ARGUMENT: February 21, 2018
Circuit Court Manitowoc County L.C. No. 2009CF334 Jerome L.
OF DECISION OF THE COURT OF Reported at 377 Wis.2d 223, 900
N.W.2d 859 PDC No: 2017 WI.App. 47 - Published
the defendant-appellant-petitioner, there were briefs filed
by and an oral argument by Leonard Kachinsky and Kachinsky
Law Offices, Neenah.
the plaintiff-respondent, there was a brief filed by Tiffany
M. Winter, assistant attorney general, and Brad D. Schimel,
attorney general. There was an oral argument by Tiffany M.
MICHAEL J. GABLEMAN, J.
of a decision of the Court of Appeals. Affirmed.
A defendant who enters a guilty plea waives numerous
constitutional rights. State v. Bangert, 131 Wis.2d
246, 270, 389 N.W.2d 12 (1986). Accordingly, "[u]nder
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution,  a defendant's guilty plea
must be" entered in a knowing, voluntary, and
intelligent fashion. State v. Cross, 2010 WI 70,
¶16, 326 Wis.2d 492, 786 N.W.2d 64. This means,
inter alia, the circuit court must notify the
defendant of any direct consequence of his guilty plea.
Brady v. United States, 397 U.S. 742, 755 (1970) . A
direct consequence of a guilty plea is one that "has a
definite, immediate, and largely automatic effect on the
range of a defendant's punishment." State v.
Bollig, 2000 WI 6, ¶16, 232 Wis.2d 561, 605 N.W.2d
199. We have identified direct consequences of a plea as
being those that impose punishment. Id., ¶17.
The legislature has codified this prerequisite, requiring
circuit courts to "[a]ddress 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" before the court accepts a
guilty plea. Wis.Stat. § 971.08(1) (a)
(2015-16). A defendant who is not accurately informed
of the punishment that could result from his guilty plea may
be entitled to withdraw that plea. State v. Taylor,
2013 WI 34, ¶32, 347 Wis.2d 30, 829 N.W.2d 482.
Petitioner DeAnthony K. Muldrow pled guilty to second-degree
sexual assault contrary to Wis.Stat. § 948.02(2) . This
conviction subjects Muldrow to (as is relevant here) lifetime
GPS tracking pursuant to Wis.Stat. §
301.48. Muldrow moved to withdraw his guilty plea
on the grounds that his plea was not knowing because he was
never informed that lifetime GPS tracking is a consequence of
a conviction for second-degree sexual assault.
The parties agree that the circuit court failed to inform
Muldrow that his guilty plea would subject him to lifetime
GPS tracking. The issue in this case is whether lifetime GPS
tracking is a "punishment" such that due process
requires a defendant be informed of it before entering a plea
of guilty. The Manitowoc County Circuit Court concluded that
lifetime GPS tracking is not punishment, and so denied
Muldrow's motion to withdraw his plea. The court of
appeals affirmed. State v. Muldrow, 2017 WI.App. 47,
¶1, 377 Wis.2d 223, 900 N.W.2d 859');">900 N.W.2d 859.
This case presents us with an opportunity to set forth the
proper test for determining whether a sanction is
"punishment" such that due process requires a
defendant be informed of it before entering a plea of guilty.
We must first, therefore, determine what that test is.
We hold that the intent-effects test is the proper test used
to determine whether a sanction is punishment such that due
process requires a defendant be informed of it before
entering a plea of guilty.
After determining the proper test for whether a sanction is
punishment such that due process requires a defendant be
informed of it before entering a plea of guilty, we must
apply that test to the facts of Muldrow's case.
Applying the intent-effects test, we hold that neither the
intent nor effect of lifetime GPS tracking is punitive.
Consequently, Muldrow is not entitled to withdraw his plea
because the circuit court was not required to inform him that
his guilty plea would subject him to lifetime GPS tracking.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, the State charged Muldrow with five counts of
criminal conduct as a consequence of an incident in which he
had forcible intercourse with a 15-year-old girl. He reached
a plea agreement with the State whereby he agreed to plead
guilty to the first two counts: second-degree sexual assault
of a child contrary to Wis.Stat. § 948.02
("count one"), and third-degree sexual assault
contrary to Wis.Stat. § 940.225 (3)("count
two"). In exchange, the State agreed to dismiss, but
read into the record for purposes of sentencing, the
remaining three counts. Further, Muldrow and the State
jointly recommended the following sentence: an 18-year
deferred judgment agreement ("DJA") on count one,
and one year initial confinement followed by one year of
extended supervision on count two. If Muldrow complied with
the terms of the DJA, count one would be
dismissed. Because of other sentences not relevant
here, Muldrow would be under Department of Corrections
("DOC") supervision for the first 12.5 years of the
The State moved to vacate the DJA in 2015 after Muldrow
violated the terms of his extended supervision in a different
case by, inter alia, cutting off the GPS tracker he
was required to wear as a condition of that extended
supervision, absconding, and using controlled substances.
