                                                        2016 WI 41

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2013AP2433-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Stephen LeMere,
                                 Defendant-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                                           (No cite)

OPINION FILED:         May 20, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 17, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Eau Claire
   JUDGE:              Kristina M. Bourget

JUSTICES:
   CONCURRED:
   DISSENTED:          BRADLEY, A. W., J. dissents, joined by
                       ABRAHAMSON, J.
  NOT PARTICIPATING:   BRADLEY, R. G., J. did not participate

ATTORNEYS:
       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.
                                                                          2016 WI 41
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2013AP2433-CR
(L.C. No.   2011CF333)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                       FILED
      v.
                                                                  MAY 20, 2016
Stephen LeMere,
                                                                     Diane M. Fremgen
            Defendant-Appellant-Petitioner.                       Clerk of Supreme Court




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



      ¶1    DAVID    T.    PROSSER,    J.      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unpublished     decision    of   the   court    of     appeals      affirming       the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




      1
       State v. LeMere, No. 2013AP2433-CR,                    unpublished        order
(Wis. Ct. App. Oct. 16, 2014).
                                                                 No.     2013AP2433-CR



       ¶2    In    Padilla    v.    Kentucky,      559    U.S.   356    (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.



       2
       All references to the Wisconsin Statutes are to the 2011-
12 version unless otherwise indicated.




                                            2
                                                              No.      2013AP2433-CR



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




     3
       The next morning, J.C., who had been asleep with AC in
another room, discovered three messages from C.R.C. on his
phone.   One message, received at 5:31 a.m., said, "Can one of
you guys come out here, I'm scared." Another, received at 5:57
a.m., said, "Can you let me in the room."      Suspicious, J.C.
asked to see LeMere's phone.   He found no messages in LeMere's
sent messages folder but reviewed four messages in the inbox.
One message from A.C.'s phone read, "I'm 12 years old, what are
you doing, I'm 12 years old, I'm going to tell [J.C.] and
[A.C.]"




                                        3
                                                                     No.      2013AP2433-CR



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.




                                            4
                                                                         No.     2013AP2433-CR



       ¶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


                                               5
                                                                         No.      2013AP2433-CR



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.




      4
          Lisa K. Stark, Judge.
      5
       The other case involved battery charges brought against
LeMere after he used a broom head to strike and seriously injure
a fellow inmate in the county jail.




                                               6
                                                                        No.        2013AP2433-CR



       ¶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.



                                               7
                                                       No.      2013AP2433-CR


         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 and read in the other

charges.   At a subsequent sentencing hearing, the court ordered
30 years of initial confinement followed by 15 years of extended

supervision.    The court entered the judgment of conviction on

August 3, 2012.

    ¶18    One year later, LeMere filed a motion in the circuit

court6 seeking to withdraw his plea and vacate his conviction.7

    6
        Kristina M. Bourget, Judge.
    7
        LeMere's Wis. Stat. § 974.02 motion to withdraw his guilty
plea,   filed August 22, 2013, was timely under Wis. Stat.
                                                       (continued)


                                      8
                                                       No.      2013AP2433-CR



LeMere claimed that his guilty plea was neither informed nor

knowing.   He argued that he did not receive effective assistance

of counsel because his attorney never informed him that, at the

end of the confinement portion of his sentence, he might be

subject    to   civil   commitment       under   Chapter 980.        In   an

accompanying affidavit, LeMere set forth a detailed basis for

his withdrawal request:

    Prior to the change of plea hearing, I met with George
    Miller, the attorney appointed to represent me.     We
    discussed the case.    However, Attorney Miller at no
    time told me that a conviction for the crime of 1st


§ 809.30 despite the fact that he filed it more than a year
after his August 3, 2012 sentencing.

     Just three days after sentencing, LeMere filed his Notice
of Intent to Seek Post-Judgment Relief, well within the 20-day
time limit for notice set forth in § 809.30(2)(b).        But on
February 7, 2013, LeMere's postconviction attorney appointed by
the State Public Defender's office filed two motions: one motion
with the circuit court seeking permission to withdraw, pursuant
to Wis. Stat. § 809.30(4)(a), and one motion with the court of
appeals requesting an extension of time for LeMere to file a
postconviction motion or notice of appeal.      The State Public
Defender agreed to appoint new counsel, who filed a notice of
appearance on March 21, 2013. The court of appeals granted the
extension, allowing LeMere's new counsel to file a notice of
appeal or a postconviction motion by April 29, 2013.

     Over the succeeding months, LeMere's new counsel filed
three more motions for extension of time, each of which the
court of appeals granted. In response to the third request, the
court of appeals set an August 22, 2013 deadline for filing a
postconviction motion or notice of appeal. Thus, the extensions
kept LeMere's postconviction motion and subsequent appeal within
the Wis. Stat. § 809.30 timeline, meaning "the time for appeal
or postconviction remedy provided in s. 974.02" had not expired
such that LeMere would need to file his motion to withdraw his
guilty plea under Wis. Stat. § 974.06.




                                     9
                                                            No.     2013AP2433-CR


    Degree Child Sexual Assault——Sexual Contact with
    Person under Age of 13 could make me subject to
    lifetime commitment as a sexually violent person under
    Chapter 980.   If I had been aware of the Chapter 980
    consequence by counsel, I would not have entered a
    plea of guilty on March 26, 2012.         I would have
    insisted on taking this case to trial.     In the time
    between my guilty plea and my sentencing hearing,
    Attorney Miller never discussed with me that I could
    be subject to lifetime commitment as a sexually
    violent person under Chapter 980. If I had been made
    aware of this consequence of my guilty plea in the
    period between my plea of guilty and my sentencing
    hearing, I would have insisted that Attorney Miller
    file a motion to withdraw my guilty plea.
He also requested an evidentiary hearing pursuant to State v.

Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

    ¶19        The circuit court denied the motion for postconviction

relief    on    the    grounds    that   the    facts   alleged    in   LeMere's

affidavit, "if true, [did] not constitute deficient performance

of counsel."          In reaching that conclusion, the court read the

Padilla case as limited to deportation and inapplicable to the

possible    consequence      of    civil      commitment   under   Chapter 980.

LeMere filed his notice of appeal on October 23, 2013, appealing

from both the judgment of conviction entered in August 2012 and

the October 2013 order denying his motion for postconviction

relief.

    ¶20        The court of appeals summarily affirmed.                 State v.

LeMere, No. 2013AP2433-CR, unpublished order (Wis. Ct. App. Oct.

16, 2014).        Relying on its decision in State v. Myers, 199

Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996), that "a potential

Wis. Stat. ch. 980 commitment at some time in the future is
merely a 'collateral consequence' of a guilty plea," the court



                                         10
                                                                     No.            2013AP2433-CR



applied     the     rule    that       "no    manifest     injustice          occurs      when    a

defendant is not apprised of consequences that are collateral to

the plea." LeMere, unpublished order at 2.                           As a result, the

court    of    appeals      determined         that    LeMere      was    not       denied      the

effective assistance of counsel.                     Moreover, the court of appeals

concluded       that   it        had    no     authority      to    overrule          Myers      by

extending      Padilla      beyond       the     deportation       context          to   require

advice about Chapter 980 civil commitment.                           Id. at 3 (citing

Cook v. Cook, 208 Wis. 2d 166, 185-90, 560 N.W.2d 246 (1997)).

      ¶21      On   November       17,       2014,   LeMere    filed      a    petition         for

review, which we granted on March 16, 2015.

                             II.       Standard of Review

      ¶22      Before sentencing, a circuit court should freely allow

a defendant to withdraw his plea for any fair and just reason,

unless the prosecution would be substantially prejudiced.                                  State

v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24;

State     v.    Bollig,      2000        WI     6,    ¶28,    232        Wis. 2d 561,           605

N.W.2d 199.         Where, as here, a defendant seeks plea withdrawal
after sentencing, the burden on the defendant is much higher:

"[A] defendant seeking to withdraw a guilty or no contest plea

after    sentencing        must    prove       manifest      injustice         by    clear      and

convincing evidence."              State v. Negrete, 2012 WI 92, ¶29, 343

Wis. 2d 1, 819 N.W.2d 749.

      ¶23      "Ineffective        assistance         of   counsel       is    one       type    of

manifest injustice."              State v. Ortiz-Mondragon, 2015 WI 73, ¶28,

364     Wis. 2d 1,         866     N.W.2d 717.             Claims        for        ineffective
assistance of counsel are mixed questions of fact and law, and


                                                11
                                                                            No.        2013AP2433-CR



we will uphold a circuit court's factual findings so long as

they are not clearly erroneous.                          State v. Shata, 2015 WI 74,

¶31, 364 Wis. 2d 63, 868 N.W.2d 93 (citing State v. Carter, 2010

WI   40,    ¶19,          324     Wis. 2d 640,          782        N.W.2d 695).           "Whether

counsel's performance satisfies the constitutional standard for

ineffective assistance of counsel is a question of law, which we

review     de    novo."           State       v.   Thiel,       2003       WI     111,   ¶21,     264

Wis. 2d 571, 665 N.W.2d 305.

                                      III.     Discussion

     ¶24        The Sixth Amendment to the United States Constitution

provides that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his

defence."        Article I, Section 7 of the Wisconsin Constitution

similarly prescribes that "[i]n all criminal prosecutions the

accused     shall         enjoy    the    right         to    be    heard       by    himself     and

counsel."            As   the     Supreme      Court         explained      in       Strickland    v.

