Legal Commentary

?We Affirm, But Only Because We Are Unable to Write a Principled Opinion Reversing?

By Eugene Volokh

That?s how State v. Neis (Wis. Ct. App. July 15) (appeal decided by one judge sitting alone), puts it. I?m not sure that the phrasing, especially the ?only,? is optimal. But I take it that the court simply means that it is bound by a precedent that it finds to be unsound. 

The issue is whether a trial court that is considering a defendant?s guilty plea (here, in a domestic violence misdemeanor case) must inform the defendant that pleading guilty would mean the defendant will lose his right to own a gun. Earlier Wisconsin decisions had held that, while a court must inform the defendant of the ?direct? consequences of a guilty plea, it need not inform him of the ?collateral? consequences, and the loss of the right to keep and bear arms is only a ?collateral? consequence. This judge is skeptical about those precedents, though he is obligated to follow them:

The distinction between direct and collateral consequences as determinative of the constitutional validity of a plea seems to be problematic. ?The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent.? State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). State v. Brown, 2006 WI 100, ¶29, 293 Wis. 2d 594, 716 N.W.2d 906, speaks of a ?full understanding of the charges against [the defendant].? A full understanding of charges against Neis would include that by pleading guilty, Neis would lose the right to possess a firearm, and would be prosecuted for a federal crime if he did so. This is a significant enough right for United States and Wisconsin citizens that we have included it in both constitutions. It is difficult to conclude that this right is nonetheless so insignificant that it is only a ?collateral? consequence of pleading guilty to a disorderly conduct charge. But that is all it is. See State v. Kosina, 226 Wis. 2d 482, 489, 595 N.W.2d 464 (Ct. App. 1999).

Full post as published by The Volokh Conspiracy on July 16, 2010 (boomark / email).