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No abuse of discretion in sentence or sex offender registration

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.

Ninnemann was charged with 40 counts each of exposing his genitals to a minor and lewd and lascivious behavior. He pled to five counts of the latter, an A Misdemeanor, and was put on probation. The court ordered him to register as a sex offender, as it had the discretion to do for chapter 944 offenses like lewd and lascivious behavior. Wis. Stat. § 973.048(1m)(a). To order registration for such a crime, the court must find the underlying conduct to have been sexually motivated and must also find that registration is in the interest of public protection. Id.

Ninnemann challenges both findings but the court of appeals finds ample evidence supporting both. The only non-fact-bound discussion concerns State v. Martel, 2003 WI 70, ¶2 262 Wis. 2d 483, 664 N.W.2d 69, in which the court stated that a person may not be ordered to register simply because he or she agrees to have a qualifying offense dismissed and read in. The court of appeals disagrees with Ninnemann’s contention that this also means the circuit court could not consider his 75 read-in counts in making the registration decision; in the court’s view, so long is there is a qualifying conviction, read-ins are “expected to be considered at sentencing.” (¶13, quoting State v. Sulla, 2016 WI 46, ¶33, 369 Wis. 2d 225, 880 N.W.2d 659).

Ninnemann also argues that the trial court misweighed various facts in handing down a three-year sentence, but the court of appeals is, as you might expect, not convinced to overturn this discretionary call. (¶¶19-27).

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