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Defendant forfeited challenge to sex offender registration requirement

State v. Eric L. Nigl, 2014AP1876-CR, District 4, 4/30/15 (not recommended for publication); case activity (including briefs)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

¶21      …[A]t the time that Nigl was adjudicated delinquent of sexual assault in 1999, the statutes provided that he could seek relief from the automatic sex offender reporting requirements set forth in Wis. Stat. § 938.34(15m)(bm):  (1) by making a motion for the court to waive the requirements under § 938.34(15m)(bm), based on the court’s consideration of the factors in Wis. Stat. § 301.45(1m)(e); or (2) by seeking a stay of the automatic sex offender reporting requirements under Wis. Stat. § 938.34(16), also based on the circuit court’s consideration of the factors in § 301.45(1m)(e) and the seriousness of the offense.

¶22      Nigl concedes that he “never took any action to ask for the [reporting] requirement[s] to be stayed” after the dispositional order was issued under Wis. Stat. § 938.34(16). Nor does Nigl present any evidence that he moved for the reporting requirements to be waived before the dispositional order was issued under Wis. Stat. § 938.34(15m)(bm). Then-existing statutes gave Nigl a right to seek relief from the reporting requirements, both before and after the dispositional order was issued, but he did not claim either right at either time. By failing to make the timely assertion of either statutory right to relief from the automatic reporting requirements, Nigl forfeited those rights. See State v. Ndina, 2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761 N.W.2d 612 (rights that are not claimed in the circuit court are forfeited). ….

Nigl notes that State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.w.2d 1, which addressed the discretionary decision to stay the reporting requirement, was not decided until after Nigl was adjudicated. But § 938.34(16) was in existence in 1999 and, contrary to his claim, it would not have been “impossible” for a juvenile court to have properly exercised its discretion under that statute before Cesar G. was decided: “That our supreme court subsequently identified specific factors by which the circuit court was to weigh the facts before it means, at the most, that an appellate court could have concluded that the circuit court’s exercise of discretion was deficient to the extent it did not adequately take those factors into account. It does not mean that the circuit court could not have, prior to Cesar G., properly exercised the discretion that Nigl concedes it had.” (¶19).

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