Washington, 466 U.S. 668 (1984), "the right to counsel is the

right to the effective assistance of counsel."                                   Strickland, 466
U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970)).             Criminal defendants have the right to effective

assistance of counsel not only at trial but also during the plea

bargaining process.               Missouri v. Frye, 132 S. Ct. 1399, 1405-06

(2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).

     ¶25        To    succeed       on    a    claim         that    his    counsel       provided

ineffective assistance, a defendant must prove that (1) counsel

performed deficiently and (2) the defendant suffered prejudice
as   a     result         of    the      deficient           performance.              Thiel,     264


                                                   12
                                                                          No.      2013AP2433-CR



Wis. 2d 571,         ¶18        (citing       Strickland,           466     U.S.     at        687).

Deficient performance occurred if "counsel's representation fell

below an objective standard of reasonableness."                              Strickland, 466

U.S. at 688.

       ¶26    "Judicial scrutiny of counsel's performance must be

highly deferential."              Id. at 689.            "Counsel need not be perfect,

indeed       need    not        even    very        good,      to    be     constitutionally

adequate."           Thiel,      264        Wis. 2d 571,       ¶19     (quoting      State        v.

Williquette,        180     Wis. 2d 589,         605,       510     N.W.2d 708      (Ct.        App.

1993), which had quoted Dean v. Young, 777 F.2d 1239, 1245 (7th

Cir. 1985), cert. denied, 475 U.S. 1142 (1986)).                                   But Padilla

made     clear       that        "advice        regarding           deportation       is        not

categorically removed from the ambit of the Sixth Amendment" and

may be the basis for a claim that counsel provided ineffective

assistance.          Padilla,      559       U.S.    at     366;    see    also    Chaidez        v.

United States, 133 S. Ct. 1103, 1112 (2013).

       ¶27    Last    term,       in    State       v.    Shata     and    State    v.     Ortiz-

Mondragon, we evaluated the scope of counsel's obligation to
provide effective assistance, as described in the second part of

Padilla.            Given       Padilla's        conclusion          that       advice         about

deportation is not categorically excluded from Sixth Amendment

protection, Shata and Ortiz-Mondragon examined the scope of an

attorney's       obligation            to    provide        advice        about    immigration

consequences.              In     particular,            the   cases       focused        on    the

relationship between the advice an attorney must give and the

degree of certainty that serious immigration consequences will
result from a plea.              See Shata, 364 Wis. 2d 63, ¶5 (holding that


                                                13
                                                                      No.         2013AP2433-CR



an    attorney's      advice       that    a   "guilty    plea       carried       a   'strong

chance' of deportation" constituted effective assistance where

"deportation was not an absolute certainty"); Ortiz-Mondragon,

364 Wis. 2d 1, ¶5 (concluding that an attorney's advice that a

plea carried a "risk" of adverse immigration consequences was

sufficient        where   federal         immigration     law    was        not   "succinct,

clear,    and      explicit"       that    the      pending   charge        "constituted       a

crime involving moral turpitude" (quoting Padilla, 559 U.S. at

368)).

       ¶28    In this case, LeMere turns our attention back to the

categorical analysis in the first part of Padilla.                                 He argues

that Padilla's categorical reasoning with regard to deportation

applies with equal force to the possibility of civil commitment

under    Chapter 980         for    people       convicted      of    sexually         violent

offenses.          Whether    Padilla's        reasoning      extends        to    collateral

consequences beyond deportation is a matter of first impression

in Wisconsin.

       ¶29    To    assess    LeMere's         claim,    we   must     examine         why   the
Supreme Court concluded that deportation cannot be viewed as

"merely a 'collateral' consequence" of a criminal conviction.

Padilla, 559 U.S. at 359-60.                   We then discuss civil commitment

under Chapter 980 and determine that the Sixth Amendment does

not     require      counsel        to     advise       defendants          regarding        the

possibility of civil commitment as a sexually violent person.

             A.    Padilla's Effect on Sixth Amendment Doctrine

       ¶30    Our discussion begins with an explanation of the Sixth
Amendment analytical framework that the Supreme Court altered in


                                               14
                                                                     No.        2013AP2433-CR



Padilla.      Before Padilla, state and federal courts evaluating

the   scope    of    the     right     to   effective        assistance         of    counsel

"almost unanimously concluded that the Sixth Amendment does not

require     attorneys      to    inform     their       clients     of     a   conviction's

collateral consequences, including deportation."                               Chaidez, 133

S. Ct. at 1109 & nn.7-8 (citing cases from 10 federal appellate

courts and appellate courts in 27 states and the District of

Columbia).         Drawing      on    Due   Process      principles         applicable          to

courts accepting guilty pleas, courts had held that, to render

effective assistance, counsel needed to advise defendants about

direct consequences of a plea but not collateral consequences.

Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance

of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.

Rev. 697, 703-04 (2002).

      ¶31     Direct consequences are those that have 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); see also State ex rel.

Warren v. Schwarz, 219 Wis. 2d 615, 636, 579 N.W.2d 698 (1998).

Collateral consequences, on the other hand, "are indirect and do

not flow from the conviction"; rather, they "may be contingent

on    a   future     proceeding        in   which       a    defendant's          subsequent

behavior affects the determination" or may "rest[] not with the

sentencing     court,      but       instead     with    a   different         tribunal         or

government     agency."          Byrge,     237     Wis. 2d 197,           ¶61;      see   also
Warren, 219 Wis. 2d at 636.


                                            15
                                                                 No.       2013AP2433-CR



    ¶32     In   his       Padilla   dissent,        Justice    Scalia    provided    a

constitutional      foundation       for   the       distinction       between   direct

consequences and collateral consequences: "The Sixth Amendment

guarantees the accused a lawyer 'for his defence' against a

'criminal    prosecutio[n]'——not              for     sound     advice     about    the

collateral consequences of conviction."                       Padilla, 559 U.S. at

388 (Scalia, J., dissenting) (alteration in original).

    We have until today at least retained the Sixth
    Amendment's     textual    limitation   to    criminal
    prosecutions.    "[W]e have held that 'defence' means
    defense at trial, not defense in relation to other
    objectives that may be important to the accused."
    Rothgery v. Gillespie County, 554 U.S. 191, 216 (2008)
    (Alito, J., concurring) (summarizing cases).   We have
    limited the Sixth Amendment to legal advice directly
    related to defense against prosecution of the charged
    offense . . . .

         There is no basis in text or in principle to
    extend the constitutionally required advice regarding
    guilty pleas beyond those matters germane to the
    criminal prosecution at hand . . . .

         Adding to counsel's duties an obligation to
    advise about a conviction's collateral consequences
    has no logical stopping point.
Id. at 389-90 (first alteration in original).

    ¶33     Of   course,       the     Padilla       majority,     in    the     opinion

written by Justice Stevens, pointedly noted that the Court had

"never    applied      a    distinction     between      direct     and    collateral

consequences to define the scope of constitutionally 'reasonable

professional assistance' required under Strickland."                           Padilla,

559 U.S. at 365.           Nonetheless, the opinion artfully responded to
Justice    Scalia's        critique,    not     by    "eschew[ing]       the     direct-



                                           16
                                                                 No.          2013AP2433-CR



collateral divide across the                board,"    Chaidez, 133 S. Ct. at

1112,    but    by    implying       that    deportation     was     a    sui      generis

consequence       rather     than     a   collateral       consequence.            Justice

Stevens wrote for the Court that "[d]eportation as a consequence

of a criminal conviction is, because of its close connection to

the criminal process, uniquely difficult to classify as either a

direct or a collateral consequence."                  Padilla, 559 U.S. at 366

(emphasis added).

       ¶34     Regardless of how it was argued, the Court's holding

in    Padilla     that       the    Sixth      Amendment     right       to     effective

assistance      of    counsel       requires     counsel    to   advise       defendants

about    the     deportation         consequences     of     their       pleas     was   a

departure from precedent and "breach[ed] the previously chink-

free wall between direct and collateral consequences" for Sixth

Amendment purposes.          Chaidez, 133 S. Ct. at 1110.

       ¶35     Padilla clearly affected Wisconsin law.                     Like courts

in other states, the Wisconsin court of appeals had applied the

distinction between direct and collateral consequences in the
Sixth Amendment context.             State v. Santos, 136 Wis. 2d 528, 531,

401 N.W.2d 856 (Ct. App. 1987) ("Deportation is a collateral

consequence of a plea. . . .                [D]efendants need not be informed

of the collateral consequences of a guilty plea."), abrogated by

Padilla, 559 U.S. 356; see also State v. Brown, 2004 WI App 179,

¶7 n.3, 276 Wis. 2d 559, 687 N.W.2d 543 ("[D]efense counsel's

failure to advise a defendant of collateral consequences is not

a    sufficient      basis    for    an   ineffective      assistance         of   counsel
claim.").


                                            17
                                                                No.      2013AP2433-CR



    ¶36     LeMere now seeks to extend the holding in Padilla to a

consequence beyond deportation.              This requires us to examine

what characteristics of deportation made it an exception to the

general direct-collateral framework under the Sixth Amendment.