Muldrow did not contest the facts underlying the State's
motion. The circuit court vacated the DJA and ordered that a
judgment of guilt be entered on count one. The court then
withheld sentence and placed Muldrow on ten years of
probationary supervision. Additionally, following the
judgment of guilt being taken against him as to count one,
and by dint of Wis.Stat. § 301.48(2) (a)3m., Muldrow
became subject to lifetime GPS tracking.
Muldrow moved to withdraw his plea in October 2015-
approximately six months after the DJA was revoked and
judgment of conviction was entered on count one. His motion
alleged that his guilty plea was not made in a knowing
fashion because the circuit court did not inform him that
pleading guilty to count one would subject him to lifetime
GPS tracking pursuant to Wis.Stat. § 301.48(2)(a)3m.
Muldrow contended that his unknowing guilty plea was a
violation of his right to due process because lifetime GPS
tracking is a punishment for a conviction of second-degree
sexual assault of a child of which the circuit court was
required to notify him.
Muldrow relied to a great extent on a federal district court
decision that concluded lifetime GPS tracking violated the Ex
Post Facto Clause of the United States
Constitution if applied to a person convicted before
the statute was in effect. Belleau v. Wall, 132
F.Supp.3d 1085 (E.D. Wis. 2015), rev'd, 811 F.3d
929 (7th Cir. 2016) . The threshold question for ex post
facto violations is the same as the threshold question in the
present case: is the sanction "punishment?" In
concluding that lifetime GPS tracking is punishment, the
district court in Belleau applied the intent-effects
test, which is commonly used by state and federal courts in
ex post facto decisions. Id. at 1095; see also,
e.g., Smith v. Doe, 538 U.S. 84 (2003);
State v. Scruggs, 2017 WI 15, 373 Wis.2d 312, 891
N.W.2d 786. The district court determined that the intent of
lifetime GPS tracking is not punitive, but the effect is.
Belleau, 132 F.Supp.3d at 1104.
Shortly before the circuit court hearing on Muldrow's
motion, the United States Court of Appeals for the Seventh
Circuit reversed the district court's conclusion that
lifetime GPS tracking is punishment. Belleau v.
Wall, 811 F.3d 929 (7th Cir. 2016). The panel
unanimously concluded that lifetime GPS tracking is a less
onerous sanction than civil commitment pursuant to Wis.Stat.
ch. 980. Id. at 937. Thus, the court reasoned,
"if civil commitment is not punishment, as the Supreme
Court has ruled, then a fortiori, neither is having
to wear an anklet monitor." Id.
The circuit court, relying on the Seventh Circuit's
decision in Belleau, denied Muldrow's motion to
withdraw his plea. The circuit court concluded that lifetime
GPS tracking is not punishment and, consequently, Muldrow did
not have a right to be informed that his guilty plea would
result in its imposition.
The court of appeals affirmed. Muldrow, 377 Wis.2d
223, ¶1. The court of appeals observed a certain lack of
clarity as to the correct test for determining whether a
particular sanction is punishment such that due process
requires a defendant be informed of it before entering a plea
of guilty. Id., ¶15. It noted, for example,
that in State v. Dugan, 193 Wis.2d 610, 620-21, 534
N.W.2d 897 (Ct. App. 1995), the court of appeals applied the
fundamental purpose test to determine that restitution is not
punishment. Moreover, it observed that we applied a truncated
version of the intent-effects test in Bollig, 232
Wis.2d 561, to determine that Wisconsin's Sexual Offender
Registry was not punishment. In Bollig, we
emphasized the lack of punitive intent, but provided only
conclusory analysis of the punitive effects of the registry.
See id., ¶¶23-26.
Be that as it may, the court of appeals concluded that
Muldrow's claim failed under either test.
