                                                                     2019 WI 33

                  SUPREME COURT                  OF   WISCONSIN
CASE NO.:              2016AP2258-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Corey R. Fugere,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 381 Wis. 2d 142,911 N.W.2d 127
                               PDC No:2018 WI App 24 - Published

OPINION FILED:         March 28, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 24, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Chippewa
   JUDGE:              Roderick A. Cameron

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                       J. and DALLET, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed    by     Kathilynne      A.    Grotelueschen,   assistant   state   public
defender.         There   was        an   oral   argument   by   Kathilynne   A.
Grotelueschen.


       For the plaintiff-respondent, there was a brief filed by
Luke N. Berg, deputy solicitor general. With whom on the brief
Tiffany M. Winter, assistant attorney general, Misha Tseytlin,
solicitor general, and Brad D. Schimel, attorney general. There
was an oral argument by Luke N. Berg.
                                                                             2019 WI 33




                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.        2016AP2258-CR
(L.C. No.       2015CF169)

STATE OF WISCONSIN                                 :             IN SUPREME COURT

State of Wisconsin,

                Plaintiff-Respondent,                                     FILED
       v.                                                            MAR 28, 2019
Corey R. Fugere,                                                        Sheila T. Reiff
                                                                     Clerk of Supreme Court
                Defendant-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                    Affirmed.


       ¶1       ANNETTE KINGSLAND ZIEGLER, J.               This is a review of a
published decision of the court of appeals, State v. Fugere,
2018 WI App 24, 381 Wis. 2d 142, 911 N.W.2d 127, affirming the
Chippewa        County circuit court's order.1               The    circuit       court's
order denied Corey R. Fugere's ("Fugere") motion to withdraw his
plea       of   not   guilty   by   reason   of    mental       disease      or    defect
("NGI"),        which    was   based   on    the       circuit     court      providing
inaccurate information to Fugere concerning the maximum period
of civil commitment should he prevail on his affirmative defense


       1   The Honorable Roderick Cameron presided.
                                                                     No.   2016AP2258-CR



to the criminal charges.                The court of appeals affirmed the
circuit court, and we affirm the court of appeals.
      ¶2     We conclude that a circuit court is not required to
inform an NGI defendant of the maximum possible term of civil
commitment at the guilt phase:                    (1) because a defendant who
prevails at the responsibility phase of the NGI proceeding has
proven an affirmative defense in a civil proceeding, avoiding
incarceration, and is not waiving any constitutional rights by
so proceeding in that defense; and (2) because an NGI commitment
is not punishment, but rather a collateral consequence to one
who successfully mounts an NGI defense to criminal charges.                             We
therefore      decline      to         exercise       our      superintending          and

administrative authority to require circuit courts to advise NGI
defendants of the maximum period of civil commitment.
      ¶3     Fugere also requests that this court conclude that the
circuit     court's    error     was    not    harmless       with    respect    to     the
misinformation        provided     to     him       concerning       potential        civil
consequences should         he   prevail       in    his     defense.      The   circuit

court here provided accurate information to Fugere regarding the
maximum possible term of imprisonment but inaccurate information
regarding commitment, so we thus address whether the circuit
court's     error   otherwise     entitles          Fugere    to    withdraw     his   NGI
plea.      We conclude that the circuit court's error was harmless
because it was unrelated to the guilt phase of the NGI defense,
and     instead,    the    inaccurate          information         pertained     to    the
potential     civil       commitment       at       the      responsibility       phase.
Additionally, Fugere received the benefit of his plea agreement
                                           2
                                                                                   No.    2016AP2258-CR



with    the      State       and   otherwise         understood           the      consequences     of
prevailing on an NGI defense as he was already civilly committed
for an unrelated charge.                  Thus, there was no manifest injustice,
and we affirm the court of appeals.
                 I.       FACTUAL BACKGROUND AND PROCEDURAL POSTURE
       ¶4        In April 2015 Fugere was charged with four counts of
first-degree sexual assault of a child under the age of 12.                                        The
complaint alleged that in 2008, when Fugere was 17 years old, he
and    another            individual      sexually         assaulted          an      eight-year-old
girl.       At the time these charges were filed, however, Fugere was
serving      a    commitment        to     the       Mendota         Mental     Health      Institute
because of a different sexual assault charge for which Fugere

had previously been found NGI.
       ¶5        A few months after Fugere was charged, the State and
Fugere reached a plea agreement.                               Pursuant to the agreement,
Fugere      would         plead    NGI    to    one       count      of     first-degree       sexual
assault      of       a    child   under       the       age    of    12,     and     the   remaining
charges were dismissed but read in.                             As a result, Fugere would

waive his right to trial regarding guilt, admit that there was a
factual      basis that he               committed the            sexual        assault,     and the
State and Fugere would stipulate that, based on the other case
information and findings, Fugere lacked substantial capacity to
appreciate        the       wrongfulness         of       his     conduct        or      conform   his
conduct to the requirements of the law due to a mental disease
or defect.                The parties agreed to recommend that the circuit
court order a pre-dispositional investigation report and that


                                                     3
                                                                          No.   2016AP2258-CR



Fugere    be    civilly       committed       for     30   years     to     the     State    of
Wisconsin Department of Health Services ("DHS").2
     ¶6        On   August     24,    2015,       Fugere   filed     an     initialed       and
signed "Plea Questionnaire/Waiver of Rights" form and entered an
NGI plea to the single count.                     At the plea hearing, the circuit
court     conducted      a     plea       colloquy     and,      among      other     things,
confirmed      with     Fugere       that    he    understood       the    nature     of    the
charges,       that     he     was     waiving       his     constitutional           rights,
including      his    right     to    a     jury    trial,    and    that       the   maximum
penalty for first-degree sexual assault was 60 years.
     ¶7        During    the     plea       colloquy,      the    circuit       court      also
addressed Fugere's NGI plea.                 The court, the State, and Fugere's

attorney all misinformed Fugere of the potential maximum period
of civil commitment.            The following exchange occurred:

          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.

               [THE STATE]:       Sixty years is the maximum.

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

               [FUGERE]:       Yes.
Fugere informed the circuit court that he was aware of the 30-
year recommendation even though 60 years is the maximum.                                Fugere


     2 Additionally, as part of the plea agreement, Fugere agreed
to submit a DNA sample, but that is not significant to this
appeal.


                                               4
                                                                        No.     2016AP2258-CR



confirmed that he had been on conditional release on another
case   and    that     he    understood       how    conditional        release      worked.
Fugere indicated that he did not have any questions.                                Fugere's
attorney confirmed that Fugere would be exposed "to some 30 more
years of supervision, could possibly be 60 years."                              His lawyer
confirmed that Fugere understood that "if he violates any rules
of supervision, he could end up back at Mendota or Winnebago
during the next 60 years."
       ¶8    The circuit court accepted Fugere's NGI plea, adopted
the parties' joint recommendation, and ordered that Fugere be
committed for 30 years and that a pre-dispositional investigation
be prepared.         The order of commitment specified that Fugere's

commitment was to commence on August 24, 2015, and run concurrent
with any other NGI commitments he was serving.
       ¶9    At      the     post-dispositional             placement          hearing     on
October 15,       2015,      the     court    ordered       Fugere       be     placed     in
institutional care.           At the hearing, Fugere did not contest the
report's findings and admitted he was "not ready" for conditional

release.      Fugere        stated    that    he    hoped    he    would       be   fit   for
conditional release in six months.
       ¶10   Just over six months later, on April 29, 2016, Fugere
filed a petition for conditional release with the circuit court.
The    circuit     court     ordered     an       examination      by    an     independent
psychologist,        who     recommended          that    Fugere    be        conditionally
released.         On    June       29,   2016,      the     circuit      court      granted
conditional release subject to finding a suitable group home.
The DHS was to provide a release plan within 60 days.
                                              5
                                                                         No.     2016AP2258-CR



