State v. Dinkins

PATIENCE DRAKE ROGGENSACK, J.

¶ 64. (concurring). Homeless convicted sex offenders are not exempt from the registration requirements set out in Wis. Stat. § 301.45(2)(a). In this case, we are faced with the question of how homeless convicted sex offenders satisfy their statutory obligations in a manner that will promote the purpose of § 301.45, which has been interpreted as informing law enforcement of the where*102abouts of convicted sex offenders.1 The majority opinion and the dissenting opinion, as well as this concurrence, struggle with the interpretation of a statute that did not envision the compliance problems that the Department of Corrections (DOC) must face when confronting the registration of homeless persons who are required to provide an address that they do not have.

¶ 65. I conclude that William Dinkins, Sr., a homeless, unemployed, convicted sex offender, could have satisfied the first step of his Wis. Stat. § 301.45(2)(a)5. obligation to report "[t]he address at which [he] is or will be residing" and his § 301.45(2)(a)8. obligation to report "[t]he name and address of the place at which [he] is or will be employed" by reporting that he was "homeless" and "unemployed" on the DOC Sex Offender Registration form #1759, at least ten days before his release from prison. Then, because Mr. Dinkins is a convicted homeless sex offender who was "unable to provide" more particularized information on residence and employment, the DOC was obligated to request assistance from a circuit court or the Department of Health Services (DHS) before it could seek prosecution. See Wis. Stat. § 301.45(2)(d). If the DOC had requested assistance, a circuit court or the DHS would have been obligated to cooperate with the DOC in order to permit law enforcement agencies to obtain the information they needed to ascertain Mr. Dinkins' whereabouts. Wis. Stat. § 301.45(2)(d) and (9).

¶ 66. Furthermore, when the 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 *103required 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.

¶ 67. Because Wis. Stat. § 301.45 was not properly interpreted or applied, the circuit court erred in convicting Mr. Dinkins of failing to comply with the sex offender reporting requirements. Therefore, although I do not agree with the majority opinion's reasoning, I do agree that Mr. Dinkins' conviction should be reversed, and I would remand the matter for further proceedings before the circuit court. I also agree with the dissent's concern that convicted sex offenders should not be left unaccounted for once they are released from prison; however, I do not agree a homeless sex offender's failure to provide an address should result in immediate prosecution.2 Simply convicting Mr. Dinkins of a Class H felony will not provide the public or law enforcement with meaningful information such that they can locate Mr. Dinkins. Accordingly, although I do not join the majority opinion, I respectfully concur.

I. BACKGROUND

¶ 68. On February 4, 1999, Mr. Dinkins was convicted of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1). He was sentenced to a term of *104imprisonment that concluded on July 20, 2008, his mandatory release date. As a result of his sexual assault conviction and his upcoming release from prison, Mr. Dinkins was required to register as a sex offender in accordance with the provisions of Wis. Stat. § 301.45(2)(d). He did complete a DOC Sex Offender Registration form #1759 that elicits the information required by § 301.45(2)(a). However, because Mr. Din-kins did not have a place to live upon release from prison, "To be determined by Agent" was written on the form for "Residence," and for "Employment," "unemployed" was checked.

¶ 69. Because Mr. Dinkins did not provide a specific address to the DOC, the DOC requested that the State prosecute him for a willful violation of the statutory registration requirements, pursuant to Wis. Stat. § 301.45(6). That prosecution resulted in Mr. Dinkins' conviction of a Class H felony.

II. DISCUSSION

A. Standard of Review

¶ 70. This case requires us to interpret and apply various provisions of the sex offender registration law, Wis. Stat. § 301.45. Statutory construction and application present questions of law for our independent review. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 14, 309 Wis. 2d 541, 749 N.W.2d 581. However, as we conduct our review, we benefit from prior analyses of the court of appeals and the circuit court. Id.

B. Wisconsin Stat. § 301.45

¶ 71. The parties agree that the information Mr. Dinkins is required to report is set out in Wis. Stat. § 301.45(2)(a). Failing to report all of the information *105listed in § 301.45(2)(a) may result in prosecution and conviction of a Class H felony. Wis. Stat. § 301.45(6).

