as § 971.08 expressly

refers only to "plea[s] of guilty or no contest," this court has

stated that an NGI plea "closely parallels a plea of no

contest." State v. Shegrud, 131 Wis. 2d 133, 137, 389 N.W.2d 7

(1986). This court has concluded that a defendant must be

informed of "the nature of the charge" and the "potential

punishment." Id. at 138.

¶24 A defendant who wishes to withdraw a guilty plea after

sentencing bears the heavy burden to demonstrate by "clear and

convincing evidence" that withdrawal is necessary to avoid

"manifest injustice." State v. Finley, 2016 WI 63, ¶58, 370

prosecution of the case and the possible outcomes of

the prosecution, including potential plea agreements

and sentencing recommendations. The duty to confer

under this subsection does not limit the obligation of

the district attorney to exercise his or her

discretion concerning the handling of any criminal

charge against the defendant.

12

No. 2016AP2258-CR

Wis. 2d 402, 882 N.W.2d 761; State v. Sulla, 2016 WI 46, ¶24,

369 Wis. 2d 225, 880 N.W.2d 659. A plea is "manifestly unjust"

in violation of the Due Process Clause of the United States

Constitution if it was not entered "knowingly, intelligently,

and voluntarily." Stumpf, 545 U.S. at 182-83. While Bangert

and Wis. Stat. § 971.08 inform a court's duties when it comes to

properly taking a plea, an improper colloquy does not

automatically mandate withdrawal. State v. Cross, 2010 WI 70,

¶¶32-40, 326 Wis. 2d 492, 786 N.W.2d 64; State v. Taylor, 2013

WI 34, ¶¶32-42, 48-54, 347 Wis. 2d 30, 829 N.W.2d 482. An

improper colloquy may entitle a defendant to a hearing however,

and there, the State bears the burden of establishing that the

guilty plea was indeed voluntary. Brown, 293 Wis. 2d 594, ¶¶36-

41.

¶25 In the case at issue, Fugere argues that he, as a

defendant who entered an NGI plea but was not properly informed

of the accurate maximum length of a civil commitment, should be

entitled to withdraw that plea on the grounds that it was not

knowing, intelligent, and voluntary.

B. NGI Procedures

¶26 "[A] criminal defendant's right to an NGI defense is a

statutory right that is not guaranteed by either the United

States or Wisconsin Constitutions." State v. Magett, 2014 WI

67, ¶32, 355 Wis. 2d 617, 850 N.W.2d 42. NGI pleas "may be

joined with a plea of not guilty." Wis. Stat. § 971.06(1)(d).

When a defendant enters this plea, the case is bifurcated into

two phases: the guilt phase and the responsibility phase. See

13

No. 2016AP2258-CR

Magett, 355 Wis. 2d 617, ¶39. Only if a defendant is found

guilty in the first phase does the court withhold entry of

judgment of guilt and the trial proceeds to the responsibility

phase. Wis. Stat. § 971.165(1)(d). The responsibility phase

"is not a criminal proceeding," but "is something close to a

civil trial." Magett, 355 Wis. 2d 617, ¶33. Unlike a criminal

trial, the verdict need not be unanimous, the defendant bears

the burden of proof to establish this affirmative defense by a

preponderance of the evidence, and the circuit court may direct

a verdict. Id., ¶¶37–39.

¶27 On the other hand, a defendant may choose to plead NGI

without also pleading not guilty, also known as a "standalone

NGI plea." See Wis. Stat. § 971.06(1)(d). In so doing, the

defendant "admits that but for lack of mental capacity, the

defendant committed all the essential elements of the offense

charged in the indictment, information or complaint." Id. The

defendant is then found guilty of the elements of the crime(s)

and the responsibility phase is left for trial. State v.

Lagrone, 2016 WI 26, ¶29, 368 Wis. 2d 1, 878 N.W.2d 636. As

Fugere points out, this court has exercised its superintending

and administrative authority with regard to plea colloquy

requirements in the past in both Bangert and Shegrud. The court

has concluded that in the first phase of an NGI plea, the court

must "address the defendant personally to determine whether the

defendant is entering the plea voluntarily [and] with an

understanding of the nature of the charge. . . . [T]he

procedures delineated in Bangert shall apply . . . ." Shegrud,

14

No. 2016AP2258-CR

131 Wis. 2d at 138. Also, as was the case here, the parties may

agree to waive the trial on responsibility and stipulate that

the defendant should be found NGI.

¶28 Under Wis. Stat. § 971.165(3)(b), if the defendant's

NGI defense succeeds, "the court shall enter a judgment of not

guilty by reason of mental disease or defect," and "shall

thereupon proceed under s. 971.17."5 If the defendant's NGI

defense is unsuccessful, "the court shall enter a judgment of

conviction and shall either impose or withhold sentence under s.

