State v. Muldrow
State v. Muldrow
Opinion of the Court
f 1. DeAnthony K. Muldrow pled guilty to third-degree sexual assault and sexual assault of a child under sixteen years of age. Nothing in the plea colloquy, however, informed him of the possibility of lifetime GPS monitoring as a consequence of his conviction. Muldrow now seeks plea withdrawal as a matter of right on the grounds that lifetime GPS monitoring is a "punishment" that he must be informed of, the failure of which rendered his plea unknowing and unintelligent in violation of his
¶ 2. The precise contours of the test for what constitutes "punishment" are not clear. That said, whether the test is a "fundamental purpose" test as offered by the State or the intent-effects test as used in the ex post facto line of cases, we hold that lifetime GPS monitoring does not constitute punishment and is not a direct consequence of a defendant's plea. Because Muldrow did not need to be informed of this collateral consequence to his plea, he has not made a prima facie case that the circuit court failed to comply with Wis. Stat. § 971.08 (2015-16)
BACKGROUND
¶ 3. In 2009, Muldrow was charged with two counts of sexual assault of a child under sixteen years of age, two counts of third-degree sexual assault, and one count of felony bail jumping. In June 2010, Mul-drow pled guilty to one count of sexual assault of a child under sixteen years of age and one count of third-degree sexual assault, reducing his potential prison exposure from 106 years to 50 years. Muldrow and the State then stipulated to a deferred judgment agreement (DJA) for the sexual assault of a child count and two years in prison for the third-degree count. The circuit court adopted the joint recommendation of the parties and sentenced Muldrow according to the stipulation. It is undisputed that neither the circuit court
¶ 4. The State moved to vacate the DJA in December 2014; the court granted the State's request in April 2015 and entered judgment on the sexual assault of a child under sixteen years of age. Consistent with the parties' "joint recommendation," the court withheld sentence and imposed ten years of probation. The same day he was sentenced, Muldrow moved to withdraw his plea based on the circuit court's failure to inform him that he could be subject to lifetime GPS monitoring.
¶ 5. As Muldrow had not yet completed his sentence, the conditions of lifetime GPS monitoring had not yet been imposed.
¶ 6. Per the factual stipulations in Belleau, a person subject to lifetime GPS tracking must wear a 2.5 x 3.5 x 1.5 inch battery-powered tracking device around his or her ankle at all times for the rest of his or her life. Id. at 1090. It is a felony to tamper with the device in any way. Id. The device can never be removed —even while showering, bathing, and sleeping— sometimes causing discomfort and blistering. Id. Every twenty-four hours, the wearer must plug the device
¶ 7. The postconviction court concluded that lifetime GPS monitoring was not punishment, and therefore, not a direct consequence of Muldrow's plea. Accordingly, the court denied Muldrow's motion to withdraw his plea. Muldrow appeals.
DISCUSSION
¶ 8. Muldrow alleges he is entitled to plea withdrawal because lifetime GPS monitoring is a potential punishment of which he was not informed, and that this failure violated his due process rights. The parties agree that Muldrow's conviction subjects him to lifetime GPS monitoring and that the circuit court did not inform him of this fact. Muldrow does not challenge any other part of the plea.
Legal Background
¶ 9. When a defendant pleads guilty or no contest, he or she necessarily waives certain constitu
¶ 10. The circuit court is not required to inform a defendant of every consequence of his or her plea. Rather, the due process right undergirding a knowing and intelligent plea requires knowledge of the direct consequences of the plea. State v. Bollig, 2000 WI 6, I 16, 232 Wis. 2d 561, 605 N.W.2d 199. A direct consequence is "one that has a definite, immediate, and largely automatic effect on the range of [a] defendant’s punishment." Id. (emphasis added). A defendant does not have any due process right to be informed about collateral consequences of his or her plea. Id. A collateral consequence is "indirect" and does "not flow from the conviction."
f 11. The Wisconsin legislature has established procedures to assist the circuit court in complying with the constitutional imperatives. State v. Bangert, 131 Wis. 2d 246, 260-61, 389 N.W.2d 12 (1986). Among the requirements, a court must, "Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted." Wis. Stat. § 971.08(1)(a) (emphasis added). The Wisconsin Supreme Court has—pursuant to its superintending and administrative authority—added to and reformulated the requirements of § 971.08. Bangert, 131 Wis. 2d at 267; State v. Cross, 2010 WI 70, ¶ 16, 326 Wis. 2d 492, 786 N.W.2d 64. Regarding punishment, the court has construed the "potential punishment" requirement in § 971.08 to mean that the colloquy must establish the defendant's understanding of "the range of punishments to which he is subjecting himself by entering a plea." State v. Brown, 2006 WI 100, ¶ 35, 293 Wis. 2d 594, 716 N.W.2d 906 (emphasis added).