Muldrow, 377 Wis.2d 223, ¶23. The court of
appeals combined its analysis of the fundamental purpose test
with the intent prong of the intent-effects test.
Id., ¶35. It concluded that the fundamental
purpose/intent of lifetime GPS tracking is protection of the
public, not punishment of the offender. Id. The
court then concluded that the effect of lifetime GPS tracking
is not punitive. Id., ¶¶36-40 (citing
Belleau, 811 F.3d at 937-38) .
Muldrow petitioned this court for review, which we granted on
October 17, 2017.
Lifetime GPS Tracking
The DOC has not yet begun tracking Muldrow pursuant to
Wis.Stat. § 301.48(2)(a)3m. because he has completed
neither his probationary supervision on count one nor his
sentences imposed as a consequence for various other criminal
conduct. However, the parties agree that the DOC will begin
tracking Muldrow pursuant to § 301.48(2)(a)3m. upon
either the conclusion of his probationary supervision or his
release from incarceration, whichever occurs later. However,
pursuant to a stipulation between the parties, the circuit
court took judicial notice of the practical effects of
lifetime GPS tracking as described in the district court
opinion in Belleau, 132 F.Supp.3d 1085,
rev'd on other grounds, 811 F.3d 929 (7th Cir.
Certain serious sex offenders are subject to lifetime GPS
tracking. Wis.Stat. § 301.48(2). Though
offenders are constantly tracked, the DOC reviews the data in
only two circumstances. Each night, DOC personnel view
location data from the previous day to confirm the
offender's whereabouts. Belleau, 132 F.Supp.3d
at 1091, rev'd on other grounds, 811 F.3d 929
(7th Cir. 2016) . Second, DOC personnel receive an alert
whenever an offender leaves an inclusion zone or lingers in
an exclusion zone. Id.; Wis.Stat. §
Though called "lifetime" GPS tracking, some
offenders may be released from tracking. Wis.Stat. §
301.48(6)-(7m). An offender who was not convicted of a crime
during the period of tracking and who was not previously
committed pursuant to Wis.Stat. ch. 980 may petition for
termination of lifetime tracking after 20 years. §
301.48 (6) (b) . In addition, the DOC may petition to
terminate lifetime tracking of an offender who is
"permanently physically incapacitated." §
301.48(7). Finally, lifetime GPS tracking is terminated if
the offender moves out of Wisconsin. § 3Ol.48(7m).
The GPS tracker is attached to the offender's ankle by a
black neoprene rubber strap. Belleau, 132 F.Supp.3d
at 1090, rev'd on other grounds, 811 F.3d 929
(7th Cir. 2016). The offender is prohibited from ever
removing it. Id. To that end, the tracker is
waterproof up to 15 feet to allow for bathing and swimming.
Id. The tracker can, however, cause blistering,
especially when wet. Id.
The tracker is approximately 2.5 x 3.5 x 1.5 inches.
Id. Though small, the tracker is noticeable; its
position at the bottom of the offender's ankle means that
it is always visible if the offender wears shorts or sits
down while wearing pants. Id. at 1091. Even if the
tracker is totally covered by the offender's pants, it
nonetheless creates a noticeable bulge on the offender's
pant leg. Id.
The tracker must be charged for one hour once per day, which
requires the offender to stay close enough to an electrical
outlet for the cord to reach. Id. at 1090. The
tracker has a speaker that can play messages sent from DOC
personnel, such as orders to call the DOC, orders to report
to the DOC, reminders of upcoming appointments with DOC
personnel, and warnings for low batteries. Id. at
1091. These messages can be heard by anyone within earshot of
the offender. Id.
STANDARD OF REVIEW
Whether a plea was entered knowingly, voluntarily, and
intelligently is a question of constitutional fact.
Bollig, 232 Wis.2d 561, ¶13. We uphold the
circuit court's findings of historical fact unless
clearly erroneous. Id. We apply constitutional
principles to those historical facts de novo. Id.
In determining whether Wis.Stat. § 301.48 is punishment,
we must interpret the statute. We interpret the statute de
novo. State v. Negrete, 2012 WI 92, ¶15, 343
Wis.2d 1, 819 N.W.2d 749.
We first consider the proper test for determining whether a
sanction is "punishment" such that due process
requires a defendant be informed of it before entering a plea
of guilty. We hold that the intent-effects test is the proper
test used to determine whether a potential sanction is
punishment such that ...