972.13(2)." § 971.165(3)(a).

¶29 Defendants in criminal cases who are later found NGI

are civilly committed rather than criminally sentenced or

sanctioned. If commitment occurs, the length of that commitment

is not to exceed the maximum sentence for the charged offense

plus penalty enhancements subject to statutory credit

provisions. Wis. Stat. § 971.17(1)(b). As a general rule, the

length of commitment is about two-thirds of the maximum

potential sentence of imprisonment.6 In addition, a defendant

5

Wisconsin Stat. § 971.17 governs the "[c]ommitment of

persons found not guilty by reason of mental disease or mental

defect."

6

Under Wis. Stat. § 971.17(1), an NGI defendant's maximum

possible commitment period depends on the nature of the

underlying offense. NGI defendants who commit a felony prior to

July 30, 2002, or who commit a misdemeanor, may receive a

maximum commitment period of two-thirds the maximum term of

imprisonment that could be imposed. § 971.17(1)(a) & (d). NGI

defendants who commit a felony on or after July 30, 2002, may

receive a commitment term up to but not exceeding the maximum

term of imprisonment that could be imposed. § 971.17(1)(b).

(continued)

15

No. 2016AP2258-CR

who succeeds on an NGI defense and is committed may file a

petition for conditional release every six months, and if on

conditional release, may file a petition to terminate the

underlying order of commitment. See §§ 971.17(4), (5).

C. Bangert And Shegrud

¶30 Fugere asserts that this court should exercise its

superintending and administrative authority to clarify or extend

Bangert and Shegrud. He argues that an NGI plea cannot be

knowing, intelligent, or voluntary when a circuit court

inaccurately informs an NGI defendant of the maximum term of

commitment or refers to commitment as supervision. We consider

the unique nature of an NGI plea and the fact that the first

phase, the admission of guilt, must be knowing, intelligent, and

voluntary as the defendant is waiving, among other things, the

right to a jury trial and putting the State to its high burden

of proving each and every element of the offense charged. In

the guilt phase, the defendant waives constitutional rights and

must understand the nature of the charge and the potential

criminal punishment. This understanding is important because if

the defendant's affirmative defense fails at the second phase,

the defendant's criminal sentence could be the maximum term of

imprisonment. Stated differently, a defendant who does not

succeed in proving the affirmative defense at the responsibility

Lastly, NGI defendants who commit a felony punishable by life

imprisonment may receive up to a lifetime commitment term.

§ 971.17(1)(c).

16

No. 2016AP2258-CR

phase is convicted and sentenced up to the maximum possible term

of imprisonment. The circuit court here informed the defendant

of the maximum possible term of imprisonment, the plea

questionnaire outlined the same, and the record reflects a

discussion of that maximum.7

¶31 Fugere's argument, however, relates not to the

potential criminal penalty if his NGI defense fails. His

argument is that if he succeeds in his affirmative defense and

is found NGI, the court must have previously informed him of the

civil consequences of proving that defense. Fugere's argument

focuses then not on whether the circuit court properly informed

him of the consequences of the guilt phase of the plea. His

argument centers on the circuit court being required, at the

guilt phase, to advise not only of the maximum criminal penalty

but also the potential maximum civil commitment. Civil

commitment is the benefit Fugere seeks, but one that becomes

available only if he succeeds in affirmatively proving his legal

lack of responsibility.

¶32 The responsibility phase of the proceedings, however,

is drastically different from the guilt phase. The

responsibility phase is the defendant's opportunity to present

an affirmative defense, a legislative preference provided in the

statutory right to a separate trial regarding mental

7See State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504,

904 N.W.2d 773; State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829

N.W.2d 482; and State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786

N.W.2d 64.

17

No. 2016AP2258-CR

responsibility. If successful at this phase——at which the

defendant bears the burden of proving his defense by a

preponderance of the evidence to a less than unanimous jury——the

outcome is that he would be civilly committed, not criminally

sentenced. The maximum civil commitment is of a shorter

duration, less restrictive than imprisonment, subject to review

on a regular basis, and is not "punishment" but rather, is "to

treat the NGI acquittee's mental illness and to protect the

acquittee and society from the acquittee's potential

dangerousness." State v. Szulczewski, 216 Wis. 2d 495, 504, 574

N.W.2d 660 (1998). The defendant who succeeds in proving this

affirmative defense is hoping for civil commitment rather than

criminal punishment. This court has never required circuit

courts to conduct a colloquy with defendants to inform them of

the benefits of successfully proving an affirmative defense.

While courts should provide accurate information, we decline to

extend Bangert or Shegrud to require circuit courts to advise a

defendant of the potential consequences of prevailing on an

affirmative defense at the responsibility phase of an NGI trial.

