State v. DeAnthony K. Muldrow , 381 Wis. 2d 492 ( 2018 )

2018 WI 52
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP740-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
DeAnthony K. Muldrow,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF
Reported at 377 Wis. 2d 223, 900 N.W.2d 859
PDC No: 2017 WI App 47 - Published
OPINION FILED: May 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 21, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Manitowoc
JUDGE: Jerome L. Fox
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Leonard Kachinsky and Kachinsky
Law Offices, Neenah.
For the plaintiff-respondent, there was a brief filed by
Tiffany M. Winter, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by
Tiffany M. Winter.
2018 WI 52
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP740-CR
(L.C. No. 2009CF334)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
MAY 18, 2018
DeAnthony K. Muldrow,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. A defendant who enters a
guilty plea waives numerous constitutional rights. State v.
Bangert, 131 Wis. 2d 246, 270, 389 N.W.2d 12 (1986).
Accordingly, "[u]nder the Due Process Clause of the Fourteenth
Amendment to the United States Constitution,[1] a defendant's
1
The Due Process Clause of the Fourteenth Amendment to the
United States Constitution states "[n]o State
shall . . . deprive any person of life, liberty, or property[]
without due process of law . . . ." U.S. Const. amend. XIV,
§ 1.
No. 2016AP740-CR
guilty plea must be" entered in a knowing, voluntary, and
intelligent fashion. State v. Cross, 2010 WI 70, ¶16, 326
Wis. 2d 492, 786 N.W.2d 64. This means, inter alia, the circuit
court must notify the defendant of any direct consequence of his
guilty plea. Brady v. United States, 397 U.S. 742, 755 (1970).
A direct consequence of a guilty plea is one that "has a
definite, immediate, and largely automatic effect on the range
of a defendant's punishment." State v. Bollig, 2000 WI 6, ¶16,
232 Wis. 2d 561, 605 N.W.2d 199. We have identified direct
consequences of a plea as being those that impose punishment.
Id., ¶17.
¶2 The legislature has codified this prerequisite,
requiring circuit courts to "[a]ddress the defendant personally
and determine that the plea is made voluntarily with
understanding of the nature of the charge and the potential
punishment if convicted" before the court accepts a guilty plea.
Wis. Stat. § 971.08(1)(a) (2015-16).2 A defendant who is not
accurately informed of the punishment that could result from his
guilty plea may be entitled to withdraw that plea. State v.
Taylor, 2013 WI 34, ¶32, 347 Wis. 2d 30, 829 N.W.2d 482.
¶3 Petitioner DeAnthony K. Muldrow pled guilty to second-
degree sexual assault contrary to Wis. Stat. § 948.02(2). This
conviction subjects Muldrow to (as is relevant here) lifetime
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP740-CR
GPS tracking pursuant to Wis. Stat. § 301.48.3 Muldrow moved to
withdraw his guilty plea on the grounds that his plea was not
knowing4 because he was never informed that lifetime GPS tracking
is a consequence of a conviction for second-degree sexual
assault.
¶4 The parties agree that the circuit court failed to
inform Muldrow that his guilty plea would subject him to
lifetime GPS tracking. The issue in this case is whether
lifetime GPS tracking is a "punishment" such that due process
requires a defendant be informed of it before entering a plea of
guilty. The Manitowoc County Circuit Court5 concluded that
lifetime GPS tracking is not punishment, and so denied Muldrow's
motion to withdraw his plea. The court of appeals affirmed.
State v. Muldrow, 2017 WI App 47, ¶1, 377 Wis. 2d 223, 900
N.W.2d 859.
3
Lifetime GPS tracking applies after an offender has
completed all sentences and any periods of probationary
supervision. See Wis. Stat. §§ 301.48(2)(a)3-3m. It should be
noted that an offender may be subject to GPS tracking during
extended supervision and probation pursuant to other statutory
provisions. See, e.g., Wis. Stat. §§ 973.01(5), (9); see also
Wis. Stat. § 301.48(2)(a)1m. These, however, are not at issue
in the present case, as Muldrow challenges only lifetime GPS
tracking pursuant to § 301.48(2)(a)3-3m. and does not challenge
GPS tracking during extended supervision or probation.