      ¶11    On August 5, 2016, prior to the 60-day time period
elapsing,        the    DHS      informed       the    circuit     court       that    it    was
"temporarily suspend[ing] planning for the conditional release"
because the State intended to file a complaint against Fugere
alleging that he should be separately committed as a sexually
violent person under Wis. Stat. ch. 980 (2015-16).3                                    The DHS
further     notified        the    circuit       court      that   Fugere      had    recently
committed a "new violation" by "having sexual relations with a
peer at Mendota."             The DHS additionally stated that it intended
to revoke Fugere's conditional release following resolution of
the State's chapter 980 petition.
      ¶12    On September 15, 2016, Fugere filed a postconviction

motion      to   withdraw         his    NGI     plea      arguing    that      it    was    not
knowingly,        intelligently,           and       voluntarily      entered.             Fugere
asserted that he was entitled to withdraw his plea because he
was     misinformed         of     the     maximum         civil     commitment        period.
Specifically,          he   averred       that       the   circuit    court      incorrectly
informed him that he faced a maximum of 60 years, when the

actual maximum was 40 years' commitment and that the circuit
court     inaccurately        referenced         supervision.          In    response,        the
State argued that an NGI commitment is not a punishment, and
therefore the circuit court is not required to advise Fugere of
his     maximum        possible         commitment         to   render      Fugere's        plea
knowingly,       intelligently,           and    voluntarily         given.          The    State

      3All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                                 6
                                                                     No.        2016AP2258-CR



further argued that under State v. Bangert, 131 Wis. 2d 246, 389

N.W.2d 12    (1986),     defendants       must       be    informed        only     of    the
maximum statutory punishment they face.                          The State contended
that the circuit court correctly informed Fugere of the maximum
statutory punishment he faced if his NGI defense failed, and
therefore     fulfilled    the    circuit        court's         duty      at     the    plea
colloquy.       The    State     argued       that    no     "manifest          injustice"
resulted    because     Fugere   received       the       very    30-year        commitment
term he bargained for.           At a hearing on November 9, 2016, the
circuit court agreed with the State and denied Fugere's motion.
The court concluded:

     I think, given the fact that there's no requirement to
     provide a defendant the maximum amount of time for a
     confinement or commitment time on an NGI when he's
     told he's going to get a certain amount against that
     amount, I think that's distinguishable from the
     maximum amount of time partly because confinement is
     not a sentence and partly because he's getting exactly
     what he expected to get regardless of how much more
     time he could have gotten. So I believe under that
     analysis, that the motion is to be denied.
     ¶13    Fugere appealed the circuit court's ruling.                                 In an
opinion issued on March 6, 2018, the court of appeals affirmed
the circuit court.        Fugere, 381 Wis. 2d 142, ¶2.                  It held "that
circuit courts need not advise a defendant pleading NGI of the
potential range of civil commitment he or she will face if found
not mentally responsible for his or her crimes, much less do so
correctly."      Id.,    ¶19.      The    court       of    appeals     explained         the

unique process that occurs with NGI pleas, which consists of two
phases:     the guilt phase, and the responsibility phase.                               Id.,


                                          7
                                                                           No.     2016AP2258-CR



¶13.      The       court    of     appeals     concluded         that   the      requirements
established by Bangert and its progeny apply only to the guilt

phase    of    an     NGI    proceeding.            In    other    words,      the    court    of
appeals concluded that a defendant must be informed only of the
maximum punishment the defendant faces if he were to be found
guilty,       which       implicates     only       the    guilt    phase.           Id.,    ¶19.
Noting    that       Wisconsin        courts    have       routinely       "held     that     the
responsibility phase of an NGI trial is not part of a criminal
trial," the court of appeals further concluded that "[t]he same
constitutional rights are not implicated or waived during the
mental responsibility phase."                   Id.        The court of appeals also
expressed that a defendant's right to assert an NGI defense is a

statutory right, not a constitutional right.                         Id.
       ¶14     As     a     result,    the     court       of     appeals        concluded     as
follows:

            In all, the record demonstrates that the circuit
       court informed Fugere of the direct consequences of
       his plea, including the potential sixty-year prison
       sentence.    The circuit court's incorrect statement
       regarding Fugere's maximum potential period of civil
       commitment   does   not   render   Fugere's NGI   plea
       unknowing, unintelligent, or involuntarily [sic].   As
       such, there was no manifest injustice, and Fugere is
       not entitled to withdraw his plea.
Id., ¶25.
       ¶15     On March 27, 2018, Fugere filed a petition for review
with    this    court.         On     September      4,    2018,     this      court   granted
Fugere's petition.




                                                8
                                                                          No.     2016AP2258-CR



                                 II.   STANDARD OF REVIEW
       ¶16    When a defendant seeks to withdraw a guilty plea after
sentencing, the defendant must prove "by clear and convincing
evidence, that a refusal to allow withdrawal of the plea would
result in 'manifest injustice.'"                    State v. Brown, 2006 WI 100,

¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citing State v. Thomas,
2000 WI 13, ¶16, 232 Wis. 2d 714, 605 N.W.2d 836).                               A defendant
can    meet    that     burden         by    showing    that    he     or       she   did    not
knowingly, intelligently, and voluntarily enter the plea.                                    Id.
(citing State v. Trochinski, 2002 WI 56, ¶15, 253 Wis. 2d 38,
644     N.W.2d 891;       State         ex     rel.     Warren       v.     Schwarz,         219
Wis. 2d 615, 635-36, 579 N.W.2d 698 (1998); State v. Krawczyk,

2003 WI App 6, ¶9, 259 Wis. 2d 843, 657 N.W.2d 77).
       ¶17    Whether        a     guilty       plea     was     entered          knowingly,
intelligently, and voluntarily is a question of constitutional
fact.    State v. Muldrow, 2018 WI 52, ¶24, 381 Wis. 2d 492, 912
N.W.2d 74.       This court upholds a circuit court's findings of
fact unless clearly erroneous, and "[d]etermines independently
whether those facts demonstrate that the defendant's plea was
knowing, intelligent, and voluntary."                      Brown, 293 Wis. 2d 594,
¶19.
       ¶18    Fugere    asserts         that    there   were     deficiencies          in    the
plea colloquy conducted by the circuit court in violation of
Wis. Stat. § 971.08.               Whether Fugere shows deficiencies in the
plea    colloquy      that       establish      a   violation     of      § 971.08,         is   a
question of law that this court reviews de novo.                            See Brown, 293
Wis. 2d 594, ¶21.
                                               9
                                                                           No.     2016AP2258-CR



                                          III.    ANALYSIS
           A.       General Principles Of Pleas And Plea Colloquies
       ¶19      We begin by addressing the basic principles underlying
pleas and plea colloquies.                   Wisconsin Stat. § 971.06 recognizes
four distinct pleas that can arise from criminal matters:                                   (1)
guilty; (2) not guilty; (3) no contest, which is subject to the
court's      approval; and (4)               "[n]ot       guilty by       reason of      mental
disease or defect."                 § 971.06(1).         A defendant must enter a plea
to     a        criminal        charge       "knowing[ly],             voluntar[ily],       and
intelligent[ly]."                Muldrow,         381    Wis.     2d    492,   ¶1;   see   also