    ¶37     Padilla involved a lawful permanent resident who had

lived in the United States for more than 40 years but faced

"virtually    mandatory"    deportation      under       federal      law    after    he

pled guilty to transporting a substantial quantity of marijuana

in his tractor-trailer.        Padilla, 559 U.S. at 359.                 Padilla had

agreed to plead guilty only after his counsel advised him that,

because he had been in the country for a long time, he did not

need to worry about the plea's deportation consequences.                             Id.

During     postconviction    proceedings,         Padilla       alleged      that     he

received     ineffective    assistance       of    counsel       and     would       have

insisted     on   proceeding    to    trial       had     he     known      the     true

immigration consequences of his plea.              Id.    The Supreme Court of

Kentucky concluded that Padilla had no Sixth Amendment claim for

ineffective assistance for faulty advice about the collateral
consequence of deportation.          Id. at 359-60.            It then denied his

request to withdraw his plea.

    ¶38     The   Supreme   Court    reversed,       concluding         that      "[t]he

collateral    versus   direct      distinction       is . . . ill           suited    to

evaluating a Strickland claim concerning the specific risk of

deportation."     Id. at 366 (emphasis added).                 "[B]ecause of its

close connection to the criminal process," deportation fits into

neither of the two traditional categories.                 Id.        Although not a
criminal     punishment,     the     Court        reasoned,       deportation         is


                                      18
                                                                          No.        2013AP2433-CR



nevertheless            "particularly            severe,"         unlike        other        civil

consequences frequently deemed collateral.                              Id. at 365.              Most

collateral         consequences           do   not     amount    to     "the    equivalent        of

banishment         or    exile."           Id.    at     373    (quoting        Delgadillo        v.

Carmichael, 332 U.S. 388, 391 (1947)).                                 Moreover, the Court

noted,       for   many       non-citizens           deportation        becomes      "nearly      an

automatic      result"         of     a   conviction.           Id.     at    366.         Relevant

federal immigration statutes spell out in "succinct, clear, and

explicit" terms Padilla's immediate eligibility for deportation

as a result of his conviction.                    Id. at 368.

      ¶39      Three      years        later,     the     Supreme       Court       conducted      a

valuable       analysis         of     Padilla       when      asked    to     decide      whether

Padilla       applied         retroactively.              Chaidez       involved       a     lawful

permanent resident whose conviction subjecting her to mandatory

deportation became final in 2004.                        Chaidez, 133 S. Ct. at 1105-

06.     At the time she entered her guilty plea, her attorney never

advised her that the conviction could expose her to deportation.

Id.     at     1106.                Immigration        officials         commenced          removal
proceedings in 2009 after Chaidez applied for citizenship and

her criminal conviction surfaced.                       Id.     Hoping to avoid removal,

she initiated a collateral attack against her guilty plea on

grounds       that      her    counsel         provided     ineffective         assistance        by

failing to advise her of the deportation consequences of her

plea.    Id.

      ¶40      While          the     district         court      was        considering         her

challenge, the Supreme Court decided Padilla.                                 Id.     Therefore,
Chaidez       sought      retroactive           application        of    Padilla,          and   the


                                                  19
                                                         No.       2013AP2433-CR



Supreme Court was required to consider Padilla under Teague v.

Lane, 489 U.S. 288 (1989), to determine whether                    Padilla   had

stated a "new rule" of law.           Chaidez could not take advantage of

a decision rendered years after her conviction became final if

Padilla had articulated a new rule of law.              Chaidez, 133 S. Ct.

at 1107.

       ¶41     In concluding that Padilla stated a new rule and that

Chaidez could not rely on it to challenge her plea, the Court

began by distinguishing Padilla from Strickland.               Id. at 1108.

The Court observed that before the Padilla opinion engaged in

traditional       Strickland    analysis,    it   answered     a    "threshold

question":

       Was advice about deportation 'categorically removed'
       from the scope of the Sixth Amendment right to counsel
       because it involved only a 'collateral consequence' of
       a conviction, rather than a component of the criminal
       sentence?   In other words, prior to asking how the
       Strickland test applied ("Did this attorney act
       unreasonably?"), Padilla asked whether the Strickland
       test applied ("Should we even evaluate if this
       attorney acted unreasonably?").
Id.    (citation    and    footnote   omitted).    In   short,     before    the
Padilla Court ever addressed the first prong of the Strickland

test, it had to decide whether the Sixth Amendment applied at

all.       Id. at 1111.8

       8
       The Supreme Court of Utah has applied Chaidez in this
manner, citing Chaidez for the proposition that, "when the
alleged deficient performance is defense counsel's failure to
inform a client of a particular consequence of a guilty plea, we
must first consider whether Strickland applies at all."    State
v. Trotter, 330 P.3d 1267, 1271 (Utah 2014) (holding that
Padilla does not extend the Sixth Amendment to require counsel
                                                     (continued)


                                       20
                                                                   No.       2013AP2433-CR



       ¶42     At one point, the Chaidez opinion appeared to focus on

two factors——"the severity of the penalty and the 'automatic'

way it follows from conviction"——to explain the "special 'nature

of     deportation'"        and     why     the     "collateral          versus     direct

distinction" was "'ill-suited' to dispose of Padilla's claims."

Chaidez, 133 S. Ct. at 1112 (quoting Padilla, 559 U.S. at 366).

Upon       reflection,    we    think      the    Court     viewed    deportation       as

distinct from other consequences for multiple reasons.9

       ¶43     Central     to     the    Padilla        Court's    analysis       was   its

emphasis on deportation as a "unique" consequence of conviction.

As   the Chaidez         Court explained,         Padilla     "did not eschew the

direct-collateral         divide        across    the    board."         Id.10     On   the


to advise defendants about the collateral consequence of sex
offender registration), cert. denied, 135 S. Ct. 944.
       9
       But see Trotter, 330 P.3d at 1272 ("[T]he Court determined
that deportation is uniquely ill-suited for the direct-
collateral divide because (1) it results automatically from the
entry of the plea, and (2) it is a particularly severe penalty.
Accordingly, any rationale for extending Padilla's reasoning to
other   contexts . . . must   be   rooted   in  both   of   these
justifications." (citation omitted)).
       10
        The Court's comment regarding the survival of the direct-
collateral    distinction   as  a   general   rule   has   important
consequences in Wisconsin in light of Padilla's abrogation of
State v. Santos, 136 Wis. 2d 528, 401 N.W.2d 856 (Ct. App.
1987).    In Santos, the defendant, a Cuban immigrant, sought
postconviction withdrawal of his guilty plea to burglary
charges.    Santos, 136 Wis. 2d at 529-30.      He argued that his
counsel provided ineffective assistance by failing to inform him
that the guilty plea could form the basis for his deportation.
Id. at 530.      The court of appeals held that Santos did not
receive   ineffective    assistance   because   deportation   is   a
collateral consequence of a conviction and counsel need not
inform defendants of collateral consequences.       Id. at 531-33.
                                                         (continued)


                                            21
                                                               No.         2013AP2433-CR



contrary, the     Padilla      Court twice used the word "unique" to

describe the situation.             Padilla, 559 U.S. at 365 (mentioning

"the unique nature of deportation" (emphasis added)); id. at 366

("Deportation        as   a     consequence        of    criminal           conviction

is . . . uniquely difficult to classify as either a direct or a

collateral consequence [of a criminal conviction]." (emphasis

added)).     The Padilla Court understood the meaning of "unique."

To call something "unique" is to say that it is "the only one of

its kind."      Webster's Third New International Dictionary 2500

(1986).      Throughout Padilla, the Court identified a number of

factors that set deportation apart from other consequences.

      ¶44    Certainly,       the     severe     and    automatic          nature    of

deportation    are    both    factors     that    contribute         to    its   unique

character.     The Padilla Court deemed deportation "a particularly

severe 'penalty,'" and the Court used other similar adjectives

and phrases——"harsh," "drastic," "unjust," the "equivalent of

banishment," "exile"——throughout the opinion.                  Padilla, 559 U.S.

at 360-62, 373.       Additionally, the Court used some variation on
the   word    "automatic"       four     times,    and    it     emphasized         the

"virtually     mandatory,"          "virtually    inevitable,"            "practically



Notwithstanding Padilla's implicit abrogation of Santos with
regard to the specific consequence of deportation, see Chaidez,
133 S. Ct. at 1109 & n.8, the Court's reasoning in Chaidez
indicates that the general direct-collateral framework applied
in Santos persists, id. at 1110-11; cf. Commonwealth v. Abraham,
62 A.3d 343, 350 (Pa. 2012) ("Padilla did not abrogate
application of [a direct versus collateral consequences]
analysis in cases that do not involve deportation.").




                                         22
                                                                          No.         2013AP2433-CR



inevitable,"          "automatic,"         "nearly . . . automatic"                    nature    of

deportation after certain criminal convictions.                                 Id. at 359-60,

364-66.

       ¶45     But     beyond      the     severe        and    automatic             aspects    of

deportation,         the     Padilla       Court       also    considered             its    "close

connection      to     the    criminal      process."          Id.     at       366.        Several

times, the Court explained that, although removal proceedings

are    civil    in    nature,       "deportation         is    nevertheless            intimately

related to the criminal process.                       Our law has enmeshed criminal

convictions          and     the    penalty       of     deportation            for     nearly    a

century."          Id. at 365-66.           "[W]e find it 'most difficult' to

divorce      the     penalty       from    the    conviction         in     the       deportation

context."          Id. at 366 (quoting United States v. Russell, 686

F.2d 35, 38 (D.C. Cir. 1982)).                        In the past, federal and state

judges    were       able     to    make    a     binding      recommendation               against

deportation (JRAD) at the time of sentencing.                                   Id. at 361-63.