The circuit court has a duty to advise of punishment at the

guilty plea phase of an NGI, namely, the potential maximum term

of imprisonment.

1. Constitutional rights are not waived

at the responsibility phase.

¶33 To be clear, defendants who submit a standalone NGI

plea waive constitutional rights only at the guilt phase, not

the responsibility phase. The defendant who chooses, by NGI

18

No. 2016AP2258-CR

plea at the guilt phase, not to challenge that he committed the

charged criminal offense, enters a plea which operates like a no

contest plea. See Shegrud, 131 Wis. 2d at 137. The case then

proceeds to the responsibility phase——a noncriminal proceeding——

where the defendant presents an affirmative defense that, if

proven, may lead to civil commitment instead of incarceration.8

For those who might argue that a civil commitment is a

significant consequence for which a defendant should be advised,

they fail to recognize the unique position of an NGI defendant

who otherwise faces imprisonment unless that defendant can prove

he or she is instead entitled to a civil commitment.

¶34 This distinction——between criminal and civil

proceedings and possible imprisonment versus civil commitment——

has significance. Consistent with Bangert and Shegrud, circuit

courts must inform defendants who enter a standalone NGI plea of

the nature of the charges, the nature of the constitutional

rights the defendant is waiving, and the maximum potential

punishment if the defendant's NGI defense fails. See Bangert,

131 Wis. 2d at 261–62; Shegrud, 131 Wis. 2d at 136–39. This

fulfills the constitutional requirements underlying a

defendant's plea at the guilt phase of the proceedings. Fugere

does not dispute that the circuit court fulfilled these

requirements at the guilt phase, and the record reflects that at

the plea colloquy hearing the circuit court properly informed

8

In the case at issue, the State agreed that Fugere could

successfully mount an NGI defense.

19

No. 2016AP2258-CR

Fugere of the nature of the criminal charges against him, the

nature of the constitutional rights he was waiving, and the

maximum term of imprisonment. Fugere argues though that courts

should be required to go further and advise not just of the

potential punishment should his defense fail, but also of the

potential civil consequence to him should his defense succeed.

¶35 Defendants do not waive any constitutional rights

pertaining to the responsibility phase of an NGI proceeding. At

the responsibility phase, defendants have the burden to prove a

statutorily-created affirmative defense and are not making a

concession of any kind. See Wis. Stat. § 971.15. NGI

defendants hope to prove that they are not mentally responsible

for the crime they have already been found guilty of committing.

There is no requirement that any defendant raise an NGI defense.

Defendants benefit from the successful presentation of an NGI

defense. At the responsibility phase, a defendant has already

been found guilty and absent success at that phase, faces

criminal punishment not civil commitment. Indeed, a successful

NGI defendant avoids incarceration in favor of civil commitment

and may seek conditional release within six months of his

initial commitment date, and commitment, unlike incarceration,

could be terminated entirely. In addition, NGI proceedings are

notably distinguishable from other forms of civil commitment

such as those arising under Wis. Stat. ch. 51 or ch. 980, where

the government, not the defendant, pursues the commitment and

carries the burden of proof. In the context of an NGI

proceeding, the defendant willfully seeks commitment and bears

20

No. 2016AP2258-CR

the burden of proof to receive the benefit of a successful NGI

defense.

¶36 Our conclusion that NGI defendants do not waive any

constitutional rights at the responsibility phase of an NGI

proceeding is buttressed by this court's decision in Lagrone,

368 Wis. 2d 1. There, as in this case, Lagrone did not

challenge the plea colloquy that occurred regarding the guilt

phase of the NGI proceedings. Id., ¶53. Instead, Lagrone

argued that he was unaware that by entering a standalone NGI

plea, he was waiving his fundamental right to testify at a

criminal trial regarding the validity of the charges against

him. Id. This court held that circuit courts are not required

to conduct a colloquy with defendants regarding whether or not

they wish to testify during the responsibility phase of an NGI

proceeding. Id., ¶¶51–56. Specifically, this court stated that

"the fundamental right to testify in one's own behalf as a

defendant in a criminal case does not exist at the

responsibility phase of bifurcated NGI proceedings because that

phase is a noncriminal proceeding to which defendants possess no

constitutional right." Id., ¶51 (emphasis added). The same

reasoning is applicable here. Defendants do not waive

constitutional rights in this non-criminal, responsibility

phase.

2. NGI commitments are not punitive

in intent or effect.

¶37 Circuit courts are required only to "notify the

defendant of any direct consequence of his guilty plea."

21

No. 2016AP2258-CR

Muldrow, 381 Wis. 2d 492, ¶1 (citing Brady, 397 U.S. at 755).

"We have identified direct consequences of a plea as being those

that impose punishment." Id. We next evaluate whether

commitment is punitive and thus, a direct consequence of a plea.

