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Circuit court was wrong about the availability of a defense to charges of violating § 301.45

State v. George E. Savage, 2019AP90-CR, District 1, 1/22/20 (not recommended for publication), petition for review granted, 5/19/20; case activity (including briefs)

Savage pleaded guilty to violating the sex offender registry statute for not providing updated information about where he was residing. He moved to withdraw his plea, asserting his trial lawyer was ineffective for failing to advise him he had a defense to the charge under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. The circuit court rejected the claim based on an erroneous understanding of Dinkins, so it has to reassess Savage’s claim.

Savage was on supervision in another case and was homeless. There was evidence he was calling his agent and the registry and “leaving messages with phone numbers, with addresses, emails which he could actually access at a library or other community centers and trying to do so.” (¶8). Savage’s trial lawyer cited this information in arguing for leniency at sentencing, but she didn’t appreciate its potential use as a basis for a defense to the charge under Dinkins—namely, that Savage made good faith efforts to comply with the law. (¶¶11, 13). The trial court didn’t appreciate it, either. Persuaded by the state’s argument against Savage’s postconviction plea withdrawal motion (¶22), the trial court held trial counsel wasn’t ineffective for failing to tell Savage he had a defense “because he did not have a defense.” (¶12).

In analyzing Dinkins, the trial court compared Savage’s circumstances—living on the street and being homeless—to Dinkins’s circumstances—being unable to report where he would live after his release from prison because he’d been unable to locate housing before his maximum release date. Relying on the supreme court’s reasoning that “a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will be residing when he was unable to provide this information,” 339 Wis. 2d 78, ¶52, the trial court interpreted Dinkins as “stand[ing] for the proposition that if it is impossible for a person to report an address because of something outside of their control like, for example, being in prison at the time, then there may be a defense.” Savage’s case was different, the court thought, because reporting the address where he would reside was not “impossible.” (¶¶20-22).

The circuit court misunderstands Dinkins:

¶23     Contrary to the trial court’s ruling, our supreme court in Dinkins did not limit its decision to situations where it was impossible for sex offender registrants to report an address because of something outside of their control such as being in prison. Rather, the court stated “we determine that the legislature anticipated that a registrant might be unable to provide the information required by the statute. Significantly, the legislature set forth an alternative procedure for monitoring the whereabouts of registrants who are unable to provide an address without imposing criminal liability.” See id., 339 Wis. 2d 78, ¶4.

¶24     The Dinkins court held, “[W]e conclude that a registrant cannot be convicted of violating [the statute] for failing to report the address at which he will be residing when he is unable to provide this information.” Id., ¶5. The Dinkins court explained that, in the context of Wis. Stat. § 301.45(2)(b)[, (c), and] (d), a registrant is “unable” to provide the required information when that information does not exist, despite the registrant’s reasonable attempt to provide it. See Dinkins, 339 Wis. 2d 78, ¶¶36-38. Pursuant to this language, the registrant must make reasonable attempts to provide the required information. See id. It need not be impossible for the registrant to report the required information because of something outside of the registrant’s control like, for example, being in prison at the time. See id., ¶¶3- 5, 46. The trial court and the State misinterpreted Dinkins.

Because the trial court’s decision denying plea withdrawal was based on an erroneous reading of Dinkins, it didn’t make any findings about other aspects of the plea withdrawal claim (i.e., whether trial counsel was deficient and Savage prejudiced (¶15)), so the case is remanded for the circuit court to do that. (¶¶27-31).

Citing State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904 N.W.2d 93, the state argued trial counsel couldn’t be deficient because whether Savage had a defense under Dinkins was not “settled law.” (¶18). This was partly based on the state’s argument about the meaning of Dinkins, which the court rejects and which means the law isn’t unsettled. (¶26). But the state also argued Savage conceded the law was not settled because Savage asked for publication in this case, saying the appeal involved “issues of law which are not settled.” (¶18). The court rejects this gambit because the state cites no authority for the proposition that a statement on publication is tantamount to a concession that the case law is unsettled for purposes of an ineffective assistance of counsel claim and does not develop an argument why such a statement is a concession for that purpose. (¶19). Appellate brief writers: forewarned is forearmed.

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