Today, defense counsel "may be able to plea bargain creatively

with the prosecution in order to craft a conviction and sentence
that reduce the likelihood of deportation."                        Id. at 373.

       ¶46     Highlighting          deportation's             close        connection           to

criminal sanctions, the Padilla Court described deportation as a

"penalty" at least five times: (1) "[D]eportation is an integral

part——indeed, sometimes the most important part——of the penalty

that may be imposed on noncitizen defendants who plead guilty to

specified crimes."            Id. at 364 (footnote omitted).                      (2) "We have

long     recognized         that    deportation          is    a   particularly              severe
'penalty.'"          Id. at 365 (citing Fong Yue Ting v. United States,


                                                 23
                                                                            No.         2013AP2433-CR



149 U.S. 698, 740 (1893)).                   (3) "Our law has enmeshed criminal

convictions        and       the     penalty       of        deportation          for     nearly       a

century."     Id. at 365-66 (citation omitted).                             (4) "[W]e find it

'most difficult' to divorce the penalty from the conviction in

the deportation context."                  Id. at 366 (quoting Russell, 686 F.2d

at   38).     (5)        "[T]he      threat       of     deportation         may    provide          the

defendant     with       a    powerful       incentive          to    plead       guilty        to   an

offense that does not mandate that penalty in exchange for a

dismissal of a charge that does."                       Id. at 373.

      ¶47    Finally,          it    must     be        noted       that     not        all     people

convicted     of       certain      crimes     face       deportation         as    a     potential

consequence of conviction; only noncitizens face deportation's

penal     effects.            Indeed,       the        Padilla       Court    used        the     word

"noncitizen" 17 times and appeared to view noncitizens——"a class

of    clients          least        able     to        represent           themselves"——as             a

particularly vulnerable class.                    Id. at 370-71.

      ¶48    A unique confluence of factors thus led the Padilla

Court to articulate an extraordinary exception to the direct-
collateral        framework——which            the       court       otherwise       declined          to

disturb——for the "penalty" of deportation.                                  In light of this

exception,        we    now     examine      whether          the    possibility          of    civil

commitment under Chapter 980 warrants a similar exception.

     B.     Evaluating the Consequence of Chapter 980 Commitment

      ¶49    To        determine      whether          the    Sixth        Amendment          requires

counsel      to        advise       defendants           about       the      possibility             of

Chapter 980       commitment,         we    review        the       same    factors       that       set
deportation apart from other consequences.


                                                  24
                                                                No.      2013AP2433-CR



   1.        Deportation's Unique Nature Weighs Against Creating an

                      Exception for Chapter 980 Commitment

       ¶50     At the outset, we reemphasize that Padilla created a

"new        rule"    when       it   determined   that   deportation       was    not

"categorically removed from the ambit of the Sixth Amendment's

right to counsel."              Padilla, 559 U.S. at 366.       The Court created

the new rule, in large part, because of "the unique nature of

deportation."             Id. at 365.      Extending Padilla to embrace the

possibility of Chapter 980 commitment would initiate a more far-

reaching "new rule" not yet articulated by the Supreme Court.

It would deviate from the characterization of deportation as

"unique."           And, inevitably, it would do more than widen the

breach in the substantially chink-free wall between direct and

collateral          consequences——it      would   effectively     tear    down    that

wall.        Chapter 980 commitment cannot be described as anything

other than a classic collateral consequence.                     State v. Myers,

199 Wis. 2d 391, 394, 544 N.W.2d 609 (Ct. App. 1996).                            Thus,

without a directive and clear guidance from the Supreme Court,
this court would be discarding any logical stopping point by

establishing          a   new    obligation   under   the   Sixth     Amendment    to

advise a defendant about a collateral consequence.                    Padilla, 559

U.S. at 390 (Scalia, J., dissenting).11



       11
        For example, the National Inventory of Collateral
Consequences of Conviction, a database created by the American
Bar   Association,  identifies  as  many   as   693  collateral
consequences of conviction in Wisconsin.       Am. Bar Ass'n,
National Inventory of Collateral Consequences of Conviction
                                                    (continued)


                                            25
                                                                       No.    2013AP2433-CR



               2.    The Severity of Chapter 980 Commitment

       ¶51    Padilla emphasized the severity of deportation, using

such phrases as the "harsh consequences" of deportation, which

is a "drastic measure."                Id. at 360 (majority opinion).              Chaidez

reiterated that deportation is "particularly severe."                              Chaidez,

133    S.    Ct.    at    1117     &     n.4.        Non-citizens       confronted       with

deportation         "face     possible          exile     from     this      country      and

separation from their families."                        Padilla, 559 U.S. at 370.

Deportation        creates    a    permanent         physical     separation      from    the

United States and, to a lesser extent, from people who live

here.       If a person confronted with removal wished to maintain

relationships with friends and family who live in this country,

deportation's permanent physical separation could create a more

onerous burden than time served in an American prison.                                    The

person's friends and family likely would need to spend hundreds,

if not thousands, of dollars on international travel expenses

for a single physical reunion.

       ¶52    LeMere      argues       that     commitment     under     Chapter    980    is
even    more       severe     than       removal        from     the    country    because

commitment could last for the remainder of his lifetime.                                   He

observes that a person deported from the United States remains

entirely      free       outside       this   country      and    retains     substantial

personal liberty.            A person committed under Chapter 980, he

argues, is confined under state control for an indefinite period

(2013), http://www.abacollateralconsequences.org/search/?jurisdi
ction=50.




                                                26
                                                                           No.          2013AP2433-CR



of time, even after serving time in prison.                             By focusing on the

worst case scenario as though it were the norm, however, LeMere

overstates, to a degree, the severity of Chapter 980 commitment.

Although a person will remain committed "until such time as the

person     is     no    longer      a    sexually    violent         person,"           Wis.   Stat.

§ 980.06, Chapter 980 delineates numerous and regular procedures

for reevaluating whether a person's commitment should continue.

      ¶53       Chapter 980         commitment           is      not     intended           to      be

permanent.        Within the first year after the person's commitment,

the   Department         of    Health      Services       (DHS)        must       conduct      a   new

examination        of    the     person's         mental      condition            to     determine

whether discharge or supervised release would be appropriate.

Wis. Stat. § 980.07(1).                   Similar reevaluations follow annually

after the first year.                   Wis. Stat. § 980.07(1).                   Furthermore, a

person may bring a petition for discharge from commitment at any

time,      Wis.    Stat.      § 980.09(1),         and     may      file      a    petition        for

supervised release on an annual basis, Wis. Stat. § 980.08(1).

These      frequent      reevaluations            assure      that       a    person        remains
committed no longer than is necessary for treatment purposes.12

      ¶54       Nevertheless, any time spent civilly committed results

in    a    deprivation         of       liberty     for       the      person        subject        to

      12
       A 2012 DHS report regarding discharge and supervised
release from Chapter 980 commitments indicates that the 59
patients   discharged   between   2009   and   2011   experienced
commitments lasting approximately 8 to 9 years, on average.
Gina Olson, WI Chapter 980 SVP Discharge & Supervised Release
3, 8 (2012), https://www.dhs.wisconsin.gov/sites/default/files/l
egacy/SandRidge/InformationalPapers/C980Discharge1.pdf.




                                              27
                                                                    No.          2013AP2433-CR



commitment.      See State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d

115 (1995).      Despite regular reviews, the possibility undeniably

exists    that    a     person,      once     committed,       will       receive       annual

reports indicating that he or she remains a sexually violent

person and has not made sufficient progress in treatment to earn

outright    discharge         or    even     supervised       release.        As       Justice

Kennedy      described         Kansas's            civil     commitment          framework,

"Notwithstanding its civil attributes, the practical effect of

the . . . law may be to impose confinement for life."                              Kansas v.

Hendricks, 521 U.S. 346, 372 (1997) (Kennedy, J, concurring);

see also State v. Nelson, 2005 WI App 113, ¶15, 282 Wis. 2d 502,

701     N.W.2d 32       ("A        Chapter     980        commitment . . . could            be

lifelong.").

      ¶55   Accordingly,            we   acknowledge         that    civil       commitment

under     Chapter 980         is     a     severe     consequence.            Chapter 980

commitment's continued deprivation of liberty after the end of a

prison sentence makes it severe, particularly when it becomes

"potentially indefinite."                Post, 197 Wis. 2d at 314; see also
Hendricks, 521 U.S. at 364.                   Once again, however, it is not

designed or intended to be permanent.                       Chapter 980 commitment's

rehabilitative        function——"provid[ing]                care    and     treatment       to

those    with    mental       disorders      that     predispose      them        to   sexual

violence,"      Post,    197       Wis. 2d at       302——moderates         its     severity.

The rehabilitative objective at the core of commitment ensures

that commitment is not necessarily as permanent a consequence as

deportation's         banishment         would      be.       In     sum,     Chapter 980




                                              28
                                                                      No.      2013AP2433-CR



commitment, though severe, is not as uncompromisingly severe a

consequence as deportation.