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005).                             For a defendant's
plea to be "knowing, intelligent, and voluntary," the defendant

must be fully aware of "any direct consequences" of the plea.
Muldrow, 381 Wis. 2d 492, ¶1 (citing Brady v. United States, 397
U.S. 742, 755 (1970)).                     A "direct consequence" is defined as
"one    that        has    a   definite,         immediate,       and    largely     automatic
effect on the range of a defendant's punishment."                                      State v.
Byrge, 2000 WI 101, ¶60, 237 Wis. 2d 197, 614 N.W.2d 477 (citing
State      v.       Bollig,      2000      WI      6,     ¶16,    232     Wis. 2d 561,      605
N.W.2d 199).
       ¶20      On the other hand, information regarding "collateral
consequences" of a defendant's plea "is not a prerequisite to
entering        a    knowing and          intelligent       plea."        Id.,   ¶61    (citing
Warren,      219      Wis.     2d    at    636).         "Collateral      consequences      are
indirect        and       do   not    flow       from    the     conviction."        Id.        In
evaluating whether a consequence of a defendant's plea is direct
or   collateral,           courts     look       to     whether    the    consequence      is   a
                                                  10
                                                                   No.   2016AP2258-CR



punishment.          See Bollig, 232 Wis. 2d 561, ¶27 (holding "that

Wisconsin's       sex       offender    registration       requirements       do    not
constitute           punishment,"       and      thus      are      "a      collateral
consequence").
     ¶21       The Wisconsin Statutes also impact a circuit court's
role in a plea colloquy.               Under Wis. Stat. § 971.08(1), circuit
courts must conduct a plea colloquy with a defendant who pleads
guilty    or    no    contest,    in    the    interest    of    ensuring    that   the
defendant's          plea    is   given       knowingly,        intelligently,      and
voluntarily.         § 971.08(1)(a).          Before the circuit court accepts
a guilty or no contest plea, it must do all of the following:

          (a) Address    the    defendant personally and
     determine that the plea is made voluntarily with
     understanding of the nature of the charge and the
     potential punishment if convicted.

          (b) Make such inquiry as satisfies it that the
     defendant in fact committed the crime charged.

          (c) Address the defendant personally and advise
     the defendant as follows:   "If you are not a citizen
     of the United States of America, you are advised that
     a plea of guilty or no contest for the offense with
     which you are charged may result in deportation, the
     exclusion from admission to this country or the denial
     of naturalization, under federal law."

          (d) Inquire of the district attorney whether he
     or she has complied with s. 971.095(2).[4]

     4   Wisconsin Stat. § 971.095(2) states as follows:

          In any case in which a defendant has been charged
     with a crime, the district attorney shall, as soon as
     practicable, offer all of the victims in the case who
     have requested the opportunity an opportunity to
     confer with the district attorney concerning the
                                                     (continued)
                                           11
                                                                              No.     2016AP2258-CR


§ 971.08(1).
     ¶22    As this court has explained, the plea colloquy duties
imposed     on     courts        by     Wis.        Stat.      § 971.08             are     not      "a
constitutional           requirement,"              but      rather,           "a         statutory
imperative."        Bangert, 131             Wis. 2d at 266.                  However,         "[t]he
faithful    discharge       of    these       duties      is     the      best       way . . . to
demonstrate the critical importance of pleas in our system of
justice    and    to     avoid    constitutional             problems."               Brown,        293
Wis. 2d 594, ¶23.
     ¶23    Although the language in Wis. Stat. § 971.08 does not

indicate that it applies to NGI pleas, as § 971.08 expressly
refers only to "plea[s] of guilty or no contest," this court has
stated     that    an    NGI     plea    "closely           parallels          a     plea      of    no
contest."     State v. Shegrud, 131 Wis. 2d 133, 137, 389 N.W.2d 7
(1986).      This       court    has    concluded         that      a    defendant          must     be
informed    of    "the     nature       of     the    charge"           and    the        "potential
punishment."       Id. at 138.
     ¶24    A defendant who wishes to withdraw a guilty plea after

sentencing bears the heavy burden to demonstrate by "clear and
convincing       evidence"       that    withdrawal            is       necessary         to    avoid
"manifest injustice."             State v. Finley, 2016 WI 63, ¶58, 370



     prosecution of the case and the possible outcomes of
     the prosecution, including potential plea agreements
     and sentencing recommendations. The duty to confer
     under this subsection does not limit the obligation of
     the   district  attorney   to  exercise  his   or  her
     discretion concerning the handling of any criminal
     charge against the defendant.


                                               12
                                                                 No.   2016AP2258-CR



Wis. 2d 402, 882 N.W.2d 761; State v. Sulla, 2016 WI 46, ¶24,

369 Wis. 2d 225, 880 N.W.2d 659.                A plea is "manifestly unjust"
in violation of the Due Process Clause of the United States
Constitution if it was not entered "knowingly, intelligently,
and voluntarily."           Stumpf, 545 U.S. at 182-83.             While Bangert
and Wis. Stat. § 971.08 inform a court's duties when it comes to
properly      taking    a     plea,       an    improper    colloquy    does    not
automatically mandate withdrawal.                State v. Cross, 2010 WI 70,
¶¶32-40, 326 Wis. 2d 492, 786 N.W.2d 64; State v. Taylor, 2013
WI    34,    ¶¶32-42,   48-54,      347   Wis. 2d 30,      829   N.W.2d 482.     An
improper colloquy may entitle a defendant to a hearing however,
and there, the State bears the burden of establishing that the

guilty plea was indeed voluntary.                Brown, 293 Wis. 2d 594, ¶¶36-
41.
       ¶25    In the case at issue, Fugere argues that he, as a
defendant who entered an NGI plea but was not properly informed
of the accurate maximum length of a civil commitment, should be
entitled to withdraw that plea on the grounds that it was not
knowing, intelligent, and voluntary.
                               B.     NGI Procedures
       ¶26    "[A] criminal defendant's right to an NGI defense is a
statutory      right that is        not    guaranteed      by either   the   United
States or Wisconsin Constitutions."                 State v. Magett, 2014 WI
67, ¶32, 355 Wis. 2d 617, 850 N.W.2d 42.                     NGI pleas "may be
joined with a plea of not guilty."                 Wis. Stat. § 971.06(1)(d).
When a defendant enters this plea, the case is bifurcated into
two phases:      the guilt phase and the responsibility phase.                  See
                                           13
                                                                      No.   2016AP2258-CR



Magett, 355 Wis. 2d 617, ¶39.                   Only if a defendant is found

guilty   in    the    first    phase    does     the    court   withhold       entry   of
judgment of guilt and the trial proceeds to the responsibility
phase.      Wis. Stat. § 971.165(1)(d).                 The responsibility phase
"is not a criminal proceeding," but "is something close to a
civil trial."         Magett, 355 Wis. 2d 617, ¶33.              Unlike a criminal
trial, the verdict need not be unanimous, the defendant bears
the burden of proof to establish this affirmative defense by a
preponderance of the evidence, and the circuit court may direct
a verdict.     Id., ¶¶37–39.
      ¶27     On the other hand, a defendant may choose to plead NGI
without also pleading not guilty, also known as a "standalone

NGI plea."          See Wis. Stat. § 971.06(1)(d).               In so doing, the
defendant     "admits that       but for lack           of    mental    capacity,      the
defendant committed all the essential elements of the offense
charged in the indictment, information or complaint."                          Id.     The
defendant is then found guilty of the elements of the crime(s)
and   the   responsibility        phase    is    left     for   trial.         State    v.
Lagrone, 2016 WI 26, ¶29, 368 Wis. 2d 1, 878 N.W.2d 636.                               As
Fugere points out, this court has exercised its superintending
and   administrative          authority    with        regard    to     plea    colloquy
requirements in the past in both Bangert and Shegrud.                          The court
has concluded that in the first phase of an NGI plea, the court
must "address the defendant personally to determine whether the
defendant      is    entering     the     plea    voluntarily          [and]   with    an
understanding         of   the     nature        of     the     charge. . . . [T]he
procedures delineated in Bangert shall apply . . . ."                           Shegrud,
                                           14
                                                                  No.     2016AP2258-CR



