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,

 v.

Stephen LeMere,

 Defendant-Appellant-Petitioner.

FILED

MAY 20, 2016

Diane M. Fremgen

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unpublished decision of the court of appeals affirming the 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1 State v. LeMere, No. 2013AP2433-CR, unpublished order 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

¶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-yearold 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.
No. 2013AP2433-CR

3

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.]"
No. 2013AP2433-CR

4

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.
No. 2013AP2433-CR

5

¶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 
No. 2013AP2433-CR

6

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.
No. 2013AP2433-CR

7

¶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.
No. 2013AP2433-CR

8

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)
No. 2013AP2433-CR

9

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.
No. 2013AP2433-CR

10

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 
No. 2013AP2433-CR

11

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 
No. 2013AP2433-CR

12

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 
No. 2013AP2433-CR

13

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. OrtizMondragon, 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 
No. 2013AP2433-CR

14

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 
No. 2013AP2433-CR

15

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.
No. 2013AP2433-CR

16

¶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-
No. 2013AP2433-CR

17

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 chinkfree 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.").
No. 2013AP2433-CR

18

¶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 
No. 2013AP2433-CR

19

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 
No. 2013AP2433-CR

20

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)
No. 2013AP2433-CR

21

¶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 directcollateral 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 directcollateral 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)
No. 2013AP2433-CR

22

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.").
No. 2013AP2433-CR

23

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, 
No. 2013AP2433-CR

24

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 directcollateral 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.
No. 2013AP2433-CR

25

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 farreaching "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)
No. 2013AP2433-CR

26

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.
No. 2013AP2433-CR

27

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.
No. 2013AP2433-CR

28

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 
No. 2013AP2433-CR

29

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" 
No. 2013AP2433-CR

30

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 
No. 2013AP2433-CR

31

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 
No. 2013AP2433-CR

32

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).
No. 2013AP2433-CR

33

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 
No. 2013AP2433-CR

34

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.
No. 2013AP2433-CR

35

¶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).
No. 2013AP2433-CR

36

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) 
No. 2013AP2433-CR

37

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 
No. 2013AP2433-CR

38

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.
No. 2013AP2433-CR.awb 

1

¶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).
No. 2013AP2433-CR.awb 

2

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).
No. 2013AP2433-CR.awb 

3

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.
No. 2013AP2433-CR.awb 

4

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!
No. 2013AP2433-CR.awb 

5

¶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 
No. 2013AP2433-CR.awb 

6

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. 
No. 2013AP2433-CR.awb 

7

¶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 
No. 2013AP2433-CR.awb 

8

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.
No. 2013AP2433-CR.awb 

9

(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.
No. 2013AP2433-CR.awb 

10

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."
No. 2013AP2433-CR.awb 

11

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 
No. 2013AP2433-CR.awb 

12

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.
No. 2013AP2433-CR.awb 

13

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 
No. 2013AP2433-CR.awb 

14

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/.
No. 2013AP2433-CR.awb 

15

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

ABRAHAMSON joins this dissent.
No. 2013AP2433-CR.awb 

1