4
Muldrow did not specify in his motion to withdraw his plea
in the circuit court whether his plea was not knowing,
voluntary, or intelligent——or some combination thereof. Before
this court, Muldrow argues only that his plea was not knowing.
5
Honorable Jerome L. Fox, presiding.
3
No. 2016AP740-CR
¶5 This case presents us with an opportunity to set forth
the proper test for determining whether a sanction6 is
"punishment" such that due process requires a defendant be
informed of it before entering a plea of guilty. We must first,
therefore, determine what that test is.
¶6 We hold that the intent-effects test is the proper
test used to determine whether a sanction is punishment such
that due process requires a defendant be informed of it before
entering a plea of guilty.
¶7 After determining the proper test for whether a
sanction is punishment such that due process requires a
defendant be informed of it before entering a plea of guilty, we
must apply that test to the facts of Muldrow's case.
¶8 Applying the intent-effects test, we hold that neither
the intent nor effect of lifetime GPS tracking is punitive.
Consequently, Muldrow is not entitled to withdraw his plea
because the circuit court was not required to inform him that
his guilty plea would subject him to lifetime GPS tracking.
Accordingly, we affirm.
6
Though the colloquial definitions of "sanction" and
"punishment" may be similar, courts routinely use "sanction" as
a general term for a negative consequence that may or may not
rise to the level of "punishment." See, e.g., Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168 (1963); Turner v. Glickman,
207 F.3d 419, 430 (7th Cir. 2000); State v. Rachel, 2002 WI 81,
¶42, 254 Wis. 2d 215, 647 N.W.2d 762.
4
No. 2016AP740-CR
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Muldrow's Plea
¶9 In 2009, the State charged Muldrow with five counts of
criminal conduct as a consequence of an incident in which he had
forcible intercourse with a 15-year-old girl. He reached a plea
agreement with the State whereby he agreed to plead guilty to
the first two counts: second-degree sexual assault of a child
contrary to Wis. Stat. § 948.02(2)7 ("count one"), and third-
degree sexual assault contrary to Wis. Stat. § 940.225(3)8
("count two"). In exchange, the State agreed to dismiss, but
read into the record for purposes of sentencing, the remaining
three counts. Further, Muldrow and the State jointly
recommended the following sentence: an 18-year deferred
judgment agreement ("DJA") on count one, and one year initial
confinement followed by one year of extended supervision on
count two. If Muldrow complied with the terms of the DJA, count
one would be dismissed.9 Because of other sentences not relevant
7
"Whoever has sexual contact or sexual intercourse with a
person who has not attained the age of 16 years is guilty of a
Class C felony." Wis. Stat. § 948.02(2).
8
"Whoever has sexual intercourse with a person without the
consent of that person is guilty of a Class G felony." Wis.
Stat. § 940.225(3).
9
The conditions of the DJA included: no new violations of
the criminal law, no contact with the victim, compliance with
the Wisconsin sex offender registry, no sexual contact or
intercourse with anyone under the age of 18, and compliance with
all conditions of extended supervision.
5
No. 2016AP740-CR
here, Muldrow would be under Department of Corrections ("DOC")
supervision for the first 12.5 years of the DJA.
¶10 The State moved to vacate the DJA in 2015 after
Muldrow violated the terms of his extended supervision in a
different case by, inter alia, cutting off the GPS tracker he
was required to wear as a condition of that extended
supervision, absconding, and using controlled substances.
Muldrow did not contest the facts underlying the State's motion.
The circuit court vacated the DJA and ordered that a judgment of
guilt be entered on count one. The court then withheld sentence
and placed Muldrow on ten years of probationary supervision.
Additionally, following the judgment of guilt being taken
against him as to count one, and by dint of Wis. Stat.