131 Wis. 2d at 138.         Also, as was the case here, the parties may
agree to waive the trial on responsibility and stipulate that
the defendant should be found NGI.
       ¶28      Under Wis. Stat. § 971.165(3)(b), if the defendant's
NGI defense succeeds, "the court shall enter a judgment of not
guilty     by     reason   of    mental    disease     or     defect,"    and    "shall
thereupon proceed under s. 971.17."5                    If the defendant's NGI
defense is unsuccessful, "the court shall enter a judgment of
conviction and shall either impose or withhold sentence under s.
972.13(2)."        § 971.165(3)(a).
       ¶29      Defendants in criminal cases who are later found NGI
are    civilly       committed    rather        than   criminally       sentenced   or

sanctioned.        If commitment occurs, the length of that commitment
is not to exceed the maximum sentence for the charged offense
plus       penalty     enhancements        subject       to     statutory        credit
provisions.        Wis. Stat. § 971.17(1)(b).            As a general rule, the
length       of   commitment      is   about      two-thirds      of     the    maximum
potential sentence of imprisonment.6                   In addition, a defendant


       5
       Wisconsin Stat. § 971.17 governs the "[c]ommitment of
persons found not guilty by reason of mental disease or mental
defect."
       6
       Under Wis. Stat. § 971.17(1), an NGI defendant's maximum
possible commitment period depends on the nature of the
underlying offense. NGI defendants who commit a felony prior to
July 30, 2002, or who commit a misdemeanor, may receive a
maximum commitment period of two-thirds the maximum term of
imprisonment that could be imposed. § 971.17(1)(a) & (d). NGI
defendants who commit a felony on or after July 30, 2002, may
receive a commitment term up to but not exceeding the maximum
term of imprisonment that could be imposed.     § 971.17(1)(b).
                                                    (continued)
                                           15
                                                                        No.    2016AP2258-CR



who succeeds on an NGI defense and is committed may file a
petition for conditional release every six months, and if on
conditional     release,       may     file      a     petition    to     terminate      the
underlying order of commitment.               See §§ 971.17(4), (5).

                             C.   Bangert And Shegrud
       ¶30   Fugere    asserts       that     this     court   should         exercise   its
superintending and administrative authority to clarify or extend
Bangert and Shegrud.              He argues that an NGI plea cannot be
knowing,     intelligent,         or    voluntary           when   a     circuit      court
inaccurately informs an NGI defendant of the maximum term of
commitment or refers to commitment as supervision.                             We consider
the unique nature of an NGI plea and the fact that the first
phase, the admission of guilt, must be knowing, intelligent, and
voluntary as the defendant is waiving, among other things, the
right to a jury trial and putting the State to its high burden
of proving each and every element of the offense charged.                                 In
the guilt phase, the defendant waives constitutional rights and
must   understand      the    nature     of      the    charge     and    the    potential
criminal punishment.          This understanding is important because if
the defendant's affirmative defense fails at the second phase,
the defendant's criminal sentence could be the maximum term of
imprisonment.         Stated      differently,          a   defendant     who    does    not
succeed in proving the affirmative defense at the responsibility


Lastly, NGI defendants who commit a felony punishable by life
imprisonment may receive up to a lifetime commitment term.
§ 971.17(1)(c).


                                            16
                                                                    No.     2016AP2258-CR



phase is convicted and sentenced up to the maximum possible term
of imprisonment.        The circuit court here informed the defendant
of    the    maximum     possible     term     of        imprisonment,          the    plea
questionnaire       outlined   the    same,     and       the    record     reflects       a
discussion of that maximum.7
      ¶31    Fugere's     argument,        however,        relates        not    to     the
potential     criminal     penalty    if     his    NGI     defense       fails.         His
argument is that if he succeeds in his affirmative defense and
is found NGI, the court must have previously informed him of the
civil consequences of proving that defense.                        Fugere's argument
focuses then not on whether the circuit court properly informed
him of the consequences of the guilt phase of the plea.                                 His

argument centers on the circuit court being required, at the
guilt phase, to advise not only of the maximum criminal penalty
but   also    the      potential     maximum       civil        commitment.           Civil
commitment is the benefit Fugere seeks, but one that becomes
available only if he succeeds in affirmatively proving his legal
lack of responsibility.

      ¶32    The responsibility phase of the proceedings, however,
is    drastically       different      from        the     guilt      phase.             The
responsibility phase is the defendant's opportunity to present
an affirmative defense, a legislative preference provided in the
statutory      right     to    a     separate        trial        regarding           mental

      7See State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504,
904 N.W.2d 773; State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829
N.W.2d 482; and State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786
N.W.2d 64.


                                        17
                                                                          No.    2016AP2258-CR



responsibility.          If    successful       at    this      phase——at         which       the
defendant    bears       the    burden     of     proving        his       defense       by    a
preponderance of the evidence to a less than unanimous jury——the
outcome is that he would be civilly committed, not criminally
sentenced.        The    maximum    civil        commitment          is     of    a    shorter
duration, less restrictive than imprisonment, subject to review
on a regular basis, and is not "punishment" but rather, is "to
treat   the NGI acquittee's             mental    illness        and      to protect the
acquittee     and        society        from     the        acquittee's               potential
dangerousness."         State v. Szulczewski, 216 Wis. 2d 495, 504, 574

N.W.2d 660 (1998).            The defendant who succeeds in proving this
affirmative defense is hoping for civil commitment rather than

criminal    punishment.          This    court       has   never       required        circuit
courts to conduct a colloquy with defendants to inform them of
the   benefits    of    successfully       proving         an   affirmative            defense.
While courts should provide accurate information, we decline to
extend Bangert or Shegrud to require circuit courts to advise a
defendant    of   the    potential       consequences           of   prevailing          on    an
affirmative defense at the responsibility phase of an NGI trial.
The circuit court has a duty to advise of punishment at the
guilty plea phase of an NGI, namely, the potential maximum term
of imprisonment.

              1.       Constitutional rights are not waived
                         at the responsibility phase.
      ¶33   To be clear, defendants who submit a standalone NGI
plea waive constitutional rights only at the guilt phase, not
the responsibility phase.               The defendant who chooses, by NGI

                                           18
                                                                     No.     2016AP2258-CR



plea at the guilt phase, not to challenge that he committed the
charged criminal offense, enters a plea which operates like a no
contest plea.            See Shegrud, 131 Wis. 2d at 137.                The case then

proceeds to the responsibility phase——a noncriminal proceeding——
where the defendant presents an affirmative defense that, if
proven, may lead to civil commitment instead of incarceration.8
For    those       who    might   argue       that   a     civil    commitment     is    a
significant consequence for which a defendant should be advised,
they fail to recognize the unique position of an NGI defendant
who otherwise faces imprisonment unless that defendant can prove
he or she is instead entitled to a civil commitment.
       ¶34       This     distinction——between             criminal        and      civil

proceedings and possible imprisonment versus civil commitment——
has significance.           Consistent with Bangert and Shegrud, circuit
courts must inform defendants who enter a standalone NGI plea of
the    nature      of the charges,           the nature     of     the   constitutional
rights      the    defendant      is   waiving,      and    the    maximum     potential
punishment if the defendant's NGI defense fails.                           See Bangert,
131 Wis. 2d at 261–62; Shegrud, 131 Wis. 2d at 136–39.                                This
fulfills          the      constitutional          requirements          underlying      a
defendant's plea at the guilt phase of the proceedings.                           Fugere
does       not    dispute    that      the    circuit      court     fulfilled      these
requirements at the guilt phase, and the record reflects that at
the plea colloquy hearing the circuit court properly informed

