State v. Fugere

• Decision Date: 06 March 2018
• Docket Number: Appeal No. 2016AP2258-CR
• Citation: 2018 WI App 24,381 Wis.2d 142,911 N.W.2d 127
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Corey R. FUGERE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

381 Wis.2d 142

911 N.W.2d 127

2018 WI App 24

STATE of Wisconsin, Plaintiff-Respondent,

v.Corey R. FUGERE,^† Defendant-Appellant.

Appeal No. 2016AP2258-CR

Court of Appeals of Wisconsin.

Submitted on Briefs May 30, 2017

Filed March 6, 2018

On behalf of the defendant-appellant, the cause was submitted on the briefs of Katie R. York, assistant state public defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Tiffany M. Winter, assistant attorney general.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 Corey Fugere appeals an order for commitment placing him in institutional care and an order denying his postdisposition motion to withdraw his plea of not guilty by reason of mental disease or defect (NGI). Fugere claims his NGI plea was not made knowingly, intelligently, and voluntarily because the circuit court failed to accurately inform him of the correct maximum term of civil commitment he faced under WIS. STAT. § 971.17 (2015-16).¹

¶2 We conclude that while a circuit court must correctly advise a defendant pleading NGI of the maximum term of imprisonment he or she faces, a court’s failure to accurately advise a defendant of his or her possible maximum civil commitment term does not render an NGI plea unknowing, unintelligent, or involuntary. The safeguards required for a valid plea apply only to the guilt phase of an NGI plea, and an individual’s possible civil commitment resulting from an acquittal during the subsequent mental responsibility phase is neither a "punishment" nor a direct consequence of a defendant pleading guilty or no contest during the guilt phase. Therefore, a circuit court need not advise a defendant regarding his or her possible civil commitment—much less do so accurately—in order for a defendant’s NGI plea to be knowing, intelligent, and voluntary.² Applying these standards to the facts of this case, Fugere is not entitled to withdraw his plea. Accordingly, we affirm.

BACKGROUND

¶3 In April 2015, the State charged Fugere with four counts of first-degree sexual assault of a child under the age of twelve. At the time the charges were filed, Fugere was committed at the Mendota Mental Health Institute on a prior order of commitment. In the earlier case, Fugere was found NGI of third-degree sexual assault.

¶4 A plea agreement was reached in this case, the terms of which were as follows: (1) Fugere would plead NGI to one count of first-degree sexual assault of a child, and all other charges would be dismissed and read in; (2) Fugere would waive his right to a trial on the issue of guilt and admit to there being a factual basis that he committed the crime; (3) both parties would stipulate that Fugere, as a result of a mental disease or defect, lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law; (4) both the State and Fugere would recommend to the circuit court that Fugere be civilly committed for thirty years; (5) Fugere would submit a DNA sample and pay the related surcharge; and (6) both parties would stipulate that the circuit court order a predispositional investigation to determine if a conditional release plan was appropriate.

¶5 Fugere then pled NGI to one count of first-degree sexual assault of a child. The circuit court explained to Fugere that the effect of his plea would be that Fugere was admitting he committed the act, but also that he was asserting he had a mental disease or defect that made him legally not responsible for the act. Fugere confirmed he understood this explanation.

¶6 The following exchange occurred during the plea colloquy:

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.

[PROSECUTOR]: Sixty years is the maximum.

THE COURT: Sixty years, but the recommendation is 30 years, do you understand that?

THE DEFENDANT: Yes.

Defense counsel confirmed that Fugere could receive up to sixty years of commitment. Counsel also explained that he spoke with Fugere about his right to litigate possible challenges to the charges, and he advised the court that Fugere nonetheless decided to enter an NGI plea.

¶7 The circuit court accepted Fugere’s plea and concluded Fugere had committed the offense. Thus, Fugere waived his right to a trial to determine his guilt.³ Fugere and the State then stipulated there was no need for the second phase of trial aimed at determining Fugere’s mental responsibility, because Fugere’s mental disease or defect had been established in his earlier commitment case. The court then ordered Fugere committed for thirty years, with his initial placement in institutional care.

