Sex Offender Registration § 301.45 – Homeless Registrant

State v. William Dinkins, Sr., 2012 WI 24, affirming 2010 WI App 163; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; case activity; note: the court affirms the mandate (reversal of conviction and dismissal of charge), but “upon a different rationale,” ¶63; the net effect is, “affirmed, as modified“

Although homelessness is not in and of itself a defense to prosecution for failing to register as a sex offender, § 301.45, the registrant’s reasonable attempt at compliance will bar conviction.

¶4   In examining the text and context of the sex offender registration statute, we determine that the legislature anticipated that a registrant might be unable to provide the information required by the statute.  Significantly, the legislature set forth an alternative procedure for monitoring the whereabouts of registrants who are unable to provide an address without imposing criminal liability.

¶5   By applying well-settled principles of statutory construction, we conclude that a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will be residing when he is unable to provide this information.  We determine that a registrant is unable to provide the required information when that information does not exist, despite the registrant’s reasonable attempt to provide it.  Here, the circuit court found that Dinkins attempted to comply with the statute, that he was unable to find housing on his own, and that the DOC would have to find housing for him.  These findings are not clearly erroneous.  Accordingly, albeit upon a different rationale, we affirm the court of appeals.

Dinkins, about to be released from prison, was under a sex offender registration requirement but couldn’t supply a “residence” because he had none. He was nonetheless prosecuted and convicted for failing to register his non-existent residence. The court of appeals reversed: it construed the statutory scheme to require that a prisoner be able to reasonably predict his residential address, absent which conviction isn’t supported. The supreme court agrees that Dinkins can’t be convicted under the facts at hand, but for a somewhat different reason:

¶52  By applying well-settled principles of statutory construction, we conclude that a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will be residing when he was unable to provide this information.  We determine that a registrant is unable to provide the required information when that information does not exist, despite the registrant’s reasonable attempt to provide it.[11]

…

¶55  Having interpreted the statutory language, we turn to applying that interpretation to the facts of this case.  Here, the circuit court found that Dinkins “attempted to comply with the statute, but has been unable to find housing for himself upon release.”  During sentencing, the court reiterated that finding: “I assume [the DOC is] going to have to find him a place.  I mean, he can’t find himself a place.”  Implicit in the court’s discussion is the assessment that Dinkins reasonably attempted to find housing for himself but was unsuccessful.

¶56  It is undisputed that Dinkins did not have a home of his own.  The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing.  A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance.[12]  The circuit court’s finding that Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous.

The court of appeals stressed the definition of “residing” – if the registrant doesn’t have a “residence,” then he simply can’t be convicted for failing to tell authorities where he’s “residing.” The supreme court, however, essentially overrules the court of appeals’ on this point, albeit without saying so explicitly, ¶59 (“we think the statutory term ‘residing’ is broader, encompassing more temporary living arrangements as well”). Moreover, as the blockquote indicates, the supreme court focuses on a different aspect: reasonableness of the registrant’s efforts “to find housing” (also: ¶52 n. 11). That’s the easy part, at least in the abstract. At the same time, the court’s analysis raises profoundly difficult but unaddressed questions. Dinkins, it should be noted, was serving a pre-TIS indeterminate sentence and reached his maximum discharge date in prison; as a result, he wasn’t under supervision on release, a status the court thought greatly reduced the import of the opinion: “We emphasize that our interpretation of the statute is unlikely to apply to a large number of registrants,” ¶53. That may be true enough with respect to registrants released from prison. But surely, with lengthy registration requirements now surviving all manner of dispositions, the court’s dismissiveness may be misplaced. Besides, it’s not clear why wouldn’t the opinion extend to a homeless person under supervision. The practical impact, then, may be greater than the court perceives. Time to wade gingerly, no more than that, into the thicket of prosecuting the homeless. Not that the brambles cut deep, just that they may pose sharp dilemmas at all.

• Elemental structure. The supreme court premised relief on the trial court’s effective finding that Dinkins reasonably sought housing. The supreme court did not, however, indicate whether “reasonable attempt” is an element, an affirmative defense to be disproved by the State, or an affirmative defense subject to proof by the defendant.

