State v. Dinkins

ANNETTE KINGSLAND ZIEGLER, J.

¶ 88. (dissenting). Today, the majority creates a registration loophole for arguably some of the most dangerous sex offenders: those whose whereabouts are unknown and who are otherwise not subject to supervision by the Department of Corrections (DOC). Pursuant to the majority opinion, the newly pronounced dictate is that a convicted and released sex offender who, like Dinkins, is not otherwise subject to any supervision, can no longer be adjudged criminally liable for failing to provide to the DOC his or her address as required under Wis. Stat. *111§ 301.45(2)(a)5., so long as he or she claims to be homeless and unable to find housing. In other words, in spite of the manifest purpose behind the sex offender registration statute — to assist law enforcement in locating, investigating, and apprehending sex offenders in order to protect the public — the majority provides homeless sex offenders a means to escape from sex offender registration, thereby rendering those sex offenders essentially invisible to law enforcement and to the Wisconsin public. To the majority, it matters not that Dinkins has twice been convicted of sexual assault and that his most recent conviction for first-degree sexual assault of a ten-year-old child occurred only two years after he was discharged from parole for his prior sex offense. The majority condones Dinkins' failure to comply with the sex offender registration statute by evading the statute's plain language and creating a statutory procedure for dealing with homeless sex offenders where none has been provided by the legislature. The legislature could have enacted such a procedure, as other state legislatures have.1 It did not. By creating a statutory procedure for dealing with homeless sex offenders, the majority substitutes its own judgment for that of the legislature and leaves sex offenders like Dinkins unaccounted for, contravening the very purpose of the sex offender registration statute. Surely, law enforcement, the Wisconsin public, and those who have been victimized by homeless sex offenders deserve more. I cannot join the majority's strained, result-driven statutory interpretation.

¶ 89. Based upon the plain language of the sex offender registration statute, I conclude that Dinkins *112was properly convicted of knowingly failing to comply with the requirement that he provide to the DOC the address at which he will be residing upon his release from prison. Whether Dinkins and other homeless sex offenders ought to be exempt from that requirement is a question for the legislature — not this court — to decide.

I. FACTUAL BACKGROUND

¶ 90. On February 4, 1999, Dinkins was convicted of one count of first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1) (1997-98). The complaint2 alleged that on or around April 18, 1998, Din-kins sexually assaulted his then girlfriend's ten-year-old daughter by bending her over the bed and rubbing his penis along the crack of her buttocks and against her vagina. When asked if anything else happened, the victim told the investigating officer that "white stuff was coming out of the end of [Dinkins'] ding dong" and that "he had placed his ding dong in her mouth and made her suck on it."

¶ 91. According to the complaint, at the time of the assault, Dinkins was living with the victim's mother. The complaint identified Dinkins' address as one in Fox Lake, Wisconsin.

¶ 92. Dinkins was sentenced to ten years imprisonment for sexually assaulting his ten-year-old victim. *113He served his sentence at Oshkosh Correctional Institution, a medium security prison, until his maximum discharge date of July 20, 2008. In other words, Din-kins, unlike many criminals, served the entire length of his sentence in prison. Consequently, but for the criminal complaint issued in the instant case for failure to comply with the sex offender registration statute, Dinkins would have been released into the community without DOC supervision. See majority op., ¶ 8 & n.4.