       8
       In the case at issue, the State agreed that Fugere could
successfully mount an NGI defense.


                                              19
                                                                         No.     2016AP2258-CR



Fugere of the nature of the criminal charges against him, the
nature    of the constitutional              rights     he    was      waiving,        and the
maximum term of imprisonment.                Fugere argues though that courts
should be required to go further and advise not just of the
potential punishment should his defense fail, but also of the
potential civil consequence to him should his defense succeed.
       ¶35    Defendants       do   not    waive      any     constitutional            rights
pertaining to the responsibility phase of an NGI proceeding.                                   At
the responsibility phase, defendants have the burden to prove a
statutorily-created           affirmative     defense        and       are    not     making    a
concession         of   any   kind.        See   Wis.        Stat.       § 971.15.           NGI

defendants hope to prove that they are not mentally responsible

for the crime they have already been found guilty of committing.
There is no requirement that any defendant raise an NGI defense.
Defendants benefit from the successful presentation of an NGI
defense.      At the responsibility phase, a defendant has already
been    found      guilty     and   absent    success        at     that       phase,       faces
criminal punishment not civil commitment.                         Indeed, a successful
NGI defendant avoids incarceration in favor of civil commitment
and    may    seek      conditional    release      within         six       months    of    his
initial commitment date, and commitment, unlike incarceration,
could be terminated entirely.                In addition, NGI proceedings are
notably      distinguishable        from   other      forms       of    civil       commitment
such as those arising under Wis. Stat. ch. 51 or ch. 980, where
the government, not the defendant, pursues the commitment and
carries      the     burden    of   proof.         In   the       context       of     an    NGI
proceeding, the defendant willfully seeks commitment and bears
                                            20
                                                                            No.       2016AP2258-CR



the burden of proof to receive the benefit of a successful NGI
defense.
       ¶36     Our conclusion that NGI defendants do not waive any
constitutional         rights       at    the    responsibility            phase      of     an    NGI
proceeding is buttressed by this court's decision in Lagrone,

368    Wis. 2d 1.           There,        as    in     this   case,        Lagrone         did     not
challenge the plea colloquy that occurred regarding the guilt
phase    of    the    NGI    proceedings.              Id.,   ¶53.         Instead,          Lagrone
argued that he was unaware that by entering a standalone NGI
plea,    he    was    waiving       his    fundamental        right        to    testify          at   a
criminal trial regarding the validity of the charges against
him.     Id.    This court held that circuit courts are not required

to conduct a colloquy with defendants regarding whether or not
they wish to testify during the responsibility phase of an NGI
proceeding.          Id., ¶¶51–56.         Specifically, this court stated that
"the    fundamental         right    to    testify       in   one's        own       behalf       as   a
defendant       in      a    criminal           case     does        not    exist          at      the
responsibility phase of bifurcated NGI proceedings because that
phase is a noncriminal proceeding to which defendants possess no
constitutional right."                   Id., ¶51 (emphasis added).                     The same
reasoning       is     applicable          here.         Defendants             do     not      waive
constitutional          rights       in        this    non-criminal,             responsibility
phase.

                      2.    NGI commitments are not punitive
                                in intent or effect.
       ¶37     Circuit      courts        are     required      only       to        "notify       the
defendant       of    any    direct        consequence          of    his       guilty        plea."

                                                 21
                                                                        No.     2016AP2258-CR



Muldrow, 381 Wis. 2d 492, ¶1 (citing Brady, 397 U.S. at 755).

"We have identified direct consequences of a plea as being those
that     impose     punishment."           Id.        We    next    evaluate        whether
commitment is punitive and thus, a direct consequence of a plea.
This     court    recently     adopted       the      "intent-effects           test"    for
determining whether a consequence of a plea is punitive.                                 Id.,
¶35.
       ¶38   The United States Supreme Court first articulated the
intent-effects       test    in    Kennedy       v.   Mendoza-Martinez,           372    U.S.
144,    168–70    (1963).         The    intent-effects         test     has two parts.
Courts look to the "statute's primary function" to determine the
statute's    intent.        Id.     at    169.        If   a    law's    intent     is   not

punitive, the court then considers whether it is nonetheless
punitive     in   effect.         Courts     consider          whether    the     statute's
effect is "penal or regulatory in character."                            Id. at 168-69.
In     evaluating    effect,       courts    look      to      seven,     non-exhaustive
factors:

       [1] Whether the sanction involves an affirmative
       disability   or    restraint,   [2]   whether   it has
       historically been regarded as a punishment, [3]
       whether it comes into play only on a finding of
       scienter, [4] whether its operation will promote the
       traditional   aims    of   punishment——retribution and
       deterrence, [5] whether the behavior to which it
       applies is already a crime, [6] whether an alternative
       purpose to which it may rationally be connected is
       assignable for it, and [7] whether it appears
       excessive in relation to the alternative purpose
       assigned . . . .
Id.




                                            22
                                                                        No.   2016AP2258-CR



       ¶39    We    conclude       that    applying      the     intent-effects         test
further demonstrates that commitment resulting from a successful
NGI    defense      is   not   a   punishment,         and     thus   is   not   a    direct
consequence of a defendant's NGI plea.                         The parties agree that
NGI commitments are not intended to be punishments.                                  Indeed,
this    court      has     already    held      that     NGI    commitments       are      not
intended to be punishments, holding that their purpose is "two-
fold:        to    treat    the    NGI    acquittee's        mental     illness      and    to
protect the acquittee and society from the acquittee's potential
dangerousness."            Szulczewski, 216 Wis. 2d at 504 (citing State

v. Randall, 192 Wis. 2d 800, 833, 532 N.W.2d 94 (1995)).                                   By
contrast, this court stated that judgments of conviction and

sentences         are    "designed        to    accomplish        the      objectives      of
deterrence, rehabilitation, retribution and segregation."                                  Id.
(citing Wayne R. LaFave & Austin W. Scott, Jr., 1 Substantive
Criminal Law § 1.5, at 30–36 (1986)).                        Thus, we conclude that
NGI commitments are not intended to serve as punishment under
the intent portion of the intent-effects test.
       ¶40    That leaves the question of whether NGI commitments
have a punitive effect.              Fugere focuses on factors (1), (5), and
(7) in claiming that NGI commitments have a punitive effect.
Applying all seven factors outlined by the United States Supreme
Court in Mendoza-Martinez, we conclude that NGI commitments do
not have a punitive effect.
       ¶41    First, Fugere is correct that NGI commitments involve
"an    affirmative         disability      or       restraint."         Defendants      that
successfully plead NGI are committed, which involves confinement
                                               23
                                                                          No.       2016AP2258-CR



at a mental health institution for treatment.                              This is plainly
an    affirmative       restraint.          The      State    concedes         as    much,    but
argues that "the mere fact that a person is detained does not
inexorably       lead    to    the    conclusion            that    the       government      has
imposed punishment."               We agree.         However, that does not change
the fact that NGI committees are affirmatively restrained.
       ¶42     Second,       measures       such       as     NGI        commitments         have
historically         been     regarded      as       non-punitive        in     nature.        In
addition to this court's statement in Szulczewski regarding the

purpose of NGI commitments, the United States Supreme Court has
recognized       that       "measures      to     restrict         the    freedom       of   the
dangerously       mentally         ill"     serve       a    "legitimate            nonpunitive