This court recently adopted the "intent-effects test" for

determining whether a consequence of a plea is punitive. Id.,

¶35.

¶38 The United States Supreme Court first articulated the

intent-effects test in Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168–70 (1963). The intent-effects test has two parts.

Courts look to the "statute's primary function" to determine the

statute's intent. Id. at 169. If a law's intent is not

punitive, the court then considers whether it is nonetheless

punitive in effect. Courts consider whether the statute's

effect is "penal or regulatory in character." Id. at 168-69.

In evaluating effect, courts look to seven, non-exhaustive

factors:

[1] Whether the sanction involves an affirmative

disability or restraint, [2] whether it has

historically been regarded as a punishment, [3]

whether it comes into play only on a finding of

scienter, [4] whether its operation will promote the

traditional aims of punishment——retribution and

deterrence, [5] whether the behavior to which it

applies is already a crime, [6] whether an alternative

purpose to which it may rationally be connected is

assignable for it, and [7] whether it appears

excessive in relation to the alternative purpose

assigned . . . .

Id.

22

No. 2016AP2258-CR

¶39 We conclude that applying the intent-effects test

further demonstrates that commitment resulting from a successful

NGI defense is not a punishment, and thus is not a direct

consequence of a defendant's NGI plea. The parties agree that

NGI commitments are not intended to be punishments. Indeed,

this court has already held that NGI commitments are not

intended to be punishments, holding that their purpose is "two-

fold: to treat the NGI acquittee's mental illness and to

protect the acquittee and society from the acquittee's potential

dangerousness." Szulczewski, 216 Wis. 2d at 504 (citing State

v. Randall, 192 Wis. 2d 800, 833, 532 N.W.2d 94 (1995)). By

contrast, this court stated that judgments of conviction and

sentences are "designed to accomplish the objectives of

deterrence, rehabilitation, retribution and segregation." Id.

(citing Wayne R. LaFave & Austin W. Scott, Jr., 1 Substantive

Criminal Law § 1.5, at 30–36 (1986)). Thus, we conclude that

NGI commitments are not intended to serve as punishment under

the intent portion of the intent-effects test.

¶40 That leaves the question of whether NGI commitments

have a punitive effect. Fugere focuses on factors (1), (5), and

(7) in claiming that NGI commitments have a punitive effect.

Applying all seven factors outlined by the United States Supreme

Court in Mendoza-Martinez, we conclude that NGI commitments do

not have a punitive effect.

¶41 First, Fugere is correct that NGI commitments involve

"an affirmative disability or restraint." Defendants that

successfully plead NGI are committed, which involves confinement

23

No. 2016AP2258-CR

at a mental health institution for treatment. This is plainly

an affirmative restraint. The State concedes as much, but

argues that "the mere fact that a person is detained does not

inexorably lead to the conclusion that the government has

imposed punishment." We agree. However, that does not change

the fact that NGI committees are affirmatively restrained.

¶42 Second, measures such as NGI commitments have

historically been regarded as non-punitive in nature. In

addition to this court's statement in Szulczewski regarding the

purpose of NGI commitments, the United States Supreme Court has

recognized that "measures to restrict the freedom of the

dangerously mentally ill" serve a "legitimate nonpunitive

governmental objective and has been historically so regarded."

Kansas v. Hendricks, 521 U.S. 346, 363 (1997) (citing United

States v. Salerno, 481 U.S. 739, 747 (1987)). The Supreme Court

further recognized "the confinement of 'mentally unstable

individuals who present a danger to the public' as one classic

example of nonpunitive detention." Id. (citing Salerno, 481

U.S. at 748-49).

¶43 Third, NGI commitments do not "come into play only on

a finding of scienter." As the State correctly notes, NGI

commitments are necessarily premised on the absence of scienter,

which renders an NGI defendant not legally culpable for the

underlying criminal conduct. See Wis. Stat. § 971.15(1).

¶44 Fourth, NGI commitments do not serve the "traditional

aims of punishment——retribution and deterrence." Rather, NGI

commitments serve to treat defendants' mental illness and

24

No. 2016AP2258-CR

protect the public. Such ends do not fit the traditional goals

of retribution and deterrence associated with criminal

convictions, judgments, and sentencing. See Szulczewski, 216

Wis. 2d at 504; see also Jones v. United States, 463 U.S. 354,

368–69 (1983) (explaining that "insanity acquittees" are not

convicted, and thus not punished, and that "confinement rests on

[an acquittee's] continuing illness and dangerousness").

¶45 Fifth, NGI commitments require underlying behavior

that results in criminal charges being brought against the

defendant. Though a successful NGI defense obviates the

defendant's criminal responsibility, criminal conduct is an

inherent underpinning of an NGI commitment.

