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Court properly exercised discretion in denying stay of juvenile sex offender registration

State v. Albert A., 2013AP549, District 3, 10/15/13; court of appeals decision (1-judge; ineligible for publication); case activity

Albert sought to stay juvenile sex offender registration under State v. Cesar G., 2004 WI 61, ¶40, 272 Wis. 2d 22, 682 N.W.2d 1, but the circuit court denied the request. The court discounted a psychosexual evaluator’s opinion that Albert was low risk to reoffend because the judge believed the evaluator’s opinion reflected an actuarial assessment of group, not individual, risk. (¶3). The evaluator testified at a postdisposition hearing that he didn’t rely solely on actuarial tools, but also used clinical judgment. (¶¶8-9). The court of appeals concludes the court’s partially inaccurate understanding of the evaluator’s risk assessment was harmless:

¶19     …. The record indicates the circuit court’s concern was not with how Koller [the evaluator] reached his opinion, but with Koller’s ultimate opinion that Albert had a “low risk” of reoffending. The circuit court reasoned “low risk, of course, is not nothing.” The court also considered how the particular facts of this case demonstrated a need for community protection through sex offender registry. There is no reasonable probability that any error concerning how Koller’s opinion was derived contributed to the disposition.

Nor was the circuit court’s decision based on an error of law. At disposition, the court said that Albert could be removed from the registry if he could “show over time there’s no need to stay on the registry” and that “if you go long enough they will take you off the registry if you have no problems.” (¶¶5-6). In fact, the law requires Albert to remain on the registry for 15 years after the termination of the disposition ordered, § 301.45(5)(a)1. or 2., and provides no way for him to “show … there’s no need to stay on” it before the 15 years is up. At the postdisposition hearing the court said its comments were about the 15-year termination rule. (¶10). The court of appeals accepts that explanation, concluding “[i]t is an accurate statement of the law that Albert will be taken of [sic] the registry in fifteen years if he does not commit any more sexual assault offenses.” (¶16).

One might wonder why, if the circuit court knew the law, it didn’t just say Albert could get off the registry in 15 years if he doesn’t reoffend. Vague references to “show over time” and “go long enough” suggest a lack of knowledge that there’s a set time period and evince a belief there’s some procedure available in the indefinite future for showing registration is no longer needed to protect the public.

Also, a procedural note. Albert’s claims about the circuit court’s reliance on inaccurate information rely on State v. Tiepelman, 2006 WI 66, ¶¶2-3, 291 Wis. 2d 179, 717 N.W.2d 1, which holds a criminal defendant is entitled to resentencing if the court actually relied on inaccurate information at sentencing and if the state fails to establish the error was harmless. The court of appeals assumes without deciding that the Tiepelman standard applies to juvenile disposition decisions. (¶14).

The court also rejects Albert’s argument that the circuit court failed to consider all of the relevant factors for staying registration articulated by Cesar G.–in particular, the purposes of the juvenile justice code, Albert’s young age or rehabilitation, and Albert’s progress in treatment. Reviewing the record (¶¶23-25), the court of appeals concludes “the circuit court properly considered the Cesar G. factors, and simply gave more weight to factors that would require Albert to register. That choice was completely within the circuit court’s discretion.” (¶26).

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