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Plea negotiations are an expected part of most criminal prosecutions. However, the state Supreme Court is reviewing an appeal of a plea deal in a statutory rape case where wrong information was provided to the defendant. This case may be important not only for a sexual assault of a minor criminal defense attorney but for most defendants.

The defendant in this case was charged with four counts of first-degree assault of a child under 12-years-old and was committed to a mental health institute in Madison. This commitment was required under an earlier order in another case where he was found not guilty by reason of mental disease or defect, an NGI plea, of third-degree sexual assault.

The parties ultimately entered a plea agreement in this latest prosecution where the defendant would plead NGI to one count of first-degree sexual assault and the other charges would be dismissed. The parties also agreed that he lacked the ability to appreciate that his conduct was wrong or conform his conduct to the law and recommended civil commitment for 30 years.

However, he was erroneously informed at his plea colloquy in court that he could be committed for up to 60 years even though the maximum commitment period was 40 years. The Chippewa County Circuit Court nonetheless accepted his plea and ordered his commitment for 30 years.

He filed a motion to withdraw his plea because it was not knowingly, intelligently or voluntary entered when the court incorrectly told him he was facing commitment for an additional 20 years. The circuit court denied his motion and ruled that there was no legal requirement that it advise defendants of the correct maximum commitment. An appeals court later affirmed.

The defendant appealed to the state Supreme Court and claimed that the court's responsibility to advise a defendant of a maximum commitment for this plea directly affects its colloquy with the defendant. In oral argument earlier this month, his attorney said that the constitution requires that a defendant is aware of all the plea deal's details which also affects his criminal defense strategy. The prosecutor argued that an NGI plea does not have the same constitutional protections as other pleas and a defendant has legal advice available.

An attorney can represent rights after arrest and in plea negotiations. Legal representation helps assure that informed decisions are made in these matters.

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Kirk Obear, Attorney at Law
603 South 8th St
Sheboygan, WI 53081

Phone: 920-395-3004
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