¶46 Sixth, NGI commitments certainly carry an alternative,

non-punitive purpose. As this court stated in Muldrow, this "is

considered the most significant factor in determining whether

the effect of a sanction is punitive." Muldrow, 381

Wis. 2d 492, ¶57 (internal quotation marks omitted). Here, as

noted above, the purpose of NGI commitments is to treat the

defendant and protect the public. NGI commitments thus carry a

strong alternative and non-punitive purpose. Similarly, this

court in Muldrow held that lifetime GPS tracking for sex

offenders had "[t]he non-punitive purpose of . . . protecting

the public from future sex offenses," as it "ensures law

enforcement will have ready access to evidence of an offender's

whereabouts." Id., ¶¶57–59. The rationale here is even

stronger——unlike GPS tracking, NGI commitments keep defendants

25

No. 2016AP2258-CR

away from the public and provide treatment for defendants'

mental illness.

¶47 Seventh, NGI commitments are not excessive in relation

to their rehabilitative and protective purposes. In Wisconsin,

NGI commitment terms may not exceed the maximum confinement term

of the charged criminal offense. For felonies committed on or

after July 30, 2002, NGI commitments may at most equal "the

maximum term of confinement in prison that could be imposed" on

a defendant if his NGI defense failed. Wis. Stat.

§ 971.17(1)(b). For crimes committed prior to July 30, 2002,

courts may at most impose a term of commitment equaling two-

thirds of the maximum term of confinement that could be imposed

if the NGI defense failed. § 971.17(1)(a). Sections

971.17(1)(a) and (1)(b) set the ceiling, but nothing in § 971.17

requires an NGI commitment term to mirror the maximum term of

confinement a defendant faces if his NGI defense is

unsuccessful.

¶48 Further, NGI defendants have the ability to petition

for conditional release six months after initial confinement,

and every six months after a previous petition was denied or

revoked. Wis. Stat. § 971.17(4). Six months after being placed

on conditional release, an NGI defendant may even file a

petition for termination of the underlying commitment order.

§ 971.17(5). Therefore, if the NGI defendant shows that he is

no longer dangerous and is fit to re-enter society, he will be

permitted to do so. This indicates direct ties to the

26

No. 2016AP2258-CR

rehabilitative and protective purposes of NGI commitments in a

manner that is not excessive.

¶49 An application of the intent-effects test to NGI

commitments strongly confirms that NGI commitments do not have a

punitive intent or effect. Therefore, NGI commitments are

collateral consequences of a defendant's plea. On that basis,

we also decline to use our superintending and administrative

authority to extend Bangert and Shegrud to require circuit

courts to inform NGI defendants of the maximum possible term of

commitment they face if their NGI defense succeeds.

D. The Circuit Court's Error Does Not Entitle

Fugere To Withdraw His NGI Plea.

¶50 Having concluded that circuit courts have no duty to

inform NGI defendants of the maximum possible term of commitment

they face, we still must address the circuit court's undisputed

error in this case. The circuit court did not use the correct

terminology, nor did it advise Fugere as to the correct civil

commitment length. The parties argue over the proper standard

in this case. The State asserts that this court should adopt a

harmless-error framework for considering plea colloquy defects

where a defendant does not have a right to be informed of the

information underlying the circuit court's purported error.

Fugere argues that this court should employ the "manifest

injustice" standard set forth in Bangert and its progeny.

¶51 We conclude that the error here was not one which

infected the plea. The information that the circuit court

provided did not relate to the maximum potential criminal

27

No. 2016AP2258-CR

penalty should Fugere not succeed in his affirmative defense.

Courts are not required to inform NGI defendants of the maximum

possible term of commitment if their defense succeeds. This

case is distinguishable from Bangert and its progeny, where we

have applied a "manifest injustice" standard to determine

whether a defendant's plea was given knowingly, intelligently,

and voluntarily. As we have concluded that there is no

requirement for a circuit court to inform NGI defendants of the

maximum possible term of commitment, a circuit court's failure

to convey, or to accurately convey it cannot render an NGI

defendant's plea unknowing, unintelligent, or involuntary.

While we do not condone providing misinformation regarding the

civil outcome should a defendant be found NGI and we caution

courts to be careful to properly advise defendants, the circuit

court's error here was harmless.

