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Does Gallion apply to a trial court’s decision to order sex offender registration?

State v. Timothy L. Landry, 2017AP1739-CR, 6/6/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Landry pled to 2 counts of 4th-degree sexual assault and was ordered to comply with §973.048(1m)(a), Wisconsin’s sex offender registry. On appeal, he argued that the trial court had not made the necessary findings or explained its decision adequately a la Gallion. He lost.

In this case, the trial court was permitted, not required, to order sex offender registration. Thus, in the exercise of its discretion, it had to find that: (1) “the underlying conduct was sexually motivated” and (2) requiring registration “would be in the interest of public protection.” Sec. 973.048(1m)(a).  The statute contains a nonexhaustive list of factors the court may consider when determining the public’s interest. Landry argued that the circuit court never made the 2 findings.

According to the court of appeals, Landry conceded that his crimes were sexually motivated so the circuit court didn’t need to make the 1st finding. Opinion ¶9. As for the 2nd finding, Landry argued that Gallion applied–that is, the court had to make a Gallion-type analysis and didn’t do it at the sentencing stage. The court of appeals did not hold that Gallion applies in the context. It held that even if it did, the trial court shored up its skimpy sentencing remarks in its postconviction decision.

¶12 In the end, Landry would like to see this court Gallionize imposition of the sex offender registry just like it has in some other contexts—most recently, in expungement. See Helmbrecht, 373 Wis. 2d 203, ¶12; see also State v. Vesper, 2018 WI App 31, ¶53, ___ Wis. 2d ___, ___ N.W.2d ___ (Hagedorn, J., concurring in part; dissenting in part) (discussing Helmbrecht among other cases and highlighting the tension between a required on-the-record explanation versus an appellate search-the-record examination). However, the crux of this case is that WIS. STAT. § 973.048(1m)(a) requires a circuit court to make two findings prior to exercising its discretion to order sex offender registration. Any way you cut it, the circuit court made those findings here, and left no doubt about its rationale during the postconviction proceedings. We see no error.

Hmmm. Is Gallion‘s requirement that courts explain their sentencing rationales a bad thing?

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