¶ 93. There is no question that as a result of his underlying conviction for a "sex offense," first-degree sexual assault of a child, Dinkins was required to register as a sex offender. See Wis. Stat. § 301.45(1d)(b), (1g)(a). The legislature has charged the DOC with maintaining a registry of all sex offenders in Wisconsin. § 301.45(2)(a). The purpose of sex offender registration is not to further punish sex offenders but rather to protect the public. See State v. Smith, 2010 WI 16, ¶ 26, 323 Wis. 2d 377, 780 N.W2d 90; State v. Bollig, 2000 WI 6, ¶¶ 20-21, 232 Wis. 2d 561, 605 N.W2d 199. More specifically, registration assists law enforcement in locating, investigating, and apprehending sex offenders in order to protect the health, safety, and welfare of the Wisconsin public. Bollig, 232 Wis. 2d 561, ¶ 20. In addition, the public has online access to information about sex offenders and their whereabouts. See Wisconsin DOC, Sex Offender Registry, http://offender.doc.state.wi.us/public/. As part of maintaining the registry, the DOC must collect certain information about each sex offender in Wisconsin, including "[t]he address at which the person is or will be residing." § 301.45(2)(a)5. In this case, Dinkins was required to provide such information to the DOC no later than ten days before his release from prison — in other words, no later than July 10, 2008. See § 301.45(2)(e)4. Section 301.45(6)(a)l. expressly provides that "[wjhoever *114knowingly fails to comply with any requirement to provide information" under § 301.45(2) through (4) is guilty of a Class H felony. The penalty provision has no exceptions.

¶ 94. The registration requirements are no surprise to sex offenders and to Dinkins in particular. In this case, the DOC was responsible for notifying Din-kins of his need to comply with the requirements of the sex offender registration statute. See Wis. Stat. § 301.45(3)(b)2. The DOC so notified Dinkins. What is more, Dinkins had prior experience in registering as a sex offender. Dinkins' underlying conviction for first-degree sexual assault of a child was not his first conviction for a sex offense. As early as January 1996, Dinkins was required to register as a sex offender as a result of being convicted in 1992 of attempted second-degree sexual assault in violation of Wis. Stat. §§ 939.32 and 940.225(2) (1991-92). Still, on June 2, 2008, seven weeks before the date of Dinkins' maximum discharge, Lisa Gallitz, a parole agent from the DOC, spoke with Dinkins via telephone and notified him that he was required to register as a sex offender as a result of his conviction for first-degree sexual assault of a child and that he could be criminally charged for failing to inform the DOC of his specific residential address.

¶ 95. Two days later, on June 4, 2008, Myra Smith, a social worker at Oshkosh Correctional Institution, gave Dinkins a copy of a Notice of Requirements to Register and a standardized sex offender registration form. See Wis. Stat. § 301.45(3)(b)3m. The notice stated that "under Wisconsin Statute 301.45, you are required to comply with, and provide information/changes in your RESIDENCE, EMPLOYMENT, SCHOOL ENROLLMENT, VEHICLE USE OR CHANGE OF NAME status ...." Furthermore, the notice specified that Dinkins *115had to comply with the sex offender registration requirements "[a]t least 10 days prior to [his] sentence or commitment expiration."

¶ 96. Smith filled out the sex offender registration form on Dinkins' behalf. The form indicated that Din-kins was unemployed, was not enrolled in school, and did not drive. In addition, in the space reserved for "RESIDENCE STREET," Smith wrote, "To be determined by Agent."

¶ 97. Dinkins signed and dated the bottom of the form. The following clause was printed above Dinkins' signature:

I have been notified of my duty to register in accordance with Wisconsin Statute 301.45.1 have read the requirements as indicated on the reverse side of this form. I understand that I am legally obligated to supply this information, and that failure to comply, or providing false information, may be cause for revocation and/or further criminal prosecution. I understand that this information will be used for law enforcement purposes and other purposes established by law.

¶ 98. In the ensuing weeks, Smith made several attempts to help Dinkins find living arrangements. Smith first offered to help on June 10, 2008, but Dinkins declined. On June 17, 2008, Smith arranged for Dinkins to telephone his ex-wife, but the line was busy. From that point forward, up until Dinkins' maximum discharge date, Smith contacted Dinkins "at least weekly" to inquire about his living arrangements. According to Smith, Dinkins "was always waiting for a reply from his daughter."

¶ 99. By July 10, 2008, ten days before his maximum discharge, Dinkins still had not given the DOC any indication as to where he would be residing upon *116his release from prison. Consequently, on July 17, 2008, Dinkins was charged with knowingly failing to comply with the requirement that he provide to the DOC the address at which he will be residing upon his release from prison, in violation of Wis. Stat. § 301.45(6)(a).

