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Lifetime GPS monitoring is not a “penalty” that judge must cover during plea colloquy

State v. DeAnthony K. Muldrow, 2017 WI App 47, petition for review granted 10/17/17, affirmed, 2018 WI 52; case activity (including briefs)

Muldrow tried to withdraw his plea to sexual assault charges because the circuit court did not advise him during the plea colloquy that his pleas would subject him to lifetime GPS monitoring under § 301.48. The court of appeals holds that lifetime GPS monitoring isn’t “punishment” and therefore the court wasn’t required to advise Muldrow that he’d be subject to the requirement as a consequence of his pleas.

The court of appeals first addresses the proper test for determining whether GPS monitoring is “punishment” that must be covered during a plea colloquy. The state argues that the test is whether punishment is the “fundamental purpose” of GPS monitoring, which appears to have been the approach in State v. Dugan, 193 Wis. 2d 610, 620-21, 534 N.W.2d 897 (Ct. App. 1995), and State v. Bollig, 2000 WI 67, ¶¶18-22, 232 Wis. 2d 561, 605 N.W.2d 199. Muldrow argues the court should apply the “intent-effects” test used in ex post facto cases, e.g., State v. Scruggs, 2017 WI 15, ¶¶16-17, 373 Wis. 2d 312, 891 N.W.2d 786. That test first asks whether the legislature intended GPS monitoring to be punishment; if so, the inquiry is over, but if not the inquiry moves on to whether, despite the nonpunitive intent, the effects of it are punitive.

The court says that Muldrow and the state “both advance a reasonable interpretation of the applicable case law,” but it “need not definitively decide whether the proper analysis is the intent-effects test, the ‘fundamental purpose’ approach used in Dugan, or some other iteration of the inquiry” because under either test lifetime GPS monitoring is nonpunitive. (¶23).

To apply the “fundamental purpose” test and the first step under the “intent-effects” test the court describes § 301.48 and various other restrictions on sex offenders in ch. 301 (¶¶25-34) and concludes:

¶35     This high level overview of lifetime GPS monitoring, both specifically and in its statutory context, makes clear that the primary goal of GPS monitoring is not to punish, but to protect the public. The whole design of GPS monitoring is (unsurprisingly) to monitor. The aim is to know where potentially dangerous sex offenders are and have been. The designation of various zones where subject individuals must stay, or may only enter for the purposes of passing through, are set up only if necessary and with the stated goal of protecting the public, especially children, from danger. The individuals subject to this are not all persons who have committed sexual assault against children, but those who have committed serious child sex offenses. The legal standard for terminating lifetime GPS monitoring is protecting the public from danger. And when there is no danger to Wisconsin citizens because an offender has moved out of state, lifetime GPS monitoring does not apply. All of this points to a clearly stated and obvious statutory goal: protecting the public from potentially dangerous child sex offenders. The fact that the legislature also instituted GPS monitoring for domestic abuse and harassment violations [§ 301.49] also shows the same intent—protecting the vulnerable from the dangerous. To the extent the proper test is primarily or exclusively intent-focused, lifetime GPS monitoring does not constitute punishment….

Applying the “effects” step of the “intent-effects” test, the court follows the lead of Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016), which (as discussed in more detail here) found that § 301.48 was not punitive and therefore not an invalid ex post facto law. While GPS monitoring “[w]ithout doubt” has some punitive effects (¶37), it is “predominantly non punitive in effect” (¶38) and therefore the punitive effects do not override the legislature’s intent to create a nonpunitive, civil regulatory scheme. (¶¶36-41).

The court distinguishes State v. Cole, 817 N.W.2d 497 (Mich. 2012), which held that Michigan’s lifetime electronic monitoring provision was punishment, because that statute was in the penalty sections of the criminal code and explicitly provided that lifetime electronic monitoring was part of the defendant’s “sentence” and in “addition to any other penalty.” (¶35 n.6).

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