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State v. Jackson

Court of Appeals of Wisconsin, District II

December 26, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
James L. Jackson, Jr., Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Calumet County No. 2016CF162: JEFFREY S. FROEHLICH, Judge. Affirmed.

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

          REILLY, P.J.

         ¶1 James L. Jackson, Jr., challenges a provision of the Wisconsin sex offender registry statute, Wis.Stat. § 301.45(2)(a)6m. (2017-18), [1]as violating the First Amendment. This provision requires registrants to disclose to the Department of Corrections (DOC) e-mail addresses, Internet user names, Internet profiles, and websites created or maintained by the registrant. The circuit court found no First Amendment violation. We agree and affirm.

         BACKGROUND

         ¶2 Jackson was convicted of second-degree sexual assault of a child in 1990 after he groomed and sexually assaulted his employer's fourteen-year-old daughter. Jackson was required to comply with the sex offender registry requirements pursuant to Wis.Stat. § 301.45, which provides, in pertinent part, that an individual subject to the registry requirements must inform the DOC of

[t]he name or number of every electronic mail account the person uses, the Internet address of every website the person creates or maintains, every Internet user name the person uses, and the name and Internet address of every public or private Internet profile the person creates, uses, or maintains. The department may not place the information provided under this subdivision on any registry that the public may view but shall maintain the information in its records on the person. This subdivision applies only to an account, website, Internet address, or Internet profile the person creates, uses, or maintains for his or her personal, family, or household use.[2]

Sec. 301.45(2)(a)6m. If a registrant makes any changes to the above, he or she must notify the DOC within ten days of the change(s). Sec. 301.45(4). Failure to comply with these requirements constitutes a felony. Sec. 301.45(6)(a)1.

         ¶3 In 2016, police were informed that Jackson was using his housemate's computer "at all hours of the night … trying to talk to young girls in the area over the internet." An investigation revealed that Jackson had created a Facebook profile in November 2015 using the name "Lendord Jackson." Jackson had not informed the DOC of the Facebook profile or the e-mail address associated with it.

         ¶4 Jackson was charged with and pled no contest to one count of a sex offender registry violation as a repeater. Jackson filed a postconviction motion arguing that Wis.Stat. § 301.45(2)(a)6m. violates the First Amendment as applied to him and is facially overbroad. The circuit court found that Jackson waived his as-applied challenge and denied the facially overbroad challenge. Jackson appeals.

         DISCUSSION

         ¶5 The First Amendment provides in pertinent part that "Congress shall make no law … abridging the freedom of speech." U.S. Const. amend. I; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996). We review the constitutionality of a statute de novo. State v. Robert T., 2008 WI.App. 22, ¶5, 307 Wis.2d 488, 746 N.W.2d 564.

         ¶6 Jackson argues that Wis.Stat. § 301.45(2)(a)6m. is unconstitutional as applied to him as it deprives him of his right to anonymous speech under the First Amendment and that it is facially overbroad as it "infringes on far more speech than can be justified and chills protected speech." When evaluating a challenge to a sex offender registry statute under the First Amendment, we first question whether the Internet identifier reporting requirements implicate the First Amendment. See, e.g., Doe v. Harris, 772 F.3d 563, 572 (9th Cir. 2014). If they do, we then determine what level of scrutiny we need to apply. Id. at 574. Lastly, we determine whether the statute passes constitutional muster under that level of scrutiny. Id. at 576-78. Neither party disputes that the First Amendment is implicated.[3] We also agree with the parties that the level of scrutiny to be applied in this case is intermediate scrutiny.[4] "In order to survive intermediate scrutiny, a law must be 'narrowly tailored to serve a significant governmental interest.' In other words, the law must not 'burden substantially more speech than is necessary to further the government's legitimate interests.'" Packingham v. North Carolina, 137 S.Ct. 1730, 1736 (2017) (citations omitted). We, therefore, address solely whether § 301.45(2)(a)6m. passes constitutional muster under intermediate scrutiny by examining Jackson's as-applied and facial challenges.

         As-Applied Challenge

         ¶7 Jackson argues that Wis.Stat. § 301.45(2)(a)6m. violates his First Amendment rights as applied to him because the statute infringes on his right to communicate anonymously on the Internet. The State argues, and the circuit court agreed, that Jackson waived his as-applied challenge by virtue of his no contest plea.

         ¶8 Whether Jackson waived his right to appeal the constitutionality of the statute as applied to him based on his no contest plea is a question of law we review de novo. State v. Kelty, 2006 WI 101, ¶13, 294 Wis.2d 62, 716 N.W.2d 886. In Wisconsin, we employ the guilty plea waiver rule, which states that a guilty, no contest, or Alford plea "waives all nonjurisdictional defects, including constitutional claims." State v. Multaler, 2002 WI 35, ¶54, 252 Wis.2d 54, 643 N.W.2d 437. An exception to the guilty plea waiver rule states that "a 'facial' constitutional challenge [is] a matter of subject matter jurisdiction," which cannot be waived, whereas an as-applied challenge is a nonjurisdictional defect that can be waived. State v. Cole, 2003 WI 112, ¶46, 264 Wis.2d 520, 665 N.W.2d 328; see also State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis.2d 38, 644 N.W.2d 891.

         ¶9 Jackson counters that under Class v. United States, 138 S.Ct. 798 (2018), Wisconsin's guilty plea waiver rule does not apply to his as-applied challenge. We disagree as it is not clear in Class whether Class' challenge was an as-applied or a facial challenge. A facial challenge "strip[s] the government of its ability to obtain a conviction against any defendant," whereas "an as-applied challenge does not dispute the court's power to hear cases under the statute; rather, it questions the court's limited ability to enter a conviction in the case before it." United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)). Wisconsin has previously recognized that distinction in our decisions on the guilty plea waiver rule, see, e.g., Cole, 264 Wis.2d 520, ¶46, and we find that Class does not preclude application of the guilty plea waiver rule as it pertains to Jackson's as-applied constitutional challenge.

         ¶10 Jackson also asks us under State v. Tarrant, 2009 WI.App. 121, ¶6, 321 Wis.2d 69, 772 N.W.2d 750, to not apply the guilty plea waiver rule as the rule is one of administration. Jackson argues that his issue is one of statewide importance, the statute is contrary to the interests of justice, and all pertinent facts are clear from the complaint. See id. We decline review under Tarrant as Jackson does not provide ...


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