II. ANALYSIS

¶ 100. Whether Dinkins was properly convicted of violating Wis. Stat. § 301.45(6)(a) involves a straightforward interpretation and application of the sex offender registration statute. Our canons of statutory interpretation are often-stated and well understood. "[W]e have repeatedly held that statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659). The rationale is simple:

[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.

Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992).

¶ 101. In addition, "scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute," so long as they are ascertainable from the statute itself. Kalal, 271 Wis. 2d 633, ¶ 48. Importantly, "a plain-meaning interpretation can*117not contravene a textually or contextually manifest statutory purpose." Id., ¶ 49 (internal footnote omitted).

¶ 102. Applying these canons of statutory interpretation to the sex offender registration statute, I conclude that Dinkins was properly convicted of violating Wis. Stat. § 301.45(6)(a). Section 301.45(6)(a)l. states, in relevant part, that "[wjhoever knowingly fails to comply with any requirement to provide information" under § 301.45(2) through (4) is guilty of a Class H felony. Significantly, although it could have, the statute does not exempt from its reach any certain sex offenders, homeless or otherwise. Pursuant to the plain language of § 301.45(6)(a), a person is criminally liable if he or she was required to provide information under § 301.45(2) through (4) and knowingly failed to provide the information as required. See Wis JI — Criminal 2198.

¶ 103. Here, there is no question that Dinkins was required under Wis. Stat. § 301.45(2) to provide to the DOC certain information about himself and was required to do so no later than July 10, 2008, ten days before his release from prison. See § 301.45(2)(a), (2)(e)4. Specific to this case, the required information included "[t]he address at which [he] . . . will be residing" upon his release from prison. See § 301.45(2)(a)5.

¶ 104. Furthermore, there is no question that Dinkins knowingly failed to provide his address as required. Dinkins received written and verbal notice of his need to provide to the DOC his specific residential address at least ten days prior to the expiration of his sentence. Still, as of July 10, 2008, Dinkins had not given the DOC any indication whatsoever as to where he would be residing upon his release from prison. As far as the DOC knew, Dinkins' address was merely "[t]o be determined"; in other words, Dinkins could be living anywhere in the world.

*118¶ 105. Given these circumstances, Dinkins violated the plain language of Wis. Stat. § 301.45(6)(a). The majority, at least initially, seems to agree. See majority op., ¶ 33 ("In isolation, the penalty subsection of the statute appears to criminalize the failure to provide required information — without regard to the registrant's ability to provide that information.") This court's analysis ought to end there. When the words of a statute are plain," 'judicial inquiry is complete.'" Germain, 503 U.S. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).

¶ 106. Nevertheless, the majority, unsatisfied with the result yielded by a plain-meaning interpretation of Wis. Stat. § 301.45(6)(a), proceeds to conclude that Dinkins was not properly convicted of violating § 301.45(6)(a). The majority so concludes by doing an end-around interpretation of the sex offender registration statute and creating a statutory procedure for dealing with homeless sex offenders where none exists.

¶ 107. Relying on Wis. Stat. § 301.45(2)(d) and (2)(f), the majority concludes that the legislature envisioned a scenario like Dinkins' and set forth a procedure for dealing with homeless sex offenders like him without imposing criminal liability. See majority op., ¶¶ 4, 34-41. In actuality, § 301.45(2)(d) and (2)(f) say no such thing.

¶ 108. Wisconsin Stat. § 301.45(2)(d) is specific to sex offenders, like Dinkins, who are not under the supervision of the DOC. Subsection (2)(d) states:

A person subject to [the requirements of sex offender registration] 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 [promulgated by the DOC] under *119sub. (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.

§ 301.45(2)(d). As the majority points out, the plain language of subsection (2) (d) contemplates that a sex offender like Dinkins may be "unable to provide an item of information specified" in subsection (2)(a). Majority op., ¶ 36; see also concurrence, ¶ 75. If such is the case, the DOC then has the option of requesting assistance from a circuit court or the Department of Health Services (DHS) in obtaining that item of information.3 § 301.45(2)(d).

