COA asks SCOW to decide whether things that happen simultaneously happen on two “separate occasions”

State v. Corey Rector, 2020AP1213, certification filed 11/24/21; granted 2/16/22; affirmed 5/23/23; District 2; case activity (including briefs)

Issue (from the certification):

Whether the plain meaning of “separate occasions” in the sex-offender-registration statute means that the two convictions must have occurred at different times in two separate proceedings so that the qualifying convictions occurred sometime before a defendant is convicted in the current case. Stated otherwise, can the qualifying convictions occur simultaneously, as they did in this case, and as Wittrock and Hopkins held?

Rector pleaded to five counts of possessing child pornography in a single case; his convictions on all five counts were entered simultaneously. He has no other criminal record. The circuit court ordered that he register as a sex offender for 15 years after the end of his supervision, and the state appealed, saying he’s statutorily required to be on the registry for life.

The question is what’s meant by Wis. Stat. § 301.45(5)(b)1., which mandates lifetime registration for a person who’s been convicted of a qualifying sex offense “on 2 or more separate occasions.” As Rector and the court of appeals note, an ordinary English speaker would not typically regard two things that happen at the same time as having happened “on 2 or more separate occasions,” so the plain meaning of the statute seems to be that simultaneous convictions in a single case don’t trigger the lifetime requirement.

The problem is that our ordinary English speaker was not on the state supreme court when it decided State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984), and State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992). In both of those cases the court interpreted Wis. Stat. § 939.62(2)–which makes one a repeater if one has been convicted of misdemeanors on “3 separate occasions”–not to require separate dates of conviction or courses of conduct. These cases don’t control here, technically–they construe a different statute and rely on that statute’s legislative history, which is not the same history as that of § 301.45(5)(b)1.–but the court of appeals says that applying the “arguably plain meaning” of the provision at issue here would be “at odds” with SCOW’s interpretation in those older cases, so it suggests that SCOW is the right forum for this dispute.