governmental objective and has been historically so regarded."
Kansas v. Hendricks, 521 U.S. 346, 363 (1997) (citing United
States v. Salerno, 481 U.S. 739, 747 (1987)).                            The Supreme Court
further      recognized        "the       confinement         of     'mentally         unstable
individuals who present a danger to the public' as one classic
example of nonpunitive detention."                          Id. (citing Salerno, 481
U.S. at 748-49).
       ¶43     Third, NGI commitments do not "come into play only on
a    finding    of    scienter."          As     the   State       correctly        notes,    NGI
commitments are necessarily premised on the absence of scienter,
which   renders an NGI             defendant not            legally      culpable      for the
underlying criminal conduct.                See Wis. Stat. § 971.15(1).
       ¶44     Fourth, NGI commitments do not serve the "traditional
aims of punishment——retribution and deterrence."                                    Rather, NGI
commitments       serve       to    treat       defendants'         mental      illness       and
                                                24
                                                                      No.     2016AP2258-CR



protect the public.             Such ends do not fit the traditional goals
of     retribution        and        deterrence       associated          with   criminal
convictions, judgments, and sentencing.                        See Szulczewski, 216

Wis. 2d at 504; see also Jones v. United States, 463 U.S. 354,
368–69    (1983)     (explaining        that      "insanity     acquittees"         are    not
convicted, and thus not punished, and that "confinement rests on
[an acquittee's] continuing illness and dangerousness").
       ¶45    Fifth,     NGI     commitments        require     underlying       behavior
that    results     in    criminal       charges      being     brought      against       the
defendant.          Though      a     successful      NGI     defense       obviates       the
defendant's       criminal       responsibility,          criminal        conduct     is    an
inherent underpinning of an NGI commitment.

       ¶46    Sixth, NGI commitments certainly carry an alternative,
non-punitive purpose.            As this court stated in Muldrow, this "is
considered the most significant factor in determining whether
the     effect      of    a     sanction       is    punitive."            Muldrow,        381
Wis. 2d 492, ¶57 (internal quotation marks omitted).                             Here, as
noted above, the purpose of NGI commitments is to treat the
defendant and protect the public.                    NGI commitments thus carry a
strong alternative and non-punitive purpose.                          Similarly, this
court    in    Muldrow        held    that   lifetime       GPS     tracking     for       sex
offenders     had    "[t]he         non-punitive      purpose     of . . . protecting
the    public     from    future       sex   offenses,"        as    it     "ensures       law
enforcement will have ready access to evidence of an offender's
whereabouts."            Id.,    ¶¶57–59.           The   rationale       here   is       even
stronger——unlike GPS tracking, NGI commitments keep defendants


                                             25
                                                                        No.     2016AP2258-CR



away    from    the       public      and      provide    treatment     for     defendants'
mental illness.
       ¶47     Seventh, NGI commitments are not excessive in relation
to their rehabilitative and protective purposes.                              In Wisconsin,
NGI commitment terms may not exceed the maximum confinement term
of the charged criminal offense.                       For felonies committed on or
after July 30, 2002, NGI commitments may at most equal "the
maximum term of confinement in prison that could be imposed" on
a    defendant           if     his    NGI       defense      failed.          Wis.        Stat.
§ 971.17(1)(b).               For crimes committed prior to July 30, 2002,
courts may at most impose a term of commitment equaling two-
thirds of the maximum term of confinement that could be imposed

if     the     NGI       defense      failed.            § 971.17(1)(a).             Sections
971.17(1)(a) and (1)(b) set the ceiling, but nothing in § 971.17
requires an NGI commitment term to mirror the maximum term of
confinement          a        defendant        faces     if   his     NGI      defense        is
unsuccessful.
       ¶48     Further, NGI defendants have the ability to petition

for conditional release six months after initial confinement,
and every six months after a previous petition was denied or
revoked.       Wis. Stat. § 971.17(4).                 Six months after being placed
on     conditional        release,        an     NGI   defendant    may       even    file    a
petition     for     termination          of     the   underlying     commitment       order.
§ 971.17(5).         Therefore, if the NGI defendant shows that he is
no longer dangerous and is fit to re-enter society, he will be
permitted       to       do    so.        This    indicates     direct        ties    to     the


                                                 26
                                                                        No.     2016AP2258-CR



rehabilitative and protective purposes of NGI commitments in a
manner that is not excessive.
     ¶49    An     application       of    the        intent-effects          test    to    NGI
commitments strongly confirms that NGI commitments do not have a
punitive    intent     or    effect.            Therefore,       NGI    commitments          are
collateral consequences of a defendant's plea.                           On that basis,
we also decline to use our superintending and administrative
authority    to     extend    Bangert       and       Shegrud    to     require       circuit

courts to inform NGI defendants of the maximum possible term of
commitment they face if their NGI defense succeeds.

            D.     The Circuit Court's Error Does Not Entitle
                      Fugere To Withdraw His NGI Plea.
     ¶50    Having concluded that circuit courts have no duty to
inform NGI defendants of the maximum possible term of commitment
they face, we still must address the circuit court's undisputed
error in this case.           The circuit court did not use the correct
terminology, nor did it advise Fugere as to the correct civil
commitment length.           The parties argue over the proper standard
in this case.        The State asserts that this court should adopt a

harmless-error framework for considering plea colloquy defects
where a defendant does not have a right to be informed of the
information       underlying     the       circuit       court's       purported        error.
Fugere     argues    that     this    court       should     employ       the        "manifest
injustice" standard set forth in Bangert and its progeny.
     ¶51    We conclude that              the    error    here was       not     one       which
infected    the     plea.      The   information          that     the    circuit          court
provided     did    not     relate    to        the    maximum    potential           criminal

                                            27
                                                                          No.        2016AP2258-CR



penalty should Fugere not succeed in his affirmative defense.
Courts are not required to inform NGI defendants of the maximum
possible term of commitment if their defense succeeds.                                        This
case is distinguishable from Bangert and its progeny, where we

have    applied       a    "manifest     injustice"             standard        to     determine
whether a defendant's plea was given knowingly, intelligently,
and    voluntarily.          As    we   have     concluded          that        there     is    no
requirement for a circuit court to inform NGI defendants of the
maximum possible term of commitment, a circuit court's failure
to    convey,    or   to    accurately      convey         it    cannot       render     an    NGI
defendant's       plea      unknowing,       unintelligent,              or      involuntary.
While we do not condone providing misinformation regarding the

civil outcome should a defendant be found NGI and we caution
courts to be careful to properly advise defendants, the circuit
court's error here was harmless.
       ¶52   Though        the    circuit    court          overstated          the      maximum
possible     term     of    commitment      by   20    years       and     said        the    word
"supervision" instead of "commitment," the circuit court's error
here was harmless.               First, the correct information was given
regarding the maximum term of imprisonment.                         Fugere entered into
a plea agreement with the State, and the parties agreed that
they would ask the circuit court to determine whether to impose
institutional commitment or conditional release.                                Thus, it was
specifically contemplated that Fugere may face commitment if his

