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Defense win! Juvenile sex offender gets new lift-of-stay hearing

State v. T.A., 2020AP1350, 12/28/21, District 3 (1-judge opinion, ineligible for publication); case activity

Tanner (16) had sex with a girl (16) after she told him to “stop.” The circuit court adjudicated him delinquent and imposed but stayed a requirement that he register as a sex offender. Subsequently, the court lifted the stay and ordered Tanner to register as a sex offender for 15 years.  The court of appeals here reverses the “lift of stay” and orders a new hearing because the circuit court relied on an inaccurate interpretation of Tanner’s J-SOAP-II score at the original hearing.

On appeal, Tanner argued that he has the same constitutional rights during the dispositional phase of a delinquency proceeding as a criminal defendant has during sentencing. State v. Coffee, 2020 WI 1, 389 Wis. 2d 627, 937 N.W.2d 579 (requiring the defendant to show (1) inaccurate information, and (2) actual reliance on it). Thus, a stay on sex offender registration must be lifted based on accurate information. Otherwise, the juvenile gets a new hearing. The State did not contest this point, so the court of appeals assumed without deciding that Tanner was correct. Opinion, ¶9.

At his postdisposition hearing, Tanner called Dr. Nick Yackovich, who testified that the DHHS’s witnesses had presented an inaccurate interpretation of Tanner’s J-SOAP-II score. The circuit court agreed but said that misinterpretation was one of many factors that it had considered and not the most significant one.

The court of appeals likewise noted the universal agreement that inaccurate information was presented at the “lift of stay” hearing. It then highlighted the circuit court’s explicit discussion of that inaccurate information. Opinion, ¶¶14-15. And it rebuffed the circuit court’s claim that it gave greater weight to other factors. Opinion, ¶17.

At the postdispostion hearing, one of the DHHS witnesses reaffirmed that Tanner’s risk assessment was moderate-to-high risk despite the inaccurate information. The court of appeals rejected that “reaffirmation” as well as the State’s harmless error arguments. Opinion, ¶¶18-19.

 

 

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