By Joe Kelly/Courthouse News

MADISON, Wis. (CN) – A bitterly divided Wisconsin Supreme Court ruled Thursday that a judge need not tell a sex offender the length of his commitment when he pleads not guilty by reason of insanity.

Justice Annette Ziegler’s 31-page majority opinion states there was “no manifest injustice” committed when the Chippewa County Circuit Court told Corey Fugere the wrong possible sentence related to his sexual assault charge and then denied his motion to withdraw his not guilty by reason of insanity, or NGI, plea after he learned of the court’s mistake.

Siding with the circuit court, Ziegler wrote that “a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, and is not waiving any constitutional rights by so proceeding in that defense,” and “an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges.”

Fugere was charged with four counts of first-degree sexual assault of a child under the age of 12 while he was already at Mendota Mental Health Institute in Madison, having been committed previously after being found NGI of third-degree sexual assault.

The plea agreement stipulated that Fugere would plead NGI to one count of first-degree sexual assault of a child and all other charges would be dismissed, with the parties agreeing that Fugere lacked the ability to appreciate the wrongness of his conduct or conform to the requirements of law.

However, at his plea colloquy, Fugere was mistakenly told that he could be committed for up to 60 years when the maximum commitment was 40 years. The circuit court also used the term “supervision” instead of “commitment.”

Then, after the circuit court accepted Fugere’s NGI plea for 30 years of civil commitment, Fugere filed a motion to withdraw his plea arguing that it was not entered voluntarily because of the inaccurate information the circuit court gave him. The circuit court denied his motion and the state appeals court affirmed.

The Wisconsin Supreme Court affirmed the appellate court Thursday in a 4-3 ruling, two months after hearing oral arguments.

Justice Ziegler called the circuit court’s mistake “harmless.” She highlighted the significant difference between civil commitment, which is technically non-punitive, and imprisonment, and that NGI defendants to not waive any constitutional rights at the responsibility phase of an NGI proceeding.

Ziegler went on to say that the circuit court’s error “was not one which infected the plea” and that “courts are not required to inform NGI defendants of the maximum possible term of commitment if their defense succeeds.”

While she said the high court does not “condone providing misinformation regarding the civil outcome…and we caution courts to be careful to properly advise defendants,” Ziegler found no real harm in the court mistakenly overstating the maximum possible term of commitment.

“We therefore decline to exercise our superintending and administrative authority to require circuit courts to advise NGI defendants of the maximum period of civil commitment,” the ruling states.

But in her dissenting opinion, Justice Ann Walsh Bradley argued that “Fugere received only half the story” and was “deprived of essential information regarding the implications of his NGI plea.”

Bradley bucked at the notion that the fact that “the circuit court was off the mark by 20 years and incorrectly advised the defendant that he would be placed on supervision rather than confined to an institution” was harmless.

She was also unconvinced by the majority’s notion that Fugere’s assumed familiarity with the commitment process took air out of his argument.

“An experience of a prior commitment proceeding presents a slim reed upon which to rest a conclusion that a plea is knowingly, intelligently, and voluntarily made,” Bradley wrote. “But even if the majority were correct, wouldn’t the specification that he faced ‘supervision’ instead of ‘commitment’ be particularly relevant to an individual familiar with the commitment process?”

Worried about setting a precedent that would not require courts to provide NGI defendants with accurate information regarding the length and nature of the sentence they face, Bradley wrote that “under the majority’s rule, Fugere and future defendants who enter stand-alone NGI pleas can receive incomplete information regarding what could happen to them as a result of their pleas.”

Justices Shirley Abrahamson and Rebecca Dallet joined Bradley’s dissent.