from a judgment and an order of the circuit court for
Manitowoc County No. 2009CF334: JEROME L. FOX, Judge.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
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 constitutional rights. The
circuit court denied Muldrow's motion for plea
withdrawal, and we affirm.
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) or other court mandated plea colloquy
procedures. Accordingly, he is not entitled to withdraw his
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, Muldrow 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 nor Muldrow's counsel informed him that
his plea could subject him to lifetime GPS monitoring after
he completed his sentence.
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.
As Muldrow had not yet completed his sentence, the conditions
of lifetime GPS monitoring had not yet been
imposed. As a result, the State and Muldrow agreed
that the postconviction court could "take judicial
notice of the practical conditions of GPS set forth in"
the federal district court decision of Belleau v.
Wall, 132 F.Supp.3d 1085 (E.D. Wis. 2015),
federal case challenging lifetime GPS monitoring as an ex
post facto violation.
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 into an electrical outlet to
charge for approximately one hour (while, of course,
continuing to wear the device). Id. The device
"creates a noticeable bulge under the wearer's pants
leg and can become visible if his pants leg raises up, such
as when the wearer sits or bends down." Id. at
1091. This may allow others to infer that the wearer is a sex
offender, subjecting him or her to embarrassment, harassment,
or even violence. See id. Additional details of the
conditions of lifetime GPS tracking will be set forth below.
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
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.
When a defendant pleads guilty or no contest, he or she
necessarily waives certain constitutional rights-the rights
to trial by jury and to confront one's accuser for
example. See State v. Burton, 2013 WI 61, ¶73,
349 Wis.2d 1, 832 N.W.2d 611. The Fourteenth Amendment to the
United States Constitution provides in relevant part that no
State shall "deprive any person of life, liberty, or
property, without due process of law." The United States
Supreme Court has held that due process protects defendants
who seek to waive their constitutional rights when they plead
guilty or no contest. A court should only accept a guilty
plea when it has been knowing, intelligent, and voluntary,
"with sufficient awareness of the relevant circumstances
and likely consequences." Brady v. United
States, 397 U.S. 742, 748 (1970) (footnote omitted).
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, ¶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." State v. Byrge, 2000 WI 101,
¶61, 237 Wis.2d 197, 614 N.W.2d 477');">614 N.W.2d 477. "The
distinction between direct and collateral consequences
essentially recognizes that it would be unreasonable and
impractical to require a circuit court to be cognizant of
every conceivable consequence before the court accepts a
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).
Thus, the question here is whether, pursuant to WIS. STAT.
§ 971.08 and the requirements of due process, lifetime
GPS monitoring is a direct consequence-or more precisely,
whether lifetime GPS monitoring is a "punishment"
at all. State v. Dugan, 193 Wis.2d 610, 618, 534
N.W.2d 897 (Ct. App. 1995) (explaining that whether something
is a punishment is a "threshold question" to
whether it is a direct consequence of the plea); see also
Bollig, 232 Wis.2d 561, ¶16 (framing the question
as "whether the registration requirement constitutes
punishment"). If it is, Muldrow has established a prima
facie case for plea withdrawal. Whether he has met his burden
is a question of law we review de novo. Dugan, 193
Wis.2d at 617.
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 ...