¶ 109. Wisconsin Stat. § 301.45(2)(f) gives the DOC the authority to require a sex offender to report to a designated location for the purpose of providing fingerprints, a recent photograph, or any other required information that was not previously provided:

The department may require a person covered under [the sex offender registration statute] to provide the department with his or her fingerprints, a recent *120photograph of the person and any other information required under par. (a) that the person has not previously provided. The department may require the person to report to a place designated by the department, including an office or station of a law enforcement agency, for the purpose of obtaining the person's fingerprints, the photograph or other information.

¶ 110. To be sure, Wis. Stat. § 301.45(2)(d) and (2)(f) reveal that the legislature anticipated that a sex offender may be unable to, or simply may choose not to, provide information required under subsection (2)(a), including his or her address. However, § 301.45(2)(d) and (2) (f) say nothing about a sex offender being exempt from criminal liability under § 301.45(6)(a) for failing to provide such required information. Instead, § 301.45(2)(d) and (2)(f) simply give the DOC options for obtaining the missing information, either by requesting assistance from a circuit court or the DHS or by requiring the sex offender to report to a designated location. Indeed, these options assist the DOC in fulfilling its duty to maintain a registry that contains all of the required information with respect to each and every sex offender in Wisconsin. See § 301.45(2)(a).

¶ 111. Rather than taking Wis. Stat. § 301.45(2)(d) and (2)(f) for what they are on their face, simply different means for the DOC to obtain missing information about a sex offender, the majority takes the extraordinary leap of interpreting these provisions to mean that the legislature did not intend for a sex offender to be presumptively prosecuted for failure to provide certain required information. See majority op., ¶ 41. Specific to the address requirement, the majority proceeds to create a procedure for dealing with homeless sex offenders, explaining that the DOC can require a homeless sex offender to regularly report to a police *121station until he or she is able to provide an address and, in the meantime, can require the sex offender to provide information about the places he or she frequents. Id., ¶ 40. The majority substitutes its own judgment for that of the legislature and creates a statutory procedure for dealing with homeless sex offenders where none exists.

¶ 112. The majority's interpretation of the sex offender registration statute flies in the face of the plain language of Wis. Stat. § 301.45(6)(a), which imposes criminal liability for the failure to comply with "any requirement to provide information" under § 301.45(2) through (4), without regard to the sex offender's ability to provide such information. Worse still, the majority's interpretation leaves homeless sex offenders like Din-kins unaccounted for, contravening the very purpose of the sex offender registration statute. See Kalal, 271 Wis. 2d 633, ¶ 49 ("[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose." (Internal footnote omitted.)). The unreasonableness of the majority's interpretation is best demonstrated by an example: had Dinkins still been under the DOC's supervision and thus had his whereabouts subject to scrutiny, he could have been sent back to prison for failing to provide his address as required under § 301.45(2)(a)5. As it stands now, however, Dinkins and other sex offenders like him can claim homelessness; escape criminal liability; and leave law enforcement, the Wisconsin public, and their victims in the dark about their whereabouts without any repercussions whatsoever. Surely, the public is more adequately protected from the sex offender who is still subject to supervision by the DOC, and yet, that is the sex offender whom the majority subjects to incarceration for failing to comply with the sex offender regis*122tration statute, while the sex offender who is without any supervision is free to roam our streets and be entirely unaccounted for. Indeed, the majority's own fabricated procedure for dealing with homeless sex offenders begs the question: if a homeless sex offender like Dinkins cannot be prosecuted for failing to provide to the DOC his or her address and is not otherwise under the DOC's supervision, how is the DOC supposed to locate such a sex offender for the purpose of requiring him or her to regularly report to a police station? The majority does not say. Surely the legislature did not intend such a backwards result. See Kalal, 271 Wis. 2d 633, ¶ 46 (directing that we interpret statutory language "reasonably, to avoid absurd or unreasonable results").

