State v. LeMere

• Decision Date: 20 May 2016
• Docket Number: No. 2103AP2433–CR.,2103AP2433–CR.
• Citation: 879 N.W.2d 580,368 Wis.2d 624
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Stephen LeMERE, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

368 Wis.2d 624

879 N.W.2d 580

STATE of Wisconsin, Plaintiff–Respondent,

v.Stephen LeMERE, Defendant–Appellant–Petitioner.

No. 2103AP2433–CR.

Supreme Court of Wisconsin.

Argued Sept. 17, 2015.

Decided May 20, 2016.

For the defendant-appellant-petitioner, there were briefs by Edward J. Hunt and Hunt Law Group, S.C., Milwaukee, and oral argument by Edward J. Hunt.

For the plaintiff-respondent, the cause was argued by Sarah L. Burgundy, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals affirming the circuit court's judgment convicting Stephen LeMere (LeMere) of first-degree sexual assault of a child under the age of 13 and affirming its order denying his postconviction motion to withdraw his plea.¹

¶ 2 In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Supreme Court of the United States held that the Sixth Amendment requires defense counsel to inform a client whether his plea to a criminal charge carries a risk of deportation. Here, we assess Padilla in a different context: Does the Sixth Amendment require defense counsel to inform a client about the possibility of civil commitment, under Wis. Stat. ch. 980,² when the client enters a plea to a sexually violent offense? We conclude that it does not and thus affirm the decision of the court of appeals.

I. Factual and Procedural Background

¶ 3 The charges against LeMere arose out of events that occurred after a gathering in the City of Eau Claire on Friday evening, May 13, 2011, at the home of J.C. and his wife, A.C. LeMere was then 24. During the gathering, LeMere and another visitor drank the majority of two 30 packs of beer, in addition to other alcohol in the house. LeMere also took a narcotic pain killer. Although his memory of the evening became “fuzzy,” LeMere recalled playing drinking games throughout the night.

¶ 4 Also present that evening was C.R.C., J.C.'s 12–year–old sister. As Friday night wore on, C.R.C. fell asleep on the couch in the living room. Around 5:30 on Saturday morning, C.R.C. awoke to the sound of LeMere opening his cell phone. LeMere began sending text messages to A.C.'s phone, which C.R.C. had borrowed from her sister-in-law.

¶ 5 LeMere's first message to C.R.C. said something similar to “will you have sex with me?” C.R.C. responded with a message saying, “No, I'm 12 years old, what are you doing, creeped out.” LeMere sent two more messages. Although LeMere eventually took A.C.'s phone away from C.R.C. and deleted the messages, C.R.C. later recalled that one message said something to the effect of “I know you're young but you're cute for a young girl,” while the other said something along the lines of “I want to have sex with you.” C.R.C. sent messages back saying “No.”³

¶ 6 Feeling uncomfortable, C.R.C. left the living room and went into the kitchen. While sitting on a chair, she heard the floor creaking outside the kitchen door. She stood up and walked over to investigate, whereupon LeMere suddenly popped out and grabbed her by the throat, placing her in a choke hold in the hallway. He placed the sharp edge of a knife against her throat. C.R.C., struggling to breathe, asked him, “[P]lease don't.”

¶ 7 Telling her to shut up and not say anything, LeMere grabbed her arm and brought her into the kitchen, where he pushed her against the refrigerator. Holding the knife to her neck with one hand, he used his other hand to fondle her vaginal area and insert his finger into her vagina. At some point, LeMere told C.R.C. that he would find her and kill her if she told anyone about what had happened. Gathering her strength, C.R.C. pushed LeMere away, grabbed A.C.'s cell phone from the kitchen table, and ran outside. There, she used A.C.'s phone to call her mother and asked to be picked up from the house.

¶ 8 In a criminal complaint filed May 18, 2011, the State charged LeMere with one count of first-degree sexual assault of a child under the age of 13, contrary to Wis. Stat. §§ 948.02(1)(e) and 939.50(3)(b) ; one count of second-degree reckless endangerment, contrary to Wis. Stat. §§ 941.30(2) and 939.50(3)(g) ; and one count of strangulation and suffocation, contrary to Wis. Stat. §§ 940.235(1) and 939.50(3)(h). After LeMere's initial appearance and a subsequent preliminary hearing, the State filed an information, charging LeMere with the same three counts.

¶ 9 At an arraignment in early June 2011, LeMere pleaded not guilty. His counsel asked the court to reduce the $20,000 cash bond set at LeMere's initial appearance, but the court denied the request.