¶8 One year after his initial commitment, Fugere filed a motion for plea withdrawal.⁴ Fugere argued that his plea was not knowingly, intelligently, and voluntarily made because the circuit court erroneously told him that he faced a sixty-year maximum civil commitment term rather than the correct forty-year maximum commitment term. There is no dispute that Fugere knew the maximum statutory penalty for his crime was sixty years of imprisonment, but incorrectly believed the maximum civil commitment time was also sixty years.⁵

¶9 The circuit court denied Fugere’s motion, concluding there was no requirement under the law that it advise Fugere of the correct maximum amount of time he could be civilly committed in relation to his NGI plea. Fugere now appeals.

DISCUSSION

¶10 As this case involves a postdisposition motion to withdraw a plea, we briefly summarize the standards governing such motions. A defendant must ordinarily show a manifest injustice to be entitled to withdraw a guilty or no-contest plea. State v. Bangert , 131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986). Generally, a manifest injustice exists where a guilty or no-contest plea was not entered knowingly, intelligently, and voluntarily. State v. Finley , 2016 WI 63, ¶ 58, 370 Wis. 2d 402, 882 N.W.2d 761.

¶11 Whether a defendant’s plea was entered knowingly, intelligently, and voluntarily is a question of constitutional fact. Id. , 59. An appellate court upholds the circuit court’s findings of historical fact unless they are clearly erroneous, but it independently determines, as a matter of law, whether the circuit court’s findings of historical fact demonstrate that the defendant’s plea was knowing, intelligent, and voluntary. Id.

¶12 An understanding of the process for cases involving an NGI plea is also essential to this case. When pleading NGI, a defendant has two options: (1) to enter a dual plea of both not guilty and NGI; or (2) to enter an NGI plea without an accompanying not-guilty plea. WIS. STAT. § 971.06(1)(d). For clarity (and to distinguish it from a dual NGI and not-guilty plea), the State refers to this second type of plea as a "standalone NGI plea," and we adopt that phrase in this opinion.

¶13 If a defendant enters both an NGI and a not-guilty plea, the result is a trial with two phases. Magett , 355 Wis. 2d 617, ¶ 33, 850 N.W.2d 42. The first phase, commonly referred to as the guilt phase, addresses whether the defendant committed the criminal act of which or he she is accused. Id. If the jury determines that the defendant committed the act in the guilt phase, the trial then proceeds to the second phase, known as the responsibility phase. Id. In phase two,

the jury considers whether the defendant had a mental disease or defect at the time of the crime and whether, as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.

Id. (citation omitted).

¶14 If a defendant enters a standalone NGI plea, he or she waives the constitutional right to a trial as to the guilt phase and admits that he or she committed the criminal act. State v. Shegrud , 131 Wis. 2d 133, 137, 389 N.W.2d 7 (1986). Therefore, and as our supreme court concluded over thirty years ago in Shegrud , a standalone NGI plea implicates the same safeguards as a guilty or no-contest plea, even though the terms of WIS. STAT. § 971.08(1)⁶ do not expressly apply to defendants pleading NGI. Id. Accordingly, the well-established procedures delineated in Bangert must be followed when a defendant enters a standalone NGI plea. Id. at 137-38, 389 N.W.2d 7.⁷

¶15 As relevant to this appeal, Bangert requires a circuit court to establish that an NGI defendant understands the nature of the crime with which he or she is charged and "the range of punishments to which he is subjecting himself by entering a plea," and it must notify the defendant of the direct consequences of his or her plea. See State v. Brown , 2006 WI 100, ¶ 35, 293 Wis. 2d 594, 716 N.W.2d 906. An NGI defendant who was not informed of the direct consequences of his or her plea did not enter that plea knowingly, intelligently, and voluntarily and, therefore, is entitled to withdraw the plea in order to correct that manifest injustice. See Finley , 370 Wis. 2d 402, ¶¶ 58-60, 882 N.W.2d 761. However, no manifest injustice occurs when the defendant is not informed of a collateral consequence of pleading guilty or no contest. State v. Kosina , 226 Wis. 2d 482, 485, 595 N.W.2d 464 (Ct. App. 1999).

¶16 Fugere contends he is entitled to withdraw his plea because it was not knowingly, intelligently, or voluntarily made and, therefore, was both manifestly unjust and in violation of the holdings in Bangert and Shegrud . Fugere posits this occurred because the circuit court incorrectly told him he faced a maximum of a sixty-year civil commitment, when he actually faced only a maximum of a forty-year commitment. Fugere asserts he did not otherwise understand his maximum possible commitment.

¶17 The State responds that the standards regarding plea...