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State v. Muldrow

Supreme Court of Wisconsin

May 18, 2018

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

          ORAL ARGUMENT: February 21, 2018

          Circuit Court Manitowoc County L.C. No. 2009CF334 Jerome L. Fox Judge

         REVIEW OF DECISION OF THE COURT OF Reported at 377 Wis.2d 223, 900 N.W.2d 859 PDC No: 2017 WI.App. 47 - Published

          For the defendant-appellant-petitioner, there were briefs filed by and an oral argument by Leonard Kachinsky and Kachinsky Law Offices, Neenah.

          For 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. Winter.

          MICHAEL J. GABLEMAN, J.

         REVIEW of a decision of the Court of Appeals. Affirmed.

         ¶1 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, [1] 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.

         ¶2 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).[2] 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.

         ¶3 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.[3] Muldrow moved to withdraw his guilty plea on the grounds that his plea was not knowing[4] because he was never informed that lifetime GPS tracking is a consequence of a conviction for second-degree sexual assault.

         ¶4 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[5] 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.

         ¶5 This case presents us with an opportunity to set forth the proper test for determining whether a sanction[6] 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Muldrow's Plea

         ¶9 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 (2)[7] ("count one"), and third-degree sexual assault contrary to Wis.Stat. § 940.225 (3)[8]("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.[9] Because of other sentences not relevant here, Muldrow would be under Department of Corrections ("DOC") supervision for the first 12.5 years of the DJA.

         ¶10 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.[10]

         ¶11 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.

         ¶12 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[11] 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.

         ¶13 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.

         ¶14 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.

         ¶15 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.

         ¶16 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) .

         ¶17 Muldrow petitioned this court for review, which we granted on October 17, 2017.

         B. Lifetime GPS Tracking

         ¶18 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. 2016).

         ¶19 Certain serious sex offenders are subject to lifetime GPS tracking. Wis.Stat. § 301.48(2).[12] 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[13] or lingers in an exclusion zone.[14] Id.; Wis.Stat. § 301.48(3)(a)3.

         ¶20 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).

         ¶21 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.

         ¶22 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.

         ¶23 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.

         II. STANDARD OF REVIEW

         ¶24 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.

         ¶25 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.

         III. ANALYSIS

         ¶26 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 ...


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