¶52 Though the circuit court overstated the maximum

possible term of commitment by 20 years and said the word

"supervision" instead of "commitment," the circuit court's error

here was harmless. First, the correct information was given

regarding the maximum term of imprisonment. Fugere entered into

a plea agreement with the State, and the parties agreed that

they would ask the circuit court to determine whether to impose

institutional commitment or conditional release. Thus, it was

specifically contemplated that Fugere may face commitment if his

NGI defense succeeded. Second, at the time the at-issue

proceedings occurred, Fugere was already committed pursuant to a

case which charged other sexual assault crimes. The circuit

28

No. 2016AP2258-CR

court addressed Fugere's committed status on the record at the

hearing and confirmed that Fugere was familiar with how the

commitment process worked. Third, at another point in the

hearing, Fugere's attorney stated on the record that Fugere was

aware that if he violates the terms of any conditional release

he may receive, he would be sent back to Mendota Mental Health

Institute. Fourth, given the circuit court's errant statement

that the maximum term would be 60 years, Fugere certainly would

have thus been aware that he could have been subject to a 40-

year term. Fifth, the circuit court adopted the parties' joint

recommendation of 30 years' confinement. Fugere received

exactly what he bargained for regarding his NGI plea: a 30-year

term of commitment as an alternative to a prison sentence of 40

years with 20 years of extended supervision.

¶53 As a result, though the circuit court undoubtedly

erred in stating the wrong maximum term of commitment or

supervision that would result if Fugere's NGI defense was

successful, the circuit court's error was, at most, harmless.9

9 We note the court of appeals' conclusion "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." State v. Fugere, 2018 WI App 24, ¶19, 381

Wis. 2d 142, 911 N.W.2d 127. This statement should not be

construed as allowing courts to provide inaccurate information

to defendants. Certainly, courts should exercise caution to

ensure that information they provide defendants is correct.

29

No. 2016AP2258-CR

IV. CONCLUSION

¶54 The circuit court provided inaccurate information to

Fugere concerning the maximum period of civil commitment should

he prevail on his affirmative defense to the criminal charges.

Fugere's motion, which sought withdrawal of his NGI plea as a

result of the inaccurate information, was denied by the circuit

court.

¶55 We conclude that a circuit court is not required to

inform an NGI defendant of the maximum possible term of civil

commitment at the guilt phase (1) because a defendant who

prevails at the responsibility phase of the NGI proceeding has

proven an affirmative defense in a civil proceeding, avoiding

incarceration, and is not waiving any constitutional rights by

so proceeding in that defense; and (2) because an NGI commitment

is not punishment but rather, is a collateral consequence to one

who successfully mounts an NGI defense to criminal charges. We

therefore decline to exercise our superintending and

administrative authority to require circuit courts to advise NGI

defendants of the maximum period of civil commitment.

¶56 Fugere also requests that this court conclude that the

circuit court's error was not harmless with respect to the

misinformation provided to him concerning potential civil

consequences should he prevail in his defense. The circuit

court here provided accurate information to Fugere regarding the

maximum possible term of imprisonment but inaccurate information

regarding commitment, so we thus address whether the circuit

court's error otherwise entitles Fugere to withdraw his NGI

30

No. 2016AP2258-CR

plea. We conclude that the circuit court's error was harmless

because it was unrelated to the guilt phase of the NGI defense,

and instead, the inaccurate information pertained to the

potential civil commitment at the responsibility phase.

Additionally, Fugere received the benefit of his plea agreement

with the State and otherwise understood the consequences of

prevailing on an NGI defense as he was already civilly committed

for an unrelated charge. Thus, there was no manifest injustice

and we affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

31

No. 2016AP2258-CR.awb

¶57 ANN WALSH BRADLEY, J. (dissenting). There is no

dispute in this case that the circuit court gave Corey Fugere

incorrect information regarding the length and nature of the

commitment he faced upon pleading not guilty by reason of mental

disease or defect (NGI). Fugere was told that he faced a

maximum 60 year term of "supervision," when he actually faced a

maximum 40 year term of commitment to an institution.

¶58 Sixty, however, is not forty and supervision is not

commitment to an institution.

¶59 Nevertheless, the majority indicates that the

incorrect information matters not, and denies Fugere the

opportunity to withdraw his plea. It concludes first that "a

circuit court is not required to inform an NGI defendant of the

maximum possible term of civil commitment at the guilt

phase . . . ." Majority op., ¶2. Second, the majority

concludes that the misinformation provided by the circuit court

with regard to the length and nature of the commitment he faced

was harmless. Id., ¶3.

¶60 I disagree with both of these erroneous conclusions.

In State v. Brown this court previously stated, "[i]f a

defendant does not understand the nature of the charge and the

implications of the plea, he should not be entering the plea,

and the court should not be accepting the plea." 2006 WI 100,

¶37, 293 Wis. 2d 594, 716 N.W.2d 906. This statement is just as

true in the NGI context as it is in a criminal case.

¶61 Here Fugere received only half of the story. Although

he was accurately informed of the potential prison sentence in

1

No. 2016AP2258-CR.awb

the event his NGI defense was unsuccessful, he was deprived of

essential information regarding the implications of his NGI

plea. As we have done in the past to remedy such a violation, I

would invoke this court's superintending authority to ensure

that NGI defendants receive full and accurate information about

the consequences of their pleas.