The Legal Test
¶ 13. Litigants before us typically agree on how to answer the question—i.e., the basic legal test—but argue its application. Here, the parties offer different legal frameworks for determining whether a consequence constitutes punishment. Muldrow suggests we use the test employed in the ex post facto line of cases to determine whether lifetime GPS monitoring is a punishment for purposes of plea withdrawal—what's known as the intent-effects test. The State disagrees. Rather, the State maintains that whether a law imposes punishment for plea withdrawal purposes depends on the "fundamental purpose" of the provision at issue.
¶ 14. It is easy to understand why Muldrow might borrow the ex post facto analytical framework. The question of whether an ex post facto violation has
(1) whether [the law in question] involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which [the law] applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Radaj, 363 Wis. 2d 633, ¶ 14 (citation omitted; alteration in original); see also Hudson, 522 U.S. at 99 (describing the factors as "useful guideposts");
¶ 15. Two principal Wisconsin cases analyze whether a consequence is punishment for purposes of plea withdrawal—Dugan and Bollig. Neither explicitly invokes the intent-effects test.
f 16. In Dugan, this court addressed whether court-ordered restitution was a punishment such that the failure to warn of it entitled the defendant to plea withdrawal. We observed at the outset that whether something is punitive is not simply an all-yes or all-no proposition; it can be both. Dugan, 193 Wis. 2d at 620. Restitution is a rehabilitative tool but without doubt also works a punitive effect "by appropriating the offender's money or property to pay the victim." Id. The real question, we said, was what is the "fundamental purpose" or "primary and fundamental goal" of the provision. Id. at 620-21.
¶ 17. Our analysis observed that the restitution provision was not in the "Penalties" section of the statutes. Id. at 621. The word "restitution" itself connotes an equitable remedy, and "does not have a punitive ring." Id. Furthermore, our prior cases and cases from other jurisdictions describe the aims of restitution as primarily rehabilitative. Id. at 621-24. Thus, we concluded the primary goal of restitution was not punishment. Id. at 620-21.
¶ 18. Our analysis in Dugan began and ended with the intent of the provision. Id. at 620-22. We briefly acknowledged the presence of punitive impacts
¶ 19. The State further points out that restitution—the very issue in Dugan—has been held to constitute punishment for ex post facto purposes by a great number of federal and state courts. This, the State contends, illustrates that the analysis for what constitutes punishment for plea withdrawal purposes is and should be different from what constitutes punishment under the ex post facto clause.
¶ 20. In Bollig, decided five years after Dugan, the Wisconsin Supreme Court considered whether mandatory sex offender registration constitutes punishment for plea withdrawal purposes. Bollig, 232 Wis. 2d 561, ¶ 15. The court began with the legislative intent behind the registration requirement. It considered the genesis of the law and described its "intention of providing community and parent notification of convicted sex offenders residing within the community." Id., ¶¶ 18-19. The "underlying intent" of the law, the court explained, was "to protect the public and assist law enforcement." Id., ¶¶ 20-21. It noted that registration statutes assist law enforcement agencies in investigation and apprehension of offenders. Id., ¶ 20. The clear goal of sex offender registration was public safety. Id., ¶ 22.
¶ 21. This did not mean, however, that there were no punitive consequences. As the defendant ar
¶ 22. Bollig's treatment of the sex offender registry could be construed as a truncated application of the intent-effects test. The court first examined the intent of the law, and then turned to its punitive effects. Of particular note, the court spoke of whether the punitive effect "overrides" the legislature's nonpunitive intent— the same language employed by the United States Supreme Court to refer to the relationship between the intent and effects prong in the ex post facto context. See Hudson, 522 U.S. at 100 (concluding that under the intent-effects test " 'only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty" (emphasis added; citation omitted)); see also Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting Hudson). On the other hand, the bulk of Bollig's analysis concerned the nonpunitive intent, and the effects were addressed only briefly. Nor did the court cite the list of factors ordinarily used under the intent-effects line of cases, or otherwise reference those cases. Bollig also did not withdraw any language from or cast doubt upon the plea withdrawal analysis in Dugan.
