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State v. Muldrow

Court of Appeals of Wisconsin, District II

June 21, 2017

State of Wisconsin, Plaintiff-Respondent,
DeAnthony K. Muldrow, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Manitowoc County No. 2009CF334: JEROME L. FOX, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          HAGEDORN, J.

         ¶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 constitutional rights. The circuit court denied Muldrow's motion for plea withdrawal, and we affirm.

         ¶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)[1] or other court mandated plea colloquy procedures. Accordingly, he is not entitled to withdraw his plea. 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, 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.

         ¶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.[2] 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), [3] a federal case challenging lifetime GPS monitoring as an ex post facto violation.

         ¶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 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.[4] See id. Additional details of the conditions of lifetime GPS tracking will be set forth below.

         ¶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 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).

         ¶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, ¶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."[5] 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 plea." Id.

         ¶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).

         ¶12 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.

         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 ...

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