¶ 72. Statutory interpretation "begins with the language of the statute." Richards, 309 Wis. 2d 541, ¶ 20 (quoting State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110). We assume that the meaning of the statute is expressed in the words that the legislature chose to use. Id. The context in which statutory terms are considered is helpful to our understanding. Id. When the statutory language is unambiguous, we apply the plain, clear meaning of the statute. Id. Statutory purpose also is important to statutory construction. See Kalal, 271 Wis. 2d 633, ¶ 48.

¶ 73. Mr. Dinkins had served the full term of the imposed sentence; therefore, no supervision was to be provided upon his release from prison. Accordingly, I begin with Wis. Stat. § 301.45(2)(d), which sets out the registration process for a sex offender no longer subject to supervision. Section 301.45(2)(d) provides:

A person subject to sub. (1)g who is not under the supervision of the department of corrections or the department of health services shall provide the information specified in par. (a) to the department of corrections in accordance with the rules under sub. (8). If the person is unable to provide an item of information specified in par. (a), the department of corrections may-request assistance from a circuit court or the department of health services in obtaining that item of information. A circuit court and the department of health services shall assist the department of corrections when requested to do so under this paragraph.

¶ 74. Wisconsin Stat. § 301.45(2)(d) states that "[i]f the person is unable to provide an item of information specified in par. (a)" certain assistance is available. *106For example, the DOC "may request" that a circuit court assist in providing the required information, or the DOC "may request" assistance from the DHS. Section 301.45(2)(d) also provides that if the DOC makes such a request, a circuit court or the DHS "shall assist the department of corrections." Accordingly, the plain wording of the statute shows that the legislature anticipated that a person who would no longer be subject to supervision may be "unable to provide" the required information and when that occurs, assistance is to be provided.

¶ 75. In the case now before us, the DOC did not request a circuit court or the DHS to assist Mr. Dinkins in meeting his registration requirements. Instead, it immediately sought prosecution of Mr. Dinkins in circuit court for willfully failing to register. Apparently, the DOC concluded that because Wis. Stat. § 301.45(2)(d) states that the DOC "may" ask for assistance when a convicted sex offender is "unable to provide an item of information" required by § 301.45(2)(a), the DOC was not obligated to request assistance.

¶ 76. Although the term "may" usually does not compel action, we interpret statutory terms in the context in which they are used. Spiegelberg v. State, 2006 WI 75, ¶ 20, 291 Wis. 2d 601, 717 N.W.2d 641. Terms are also interpreted to support the purpose of the statute in which they are used. Kalal, 271 Wis. 2d 633, ¶ 48. Therefore, "may" can be mandatory when such a construction supports the purpose underlying the statute. Bouchard v. Bouchard, 107 Wis. 2d 632, 634, 321 N.W.2d 330 (Ct. App. 1982).

¶ 77. Here, the purpose underlying Wis. Stat. § 301.45 is to permit law enforcement to know the whereabouts of convicted sex offenders and what they are doing. Therefore, obtaining information about where the sex offender will be staying when he or she is *107released from prison, even when he or she is homeless, should be the primary focus for the DOC. Although at first blush, the requirement that the DOC seek assistance may seem discretionary, the statutory context makes it mandatory when one observes that the joint efforts of the department and the circuit court would ensure that a homeless sex offender's whereabouts could be monitored and thereby satisfy the purpose underlying § 301.45.

¶ 78. Furthermore, statutory interpretation that directs the DOC to request assistance from a circuit court or the DHS has the consequence of compelling assistance. Wis. Stat. § 301.45(2)(d). That assistance is required is emphasized by § 301.45(9), which provides: "The department of health services, the department of children and families, the department of transportation and all circuit courts shall cooperate with the department of corrections in obtaining information under this section." Stated otherwise, the focus of § 301.45 is on obtaining information, not on immediate prosecution.

¶ 79. Accordingly, I conclude that the term "may" in Wis. Stat. § 301.45(2)(d) is not discretionary; rather, it directed the DOC to request assistance from the circuit court or the DHS so that a plan could have been determined to permit law enforcement to know the whereabouts of Mr. Dinkins, a homeless person. Because no plan was made that would promote the purpose of § 301.45 in regard to Mr. Dinkins, I would dismiss the complaint alleging a § 301.45(6) violation and remand the matter to the circuit court to determine such a plan.

