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.
SCOW begins by clarifying the law governing a claim that counsel’s errors caused a defendant to plead guilty. The seminal SCOTUS case is Hill v. Lockhart, 474 U.S. 52 (1985). To establish ineffective assistance of counsel, the defendant must prove: (1) deficient performance, and (2) prejudice. When counsel performs deficiently in the plea process, Hill requires the defendant to prove prejudice by showing “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.'” Id. at 59.
However, SCOTUS recently clarified that there are two ways to prove prejudice when claiming IAC in connection with a guilty plea. Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958, 1964 (2017).
First, the defendant can demonstrate based on “contemporaneous evidence” that counsel’s deficient performance so offended “expressed preferences” such that the defendant would have not pleaded guilty. See id. Second, the defendant can demonstrate that the defense would have likely succeeded at trial. See id. at 1966. Opinion, ¶35.
WACDL filed an excellent amicus brief on this issue (written by Ellen and Rob Henak), which you may read here.
SCOW cites Lee with approval but did not apply it to Savage’s case because it did not have to address the prejudice. Instead, it held that Savage and the court of appeals read Dinkins incorrectly and thus clarified the limitations on its holding.
First, Dinkins held that a homeless sex offender registrant cannot be convicted of violating §301.45(6) for failing to provide the address where he will be residing when he is unable to provide that information. See §301.45(2)(d). Savage was under the supervision of the DOC and thus was subject to §301.45(2)(b), which does not contain the “unable to provide” exception. Opinion, ¶¶41-42.
Second, just before SCOW released Dinkins, the DOC issued Administrative Directive #15-12 which provided new reporting requirements for homeless registrants. This directive limits Dinkins‘ reach. Opinion, ¶43 .
Third, Savage’s case is factually distinguishable from Dinkins. Dinkins failed to provide his residence 10 days before he was released from prison. Savage failed to update DOC after he was released and his charge stemmed in part from the fact that he cut off his GPS bracelet. Opinion, ¶44.