Is Lifetime GPS Monitoring Punishment?
¶ 24. This brings us to the first part of our analysis: whether the "fundamental purpose" or "intent" of lifetime GPS monitoring is punitive. We begin with an analysis of the provision's statutory text, context, and structure.
f 25. Lifetime GPS monitoring is found in Wis. Stat. ch. 301 governing corrections, not in the criminal penalties chapters of the statutes. Dugan, 193 Wis. 2d at 620-22 (looking to the statutory placement of the consequence). It also follows several other provisions dealing with sex offenders that appear to have similar goals.
¶ 26. Wisconsin Stat. § 301.45 places annual registration requirements on sex offenders, and orders the Department of Corrections (DOC) to obtain and maintain certain highly personal information, including addresses at which the person will be residing (§ 301.45(2), (5)), every email account, internet user name, public or private internet profile, or internet site
¶ 27. Wisconsin Stat. § 301.46 governs information about registered sex offenders, and makes some information available to certain organizations, generally focused on law enforcement, health organizations, or other organizations "in the interest of protecting the public." Sec. 301.46(4)(a)(14).
¶ 28. Wisconsin. Stat. § 301.47 prohibits registered sex offenders from changing their names. And Wis. Stat. § 301.475 prohibits sex offenders from entering school grounds without authorization. See § 301.475(1).
¶ 29. Following these provisions, Wis. Stat. § 301.48 was created and is entitled, "Global positioning system tracking and residency requirements for certain sex offenders." Thus, lifetime GPS tracking must be seen in its statutory context as an additional public safety measure and limitation on some sex offenders. GPS tracking does not apply to everyone. Rather it is aimed primarily at those who have committed, in the legislature's words, a "serious child sex offense." Sec. 301.48(l)(e) & (2). DOC is also given authority to impose GPS tracking on certain individuals following a risk assessment. Sec. 301.48(2g).
¶ 31. Despite the locution "lifetime," the legislature has established a procedure that enables offenders to seek the termination of lifetime GPS tracking after twenty years. Wis. Stat. § 301.48(6). The process includes examination by a psychiatrist or psychologist to determine if the person "is a danger to the public." Sec. 301.48(6)(e). DOC then makes a recommendation to the court as to whether in its view lifetime GPS tracking "is still necessary to protect the public." Sec. 301.48(6)(f). Following the filing of this and other information, the court conducts a hearing to determine, once again, "whether lifetime tracking should be continued because the person who filed the petition is a danger to the public." Sec. 301.48(6)(g). The court may grant the petition to terminate lifetime tracking if it "is no longer necessary to protect the public." Sec. 301.48(6)(h).
¶ 33. Finally, the legislature provided that tracking terminates if the person moves out of the state. Wis. Stat. § 301.48(7m). Thus, lifetime tracking does not necessarily follow an offender forever; he or she may move out of state and escape this restriction altogether where, presumably, the person is no longer a danger to Wisconsin citizens.
¶ 34. Although not applicable to Muldrow, in the section immediately following lifetime GPS tracking for certain sex offenders, the legislature also authorized DOC to conduct GPS tracking for persons who violate orders or injunctions related to domestic abuse under Wis. Stat. § 813.12 and harassment under Wis. Stat. § 813.125. Wis. Stat. § 301.49. Although this is not lifetime tracking, the structure is substantially similar, and similarly aimed at the safety of petitioners who sought the order or injunction.
¶ 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
¶ 36. To the extent the test requires an analysis of effects as well, we press on. We do not think the punitive effects of GPS tracking are so onerous as to "transform what has been denominated a civil remedy into a criminal penalty," or—to use Bollig's parlance—
¶ 37. Without doubt, several factors indicate some punitive effect. Under the first factor, lifetime GPS monitoring, particularly with its potential inclusion and exclusion zones, involves an affirmative disability or restraint. It also will no doubt—because of its severity—serve a deterrent effect (factor four). See Belleau, 811 F.3d at 943 (Flaum, J., concurring) (noting that "[a]ny number of governmental programs might deter crime without imposing punishment" (citation omitted)). And, as already discussed, the statute applies to conduct (serious child sex offenses) that is already a crime (factor five), "suggesting that the [statute] has the effect of punishing criminal behavior." See Scruggs, 373 Wis. 2d 312, ¶ 43.