NGI    defense      succeeded.          Second,       at    the     time        the     at-issue
proceedings occurred, Fugere was already committed pursuant to a
case which charged other sexual assault crimes.                                  The circuit
                                            28
                                                                         No.    2016AP2258-CR



court addressed Fugere's committed status on the record at the
hearing    and confirmed that             Fugere was familiar with                 how the
commitment     process        worked.         Third,    at    another      point    in   the
hearing, Fugere's attorney stated on the record that Fugere was
aware that if he violates the terms of any conditional release
he may receive, he would be sent back to Mendota Mental Health
Institute.         Fourth, given the circuit court's errant statement
that the maximum term would be 60 years, Fugere certainly would
have thus been aware that he could have been subject to a 40-
year term.         Fifth, the circuit court adopted the parties' joint
recommendation          of    30     years'    confinement.          Fugere        received
exactly what he bargained for regarding his NGI plea:                             a 30-year

term of commitment as an alternative to a prison sentence of 40
years with 20 years of extended supervision.
     ¶53      As    a   result,       though    the     circuit     court      undoubtedly
erred    in    stating        the    wrong     maximum       term   of     commitment     or
supervision        that      would    result       if   Fugere's     NGI       defense   was
successful, the circuit court's error was, at most, harmless.9




     9 We note the court of appeals' conclusion "that circuit
courts need not advise a defendant pleading NGI of the potential
range of civil commitment he or she will face if found not
mentally responsible for his or her crimes, much less do so
correctly."    State v. Fugere, 2018 WI App 24, ¶19, 381
Wis. 2d 142, 911 N.W.2d 127.      This statement should not be
construed as allowing courts to provide inaccurate information
to defendants.    Certainly, courts should exercise caution to
ensure that information they provide defendants is correct.


                                              29
                                                                     No.     2016AP2258-CR



                                IV.     CONCLUSION
     ¶54    The circuit court provided inaccurate information to
Fugere concerning the maximum period of civil commitment should
he prevail on his affirmative defense to the criminal charges.
Fugere's motion, which sought withdrawal of his NGI plea as a
result of the inaccurate information, was denied by the circuit
court.
     ¶55    We conclude that a circuit court is not required to
inform an NGI defendant of the maximum possible term of civil
commitment    at   the   guilt        phase    (1)     because       a    defendant      who
prevails at the responsibility phase of the NGI proceeding has
proven an affirmative defense in a civil proceeding, avoiding

incarceration, and is not waiving any constitutional rights by
so proceeding in that defense; and (2) because an NGI commitment
is not punishment but rather, is a collateral consequence to one
who successfully mounts an NGI defense to criminal charges.                               We
therefore     decline      to         exercise        our      superintending            and
administrative authority to require circuit courts to advise NGI

defendants of the maximum period of civil commitment.
     ¶56    Fugere also requests that this court conclude that the
circuit    court's    error     was    not     harmless       with       respect   to    the
misinformation       provided     to     him        concerning       potential       civil
consequences should       he    prevail        in    his     defense.       The    circuit
court here provided accurate information to Fugere regarding the
maximum possible term of imprisonment but inaccurate information
regarding commitment, so we thus address whether the circuit
court's    error   otherwise     entitles           Fugere    to   withdraw        his   NGI
                                          30
                                                                    No.   2016AP2258-CR



plea.       We conclude that the circuit court's error was harmless
because it was unrelated to the guilt phase of the NGI defense,
and     instead,       the    inaccurate    information        pertained      to    the
potential       civil        commitment    at    the       responsibility      phase.
Additionally, Fugere received the benefit of his plea agreement
with    the    State    and    otherwise    understood       the    consequences     of
prevailing on an NGI defense as he was already civilly committed
for an unrelated charge.            Thus, there was no manifest injustice
and we affirm the court of appeals.


       By     the   Court.—The    decision      of   the    court    of   appeals    is
affirmed.




                                           31
                                                                    No.   2016AP2258-CR.awb


     ¶57     ANN     WALSH    BRADLEY,      J.      (dissenting).              There    is    no
dispute in this case that the circuit court gave Corey Fugere
incorrect information regarding the length and nature of the
commitment he faced upon pleading not guilty by reason of mental
disease    or    defect      (NGI).        Fugere    was     told    that       he   faced     a
maximum 60 year term of "supervision," when he actually faced a
maximum 40 year term of commitment to an institution.
     ¶58     Sixty, however, is not forty and supervision is not
commitment to an institution.

     ¶59     Nevertheless,           the      majority        indicates          that        the
incorrect       information         matters       not,     and   denies         Fugere       the
opportunity to withdraw his plea.                    It concludes first that "a
circuit court is not required to inform an NGI defendant of the
maximum      possible        term    of    civil         commitment       at     the     guilt
phase . . . ."            Majority        op.,     ¶2.       Second,       the       majority
concludes that the misinformation provided by the circuit court
with regard to the length and nature of the commitment he faced

was harmless.        Id., ¶3.

     ¶60     I disagree with both of these erroneous conclusions.
In   State      v.   Brown     this       court     previously       stated,         "[i]f     a
defendant does not understand the nature of the charge and the
implications of the plea, he should not be entering the plea,
and the court should not be accepting the plea."                               2006 WI 100,
¶37, 293 Wis. 2d 594, 716 N.W.2d 906.                     This statement is just as
true in the NGI context as it is in a criminal case.
     ¶61     Here Fugere received only half of the story.                            Although
he was accurately informed of the potential prison sentence in

                                              1
                                                                 No.   2016AP2258-CR.awb


the event his NGI defense was unsuccessful, he was deprived of
essential     information       regarding       the   implications          of    his    NGI
plea.    As we have done in the past to remedy such a violation, I
would   invoke       this    court's    superintending         authority         to    ensure
that NGI defendants receive full and accurate information about
the consequences of their pleas.
       ¶62    Further, the errors in this case were not necessarily
harmless.      The circuit court was off the mark by 20 years and
incorrectly advised the defendant that he would be placed on

supervision rather than confined to an institution.
       ¶63    Because we do not know based on the record before us
how the errors affected Fugere's calculations in entering his
plea,   we    should    remand     to    the    circuit    court       for    a       Bangert

hearing.       See State v. Bangert, 131 Wis. 2d 246, 274-75, 389
N.W.2d 12 (1986).           Accordingly, I respectfully dissent.
                                           I
       ¶64    The majority's first error lies in its determination

that "a circuit court is not required to inform an NGI defendant
of the maximum possible term of civil commitment at the guilt
phase . . . ."        See majority op., ¶2.
       ¶65    In Bangert, this court established a mandatory rule
that    the     circuit        court     must     "determine           a     defendant's
understanding of the nature of the charge at the plea hearing by
following      any     one    or   a    combination       of     the       [denominated]
methods."      Bangert, 131 Wis. 2d at 267.             This rule encompasses a
requirement that a circuit court must, in its plea colloquy,
"[e]stablish the defendant's understanding of the nature of the

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crime with which he is charged and the range of punishments to
which he is subjecting himself by entering a plea."                                     Brown, 293

Wis. 2d 594, ¶35.
       ¶66     The procedures established in Bangert apply equally to
the NGI context.                 In State v. Shegrud, this court determined
that     "a court faced with a defendant entering a plea of not
guilty by reason of mental disease or defect must address the
defendant       personally         to     determine         whether      the       defendant     is
entering       the    plea       voluntarily         with    an    understanding           of   the

nature    of    the       charge."        131    Wis. 2d 133,            138,      389    N.W.2d 7
(1986).
       ¶67     Bangert's          chief    aim        was    to     "ensure         a     knowing,

intelligent,         and    voluntary       plea"      by    requiring          "that     a   trial
judge     explore          the     defendant's         capacity         to      make      informed
decisions."          Brown, 293 Wis. 2d 594, ¶30.                       As the Brown court
explained, "[t]he duties established . . . in Bangert . . . are
designed       to     ensure       that     a    defendant's            plea       is     knowing,

intelligent         and    voluntary.           The    faithful         discharge        of   these
duties is the best way we know for courts to demonstrate the
critical importance of pleas in our system of justice and to
avoid constitutional problems."                      Id., ¶23.          Put simply, "[i]f a
defendant does not understand the nature of the charge and the
implications of the plea, he should not be entering the plea and
the court should not be accepting the plea."                            Id., ¶37.
       ¶68     Neither       the     Constitution           nor    Wis.        Stat.      § 971.08
require the sort of plea colloquy for which Bangert provides.
Instead,     Bangert        and     its   requirements            act    as    a   prophylactic

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measure       "[t]o       head           off        postconviction             hearings       on      plea
withdrawals . . . ."                   Brown, 293 Wis. 2d 594, ¶33.

