Sex Offenders; Post-Sentence Civil Commitment

State v. LeMere, 879 N.W.2d 580 (Wis. 2016)

Wisconsin Supreme Court rejects offender’s post-conviction motion to withdraw his guilty plea to child sexual assault charges, where offender argued his attorney’s failure to advise him that he could be civilly committed as a violent sex offender violated his Sixth Amendment right.

Background: LeMere was charged with one count of first-degree sexual assault of a child under the age of 13, one count of second-degree reckless endangerment, and one count of strangulation and suffocation. A status conference became a plea hearing when counsel for the parties informed the court 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 in exchange for the other two charges against him being dismissed. The court then informed LeMere about the consequences of a guilty plea, including the possibility of continued civil commitment after the completion of his criminal incarceration. LeMere indicated that he understood and the court noted that LeMere appeared capable of understanding the proceedings. At a subsequent sentencing hearing, the court ordered 30 years of initial confinement followed by 15 years of extended supervision. One year later LeMere filed a motion to withdraw his guilty plea and vacate his conviction. He argued ineffective assistance of counsel because he was not informed of the possibility of lifetime civil commitment as a sexually violent person. The circuit court denied the motion and the court of appeals affirmed.

Holding: On appeal, the Wisconsin Supreme Court affirmed, holding that the failure to inform a defendant of the possibility of lifetime civil commitment does not form the basis of a claim of ineffective assistance of counsel and is not a violation of the Sixth Amendment.

Notable Points:

Failure to inform about the possibility of lifetime civil commitment as a sexually violent person distinguished from failure to inform about possibility of deportation: The Wisconsin Supreme Court distinguished this case from the failure to inform a defendant about the possibility of deportation, which the U.S. Supreme Court ruled was a violation of the Sixth Amendment. The Wisconsin Supreme Court emphasized that unlike deportation, civil commitment is not automatic or penal in nature. The court also explained that civil commitment is not meant to be permanent and is rehabilitative in nature.

Found in DMHL Volume 35, Issue 2