On Point: 1. 301.45, sex off. registration

State v. Kayden Young, 2021AP1596-CR, 10/29/24, District III (recommended for publication); case activity

In a case recommended for publication, the Court of Appeals reversed the circuit court’s order dismissing the charge against Kayden Young for failing to comply with the sex offender registration requirements.  Where the circuit court did not require Young to register as a sex offender when it placed him on probation, but required registration when it sentenced him after revocation of probation, “that latter order controls the defendant’s requirement to comply with sex offender registration.”  (¶ 22).

State v. Savage, 2020 WI 93, 12/23/20, reversing a court of appeals opinion; case activity (including briefs).

Savage, who was homeless, claimed he received ineffective assistance of counsel when his lawyer failed to advise him that he had a defense under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787 before he pled guilty to violating the sex offender registry rule that he provide his address to the DOC. According to Savage and the court of appeals, Dinkins held that a homeless person is exempt from sex offender registration requirements.  In a unanimous opinion, SCOW reverses, holds that Dinkins did not establish that broad exemption, and thus counsel did not perform deficiently.

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

State v. D.I.G., 2019AP855, 2/5/2020, District 2 (one-judge decision; ineligible for publication); case activity

The juvenile here was found delinquent for sexual contact with his younger sister. He moved the court for a stay of registration under State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1. The court declined to stay registration, disagreeing with the expert assessment the juvenile presented. As you might expect, the court of appeals affirms this discretionary decision.

State v. George E. Savage, 2019AP90-CR, District 1, 1/22/20 (not recommended for publication), petition for review granted, 5/19/20; case activity (including briefs)

Savage pleaded guilty to violating the sex offender registry statute for not providing updated information about where he was residing. He moved to withdraw his plea, asserting his trial lawyer was ineffective for failing to advise him he had a defense to the charge under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. The circuit court rejected the claim based on an erroneous understanding of Dinkins, so it has to reassess Savage’s claim.

State v. James L. Jackson, 2020 WI App 4; case activity (including briefs)

Jackson pleaded to the crime of failing to give updated information to the sex offender registry. The information at issue was the fact that he’d created a Facebook account and email address. This ran afoul of Wis. Stat. § 301.45(2)(a)6m., which requires a registrant to turn over (among other things) the “name or number of every electronic mail account the person uses” and “the name and Internet address of every public or private Internet profile the person creates, uses, or maintains.” On appeal, he argues that this provision unconstitutionally burdens his right to engage in anonymous speech.

State v. David H. Ninnemann, 2016AP1294-CR, 12/14/2016, District 2 (1-judge decision; ineligible for publication); case activity (including briefs)

David Ninnemann appeals from sentencing after revocation of his probation. He challenges the length of his jail sentences and the court’s order that he register as a sex offender, but the court of appeals upholds both of the trial court’s discretionary decisions.

State v. Eric L. Nigl, 2014AP1876-CR, District 4, 4/30/15 (not recommended for publication); case activity (including briefs)

Nigl challenged his conviction for a sex offender registry violation by attacking the validity of the juvenile delinquency disposition that required him to register. The court of appeals holds Nigl forfeited his challenge because he could have sought a waiver or stay of the registration requirement at the time of the delinquency adjudication.

State v. William Dinkins, Sr., 2012 WI 24, affirming 2010 WI App 163; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; case activity; note: the court affirms the mandate (reversal of conviction and dismissal of charge), but “upon a different rationale,” ¶63; the net effect is, “affirmed, as modified“

Although homelessness is not in and of itself a defense to prosecution for failing to register as a sex offender, 

State v. Yancy D. Freland, 2011 WI App 80 (recommended for publication); for Freland: Michael D. Zell; case activity

Conviction for an out-of-state sex offense comparable to a misdemeanor in Wisconsin will be treated as a misdemeanor for sex offender registration purposes, § 301.45(6).

¶12      Wisconsin Stat. § 301.45(1d)(am)1. specifically defines has been “[f]ound to have committed a sex offense by another jurisdiction” to include a person who has been convicted “for a violation of a law of another state that is comparable to a sex offense.”[7] Taken as a whole,