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Sex Offender Registration, § 973.048(1m): “Sexually Motivated” Conduct

State v. Willie H. Jackson, 2012 WI App 76 (recommended for publication); case activity

§ 973.048(1m) (2003-04) authorizes the sentencing court to require sex offender registration under § 301.45 for conviction of enumerated crimes, “if the court determines that the underlying conduct was sexually motivated as defined in s. 980.01(5)” and public protection would be advanced thereby. (“Sexually motivated,” as might be imagined, means that “sexual arousal or gratification” is a purpose.) Jackson was convicted of registration-eligible offenses, though they were not themselves sexual assaults; he was, however, charged with sexual assault charges which were dismissed and read-in pursuant to plea bargain. The circuit court, after conducting a hearing, determined that the offenses of conviction were sexually motivated and ordered sex offender registration, but the court of appeals now reverses, holding that the record fails to support this determination.

Because the court’s analysis is both lengthy and very fact-intensive, no attempt is made here to summarize the basis for the court’s conclusion. There are nonetheless some larger and recurrent principles worth reciting. Begin at the beginning, which as is typical, involves the standard of review. The court implies that the registration determination is a component part of sentencing, therefore reviewed deferentially, same as any “sentencing decision,” ¶7. However, “a discretionary decision based on an error of law is an erroneous exercise of discretion,” and the application of statutes to undisputed facts presents a question of law, reviewed de novo, id. As occasionally happens, these principles, dry as they are, play a key role in the outcome. On now, then, to the particular facts.

Nothing in the complaint suggested sexually motivated conduct, ¶19. The details don’t matter; just take it as given. The nub of the issue is whether the circuit court could consider the facts relevant to the read-in offenses, which occurred several days after the offenses of conviction. The court says this was improper, as a matter of law, under State v. Martel, 2003 WI 70, 262 Wis. 2d 483, 664 N.W.2d 69, which the court construes in the following way:

¶27      We take two important lessons from Martel that are helpful in addressing the circuit court’s and the State’s rationale for considering the second-degree sexual assault read-in in determining whether sex-offender registration was properly ordered here.  First, Wis. Stat. § 973.048(1m) applies only to offenses that are enumerated within the subsection.  Clearly, false imprisonment falls within this category of offenses.  However, a circuit court may exercise its discretion in ordering sex-offender registration for false imprisonment only if the two statutory criteria are met: (1) the offense must have been sexually motivated, within the meaning of Wis. Stat. § 980.01(5); and (2) registration is necessary for protection of the public.

¶28      The second and most pertinent lesson we take from Martel is that a read-in offense, including sexual assault read-ins, may not serve as a basis to order a defendant to register as a sex offender under Wis. Stat. § 973.048(1m) or (2m) because a “circuit court does not impose a sentence or place an offender on probation for offenses that are dismissed and read in.”  Martel, 262 Wis. 2d 483, ¶22.

Therefore, by deriving operative facts from the read-ins, the circuit court necessarily erred, ¶29. Again, the particulars don’t matter except to say that the record otherwise doesn’t support an inference of sexually motivated conduct, ¶¶29-34. One final point worth emphasis: the court explicitly limits discussion to the 2003-04 version of the statutes, because “the State incorrectly relied on the recently amended Wis. Stat. § 980.01(5) (2009-10).  Unlike the amended statute, § 980.01(5) (2003-04), the statute in effect at the time Jackson committed and was convicted of the subject crimes, did not include the newly added element: “for the sexual humiliation or degradation” of the victim.  We therefore discuss only the 2003-04 version of the statute,” ¶4.

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