¶62 Further, the errors in this case were not necessarily

harmless. The circuit court was off the mark by 20 years and

incorrectly advised the defendant that he would be placed on

supervision rather than confined to an institution.

¶63 Because we do not know based on the record before us

how the errors affected Fugere's calculations in entering his

plea, we should remand to the circuit court for a Bangert

hearing. See State v. Bangert, 131 Wis. 2d 246, 274-75, 389

N.W.2d 12 (1986). Accordingly, I respectfully dissent.

I

¶64 The majority's first error lies in its determination

that "a circuit court is not required to inform an NGI defendant

of the maximum possible term of civil commitment at the guilt

phase . . . ." See majority op., ¶2.

¶65 In Bangert, this court established a mandatory rule

that the circuit court must "determine a defendant's

understanding of the nature of the charge at the plea hearing by

following any one or a combination of the [denominated]

methods." Bangert, 131 Wis. 2d at 267. This rule encompasses a

requirement that a circuit court must, in its plea colloquy,

"[e]stablish the defendant's understanding of the nature of the

2

No. 2016AP2258-CR.awb

crime with which he is charged and the range of punishments to

which he is subjecting himself by entering a plea." Brown, 293

Wis. 2d 594, ¶35.

¶66 The procedures established in Bangert apply equally to

the NGI context. In State v. Shegrud, this court determined

that "a court faced with a defendant entering a plea of not

guilty by reason of mental disease or defect must address the

defendant personally to determine whether the defendant is

entering the plea voluntarily with an understanding of the

nature of the charge." 131 Wis. 2d 133, 138, 389 N.W.2d 7

(1986).

¶67 Bangert's chief aim was to "ensure a knowing,

intelligent, and voluntary plea" by requiring "that a trial

judge explore the defendant's capacity to make informed

decisions." Brown, 293 Wis. 2d 594, ¶30. As the Brown court

explained, "[t]he duties established . . . in Bangert . . . are

designed to ensure that a defendant's plea is knowing,

intelligent and voluntary. The faithful discharge of these

duties is the best way we know for courts to demonstrate the

critical importance of pleas in our system of justice and to

avoid constitutional problems." Id., ¶23. Put simply, "[i]f a

defendant does not understand the nature of the charge and the

implications of the plea, he should not be entering the plea and

the court should not be accepting the plea." Id., ¶37.

¶68 Neither the Constitution nor Wis. Stat. § 971.08

require the sort of plea colloquy for which Bangert provides.

Instead, Bangert and its requirements act as a prophylactic

3

No. 2016AP2258-CR.awb

measure "[t]o head off postconviction hearings on plea

withdrawals . . . ." Brown, 293 Wis. 2d 594, ¶33.

¶69 Thus, rather than relying on constitutional or

statutory principles, the court in Bangert and Shegrud forged

its procedure as a function of this court's superintending

authority. Bangert, 131 Wis. 2d at 267; Shegrud, 131 Wis. 2d at

138; see Wis. Const. art. VII, § 3(1) (granting this court

"superintending and administrative authority over all courts");

Koschkee v. Evers, 2018 WI 82, ¶8, 382 Wis. 2d 666, 913

N.W.2d 878. Our superintending authority is "as broad and as

flexible as necessary to insure the due administration of

justice in the courts of this state." In re Kading, 70

Wis. 2d 508, 520, 235 N.W.2d 409 (1975).

¶70 As in Shegrud and Bangert, here the court would be

wise to utilize its superintending authority. Specifically,

Shegrud should encompass not only an advisement of the potential

prison sentence an NGI defendant faces, but be extended to

encompass the potential period of mental health commitment as

well. This minimal extension would ensure that NGI defendants

are provided with all relevant information on which to base

their decision to enter a plea.

¶71 Such a use of our superintending authority is

appropriate because the principles that drove Bangert and

Shegrud apply with equal force here. The "due administration of

justice" requires that NGI defendants are properly and

accurately informed of the potential commitments they face. If

the court is truly concerned with ensuring that a defendant's

4

No. 2016AP2258-CR.awb

plea is the result of informed decision-making, then circuit

courts should be required to ascertain whether the defendant

understands the consequences of a successful NGI defense. This

requirement includes ascertaining whether the defendant

understands the maximum possible term of commitment and its

nature.

¶72 However, under the majority's rule, Fugere and future

defendants who enter stand-alone NGI pleas can receive

incomplete information regarding what could happen to them as a

result of their pleas. When the circuit court informs an NGI

defendant of the maximum prison sentence only, the defendant

receives just half of the information needed to make an informed

decision.

