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Sex Offender Registration: Out-of-State Convictions – “Misdemeanor Treatment,” § 301.45(6)(a)2

State v. Yancy D. Freland, 2011 WI App 80 (recommended for publication); for Freland: Michael D. Zell; case activity

Conviction for an out-of-state sex offense comparable to a misdemeanor in Wisconsin will be treated as a misdemeanor for sex offender registration purposes, § 301.45(6).

¶12      Wisconsin Stat. § 301.45(1d)(am)1. specifically defines has been “[f]ound to have committed a sex offense by another jurisdiction” to include a person who has been convicted “for a violation of a law of another state that is comparable to a sex offense.”[7] Taken as a whole, the language of § 301.45 evidences a legislative intent to include out-of-state sex offenses.  By its express language, § 301.45(1g) includes only those out-of-state offenses that are “comparable to a [Wisconsin] sex offense.” 

¶13      Based upon this legislative intent, we interpret Wis. Stat. § 301.45(6)(a)2. to include out-of-state misdemeanors that are “comparable to a sex offense.”  See § 301.45(1d)(am)1.[8]

How do you tell if a foreign offense is “comparable” to one in Wisconsin? The court notes that the question has been discussed in other contexts: State v. Campbell, 2002 WI App 20, 250 Wis. 2d 238, 642 N.W.2d 230 (felon-in-possession); and  State v. Collins, 2002 WI App 177, 256 Wis. 2d 697, 649 N.W.2d 325 (persistent repeater). This line of authority allows a court to look at the particular “conduct” underlying a foreign conviction, as well as the elements of that offense in determining whether it is comparable to a Wisconsin crime. Here, however, the record of Freland’s Minnesota sex offense conviction (Minn. Stat. § 609.3451.1) fails to recite the factual basis for guilt, an omission that limits comparison to offense elements, ¶18. The court goes on to analyze the Minnesota provision and concludes that it is comparable to fourth-degree sexual assault, § 940.225(3m) (2009-10), a misdemeanor, ¶¶19-25. (Freland, it should be noted incurred the Minnesota conviction in 2000, ¶2, but the court compares that offense to the current iteration of 4th-degree SA. Should it have been the 1999-2000 version? Turns out they’re identical, so it doesn’t really matter. But what would be the outcome if the earlier version had since been elevated to a felony?)

Plea-Withdrawal

¶28      Before a circuit court may accept a plea of guilty or no contest, the court must personally address the defendant and satisfy itself that the plea is knowing, intelligent and voluntary.  The court must “[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged.”  Wis. Stat.§ 971.08(1)(b) (2009-10).  Put another way, the court must “personally ascertain whether a factual basis exists to support the plea.”  State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986).  Whether there are “deficiencies in the plea colloquy that establish a violation of Wis. Stat. § 971.08 or other mandatory duties at a plea hearing is a question of law we review de novo.”  Brown, 293 Wis. 2d 594, ¶21.

¶29      In order for the circuit court to satisfy itself that a factual basis exists for the plea, the court must find that “‘the conduct which the defendant admits constitutes the offense charged.’”  State v. Lackershire, 2007 WI 74, ¶33, 301 Wis. 2d 418, 734 N.W.2d 23 (quoted source omitted).  “A defendant’s failure to realize that the conduct to which [he or] she pleads guilty does not fall within the offense charged is incompatible with that plea being ‘knowing’ and ‘intelligent.’”  Id., ¶35.  That is precisely Freland’s situation.

Freland pleaded guilty to felony failure to register and, as just seen, it was in fact a misdemeanor offense: therefore, a factual basis didn’t exist and the plea wasn’t knowing and intelligent, ¶30. And, given that his maximum exposure was actually 9 months, “(h)e has, therefore, been inappropriately incarcerated for a substantial period of time. Therefore, in remanding to the circuit court, we direct that the matter be concluded with great dispatch,” ¶31.

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