¶ 80. My interpretation of Wis. Stat. § 301.45(2)(d) is strengthened by comparing it with the reporting and assistance requirements of § 301.45(2)(c). Both para. (2)(d) and para. (2)(c) incorporate the reporting require-*108merits of § 301.45(2)(a)5., which requires reporting "The address at which the person is or will be residing." Both are registration directives that apply when a convicted sex offender is being released from prison. Accordingly, both serve the purpose of permitting law enforcement to ascertain the whereabouts of convicted sex offenders.

¶ 81. Mr. Dinkins was not subject to supervision upon his release from prison. Therefore, the obligation to provide the DOC with the information listed in Wis. Stat. § 301.45(2)(a) is his alone, according to the provisions of § 301.45(2)(d).

¶ 82. However, if Mr. Dinkins had been subject to supervision upon release from prison, Wis. Stat. § 301.45(2)(c) would have applied to the requirement to provide information to the DOC. Under § 301.45(2)(c), the DHS, not the convicted sex offender, is obligated to provide the information required by § 301.45(2)(a) to the DOC.3 The convicted person simply "assists" the DHS.

¶ 83. Query, if a DHS employee designates the sex offender's residence as "To be determined by Agent," would the health services employee who completes the form be subject to prosecution for a Class H felony based on what he or she wrote on the form? One would hope not, yet Wis. Stat. § 301.45(6) says, "Whoever knowingly fails to comply with any requirement to provide information under subs. (2)" is subject to the listed penalties, and, it is the DHS that has the duty to provide information under § 301.45(2)(c).

*109¶ 84. Accordingly, I conclude a proper interpretation of § 301.45(2)(d) must cause the effect on two homeless convicted sex offenders to be consistent. Therefore, because a homeless convicted sex offender who is subject to supervised release would receive assistance in providing the necessary information, assistance should have been provided to Mr. Dinkins as well. Immediate prosecution of Mr. Dinkins was not appropriate.

¶ 85. On remand it will be helpful to note that although the DOC was authorized by statute to provide "rules necessary to carry out its duties," Wis. Stat. § 301.45(8), prior to Mr. Dinkins' conviction for willfully failing to register, the DOC had no rules directed to homeless persons. However, subsequent to Mr. Dinkins' conviction, the DOC issued Administrative Directive #11-04, and while not a DOC rule, it does establish a protocol for obtaining the required information about homeless sex offenders. In so doing, it furthers the public safety purpose of the registration requirement that drives the dissent,4 by assisting law enforcement in determining the whereabouts of homeless sex offenders.

¶ 86. Administrative Directive #11-04 provides:

While homeless, the sex offender registrant must call and speak with a staff member of the Sex Offender Registry or designated Registry Specialist every seven days, on a weekday, to report "homeless" status and the location(s) in the city and state where he/she has been frequenting and sleeping for the previous seven days and plans for the next seven days along with all other required registry data.

The Administrative Directive also provides that a sex offender who is no longer under supervision who "fail[s] *110to adhere to policy set [in Administrative Directive #11-04] will be considered non-compliant with the Sex Offender Registry and be subject to non-compliance prosecution." Therefore, while not based expressly on an interpretation of Wis. Stat. § 301.45, the Administrative Directive recognizes that homeless persons may satisfy their registration requirements in ways that differ from a convicted sex offender who is not homeless. It also forms a basis for holding homeless sex offenders accountable if they fail to provide the required registration information. Accordingly, Administrative Directive #11-04 may be a useful starting point for the circuit court on remand.

III. CONCLUSION

¶ 87. Because Wis. Stat. § 301.45(2)(d) was not properly interpreted or applied, the circuit court erred in convicting Mr. Dinkins of failing to comply with the sex offender reporting requirements. Therefore, I agree with the majority opinion that Mr. Dinkins' conviction should be reversed, and I would remand the matter for further proceedings before the circuit court. Accordingly, although I do not join the majority opinion, I respectfully concur.

See "Policy Statement: It is the intent of the Division of Community Corrections and the Sex Offender Registry Program to monitor and track whereabouts of the sex offender registrants .. . ." Administrative Directive #11-04.

See dissent, ¶¶ 88-89.

Wisconsin Stat. § 301.45(2)(c) provides:

If the department of health services has supervision over a person subject to sub. (1 g), that department, with the assistance of the person, shall provide the information specified in par. (a) to the department of corrections in accordance with the rules under sub. (8).

See dissent, ¶ 90 n.2.