• Pre-charge judicial involvement. DOC or DHS may bear some responsibility to ensure an “address at which the [unsupervised] person is or will be residing,” § 301.45(2)(a)5. The court thus stresses that when a registrant not under supervision “is unable to provide an item of [required] information,” DOC “may request assistance from a circuit court or [DHS] in obtaining that item of information,” ¶36, quoting  § 301.45(2)(d). The court or DHS must then give assistance, id. This procedure has some mischief-making potential, not least because it embroils a court in what now is deemed a pre-condition to a criminal charge. The court “assists” a homeless person in finding a place to stay – welcome news to trial judges, no doubt, but more to the point: when that task proves unsuccessful the court finds the very person it assisted in the dock. Is the dilemma eliminated by having a different judge preside over the case? Hard to say, but it’s probably safe to say that few if any look forward to the spectacle of having a judge testify about how he or she went about drafting and implementing a housing plan for a sex offender. (Topic for a future judicial seminar? Just a thought.)

• Notice. OK, so the circuit court or DHS gives “assistance.” What does that even mean? By its express terms, the statute refers to assistance “in obtaining that item of information” “the person is unable to provide.” Is a place of residence an item of information that you obtain? Apparently it is now – though the opinion is less than explicit. So, maybe the assistance is in the form of a housing plan. Do plan details become elements of the offense? “Additionally, looking forward, the DOC has promulgated new reporting requirements and guidelines for addressing the problem presented in this case,” ¶54. If DOC regs become “reporting requirements,” then we’re in the ballpark of prosecutions for Admin Code violations, which will almost certainly raise issues of delegable authority and notice of the charge.

• Collateral consequences. The court observes, “As a collateral consequence of his 1999 conviction, Dinkins must register as a sex offender under Wis. Stat. § 301.45,” ¶7, as if the matter is incontestable. True, State v. Bollig, 2000 WI 6, ¶27, 232 Wis. 2d 561, 605 N.W.2d 199, establishes as much: “Because the duty to register is not punishment, it does not represent a direct consequence of Bollig’s no contest plea. Rather, it is a collateral consequence, and Bollig does not have a due process right to be informed of collateral consequences prior to entering his plea.” But uncritical acceptance of this “established” principle ignores the revolution wrought by Padilla v. Kentucky; the “collateral” nature of registration is no longer obvious and ought not be regarded as beyond challenge, Bollig notwithstanding. This issue doesn’t conduce to airing in an abbreviated blog post, so a few very truncated thoughts will have to do. As a doctrinal matter, Padilla blurs distinctions once thought clear between direct and collateral consequences. And as a factual matter, the consequences of sex offender registration have become much more severe since Bollig. Proliferating sex-offender residency restrictions, for starters. But this case is illustrative itself, in its very reliance on statutorily-authorized intrusions into a registrant’s daily life. Just how intrusive? Plenty:

¶39  The second proposition which becomes clear when the statute is read in context is that the legislature set forth an alternative procedure by which required information can be provided.  Under sub. (2)(f), the DOC may require a registrant to report to a police station to provide any required information “that the person has not previously provided” …

¶40  Exercising its authority under this statute, the DOC can require a registrant who is unable to provide an address to report to a local police station upon release.  Id.  If, upon reporting to the police station, the registrant continues to be unable to provide an address, the DOC can require him to continue reporting to the police station on a regular basis until he is able to do so.  Id.  Meanwhile, it can require the registrant to provide information about the places he is frequenting.  Id.

(The concurrence would go a bit farther still; the majority doesn’t reach the point, so the following remains possible:)

¶66  Furthermore, when DOC seeks assistance under Wis. Stat. § 301.45(2)(d) and (9), a circuit court or the DHS shall establish a plan to provide the required information to the DOC. Such a plan could include directing a homeless or unemployed convicted sex offender who is to be released from prison and who will not be under supervision upon release to personally report to a designated law enforcement facility during a weekday, at least once per week, to provide law enforcement with the specific location(s) in the city and state that the convicted sex offender has been frequenting and sleeping the previous seven days, together with a report of the places from which he has sought employment.