¶ 38. However, the remaining factors indicate the GPS statute is predominantly nonpunitive in effect. With regard to the second factor, GPS tracking is not similar to historical forms of punishment like public shaming. It is possible that people may notice the ankle monitor and come to negative conclusions about Muldrow or harass him. But this is hardly comparable to the historic public shaming, which was
¶ 39. The final Mendoza-Martinez factor queries whether the statute is excessive in relation to its purpose to protect the public. This—and really all of the factors—is aimed at the main question of assessing the practical effects of lifetime GPS monitoring versus its purpose. Without question, such monitoring imposes substantial burdens on subject individuals. It must surely be intrusive and restrictive and bothersome to the wearer of a tracking device. Someone could find out—through observing the monitor itself or otherwise—that a person is subject to GPS monitoring, and this could result in embarrassment, exclusion, or worse. The exclusion and inclusion zones also work a very real and burdensome restriction that could make day-to-day life onerous to say the least. Picking up children from school, swimming at the public pool with the device conspicuously visible, and going out to eat at your favorite restaurant could be challenging, or for some, even impossible. Subject individuals also may bear the cost of monitoring. All of this is a certain deprivation of liberty and property and, by normal
¶ 40. But merely having substantial punitive effects does not automatically render a statute punitive even assuming an intent-effects analysis. The design and legal standards governing lifetime GPS monitoring all point to the obvious goal of protecting the public from dangerous child sex offenders. No one seems to dispute the serious risk of reoffense posed by those who commit sexual crimes against children.
CONCLUSION
¶ 42. Thus, whether one looks to the purpose alone, or at both the intent and effects, lifetime GPS monitoring is not punishment, and therefore, not a direct consequence that Muldrow had to be informed of prior to his plea. Accordingly, Muldrow has not made a prima facie case that the circuit court failed to comply with section Wis. Stat. § 971.08 or other court mandated plea colloquy procedures, and he is not entitled to withdraw his plea.
By the Court.—Judgment and order affirmed.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
However, the State does agree that Muldrow will be subject to lifetime GPS monitoring.
The decision was later overruled by Belleau v. Wall, 811 F.3d 929, 937—38 (7th Cir. 2016), which we discuss below.
The district court in Belleau noted that at least one person had noticed the device and "brandished a gun and warned [Belleau] to stay away." Belleau v. Wall, 132 F. Supp. 3d 1085, 1091 (E.D. Wis. 2015), rev'd 811 F.3d at 937-38 (7th Cir. 2016).
Collateral consequences may be "contingent on a future proceeding in which a defendant's subsequent behavior affects the determination," or consequences not imposed by the circuit court, but "a different tribunal or government agency." State v. Byrge, 2000 WI 101, ¶ 61, 237 Wis. 2d 197, 614 N.W.2d 477. For example, resentencing upon revocation of probation is only a collateral consequence of a guilty plea because it is contin
Muldrow's reliance on People v. Cole, 817 N.W.2d 497 (Mich. 2012)—which held that Michigan's lifetime electronic monitoring provision was punishment—is misplaced. The Michigan statute was located in the penalty sections of the code and explicitly provided that lifetime electronic monitoring was part of the defendant's "sentence" and in "addition to any other penalty." Id. at 335-36. Thus, the Michigan Supreme Court ended its analysis with the conclusion that the legislature intended the provision as punishment. Id.-, see also Smith v. Doe, 538 U.S. 84, 92 (2003) (explaining that "[i]f the intention of the legislature was to impose punishment, that ends the inquiry"). In contrast, our legislature did not intend lifetime GPS monitoring as a punishment.
Although no one disputes that reoffense is a serious risk, some debate whether the recidivism rates for sex offenders are actually higher than the rates for other crimes. See, e.g., Adam Liptak, Did the Supreme Court Base a Ruling on a Myth?, N.Y. Times, March 6, 2017, available at https://www.nytimes. com/2017/03/06/us/politics/supreme-court-repeat-sex-offenders. html?_r =0 (last visited June 12, 2017).
Alternatively, we note that in order for something to be a direct consequence, it not only needs to be punishment, but "a definite, immediate, and largely automatic effect" on that punishment. State v. Bollig, 2000 WI 6, ¶ 16, 232 Wis. 2d 561, 605 N.W.2d 199. Without consideration of the purpose or effects, an argument can be made that this prerequisite is not satisfied here because a defendant is removed from this restriction altogether by leaving the state. Thus, it seems hard to call the effect on a defendant here "definite"-—burdensome, certainly, but not definite.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. DeAnthony K. Muldrow
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- 2 cases
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- Published