By Joe Kelly
MADISON, Wis. (CN) – The Wisconsin Supreme Court heard oral arguments Thursday over whether a defendant’s plea is voluntary when the trial court tells them the wrong maximum possible sentence for pleading not guilty by reason of mental illness.
Corey Fugere was charged with four counts of first-degree sexual assault of a child under the age of 12 while he was committed at Mendota Mental Health Institute in Madison.
He was committed on a prior order after having been previously found not guilty by reason of mental disease or defect, or NGI, of third-degree sexual assault.
A plea agreement was reached stipulating that Fugere would plead NGI to one count of first-degree sexual assault of a child and all other charges would be dismissed. The parties agreed that because Fugere lacked the ability to appreciate the wrongness of his conduct or conform his conduct to the requirements of the law, it was appropriate to recommend he be civilly committed for 30 years.
However, at Fugere’s plea colloquy, he was mistakenly told he could be committed for up to 60 years when the maximum commitment was 40 years. The Chippewa County Circuit Court then accepted Fugere’s NGI plea and ordered him committed for 30 years.
In his motion to withdraw his plea, Fugere argued that his plea was not entered knowingly, intelligently and voluntarily because the circuit court incorrectly told him he was facing 20 more years of civil commitment than he actually was.
The circuit court denied the motion, finding there was no requirement under law that it advise Fugere of the correct maximum commitment. The Wisconsin Court of Appeals affirmed the decision last March.
Fugere then appealed to the Wisconsin Supreme Court, arguing that the question of the circuit court’s responsibility to advise a defendant of the maximum possible commitment for an NGI plea directly impacts the court’s colloquy with that defendant.
Kathilynne Grotelueschen, an assistant public defender representing Fugere, argued Thursday that the state high court should grant Fugere his plea withdrawal because it is unconstitutional that a defendant be unaware of all the details of a plea deal.
Justice Daniel Kelly took some exception with the defense’s argument.
“What I’m having difficulty with is why the court has a responsibility to inform him of what he is demanding,” if one considers the plea deal to be a demand, Kelly said.
Grotelueschen replied, “It’s important when a defendant waives their constitutional rights that they should know the deprivations of liberty that they face, whether it’s commitment to an institution or commitment to prison.”
Arguments touched on the time disparity between the 60-year maximum commitment the circuit court mistakenly told Fugere he was facing and the correct 40-year maximum commitment.
Grotelueschen argued that “a defendant is going to defend themselves much differently if the difference in sentencing is so great.”
Assistant Attorney General Luke Berg, representing the state, argued that an NGI plea does not offer the same constitutional protections as other kinds of pleas.
“NGI commitment,” Berg said, “is not punitive. It is intended to treat the individual and protect society,” and therefore there is no deprivation of rights.
Justice Rebecca Dallet questioned the impact of mental illness on the decision-making aspect of a plea deal.
“Assuming competency,” Dallet said, “is there some impact that could be had on someone with a mental illness that due process protections should be heightened for?”
Berg argued against this by positing that Fugere was competent and that “the plea colloquy is not the only source of information for a defendant,” calling to mind the advice an attorney gives to a client.
When Justice Ann Walsh Bradley suggested, simply, that a defendant would want to know what kind of commitment they are facing, Berg made the point that the circuit court’s mistake was actually an overstatement, not an understatement, of the civil commitment Fugere could potentially face.
“The deal was better than he thought it was,” Berg argued, stating that because Fugere was told he could face 60 years, he would already be aware that he could face 40 years.
Grotelueschen closed her arguments by again arguing that commitment under an NGI plea is still a deprivation of liberty protected by due process and that the Wisconsin Supreme Court should grant Fugere his plea withdrawal.
Oral arguments lasted a little over an hour. It is unclear when the court will issue a ruling on the case.