                    3.     Chapter 980 Commitment Is Not Penal

       ¶56    The       rehabilitative           aspect    of   Chapter 980    commitment

also   takes       it     out    of    the    "penalty"         category.     Chapter 980

"creates      a    civil     commitment          procedure       primarily   intended      to

protect      the    public       and    to    provide      concentrated      treatment     to

convicted sexually violent persons, not to punish the sexual

offender."           State       v.    Carpenter,         197   Wis. 2d 252,      258,    541

N.W.2d 105 (1995) (emphasis added).                        "The emphasis on treatment

in ch. 980 is evident from its plain language."                              Id. at 266.

"[T]reatment is a bona fide goal of this statute . . . ."                                Post,

197 Wis. 2d at 308.

       ¶57    In     upholding         a     similar      statute    from    Kansas,      the

Supreme Court explained that "commitment under the Act does not

implicate         either    of    the      two    primary       objectives   of   criminal

punishment: retribution or deterrence."                          Hendricks, 521 U.S. at

361-62.      The Court added:

       Hendricks focuses on his confinement's potentially
       indefinite duration as evidence of the State's
       punitive intent.   That focus, however, is misplaced.
       Far from any punitive objective, the confinement's
       duration is instead linked to the stated purposes of
       the commitment, namely, to hold the person until his
       mental abnormality no longer causes him to be a threat
       to others.
Id. at 363.              The Supreme Court could not characterize civil

commitment under Chapter 980 and similar statutes as a "penalty"




                                                 29
                                                                           No.         2013AP2433-CR



without jeopardizing the now well-established constitutionality

of these statutes.

     4.    Chapter 980 Commitment Is Not an Automatic Result of the

                                    Underlying Conviction

          ¶58   Under federal law, a non-citizen convicted of certain

offenses,        like     the       drug      offense        in     Padilla,     automatically

satisfies a statutory condition that serves as the basis for

deportation.            In contrast,           a person convicted of a sexually

violent offense in Wisconsin does not automatically meet the

definition of "sexually violent person," which requires proof of

dangerousness           beyond          the    fact         of      conviction.            Indeed,

Chapter 980        requires         a    second        trial       regarding     the      person's

dangerousness and mental condition, and that trial occurs only

if the Wisconsin Department of Justice or a district attorney

petitions         for     commitment.              These           procedural      requirements

distinguish commitment under Chapter 980 from deportation under

federal law and show that even a Chapter 980 petition is not an

inevitable consequence of a conviction for a sexually violent
offense.

          ¶59   In Padilla, the Court explained that, under current

federal         law,    "if     a    noncitizen             has     committed      a     removable

offense . . . ,            his          removal        is        practically       inevitable."

Padilla, 559 U.S. at 363-64 (emphasis added).                                As we explained

in    Shata,      "[T]he      Court      meant     that       Padilla      was   automatically

deportable upon conviction, not that he would be automatically

deported."             Shata,    364       Wis. 2d 63,            ¶61.    Nevertheless,         had
immigration        officials         chosen       to    initiate         removal       proceedings


                                                  30
                                                                      No.        2013AP2433-CR



against     Padilla,      his     conviction         would    already       have     made    him

"eligible for deportation" under the federal statutes.                                Padilla,

559 U.S. at 368 (citing 8 U.S.C. § 1227(a)(2)(B)(i)).                                A person

who meets one of the "grounds of deportability under section

1227(a)" may be subject to removal proceedings under 8 U.S.C.

§ 1229a(a)(2) (2012).              To secure removal, the government "has

the burden of proving by clear and convincing evidence that, in

the case of an alien who has been admitted to the United States,

the     alien     is      deportable."               8      U.S.C.    § 1229a(c)(3)(A).

Sufficient evidence based on a conviction includes an "official

record of judgment and conviction" and an "official record of

plea,    verdict,      and      sentence,"          among    other    documents.             Id.

§ 1229a(c)(3)(B).            Though       a    person       facing    deportation           does

receive a hearing on the matter, the Supreme Court had good

reason to describe deportation as "practically inevitable" upon

conviction.       Padilla, 559 U.S. at 364.

      ¶60    An    examination        of       the       procedures     in       Chapter 980

demonstrates       that,     in     contrast,         proof     of    conviction        of    a
sexually violent offense does not alone provide a sufficient

basis for a court to determine that a person qualifies as a

sexually        violent      person       for        civil     commitment            purposes.

Chapter 980 "prescribes a detailed procedure that the State must

follow in order to commit a sexually violent person."                                State v.

Gilbert, 2012 WI 72, ¶21, 342 Wis. 2d 82, 816 N.W.2d 215.                                      A

sexually     violent      person     is       someone       convicted       of   a   sexually




                                               31
                                                               No.        2013AP2433-CR



violent offense specified under Wis. Stat. § 980.01(6)13 who also

has been determined to be "dangerous because he or she suffers

from a mental disorder that makes it likely that the person will

engage in one or more acts of sexual violence."                           Wis. Stat.

§ 980.01(7).

      ¶61    When a person convicted of a sexually violent offense

comes due for release from the confinement portion of a sentence

of   imprisonment,      the     Wisconsin       Department     of    Justice    or    a

district attorney may choose to file a petition alleging that

the person meets the definition of "sexually violent person."

Wis. Stat. § 980.02(1).           Shortly after the filing, a court must

determine     whether    probable       cause    exists   to   believe      that     the

person fits the definition.             Wis. Stat. § 980.04.          If the court

finds      probable     cause     and     orders    the      person's       continued

detention, the person will receive a trial, which may be to a

jury, to determine whether he or she is sexually violent.                          Wis.

Stat.      § 980.05(1)-(2).        The     person    enjoys     many       procedural

rights.       See, e.g., Wis. Stat. §§ 980.031, 980.034, 980.036.
Furthermore, a person will not be found a "sexually violent

person" unless the State persuades the finder of fact beyond a

reasonable doubt.       Wis. Stat. § 980.05(3).

      ¶62    In   treating      Chapter 980      commitment     as    a   collateral

consequence of conviction, the court of appeals has similarly


      13
       LeMere pleaded guilty to first-degree sexual assault of a
child under the age of 13 contrary to Wis. Stat. § 948.02(1)(e),
a sexually violent offense under Wis. Stat. § 980.01(6)(a).




                                          32
                                                         No.    2013AP2433-CR



described    how     "commitment     will       not   automatically      flow

from . . . conviction":

    Although such a commitment will require a prior
    predicate offense, [the defendant's] offense, by
    itself, will not trigger a commitment.      Rather, a
    commitment will depend on [the defendant's] condition
    at the time of the ch. 980 proceeding and the evidence
    that the State will then present on his condition. If
    the   State   were    to   initiate   such  commitment
    proceedings, [the defendant] will have the full
    benefit of the ch. 980 procedures, due process, and an
    independent trial, including the right to offer
    evidence to refute the State's charges.
Myers, 199 Wis. 2d at 394.

    ¶63     The nature of the second round of proceedings——which

require proof beyond a reasonable doubt that a person convicted

of a sexually violent offense also is a sexually violent person—

—distinguishes     Chapter 980     commitment     from   deportation.       By

virtue of his drug-trafficking conviction alone, Padilla became

deportable under federal law.             Padilla, 559 U.S. at 359 n.1

(citing 8 U.S.C. § 1227(a)(2)(B)(i)).           Mere proof of the fact of

his conviction would be sufficient for the federal government to
secure removal.      Conviction of an offense defined as sexually

violent   under    Chapter 980    does    not   similarly   bring   a   person

within the definition of "sexually violent person" by default.

Instead, the State must still prove the second element of the

definition of sexually violent person——that the person convicted

of the sexually violent offense also is "dangerous because he or

she suffers from a mental disorder that makes it likely that the

person will engage in one or more acts of sexual violence."
Wis. Stat. § 980.01(7).          Given that the state must prove not


                                     33
                                                                   No.     2013AP2433-CR



just the fact of conviction but also a degree of dangerousness,

it   is    far    from    "inevitable"      that     a    person     convicted      of   a

sexually     violent      offense    will     also       be   adjudged     a   sexually

violent person.

      ¶64    LeMere urges us to adopt the reasoning applied by the

Supreme Court of Illinois in People v. Hughes, 983 N.E.2d 439

(Ill. 2012), a decision that extended Padilla to require advice

about the possibility of commitment as a sexually violent person

under Illinois law.14           Evaluating Illinois's civil commitment

statute, the court observed that "it is certain that a person

convicted        of   a   sexually   violent         offense       is    eligible    for

commitment and the conviction alone will definitely subject the

defendant to a mandatory comprehensive evaluation for commitment

nearing the end of his prison term."                          Id. at 455 (emphasis

added).

      ¶65    We disagree with the Hughes court's analysis, which

focused on the "possibility of" or "eligibility for" commitment.

Statistics discussed in one case before our court of appeals
indicated that no more than 4.5 percent of people convicted of

sexually violent offenses are even recommended for commitment

proceedings under Chapter 980.              State v. Budd, 2007 WI App 245,




      14
       Unlike the Supreme Court of Utah, which decided Trotter,
330 P.3d 1267, on May 20, 2014, the Supreme Court of Illinois
did not have the benefit of Chaidez's February 20, 2013
assessment of Padilla when it decided Hughes on November 29,
2012, and denied rehearing on January 28, 2013.




