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Sex offender registration — court’s consideration of dismissed charges as part of exercise of discretion

State v. Christopher James Athas, 2012AP2151-CR, District 1, 6/11/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly considered previous sexual assault charges that had been dismissed when it was deciding whether to order Athas to register as a sex offender after his conviction for fourth degree sexual assault:

¶3        …. Whether to order sex-offender registration is part of the circuit court’s sentencing discretion. State v. Jackson, 2012 WI App 76, ¶7, 343 Wis. 2d 602, 608, 819 N.W.2d 288, 291.  Among the factors the circuit court may consider are:  “The probability that the person will commit other violations in the future.”; and “Any other factor that the court determines may be relevant to the particular case.”  § 973.048(3)(e)&(g).


¶5        A sentencing court may consider anything in the defendant’s background that is relevant to the sentencing factors, including dismissed charges and uncharged conduct. State v. Damaske, 212 Wis. 2d 169, 180, 567 N.W.2d 905, 910–911 (Ct. App. 1997) (“The case law is clear that the state can submit uncharged, unproven offenses, dismissed cases and so on all for consideration for what they are worth in terms of the Court fashioning an appropriate sentence.”) (quoting the trial-court’s assessment with approval); see also State v. Marhal, 172 Wis. 2d 491, 502–503, 493 N.W.2d 758, 763–764 (Ct. App. 1992). The circuit court determined that what it called the “similarities” between Athas’s alleged assault of his former wife was relevant to the probability that he would re-offend, which, as we have seen, is a permissible consideration. See Wis. Stat. § 973.048(3)(e). Athas has not shown that the circuit court erroneously exercised its discretion in requiring that he register as a sex offender.

Athas’s second argument–that the circuit court erred in entering an order designating how long he should remain on the registry without holding a hearing at which he could appear–is forfeited because he didn’t raise it in the trial court. (¶6).

Though Athas’s lawyer suggested the previous charges against Athas were dismissed “because they were false,” the court goes to some length to demonstrate that claim is dubious, as the dismissal came because the victim refused to consent to the release of medical records after the granting of a motion under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). (¶4). Demonstrably false allegations would not, presumably, be a proper consideration in deciding whether to order registration.

The court notes (¶3 n.2) that Doe v. Raemisch, 895 F. Supp. 2d 897, 901, 909 (E.D. Wis. 2012), reconsideration denied (1/3/13), declared the $100 fee under § 301.45(10) to be an unconstitutional ex post facto provision. The court of appeals is not bound by that decision because it is not from the Wisconsin or United States Supreme Court, State v. Felton, 2012 WI App 114, ¶8 n.3, 344 Wis. 2d 483, 824 N.W.2d 871, and in any event Athas didn’t challenge the fee.

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