State v. Stephen LeMere, 2013AP2433-CR, petition for review granted 3/16/15

Review of a court of appeals summary disposition; case activity

Issue (composed by On Point)

May a defendant seek to withdraw his guilty plea by claiming that his trial lawyer was ineffective for failing to advise him that, as a consequence of his plea, he could be subject to lifetime commitment as a sexually violent person under ch. 980?

With this case the supreme court will weigh in on the hot topic of whether a lawyer can be ineffective for failing to advise a defendant about so-called “collateral” consequences of a plea (e.g., parole eligibility; sex offender registration; civil commitment) as opposed to “direct” consequences (most obviously, the fines and imprisonment that could be imposed). The topic is hot, of course, because of Padilla v. Kentucky, 559 U.S. 356 (2010), which held that trial counsel was ineffective for failing to tell the defendant his guilty plea subjected him to automatic deportation, and instead telling him he didn’t have to worry about deportation. Before Padilla most jurisdictions considered immigration consequences to be collateral, and under the so-called collateral consequence rule erroneous advice about collateral, as opposed to direct, consequences of a plea wasn’t a basis for seeking plea withdrawal on the grounds of ineffective assistance of counsel.

But if Padilla obviously applies to trial counsel’s advice about immigration consequences, it also raises the question of whether automatic deportation should be the only exception to the collateral consequence rule. Maybe there are other consequences hitherto labeled as collateral that are so intimately related to the criminal process, so automatic, or so severe that a defendant should be given accurate advice about them before pleading guilty. So some courts have extended Padilla to cover, for example, parole eligibility (at least in some circumstances), Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012), and sex offender registration, e.g., Taylor v. State, 698 S.E.2d 384 (Ga. Ct. App. 2010), State v. Fonville, 804 N.W.2d 878 (Mich. Ct. App. 2011). And as LaMere’s brief notes, a habeas court extended Padilla to erroneous advice to a defendant that he would not be subject to civil commitment under Florida’s version of ch. 980. Bauder v. Florida Dep’t of Corrections, 619 F.3d 1272 (11th Cir. 2010).

LaMere’s claim is that he wasn’t advised of the ch. 980 consequences of his plea. The court of appeals held his case was controlled by State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (Ct. App. 1996), which held that a potential ch. 980 commitment is a collateral consequence of a guilty plea. LeMere argued that Myers is unsound in light of Padilla, the logic of which should be extended to ch. 980 consequences, but the court of appeals disagreed. In addition to saying it was bound by Myers, the court of appeals cited Chaidez v. United States, 133 S. Ct. 1103, 1110-12 (2013), for the proposition that Padilla didn’t invalidate the distinction between direct and collateral consequences, and that deportation was unique, intimately related to the criminal process, and nearly automatic in flowing from a conviction for specified crimes. “Unlike deportation, a Wis. Stat. ch. 980 commitment is not a nearly automatic result of a conviction. The potential for a future ch. 980 commitment will not occur unless the State initiates a separate proceeding and meets its burden of proving specific facts beyond the fact of conviction.” (Slip op. at 3). We’ll now see whether Myers will stand, or whether our supreme court will extend Padilla beyond the immigration context, and, if it does, what characteristics of the consequence will make it “direct” as opposed to “collateral” for purposes of the collateral consequences rule.