                                         34
                                                                 No.       2013AP2433-CR



¶16, 306 Wis. 2d 167, 742 N.W.2d 887.15                  Properly considering the

"possibility"     of       Chapter 980         commitment     as       part    of        the

evaluation of whether commitment follows "automatically" from a

conviction actually demonstrates how unlikely commitment is for

the vast majority of people convicted of a sexually violent

offense.

   5.     Chapter 980 Commitment Is Not Enmeshed in the Criminal

                                        Process

     ¶66    Our evaluation of the nature of Chapter 980 commitment

further counsels in favor of the conclusion that Chapter 980

commitment is not "intimately related to the criminal process."

Padilla, 559 U.S. at 365.             To be sure, conviction of a sexually

violent    offense    is    a   precondition        to   Chapter 980       commitment.

But commitment is not an "integral part . . . of the penalty

that may be imposed" on persons convicted of sexually violent

offenses.       Padilla,        559   U.S.     at   364.         Rather,      it    is    a

rehabilitative       program     that    is    unlikely     to    affect      the    vast

majority of people convicted of qualifying offenses.                               In the
rare event that the state does pursue Chapter 980 commitment,

the state must prove the person's "dangerousness" in addition to

     15
       A recent DHS report with data through 2013 regarding
Chapter 980 commitments includes statistics similar to those
mentioned in Budd.   According to the report, the Department of
Corrections refers only 3.3 percent of eligible inmates to DHS
for possible Chapter 980 commitment.      See Deborah McCulloch,
Chapter980 Overview 19 (2014), https://www.dhs.wisconsin.gov/sit
es/default/files/legacy/SandRidge/InformationalPapers/980Overvie
w2014.pdf (indicating only 657 referrals for commitment among
19,689 eligible inmates screened by Department of Corrections).




                                          35
                                                                     No.      2013AP2433-CR



the     fact       of     the     underlying       conviction.             Though     future

eligibility for Chapter 980 commitment may be a factor that a

defendant       considers          when     contemplating        a     plea,        possible

commitment requiring proof of dangerousness beyond a reasonable

doubt is not part and parcel of a conviction or its resultant

punishment.

        6.     No Special Vulnerability or Class Status Warrants

 Particularized Consideration for Persons Convicted of Sexually

                                    Violent Offenses

      ¶67      Unlike       the    "noncitizens"      whose    interests       the     Court

considered       in      Padilla,     people   convicted       of    sexually        violent

offenses       share      no    independent    characteristic         that    provides      a

basis    for       developing       an    individualized       exception       for     them.

Noncitizens          face       deportation    as    a    consequence         of    certain

convictions because of their immigration status, a status that

precedes       any      criminal    proceedings      against     them.        Deportation

becomes      "an     integral       part . . . of        the   penalty      that     may   be

imposed" for any conviction because of the noncitizen status.
Padilla, 559 U.S. at 364.                  A certain immigration status thus

makes noncitizens uniquely vulnerable to a punitive consequence

of conviction above and beyond traditional punishments such as

confinement.

      ¶68      Persons convicted of sexually violent offenses share

no such common attribute that precedes conviction.                                  Although

some persons convicted of sexually violent offenses may have a

history of serious mental illness that could serve as the basis
for the "dangerousness" element in the Wis. Stat. § 980.01(6)


                                              36
                                                                        No.      2013AP2433-CR



definition        of       "sexually         violent       persons,"      serious      mental

disorder is not a prerequisite for conviction of a sexually

violent        offense.          The   absence       of    a   common    precondition       for

eligibility for Chapter 980 commitment reinforces the conclusion

that an exception would be inappropriate.

                                       IV.    Conclusion

      ¶69       Padilla specifically brought advice about the unique

consequence           of       deportation      within         the    Sixth      Amendment's

guarantee of effective assistance of counsel.                                 We decline to

create     a    similar        exception      for    Chapter 980        civil    commitment.

Chapter 980 commitment is a collateral consequence of a plea

resulting in conviction of a sexually violent offense.                                 Myers,

199   Wis. 2d at           394.        The   Sixth        Amendment     does    not   require

defense counsel to inform a client about the possibility of

civil commitment.              To reach this conclusion, we rely on the many

factors        that     differentiate          the        possibility     of     Chapter 980

commitment from the unique consequence of deportation.

      ¶70       We are mindful of defendants' reasonable desires to
make informed choices about the consequences of any plea they

might make.        Certainly, the best practice for defense counsel is

to discuss with the defendant any consequences of a plea that

will have a meaningful impact on the defendant's decision to

accept or reject a plea agreement.                             But the Sixth Amendment

makes no guarantee of perfect advocacy, Maryland v. Kulbicki,

136   S.    Ct.    2,      5    (2015)   (per       curiam)     (citing       Yardborough    v.

Gentry, 540 U.S. 1, 8 (2003) (per curiam)), and a best practice




                                                37
                                                          No.        2013AP2433-CR



does not rise to the level of implicating the constitutional

interest set forth in Padilla.

      ¶71    Therefore, we conclude that LeMere's assertion that

his counsel never informed him about the possibility of civil

commitment under Chapter 980 does not form the basis for a claim

of   ineffective     assistance   of   counsel.        Consequently,      LeMere

cannot withdraw his guilty plea.

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

affirmed.

      ¶72    Rebecca G. Bradley, J., did not participate.




                                       38
                                                                No. 2013AP2433-CR.awb




      ¶73   ANN WALSH BRADLEY, J.               (dissenting).          I agree that

the criminal conduct described by the majority is heinous.                         If

we were called upon as a court to condemn such conduct, I am

confident    that     there       would        be    immediate     and     unanimous

condemnation.1

      ¶74   Our task in this review, however, is not to assess the

defendant's conduct.        Rather, we are called upon to analyze and

apply a rule of law.

      ¶75   At   issue     is    whether       LeMere's      counsel    should   have

advised him that he is automatically eligible for involuntary,

indefinite civil commitment after serving his criminal sentence.

The   precise    issue     is    whether       the   Sixth    Amendment    requires

defense counsel to inform a client about the possibility of

civil commitment, under Wis. Stat. Chapter 980, when the client

enters a plea to a qualifying sexually violent offense.

      ¶76   The majority concludes that "LeMere's assertion that

his counsel never informed him about the possibility of civil
commitment under Chapter 980 does not form the basis for a claim

of ineffective assistance of counsel."                Majority op., ¶71.

      ¶77   In   reaching       its    conclusion,     the     majority    fails   to

recognize   that    like    the       deportation    consequences       analyzed   in

      1
       LeMere pleaded 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).   Majority op., ¶13.    He was
sentenced to thirty years of initial confinement, followed by
fifteen years of extended supervision.   Id., ¶17.   A "sexually
violent offense" that qualifies a defendant for Chapter 980
commitment includes any crime specified in Wis. Stat. 948.02(1).
See Wis. Stat. § 980.01(6)(a).

                                           1
                                                              No. 2013AP2433-CR.awb


Padilla    v.     Kentucky,    559    U.S.    356    (2010),    a   Chapter    980

commitment is a particularly severe and automatic penalty of a

guilty plea that is closely connected to the criminal process.

Its elimination of procedural protections results in indefinite

and even permanent civil commitment.                And like deportation, upon

entry of a guilty plea there is automatic eligibility for this

severe consequence.

    ¶78        Contrary to the majority, I conclude that the Sixth

Amendment requires counsel to advise a client of the consequence

of Chapter 980 commitment.           I would reverse the court of appeals

and remand to the circuit court for an evidentiary hearing.2

Accordingly, I respectfully dissent.

                                             I.

    ¶79        The Sixth Amendment to the United States Constitution

guarantees a criminal defendant the right to the assistance of

counsel.       This right has been interpreted to mean a defendant is

entitled to the effective assistance of competent counsel.                     See,

e.g., Strickland v. Washington, 466 U.S. 668, 686 (1984).                      The
right     to    effective     assistance     of     counsel    extends    to   the

negotiation of a plea agreement.             Hill v. Lockhart, 474 U.S. 52,

57 (1985).        Effective assistance of counsel requires that the



    2
       Pursuant to State v. Machner, 92 Wis. 2d 797, 804, 285
N.W.2d 905 (Ct. App. 1979), a defendant alleging ineffective
assistance of counsel is entitled to an evidentiary hearing
where trial counsel will testify. The circuit court determines
if trial counsel provided ineffective assistance of counsel, and
if so, whether it was prejudicial.           See Strickland v.
Washington, 466 U.S. 668, 687 (1984).


                                        2
                                                              No. 2013AP2433-CR.awb


defendant be provided sufficient information upon which to make

a knowing and intelligent plea.             See id. at 56.

       ¶80   Prior to Padilla, courts "almost unanimously concluded

that the Sixth Amendment does not require attorneys to inform

their      clients   of    a   conviction's         collateral       consequences,

including deportation."        Chaidez v. U.S., 133 S. Ct. 1103, 1109

(2013).      Defense counsel's only obligation was to advise clients

of direct consequences of conviction.3              Id.

       ¶81   Padilla,     however,    presented      a    paradigm    shift.    In

Padilla, the Supreme Court determined that the Sixth Amendment

requires counsel to provide advice to a criminal defendant about

the risk of deportation arising from a guilty plea.                   559 U.S. at

366.