¶ 113. Rather, consistent with the plain language of the sex offender registration statute and its manifest purpose, I conclude that all sex offenders in Wisconsin, even those who are homeless, must comply with the address requirement under Wis. Stat. § 301.45(2)(a)5. or risk criminal liability under § 301.45(6)(a). Such an interpretation is not novel or unique. As articulated by the United States Department of Justice (USDOJ), "[r]equiring registration only where a sex offender has a residence or a home in the sense of a fixed abode would be too narrow to achieve [the Sex Offender Registration and Notification Actj's objective of 'comprehensive' registration of sex offenders ...." Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030, 38,061 (July 2, 2008) (quoting 42 U.S.C. § 16901 (2006)).4 Similar to Wisconsin's sex offender registration statute, the federal Sex Offender Registration and Notification Act *123(SORNA) requires each sex offender to provide "[t]he address of each residence at which the sex offender resides or will reside." 42 U.S.C. § 16914(a)(3). SORNA defines "resides," with respect to an individual, as "the location of the individual's home or other place where the individual habitually lives." § 16911(13). In interpreting SORNA, the USDOJ has recognized that homeless sex offenders cannot provide the residence address required by § 16914(a)(3) "because they have no definite 'address' at which they live." Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. at 38,055. Nevertheless, in order to fulfill the purpose of SORNA, the USDOJ still requires homeless sex offenders to meet the functional equivalent of the address requirement by providing specific descriptions of where they habitually live:

[S]ome more or less specific description should normally be obtainable concerning the place or places where such a sex offender habitually lives — e.g., information about a certain part of a city that is the sex offender's habitual locale, a park or spot on the street (or a number of such places) where the sex offender stations himself during the day or sleeps at night, shelters among which the sex offender circulates, or places in public buildings, restaurants, libraries, or other establishments that the sex offender frequents. Having this type of location information serves the same public safety purposes as knowing the whereabouts of sex offenders with definite residence addresses.

Id. at 38,055-056.

¶ 114. Likewise, in this case, I conclude that Dinkins could have complied with the address requirement under Wis. Stat. § 301.45(2)(a)5., thereby avoiding criminal liability under § 301.45(6)(a), by providing *124to the DOC a specific description of the place or places which he will be spending his days and nights upon his release from prison. Such information would have served the purpose of the sex offender registration statute by assisting law enforcement in locating Din-kins in order to protect the public. As it stood, however, the DOC knew only that Dinkins' address was "[t]o be determined," leaving law enforcement, the public, and his victim at a total loss as to his whereabouts. By informing the DOC only that his address was "[t]o be determined," Dinkins violated the plain language of § 301.45(6)(a) and defied the very purpose of the sex offender registration statute.

¶ 115. For the foregoing reasons, I respectfully dissent.

¶ 116. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this dissent.

See, e.g., Cal. Penal Code § 290.011 (2008); 730 Ill. Comp. Stat. 150/6 (2007); Minn. Stat. § 243.166, subd. 3a (2010); Wash. Rev. Code § 9A.44.130(5) (2009).

The complaint filed against Dinkins, including the nature of the charge, is public record. Moreover, but for the majority's holding today, law enforcement and the public would typically be entitled to track a registered sex offender like Dinkins through the online sex offender registry, see Wisconsin DOC, Sex Offender Registry, http://offender.doc.state.wi.us/public/ (last visited Feb. 9, 2012), and easily ascertain the nature of the sex offender's conviction.

The concurrence concludes that the DOC is obligated to request assistance from a circuit court or the DHS in obtaining the missing item of information. Concurrence, ¶ 78.1 disagree. I decline to construe the word "may" in Wis. Stat. § 301.45(2)(d) as "shall," particularly when the word "shall" appears in the very next sentence. See Karow v. Milwaukee Cnty. Civil Serv. Comm'n, 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978) ("When the words 'shall' and 'may' are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.").

All subsequent references to the United States Code are to the 2006 version unless otherwise indicated.