State v. Kayden Young, 2021AP1596-CR, 10/29/24, District III (recommended for publication); case activity
In a case recommended for publication, the Court of Appeals reversed the circuit court’s order dismissing the charge against Kayden Young for failing to comply with the sex offender registration requirements. Where the circuit court did not require Young to register as a sex offender when it placed him on probation, but required registration when it sentenced him after revocation of probation, “that latter order controls the defendant’s requirement to comply with sex offender registration.” (¶ 22).
Young pled no contest to second-degree sexual assault of a child; his sentence was withheld and the circuit court placed him on probation for four years. The court exempted Young from registering as a sex offender pursuant to Wis. Stat. § 301.45(1m)(a)1m (allowing exemption where defendant was younger than age 19 and not more than four years older or four years younger than victim), but limited the exemption to six months depending on whether he complied with the conditions of his probation. (¶ 4).
Six months later, probation revocation proceedings commenced against Young. He was revoked and returned to court for sentencing after revocation; the circuit court sentenced him to a bifurcated sentence of initial confinement and extended supervision and ordered him to register as a sex offender. (¶ 5).
Young served his term of initial confinement and was released to extended supervision, but did not register as a sex offender. The State charged him with failing to comply with the sex offender registration requirements, contrary to Wis. Stat. § 301.45(6)(a)1. Young filed a motion to dismiss, arguing that he was not required to comply with the reporting requirement because the circuit court did not have authority to order a temporary exemption from reporting; therefore, the temporary exemption must be deemed permanent. The circuit court agreed and dismissed the charge. (¶¶ 7-9).
The Court of Appeals reversed and held, in a case of first impression for Wisconsin appellate courts, that Wis. Stat. § 973.048(2m) requires a circuit court to order a defendant to register as a sex offender “each time he or she is being sentenced or placed on probation for a crime listed therein, unless the court determines, as of that time, that the defendant qualifies for the underage sexual activity exception in Wis. Stat. § 301.45(1m)(a)1m.” (¶ 2). The Court determined this “requirement existed both when the court placed Young on probation in May 2014 and again when it sentenced him after revocation of his probation in November 2015.” (¶ 2).
Wis. Stat. 973.048(2m) provides:
If a court imposes a sentence or places a person on probation for a violation, or for the solicitation, conspiracy or attempt to commit a violation, of [multiple statutory offenses], the court shall require the person to comply with the reporting requirements under § 301.45 unless the court determines, after a hearing on a motion made by the person, that the person is not required to comply under 301.45(1m).
The Court interpreted the statute to require “a circuit court to order sex offender registration whenever it imposes a sentence (or places a person on probation) for the enumerated offenses – regardless of whether, as here, that sentence is imposed after revocation of probation – unless the court concludes that the exception in Wis. Stat. § 301.45(1m) applies.” (¶ 17). The Court considered it redundant for the statute to expressly state that a circuit court must order sex offender registration when a person is revoked from probation and then sentenced, because “a sentence imposed after revocation of probation is still a ‘sentence’ for purposes of § 973.048(2m).” (¶ 18).
The Court distinguished a case where the court orders an “imposed a stayed sentence (where the circuit court has already sentenced the defendant) and a pure probation order. Under the former, if the stay is lifted, there is no statutory requirement for the court to revisit the sex offender registration requirement, insomuch as there is not a subsequent ‘sentencing.’” (¶ 30 n.8).
Although the State did not argue in the circuit court that § 973.048(2m) controlled the case, the Court overlooked the State’s forfeiture because addressing the issue provides clarity to the parties and the “questions in play are of sufficient public interest to merit a decision” to instruct future litigants. (¶ 15).