       ¶69     Thus,          rather          than       relying        on     constitutional           or
statutory principles, the court in Bangert and Shegrud forged
its    procedure       as          a    function         of    this     court's       superintending
authority.          Bangert, 131 Wis. 2d at 267; Shegrud, 131 Wis. 2d at
138;    see    Wis.       Const.          art.       VII,      § 3(1)     (granting         this     court
"superintending and administrative authority over all courts");
Koschkee       v.     Evers,            2018        WI   82,     ¶8,     382       Wis. 2d 666,        913

N.W.2d 878.          Our superintending authority is "as broad and as
flexible       as     necessary              to     insure      the     due     administration          of
justice       in    the       courts          of     this      state."         In    re     Kading,     70
Wis. 2d 508, 520, 235 N.W.2d 409 (1975).
       ¶70     As in Shegrud and Bangert, here the court would be
wise    to    utilize         its        superintending           authority.              Specifically,
Shegrud should encompass not only an advisement of the potential
prison       sentence         an       NGI    defendant         faces,       but     be    extended     to

encompass the potential period of mental health commitment as
well.     This minimal extension would ensure that NGI defendants
are    provided with all                     relevant information on                  which    to     base
their decision to enter a plea.
       ¶71     Such       a        use        of     our      superintending              authority     is
appropriate         because             the        principles      that       drove        Bangert    and
Shegrud apply with equal force here.                              The "due administration of
justice"       requires                that        NGI       defendants        are    properly        and
accurately informed of the potential commitments they face.                                            If
the court is truly concerned with ensuring that a defendant's

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plea is the result of informed decision-making, then circuit
courts should be required to ascertain whether the defendant
understands the consequences of a successful NGI defense.                       This
requirement     includes       ascertaining        whether       the     defendant
understands    the   maximum    possible   term     of   commitment       and   its
nature.
     ¶72    However, under the majority's rule, Fugere and future
defendants    who    enter     stand-alone     NGI       pleas     can     receive
incomplete information regarding what could happen to them as a

result of their pleas.         When the circuit court informs an NGI
defendant of the maximum prison sentence only, the defendant
receives just half of the information needed to make an informed
decision.
     ¶73    In other words, if the defendant is found to be not
guilty by reason of mental disease or defect, then the prison
sentence    is merely hypothetical.           It    is   commitment,      and not
imprisonment,    that   will actually come          to fruition.          Yet the

defendant is only informed of one possible sanction when there
are two distinct possibilities——commitment or prison.
     ¶74    This court should ensure that defendants pleading NGI
are provided with information that is actually useful to them
and will assist in making informed decisions regarding their
pleas.     Accordingly, I would invoke this court's superintending
authority to minimally extend Shegrud.             Circuit courts should be

required not only to inform defendants of the maximum penalty if
found guilty of the charge, but also to accurately inform NGI
defendants of the maximum commitment they face.

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                                          II
     ¶75    The   majority's      second       error   lies   in    its   conclusion
that the misinformation given by the circuit court was harmless.
See majority      op.,    ¶3.     Two     significant    pieces      of   inaccurate

information marred the plea colloquy in this case.1                         I address
each in turn.
     ¶76    First,       the    circuit        court   misstated      the     maximum
commitment Fugere could receive.                The circuit court told Fugere
he faced a maximum commitment of sixty years, when he actually

faced forty years.2
     ¶77    Such an error is not necessarily harmless.                       "When a
defendant    is   told     that    he     faces    a   higher      punishment    than
provided by law and pleads guilty, the plea colloquy is on its
face defective under Bangert."             State v. Cross, 2010 WI 70, ¶48,

     1 The majority bases its determination that the errors were
harmless on the assertion that they were "unrelated to the guilt
phase of the NGI defense . . . ."    Majority op., ¶3.   However,
the record reflects that there was a single plea colloquy
instead   of   two  separate   proceedings.      The  guilt   and
responsibility phases were addressed by the circuit court during
the span of the single twenty-minute plea hearing.
     2 The majority paints with a very broad brush in appearing
to declare that a circuit court's errors in inaccurately
conveying the maximum period of commitment will always be
harmless.   See majority op., ¶51 ("As we have concluded that
there is no requirement for a circuit court to inform NGI
defendants of the maximum possible term of confinement, a
circuit court's failure to convey, or to accurately convey it
cannot render an NGI defendant's plea unknowing, unintelligent,
or involuntary.") (emphasis added).    Such a pronouncement is
ill-advised and eyebrow-raising.   If Fugere were told that he
faced a maximum of one year of "supervision" when he actually
faced a forty year commitment to an institution, would the error
really be harmless? The majority appears to say that it would.


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326 Wis. 2d 492, 786 N.W.2d 64 (Abrahamson, C.J., concurring).
Likewise, because I determine that a circuit court should be
required to advise a defendant pleading NGI of the maximum term
of commitment, the same principle applies here.
      ¶78    Fugere was told he faced a longer period of commitment
than he actually faced.            At this stage of the proceedings, we do
not   know    how   this     error         affected         Fugere's    calculations      in
entering his plea.
      ¶79    Second,     the     circuit            court     mistakenly     stated     that

Fugere faced a period of "supervision," when he actually faced
"commitment."       Again, such an error is not necessarily harmless.
      ¶80    Just   as   there        is    a       significant    difference        between
sixty years and forty years, there likewise can be a significant
difference     between       supervision              and     commitment.         Although
supervision is often served in the community, commitment can
involve institutional care.                 Compare Wis. Stat. § 302.113 with

§ 971.17(3).

      ¶81    The    majority       indicates           that    "[t]he      circuit     court
addressed Fugere's committed status on the record at the hearing
and confirmed that Fugere was familiar with how the commitment
process worked."         Majority op., ¶52.                  An experience of a prior
commitment proceeding presents a slim reed upon which to rest a
conclusion     that      a     plea        is       knowingly,    intelligently,         and
voluntarily    made.3        But      even      if     the    majority     were   correct,


      3The   circuit    court's   "confirmation"   of   Fugere's
understanding was quite cursory.     The transcript of the plea
hearing reflects the following brief exchange:

                                                                              (continued)
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wouldn't the specification that he faced "supervision" instead
of   "commitment"          be     particularly      relevant       to    an    individual
familiar with the commitment process?
     ¶82    Again, given the current state of the record we do not
know if or how these errors affected Fugere's calculations in
entering his plea.              Accordingly, I would remand to the circuit
court for a Bangert hearing at which the State has the burden of

proof to demonstrate by clear and convincing evidence that the
defendant's plea was knowingly, intelligently, and voluntarily

entered    despite     the        deficiencies      in     the   plea    hearing.        See

Bangert, 131 Wis. 2d at 274-75.
     ¶83    For      the        reasons    set     forth    above,       I    respectfully
dissent.
     ¶84    I   am    authorized          to   state     that    Justices      SHIRLEY   S.
ABRAHAMSON and REBECCA FRANK DALLET join this dissent.




     THE COURT: You've been on a conditional release on a
     different case here before, right?

     THE DEFENDANT:             Yes.

     THE COURT:       Do you understand what that's all about?

     THE DEFENDANT:             Yes.


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