¶73 In other words, if the defendant is found to be not

guilty by reason of mental disease or defect, then the prison

sentence is merely hypothetical. It is commitment, and not

imprisonment, that will actually come to fruition. Yet the

defendant is only informed of one possible sanction when there

are two distinct possibilities——commitment or prison.

¶74 This court should ensure that defendants pleading NGI

are provided with information that is actually useful to them

and will assist in making informed decisions regarding their

pleas. Accordingly, I would invoke this court's superintending

authority to minimally extend Shegrud. Circuit courts should be

required not only to inform defendants of the maximum penalty if

found guilty of the charge, but also to accurately inform NGI

defendants of the maximum commitment they face.

5

No. 2016AP2258-CR.awb

II

¶75 The majority's second error lies in its conclusion

that the misinformation given by the circuit court was harmless.

See majority op., ¶3. Two significant pieces of inaccurate

information marred the plea colloquy in this case.1 I address

each in turn.

¶76 First, the circuit court misstated the maximum

commitment Fugere could receive. The circuit court told Fugere

he faced a maximum commitment of sixty years, when he actually

faced forty years.2

¶77 Such an error is not necessarily harmless. "When a

defendant is told that he faces a higher punishment than

provided by law and pleads guilty, the plea colloquy is on its

face defective under Bangert." State v. Cross, 2010 WI 70, ¶48,

1 The majority bases its determination that the errors were

harmless on the assertion that they were "unrelated to the guilt

phase of the NGI defense . . . ." Majority op., ¶3. However,

the record reflects that there was a single plea colloquy

instead of two separate proceedings. The guilt and

responsibility phases were addressed by the circuit court during

the span of the single twenty-minute plea hearing.

2 The majority paints with a very broad brush in appearing

to declare that a circuit court's errors in inaccurately

conveying the maximum period of commitment will always be

harmless. See majority op., ¶51 ("As we have concluded that

there is no requirement for a circuit court to inform NGI

defendants of the maximum possible term of confinement, a

circuit court's failure to convey, or to accurately convey it

cannot render an NGI defendant's plea unknowing, unintelligent,

or involuntary.") (emphasis added). Such a pronouncement is

ill-advised and eyebrow-raising. If Fugere were told that he

faced a maximum of one year of "supervision" when he actually

faced a forty year commitment to an institution, would the error

really be harmless? The majority appears to say that it would.

6

No. 2016AP2258-CR.awb

326 Wis. 2d 492, 786 N.W.2d 64 (Abrahamson, C.J., concurring).

Likewise, because I determine that a circuit court should be

required to advise a defendant pleading NGI of the maximum term

of commitment, the same principle applies here.

¶78 Fugere was told he faced a longer period of commitment

than he actually faced. At this stage of the proceedings, we do

not know how this error affected Fugere's calculations in

entering his plea.

¶79 Second, the circuit court mistakenly stated that

Fugere faced a period of "supervision," when he actually faced

"commitment." Again, such an error is not necessarily harmless.

¶80 Just as there is a significant difference between

sixty years and forty years, there likewise can be a significant

difference between supervision and commitment. Although

supervision is often served in the community, commitment can

involve institutional care. Compare Wis. Stat. § 302.113 with

§ 971.17(3).

¶81 The majority indicates that "[t]he circuit court

addressed Fugere's committed status on the record at the hearing

and confirmed that Fugere was familiar with how the commitment

process worked." Majority op., ¶52. An experience of a prior

commitment proceeding presents a slim reed upon which to rest a

conclusion that a plea is knowingly, intelligently, and

voluntarily made.3 But even if the majority were correct,

3The circuit court's "confirmation" of Fugere's

understanding was quite cursory. The transcript of the plea

hearing reflects the following brief exchange:

(continued)

7

No. 2016AP2258-CR.awb

wouldn't the specification that he faced "supervision" instead

of "commitment" be particularly relevant to an individual

familiar with the commitment process?

¶82 Again, given the current state of the record we do not

know if or how these errors affected Fugere's calculations in

entering his plea. Accordingly, I would remand to the circuit

court for a Bangert hearing at which the State has the burden of

proof to demonstrate by clear and convincing evidence that the

defendant's plea was knowingly, intelligently, and voluntarily

entered despite the deficiencies in the plea hearing. See

Bangert, 131 Wis. 2d at 274-75.

¶83 For the reasons set forth above, I respectfully

dissent.

¶84 I am authorized to state that Justices SHIRLEY S.

ABRAHAMSON and REBECCA FRANK DALLET join this dissent.

THE COURT: You've been on a conditional release on a

different case here before, right?

THE DEFENDANT: Yes.

THE COURT: Do you understand what that's all about?

THE DEFENDANT: Yes.

8

No. 2016AP2258-CR.awb

1