       ¶82   Although       Padilla         did      not       eliminate       the

collateral/direct       consequence test generally, it rejected the

application, concluding that deportation's close connection to

the criminal process makes it uniquely difficult to classify as

either a direct or collateral consequence.                  Id. at 365-66; see
also Chaidez, 133 S. Ct. at 1112.                 The Padilla court explained

that deportation, although technically a civil proceeding, is a

particularly severe penalty and that eligibility for deportation



       3
       Typically, a collateral consequence is indirect, does not
automatically flow from the conviction, and may depend on the
subsequent conduct of a defendant. State v. Brown, 2004 WI App
179, ¶7, 276 Wis. 2d 559, 687 N.W.2d 543. In contrast, a direct
consequence of a plea 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.

                                        3
                                                                No. 2013AP2433-CR.awb


is nearly automatic for non-citizen offenders.                      559 U.S. at 365-

66.

      ¶83   Following     Padilla's      analysis,         we       examine     whether

Chapter 980's close connection to the criminal process makes it

uniquely difficult to apply a collateral-direct analysis.                         As in

Padilla,    the    determination    rests      on    an     examination         of    the

severity of the penalty and the nearly automatic eligibility for

deportation.

                                      II.

      ¶84   The    majority     concludes     that    the       consequence          of    a

Chapter     980    commitment    "does       not    rise     to      the      level       of

implicating the constitutional interest set forth in Padilla."

Majority op., ¶70.         In its effort to distinguish involuntary

civil commitment from deportation, the majority contends that

"LeMere overstates, to a degree, the severity of Chapter 980

commitment."       Majority op., ¶52.

      ¶85   Before embarking on a legal analysis of the severity

of the consequence of Chapter 980 commitment, I pause to observe
that this is not merely a matter of legal analysis, it is also

one of common sense.          The Sixth Amendment guarantees the right

to effective assistance of counsel.                 To be effective, counsel

must provide sufficient information to enable the defendant to

make a knowing and intelligent plea.

      ¶86   When    assessing    whether     to    accept       a   plea   agreement,

would a defendant want to be informed that upon entering the

plea, he faces the consequence of a possible lifetime civil
commitment after serving his criminal sentence?                     Of course!

                                         4
                                                                 No. 2013AP2433-CR.awb


       ¶87   I     agree   with    the     sentiment      expressed      by    Justice

Gableman     at    oral    argument      that    the   severity    of    Chapter     980

commitment is essentially a given here.                    In transitioning the

focus from the severity inquiry to the automatic eligibility

part of the analysis, he commented:

       Justice Gableman: "The part of this case that jumps
       out to me is not the severity of the possible
       consequence.   I don’t think anyone could argue about
       the severe restrictions on the liberty of the person
       committed under Chapter 980.
       ¶88   Nevertheless, the majority endeavors to persuade the

reader that Chapter 980 consequences are really not all that

severe.      Relying on the procedural protections of Chapter 980

proceedings, the majority determines that Chapter 980 commitment

is not as severe a penalty as deportation because the commitment

is not necessarily permanent and does not always last for a

lifetime.        Majority op., ¶55.

                                          III.

       ¶89   The    majority      errs    in    its    attempt    to    minimize     the

severity of a Chapter 980 commitment.                     Not only does it run

afoul of common sense, it turns a blind eye to the parallel

punitive trajectories of deportation and Chapter 980 commitment.

In both, important procedural protections under the statute have

been   eliminated.          Similarly,      the    consequences        for    both   are

severe, and may even last for a lifetime.

       ¶90   As we saw in Padilla, the elimination of procedural

protections may heighten the severity of a civil proceeding to

such an extent that counsel has an obligation under the Sixth
Amendment to advise a client about the consequences of a guilty

                                           5
                                                                     No. 2013AP2433-CR.awb


plea.    Just as the legislature eliminated important procedural

protections from Chapter 980, important procedural protections

that    minimized     the    risk    of   deportation         were     eliminated    from

federal immigration law.            See Padilla, 559 U.S. at 360-64.

       ¶91   In    the   past,      federal      immigration         law   "included    a

critically important procedural protection to minimize the risk

of unjust deportation."              Id. at 361.             Under prior law, the

sentencing judge in both state and federal prosecutions had the

power to make a recommendation against deportation.                           Id.    This

procedure, known as judicial recommendation against deportation

("JRAD") was eliminated in 1990.                  Id. at 362-63.           In 1996, the

Attorney General's authority to grant discretionary relief from

deportation was also eliminated.                 Id. at 363.         The Padilla court

explained,        "[t]hese    changes       to     our       immigration      law    have

dramatically       raised     the    stakes       of     a   noncitizen's       criminal

conviction."       Id. at 364.

       ¶92   Similarly,       over    the       years,       "the     legislature     has

steadily chipped away at those aspects of chapter 980 upon which
we relied in determining that the statute was constitutional."

In re Commitment of West, 2011 WI 83, ¶123, 336 Wis. 2d 578, 800

N.W.2d 929 (Bradley, J., dissenting).                    As previously explained,

the elimination of important procedural protections from Chapter

980 has made it easier to commit an individual, the nature of

the commitment is now more restrictive, and the duration of

institutionalization is longer.                 Id.    Accordingly, "chapter 980

increasingly resembles a punitive scheme."                    Id., ¶129.



                                            6
                                                                  No. 2013AP2433-CR.awb


       ¶93     It is now easier to commit an individual under Chapter

980 than in the past because a jury must conclude only that it

is     "likely"    an   individual         will   engage     in    acts       of    sexual

violence.       Wis. Stat. § 980.01(7) (2013-14).                  When Chapter 980

was    first     enacted,     a    jury    was    required    to       find    beyond     a

reasonable doubt that it was "substantially probable that the

person will engage in acts of sexual violence."                               Wis. Stat.

§ 980.01(7) (1993-94).

       ¶94     Additionally, the nature of the commitment has become

more restrictive.           When Chapter 980 was enacted, a commitment

order    could     specify    "institutional        care     in    a    secure      mental

health unit or facility . . . or other facility or supervised

release."       Wis. Stat. § 980.06(2)(b) (1993–94).                    The nature of

the commitment is more restrictive today because the requirement

that     the    Department        of   Health     Services    ("DHS")         commit     an

individual        in    the       "least    restrictive       manner"         has       been

eliminated.        Now, a commitment order "shall specify that the

person be placed in           institutional care," and the DHS "shall
place a person committed under s. 980.06 at the secure mental

health facility."        Wis. Stat. §§ 980.06, 980.065(1m) (2013-14).

       ¶95     Today,   the   duration       of   institutionalization             at   the

outset is also longer because reexamination need not occur until

twelve months after initial confinement.                   Wis. Stat. § 980.07(1)

(2013-14).        When the statute was first enacted, DHS was required

to reexamine committed persons "within 6 months after an initial

commitment."        Wis. Stat. § 980.07(1) (1993–94).                  The erosion of
procedural protections has raised the stakes of a defendant's

                                            7
                                                                       No. 2013AP2433-CR.awb


guilty     plea    as    the    length       of       commitment      and    the    number      of

individuals committed continue to increase.

       ¶96     Historical       data    on    Chapter         980    indicates          that   the

number of individuals committed under the statute has grown well

beyond expectation.             When Chapter 980 was enacted in 1994, it

was "[a]nticipated at the time of adoption that the program

would be small."          Deborah McCulloch, Sand Ridge Secure Treatment

Center: History of Chapter 980 at 14.4                              After implementation,

however, "commitment rates significantly exceeded expectations."

Id. at 15.         By 2001, Sand Ridge Secure Treatment Center, the

entity     responsible         for    detaining         individuals         committed      under

Chapter 980, opened a $39 million facility with another $22

million expansion planned in 2009.                      Id. at 10.

       ¶97     Not only have commitment rates exceeded expectations,

but    statistical        data       indicates         that    individuals         have        been

subject to indefinite and even lifetime commitment under Chapter

980.       In 2004, ten years after Chapter 980 was enacted, the

author       of   Sand    Ridge's        informational            paper      on    recidivism
acknowledged       that    "[t]o       date   comparatively           few     patients         have

been released...."             David Thornton, Sand Ridge Secure Treatment

Center, Wisconsin Dep't of Health Servs., Projecting the Amount

of    Sexual      Recidivism         Prevented         by   the     Chapter       980    Program




       4
       Available   at:       https://www.dhs.wisconsin.gov/sites/
default/files/legacy/SandRidge/InformationalPapers/980Overview20
14.pdf.


                                                  8
                                                                   No. 2013AP2433-CR.awb


(Wisconsin's Civil Commitment for Sex Offenders) at 1.5                            A later

study released in 2013 reported that 24 people were discharged

"due to death."         See State of Wisconsin Department of Health

Services,    Supervised         Release           Placements      and        Expenditures,

Legislative Audit Bureau Report 13-12, 13 (Aug. 2013).6                            For the

24 people discharged due to death, Chapter 980 commitment was

indeed permanent.

                                            IV.

    ¶98     The majority attempts next to distinguish Chapter 980

commitment   from      deportation          by     arguing     that     it    is    not    as

"automatic" as deportation.            Majority op., ¶¶58-65.

