Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences
June 10, 2016 Michael Tobin
wi-largesealLast month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. 1
The defendant, seeking to withdraw his guilty plea to a charge of first-degree sexual assault of a child, relied on a claim that his trial attorney had failed to advise him of the potential for a chapter 980 commitment following his term of incarceration. He further alleged that had he been informed of that possibility, he would not have pleaded guilty.
The defense relied heavily on Padilla v. Kentucky, in which the U.S. Supreme Court found that Padilla’s attorney performed deficiently by providing incorrect information about the immigration consequences of a drug conviction. The 2010 Padilla decision recognized that despite the traditional distinction between direct punishment and collateral consequences, the duty of defense attorneys in advising clients includes immigration consequences when a criminal conviction would automatically render the client deportable.
Interpreted narrowly, the Padilla exception to the direct/collateral dichotomy is limited to the unique consequence of immigration (and possibly limited to circumstances in which these consequences are clear under federal immigration statutes). Read more broadly, however, Padilla could support case-by-case consideration of whether reasonable representation requires the attorney to provide information about the other legal consequences of conviction. And in this broader context, the potential for lifetime civil commitment under chapter 980 would seemingly be a logical extension of Padilla’s reasoning.
In adopting the narrower interpretation, the Lemere majority starts with the traditional distinction between direct components of a criminal sentence and collateral consequences, which are indirect and may be contingent upon future events or proceedings. The majority also emphasized that the Padilla Court described deportation as a specific, severe, and “nearly automatic” consequence that could not be neatly categorized as either direct or collateral. The majority relied upon a subsequent U.S. Supreme Court case, Chaidez v. United States, 133 S. Ct. 1103, 1112 (2013), for the view that Padilla had created an exception, but had not rejected the distinction between direct and collateral consequences.
In addition to noting the limited holding of Padilla, the majority compares the consequences of deportation and chapter 980 commitment, starting with their relative severity. Although acknowledging that a chapter 980 commitment is serious and can even be a lifetime commitment, the majority concludes that chapter 980 “is not as uncompromisingly severe a consequence as deportation.” Next, the majority reviewed precedent holding that chapter 980 commitments are not punitive, but rather intended to provide treatment necessary to reduce the threat of future sexual assaults.
The majority opinion also analyzes the connection between the criminal conviction and the potential consequence, emphasizing that only a small percentage of eligible inmates are subject to chapter 980 petitions. Even if a petition is filed, the respondent has the right to a trial at which the State has the burden to prove factual elements (dangerousness and mental disorder) in addition to the nature of the conviction.
The dissent, written by Justice Ann Walsh Bradley and joined by Justice Abrahamson, evaluated the chapter 980 consequence as similar to the immigration consequence in Padilla because of its severity and because the conviction renders the defendant automatically subject to the consequence. The dissent concludes that these factors override the traditional direct-collateral distinction.
The dissent criticizes the majority’s attempt to minimize the severity of a chapter 980 commitment and the attempt to characterize chapter 980 as less certain than deportation. The dissent relies on statistics regarding the duration of commitments and cites both U.S. and Wisconsin Supreme Court opinions emphasizing the risk of (or automatic eligibility for) deportation, not the certainty of deportation.
The majority and dissent agree on one point: The best practice is certainly for the defense attorney to discuss with his or her client all meaningful consequences of a plea. Not all consequences are as well known or as common as chapter 980, but there are resources available to assist in identifying potential consequences. An open-ended client interview is important to learn what consequences (such as areas of employment and other activities) may be of particular interest.
1. Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter. ↩