¶ 10 Although the court set an August 2011 trial date, that date changed multiple times after a series of continuances. LeMere's counsel sought the first continuance in early August 2011 after receiving medical records and a DNA report from the State indicating the presence of LeMere's semen in C.R.C.'s underwear and on a vaginal swab. The court granted the request and adjourned the trial to give LeMere an opportunity to conduct an independent review of the medical and DNA evidence. During the status conference on the motion for continuance, the court—at the request of LeMere's counsel—confirmed on the record that LeMere did not feel that the adjournment would abridge his right to a speedy trial.

¶ 11 In mid-September, LeMere requested that the court appoint new counsel. At a status conference originally scheduled for the purpose of setting a new trial date, the court approved the request. A few days later, the State Public Defender appointed George Miller as LeMere's new counsel. Attorney Miller first appeared on LeMere's behalf in early October 2011, at which time the court set a new trial date for the first week of February 2012.

¶ 12 Before the February trial could go forward, Attorney Miller filed a motion on LeMere's behalf requesting a competency evaluation and a second adjournment of the trial. In an attached affidavit, Attorney Miller explained that LeMere had made a suicide attempt and had subsequently received treatment in a hospital's behavioral health unit. Based on the suicide attempt and statements that LeMere made to Attorney Miller and to guards at the Eau Claire County Jail, Attorney Miller concluded that LeMere was not competent to stand trial. The court approved the request and adjourned the trial for a second time. However, by the middle of February 2012, LeMere's competency no longer remained in doubt, so the court set an April 2012 trial date.

¶ 13 A status conference scheduled for the middle of March 2012 became a plea hearing when counsel for the parties informed the court⁴ that they had negotiated a plea agreement. Under the agreement, LeMere agreed to plead guilty to first-degree sexual assault of a child under the age of 13, contrary to Wis. Stat. §§ 948.02(1)(e) and 939.50(3)(b). The State agreed to ask the court to dismiss and read in not only the other two charges in the information—for second-degree reckless endangerment and for strangulation and suffocation—but also all charges against LeMere in a separate case arising out of an incident that occurred during LeMere's incarceration.⁵ Furthermore, while the agreement allowed each party to argue for whatever sentence it deemed appropriate, the State agreed to request an initial confinement period no greater than 30 years, rather than the 40–year maximum available to the court.

¶ 14 After Attorney Miller provided the court with LeMere's plea questionnaire and waiver of rights form at the plea hearing, the court engaged in a plea colloquy. The court addressed potential consequences of LeMere's plea, including possible immigration repercussions, loss of his right to vote, prohibition of firearm possession, sex-offender registration requirements, and other limits that would affect him as a sex offender.

¶ 15 As part of its discussion about the consequences of the plea, the court engaged in the following exchange with LeMere:

[THE COURT:] In addition, although not necessarily likely, I do have to tell you that if you are incarcerated and the State thought it appropriate, they could petition for what's called a Chapter 980, or habitual—or that's not what it's called. It's a—I'm sorry. I'm blanking on the name of the statute. As a sexually violent person, which could require further incarceration on a civil basis past criminal. I don't know that will happen. I don't think that it likely will, but I don't know that. I just want to be sure you understand that that's a potential.

Now, did you understand what I just said to you about probation, election, firearms, limitations on your ability to work, sex offender registry, and the sexually violent offender issue?

THE DEFENDANT: Yes, ma'am.

THE COURT: Has anything I've talked about changed your mind about what you want to do here?

THE DEFENDANT: No, ma'am.

THE COURT: Do you have any questions for me?

THE DEFENDANT: No, ma'am.

THE COURT: Anything you don't understand about what we've talked about here?

THE DEFENDANT: No, ma'am.

¶ 16 Earlier in the hearing, the court confirmed that LeMere harbored no concerns about his own ability to understand the proceedings. Attorney Miller similarly affirmed for the court that he believed that LeMere could comprehend the exchange with the court. The court added its own observation regarding LeMere's demeanor and capabilities:

I would note that Mr. [LeMere] is sitting at counsel table. He doesn't appear unduly anxious. He seems very solemn. He from his—at least observing his facial demeanor, he appears that he understands the seriousness of this matter. He's answering my questions appropriately, and I do find that he understands what he's doing, and he's capable of proceeding here today.

¶ 17 Based on LeMere's responses throughout the plea colloquy, the court accepted his guilty plea for first-degree sexual assault of a person under the age of 13. Consistent with the plea agreement, the court dismissed...