    ¶99     It   contends      that    the        consequence     of    deportation         is

automatic because "if a noncitizen has committed a removable

offense . . ., his removal is practically inevitable."                             Id., ¶59

(citing Padilla 559 U.S. at 363-64).                   In contrast, the majority

alleges   that    "a    Chapter       980    petition        is   not    an    inevitable

consequence of a conviction for a sexually violent offense."

Majority op., ¶58.
    ¶100 Reaching        its    conclusion,          the     majority        ignores      this

court's interpretation of Padilla discussed in an opinion issued

just last term.        The court in State v. Shata, 2015 WI 74, ¶101,

364 Wis. 2d 63, 868 N.W.2d 93, concluded that Padilla did not


    5
       Available   at:       https://www.dhs.wisconsin.gov/sites/
default/files/legacy/SandRidge/InformationalPapers/PROJECTINGTHE
AMOUNTOFRECIDIVISMSAVEDBYTHE980PROGRAMSeptember2004Version.pdf.
    6
       Available at:           http://legis.wisconsin.gov/lab/reports/13-
12full.pdf.


                                             9
                                                                      No. 2013AP2433-CR.awb


require Shata's attorney to tell him that his conviction would

absolutely result in deportation.                        Instead, Shata interpreted

Padilla         to   mean     that    counsel      was    required         to    advise           the

defendant that he was eligible for deportation.

       ¶101 Shata           stated     "[a]lthough        a      controlled           substance

conviction makes an alien 'deportable,' such a conviction will

not necessarily result in deportation."7                           Id., ¶59 (internal

citation omitted).             "Thus, the Court meant that Padilla clearly

was    deportable          under     that immigration           statute,        not    that        he

clearly would be deported."                Id., ¶61 (citing Com. V. Escobar,

70 A.3d 838, 842 (Pa. 2013)).

       ¶102 Likewise, the majority disregards an essential part of

Chaidez      that      further     explains     the      holding      in   Padilla           as    it

relates      to      the    automatic    nature     of    the     consequence.          Chaidez

clarified that "[i]n Padilla v. Kentucky, this Court held that

the     Sixth        Amendment       requires      an    attorney       for      a     criminal

defendant            to      provide      advice          about         the           risk         of

deportation arising from a guilty plea."                        Chaidez, 133 S. Ct. at
1105       (internal       citation     omitted).          In    case      there       was        any

question about its holding in Padilla, the United States Supreme

Court      in    Chaidez      again    emphasized        that    it   was       the     risk       of

deportation that was the automatic consequence:

       While Chaidez's             petition was pending, this Court
       decided Padilla.            Our ruling vindicated Chaidez's view

       7
       The term "alien" is used here because I                              quote directly
from Shata. As the Sixth Circuit recognized in                              Flores v. U.S.
Citizenship and Immigration Services, 718 F.3d                              548, 551 n.1.
(6th Circuit 2013), using the term "alien" to                              refer to other
human beings may be "offensive and demeaning."

                                              10
                                                                    No. 2013AP2433-CR.awb

    of the Sixth Amendment: We held that criminal defense
    attorneys must inform non-citizen clients of the risks
    of deportation arising from guilty pleas.

Chaidez, 133 S. Ct. at 1106.

    ¶103 Consequently, the correct focus for our analysis here

is the risk of automatic eligibility for Chapter 980 commitment,

rather than whether commitment itself is automatic.                          Eligibility

for commitment was the focus employed in People v. Hughes, 983

N.E.2d 439 (Ill. 2012), which is particularly instructive here

because     it     analyzed       the    very    issues        we   now     confront      in

Wisconsin.

    ¶104 In Hughes, the Illinois Supreme Court concluded "that

defense counsel has a minimal duty to advise a defendant who

pleads guilty to a triggering offense subject to the provision

of the Sexually Violent Persons Commitment Act that he will be

evaluated        for    and   may       risk     involuntary        commitment       after

completing his prison term."                Id. at 457.         As the Hughes court

explained, "it is certain that a person convicted of a sexually

violent offense is eligible for commitment and the conviction
alone   will      definitely      subject       the    defendant      to    a    mandatory

comprehensive evaluation for commitment nearing the end of his

prison term."          Id. at 455.

    ¶105 Ignoring          our    analysis       in    Shata    and   the       holding    in

Chaidez,     the       majority     casts       away    Hughes,       explaining:         "We

disagree with the Hughes court's analysis, which focused on the

'possibility of' or 'eligibility for' commitment.                               Statistics

discussed in one case before our court of appeals indicated that
no more than 4.5 percent of people convicted of sexually violent

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offenses are even recommended for commitment proceedings under

Chapter 980."      Majority op., ¶65 (citing State v. Budd, 2007 WI

App 245, ¶16, 306 Wis. 2d 167, 742 N.W.2d 887).

      ¶106 However,         the       majority          presents         no      supporting

statistics      with   respect       to   deportation.            In    fact,     as   Shata

explained    in   detail,      the    United       States       cannot    and     does   not

remove    all     persons      who        might     be    deportable.              Due   to

prosecutorial discretion, limited resources and the government's

removal priorities, there are avenues for non-citizens to avoid

deportation.       Shata, 364 Wis. 2d 63, ¶60 (citing Jeh Charles

Johnson, Policies for the Apprehension, Detention and Removal of

Undocumented Immigrants, at 2 (Nov. 20, 2014).8

      ¶107 Given reduced procedural protections, indefinite and

even permanent commitment, as well as automatic eligibility for

Chapter     980   commitment,         I    determine        that       Chapter     980    is

analogous to deportation.             It is a uniquely severe and automatic

consequence of a criminal plea that is closely connected to the

criminal process.
      ¶108 Accordingly, I conclude that under Padilla, the Sixth

Amendment required counsel to advise LeMere that upon entering a

plea, he was subject to Chapter 980 consequences.                             In assessing

whether to accept the plea, LeMere should have been informed by

his   counsel     that    by      entering        the    plea     he     could    face    an

involuntary——and         possible         lifetime       civil         commitment——after

completing his criminal sentence.


      8
       Available at:      http://www.dhs.gov/sites/default/files/
publications/14_1120_memo_prosecutorial_discretion.pdf.

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                                             V.

      ¶109 Although           the    majority         concludes        that         the     Sixth

Amendment       does    not     require      counsel         to    advise       a    defendant

regarding Chapter 980 commitment, it recommends that it would be

the     best    practice       for     counsel        to     discuss      any       meaningful

consequence of a plea.              Majority op., ¶70.

      ¶110 Most        criminal      cases      are    now    resolved        by     the     plea

process.        Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).                                  In

Frye,     the    Unites       States     Supreme           Court    emphasized            defense

counsel's       important      duties     and      responsibilities           in     the     plea

process.       Id.     The Frye court explained that 94 percent of state

convictions       are    resolved      with       a   guilty       plea    and      that    "the

negotiation of a plea bargain, rather than the unfolding of a

trial, is almost always the critical point for a defendant."

Id.

      ¶111 Hughes,        982       N.E.2d    at      453,    is    consistent            with    a

growing     national      movement        toward       providing          defendants         more




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information     about    the    collateral       consequences    of    conviction.9

See generally, Symposium Issue:                Beyond the Sentence: Collateral

Consequences of Conviction, 2015 Wis. L. Rev. 181-420 (2015).10

For example, the American Bar Association (ABA has assembled a

tool by which lawyers and defendants can easily search potential

collateral consequences by state and offense type.11

     ¶112 In contrast to the majority, I would follow Hughes and

conclude    that   under       Padilla,        the   Sixth    Amendment    requires

counsel    to   advise    a    client   regarding       the    consequence    of   a

Chapter 980 commitment.         Accordingly, I respectfully dissent.




     9
       According to the Hughes court, "in recent years several
scholars and commentators have brought to light potential
problems    inherent   in    a   rigid   categorical    system   of
distinguishing between direct and collateral consequences,
especially in the Sixth Amendment context, given this new
landscape and the framework for analyzing claims of ineffective
assistance."    People v. Hughes, 983 N.E.2d 439, 543-44 (Ill.
2012) (citing McGregor Smyth, From “Collateral” to “Integral”:
The Seismic Evolution of Padilla v. Kentucky and Its Impact on
Penalties Beyond Deportation, 54 How. L.J. 795 (2011); Gabriel
J. Chin & Margaret Love, Status as Punishment: A Critical Guide
to Padilla v. Kentucky, 25 Crim. Just. 21, 27–28 (2010); Jenny
Roberts,     Ignorance    Is    Effectively   Bliss:     Collateral
Consequences, Silence, and Misinformation in the Guilty–Plea
Process, 95 Iowa L. Rev. 119, 124–25 (2009); Jenny Roberts, The
Mythical Divide Between Collateral and Direct Consequences of
Criminal   Convictions:    Involuntary  Commitment   of   “Sexually
Violent Predators”, 93 Minn. L. Rev. 670, 673–77 (2008); Gabriel
J. Chin & Richard W. Holmes, Jr., Effective Assistance of
Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev.
697, 701-02, 712-13 (2002)).
     10
          Available at:        http://wisconsinlawreview.org/volume-2015-
no-2/.
     11
       See   Am.   Bar   Ass’n,  ABA   Collateral                     Consequences,
http://www.abacollateralconsequences.org/.

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    ¶113 I   am   authorized   to   state   that   Justice   SHIRLEY   S.

ABRAHAMSON joins this dissent.




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