court of appeals decision (3-judge, not recommended for publication); for Watling: Margaret A. Maroney, Shelley M. Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Sentencing – Exercise of Discretion – Sex Offender Registration
The sentencing court properly exercised discretion in requiring Watling to register as a sex offender on his conviction for 4th-degree sexual assault, ¶¶7-15.
Registration requirements are set out in § 301.45. Registration is mandatory for certain offenses enumerated in § 973.048, otherwise discretionary if the conduct was sexually motivated and registration serves public protection, ¶9; and, generally, State v. Peter R. Martel, 2003 WI 70. Watling falls in the discretionary category, and though the sentencing court’s determination was shallow (¶4: not much more than stressing age difference between Watling and victim, 46 – 14), it’s deep enough to survive deferential review, ¶¶11-14. Of particular note, though: originally charged with a mandatory-registration crime, Watling plea-bargained it down to a discretionary one, ¶15, and perhaps that weighed heavily in the balance. That, and his admitted tendency to get “nasty and promiscuous when he drinks,” id. You might think that the standard no-alcohol condition would provide adequate protection from Watling’s lubricated promiscuity but you would be wrong. Making his life as utterly difficult as possible by branding him publicly forever as a sex offender will keep him sober and even-keeled.
Separately: Watling was also convicted of non-registration offenses (bigamy and bail jumping), but reference in those convictions that he comply with the registration ordered in the sexual assault was proper, ¶¶16-20. Watling argues that “a court cannot order that a defendant comply with a condition mandated in another case if there is a specific statutory section governing when the condition may be applied,” ¶18, State v. David W. Oakley, 2000 WI 37, ¶27. Bigamy and bail jumping aren’t registration offenses, therefore registration couldn’t be ordered in those cases. The court rejects the argument, in effect limiting Oakley to its facts. Oakley, the court says, merely means that “conditions of probation should not be used as a collection device for the payment of old fines,” ¶18. Yet, there is ample authority, indeed including Oakley itself, for the broader proposition advanced by Watling that sentencing authority to order a condition of supervision fails when a specific statutory section disallows it: State v. Amato, 126 Wis.2d 212, 375 N.W.2d 75 (Ct. App. 1985) (no authority to impose cost of prosecution as condition of probation, where such item was expressly prohibited by cost statute); State v. Peter R. Martel, 2003 WI 70, ¶¶28-35 (no authority re: sex-offender registration where more specific registration statutes didn’t apply), State v. Oakley, 2000 WI 37, ¶27 (no authority re: payment of old fine given conflict with penalty scheme in § 973.07), State v. James A. Torpen, 2001 WI App 273, ¶16 (no authority re: restitution not allowed under § 973.20), State ex rel. Carl Kaminski v. Schwarz, 2001 WI 94, ¶27 (“a rule of probation imposed by a probation agent, intended to supplement court-imposed conditions of probation, may not validly contravene the directive of a statute”). Bail jumping and bigamy are not registration offenses, so what was a registration requirement doing in those judgments? This, the court says:
¶17 What the circuit court actually ordered in the bigamy and bail jumping convictions was that Watling comply with the sex offender registration mandate in the sexual assault case while on supervision for those related crimes. As the State points out, Watling was ordered to register as a sex offender for his sexual assault offenses only; the conditions in the bigamy and bail jumping cases related back to the order in the sexual assault case. There was no order to register based on his bigamy conviction or his bail jumping conviction. We also point out that the conditions for all of the cases were alike since, by virtue of the plea agreement, Watling was sentenced in all three counts at the same hearing. The conditions of extended supervision and probation in the remaining two counts were based on the same facts and the same dismissed and read-in charges we discussed above. We therefore conclude that it was reasonable and appropriate for the court to refer to the registration requirement in the sexual assault case because the condition was reasonably related to the dual purposes of extended supervision—rehabilitation and the public interest. See State v. Miller, 175 Wis. 2d 204, 208-09, 499 N.W.2d 215 (Ct. App. 1993).
OK. But that explains little. The non-registration cases imposed no registration order of their own, but instead ordered that Watling comply with the registration requirement in the sexual assault case? Isn’t that basically what Watling argues the court had no authority to do? The fact remains that Watling must register per the assault case, so as a practical matter it may not much matter whether he must also do so under the other cases. Still, the court’s analysis perplexes, though the State’s argument helps quite a bit: the challenged condition “amounted to an order that Watling obey the law. Non-compliance with a registration order is a felony. See Wis. Stat. § 301.45(6),” Resp. Br., p. 14. To an extent, the condition is superfluous — “Obey all criminal laws” always applies to supervision, and its violation is always potential ground for revocation. At the same time, precisely because it is superfluous, the condition is innocuous. But that is not really how the court approaches the problem, instead complicating it unnecessarily.
Tangent: the court is miffed at Watling’s law-flouting bigamy, ¶19. Fine. But plural marriage as a constitutionally protected right is a non-frivolous argument. It is a matter of time before someone litigates it.
Is discretionary sex offender registration ONLY ordered at time of sentencing or if not ordered at time of sentencing can it be ordered later (i.e. 15 years after sentence is imposed and the offender is still incarcerated)?