Defense win! Multiple convictions in same case on same date don’t require lifetime sex offender registration

State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)

Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that, in its view, any two or more convictions of registry-eligible sex offenses trigger mandatory registration for life. The judge stuck to his guns and reiterated the 15-year registry requirement. The state appealed, and the court of appeals certified the case. The state supreme court now holds, 4-3, that Rector is not required to register as a sex offender for the rest of his life.

UPDATE: Well, that was short-lived. 2023 WI Act 254 erases the impact of this decision, as it restores us to an older understanding of the law. As summarized by Adam Plotkin, SPD’s Legislative Liaison, the bill makes the following changes to our law, in direct response to this decision:

(1) Modifies the meaning of “two or more separate occasions” for the purposes of lifetime sex offender registry and notification requirements and codifies an AG Opinion, establishing that when counting convictions, each conviction or finding is counted separately even if they were part of the same proceeding, occurred on the same date, or were included in the same complaint;

(2) Requires the DOC to identify and notify individuals who were released from sex offender registry or global positioning system tracking requirement after Sept. 1, 2017, but who would have been subject to the pertinent requirement had the bill been in effect; and

(3) Requires that persons who are notified that they must register would have 30 days to register after receiving notice or they would be guilty of a Class H felony.

The law effectively codifies AG Schimel’s 2017 opinion and makes this statute retroactive to September 2, 2017 so as to line up with the release of that 2017 opinion.

As we said in our posts on the court of appeals’ certification and SCOW’s grant of review, 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.” Rector urged as a matter of plain English that it could not refer to multiple convictions entered at the same time in the same case.

The state’s counterargument relied principally on 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), which construed a virtually identical phrase in the misdemeanor repeater statute to encompass convictions entered at the same time. The state noted that these cases came before the legislature amended the registry statute to include the same phrase, and so argued it must have meant to incorporate the holdings of Wittrock and Hopkins.

A bare majority of the Justices agree with Rector. Justice Karofsky writes for herself and Justices A.W. Bradley, Dallet and Hagedorn. The majority opinion briefly concludes that the plain meaning of “separate occasions” does not include events that occur at the same time. It goes on to hold that Wittrock and Hopkins do not shed much light on the meaning of § 301.45(5)(b)1., as they concerned a not-terribly-closely related statute (§ 939.62(2)) and depended heavily on that statute’s legislative history.

The dissent, written by Justice R.G. Bradley and joined by Ziegler and Roggensack, argues that Wittrock and Hopkins made “separate occasions” a term of art, and that the prior construction canon of statutory interpretation means the court ought to read the phrase the same way across the statutes. The majority rejects that view, noting that the misdemeanor statute and the lifetime registry statute concern very different subjects and adding:

Even in its strongest form, the prior-construction canon merely creates a presumption that the legislature intended to incorporate the court’s prior interpretation of a word or phrase in closely related statutes. But that presumption is not meant to counteract our oft-quoted principle that “statutory language is given its common, ordinary, and accepted meaning” and “if the meaning of the statute is plain, we ordinarily stop the inquiry.” See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.  The presumption is meant to add clarity, not sow confusion. In other words, fundamentally, we must presume that the legislature means what it says. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27. ¶14 n.9, 316 Wis. 2d 47, 767 N.W.2d 652.

(¶40). The majority also responds strongly to the dissent’s accusation that its decision “trivializes heinous crimes against children”:

There is no disagreement in this case that Rector’ crimes were serious. The statutory language of Wis. Stat. § 301.45(5)(b)1., however, does not hinge on whether this court concludes that Rector’s crimes were serious. It is undisputable that all sex offenses covered by the sex offender registration statutory scheme are heinous in nature, thus necessitating the use of the registry for the protection of the public. However, within that scheme, the legislature, not this court, made policy decisions regarding which offenders are categorically required to comply with registration requirements for life and which are required to comply for 15 years. Our job is to faithfully interpret the words of the statute in order to discern the legislature’s policy choice, not to impose our own policy choices.

(¶44).