§ 301.48(2)(a)3m., Muldrow became subject to lifetime GPS
tracking.10
¶11 Muldrow moved to withdraw his plea in October 2015——
approximately six months after the DJA was revoked and judgment
of conviction was entered on count one. His motion alleged that
his guilty plea was not made in a knowing fashion because the
circuit court did not inform him that pleading guilty to count
one would subject him to lifetime GPS tracking pursuant to Wis.
Stat. § 301.48(2)(a)3m. Muldrow contended that his unknowing
guilty plea was a violation of his right to due process because
10
During the time of his probationary supervision, GPS
tracking would occur by operation of Wis. Stat.
§ 301.48(2)(a)1m.
6
No. 2016AP740-CR
lifetime GPS tracking is a punishment for a conviction of
second-degree sexual assault of a child of which the circuit
court was required to notify him.
¶12 Muldrow relied to a great extent on a federal district
court decision that concluded lifetime GPS tracking violated the
Ex Post Facto Clause of the United States Constitution11 if
applied to a person convicted before the statute was in effect.
Belleau v. Wall, 132 F. Supp. 3d 1085 (E.D. Wis. 2015), rev'd,
811 F.3d 929 (7th Cir. 2016). The threshold question for ex
post facto violations is the same as the threshold question in
the present case: is the sanction "punishment?" In concluding
that lifetime GPS tracking is punishment, the district court in
Belleau applied the intent-effects test, which is commonly used
by state and federal courts in ex post facto decisions. Id. at
11
The Ex Post Facto Clause of the United States
Constitution states, in relevant part, "[n]o state
shall . . . pass any . . . ex post facto law." U.S. Const. art.
I, § 10.
The Wisconsin Constitution also prohibits passage of ex
post facto laws. Wis. Const. art. I, § 12 ("No . . . ex post
facto law . . . shall ever be passed."). We construe the
protections afforded by Article I, Section 12 of the Wisconsin
Constitution to be equivalent to those afforded by Article I,
Section 10 of the United States Constitution. See State v.
Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994); see also
State v. Houghton, 2015 WI 79, ¶50, 364 Wis. 2d 234, 868
N.W.2d 143 (internal quotation marks and quoted source omitted)
(alterations in original) ("Where . . . the language of the
provision in the state constitution is virtually identical to
that of the federal provision . . . , Wisconsin courts have
normally construed the state constitution consistent with the
United States Supreme Court's construction of the federal
constitution.").
7
No. 2016AP740-CR
1095; see also, e.g., Smith v. Doe, 538 U.S. 84 (2003); State v.
Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786. The
district court determined that the intent of lifetime GPS
tracking is not punitive, but the effect is. Belleau, 132 F.
Supp. 3d at 1104.
¶13 Shortly before the circuit court hearing on Muldrow's
motion, the United States Court of Appeals for the Seventh
Circuit reversed the district court's conclusion that lifetime
GPS tracking is punishment. Belleau v. Wall, 811 F.3d 929 (7th
Cir. 2016). The panel unanimously concluded that lifetime GPS
tracking is a less onerous sanction than civil commitment
pursuant to Wis. Stat. ch. 980. Id. at 937. Thus, the court
reasoned, "if civil commitment is not punishment, as the Supreme
Court has ruled, then a fortiori, neither is having to wear an
anklet monitor." Id.
¶14 The circuit court, relying on the Seventh Circuit's
decision in Belleau, denied Muldrow's motion to withdraw his
plea. The circuit court concluded that lifetime GPS tracking is
not punishment and, consequently, Muldrow did not have a right
to be informed that his guilty plea would result in its
imposition.
¶15 The court of appeals affirmed. Muldrow, 377
Wis. 2d 223, ¶1. The court of appeals observed a certain lack
of clarity as to the correct test for determining whether a
particular sanction is punishment such that due process requires
a defendant be informed of it before entering a plea of guilty.
Id., ¶15. It noted, for example, that in State v. Dugan, 193
8
No. 2016AP740-CR
Wis. 2d 610, 620-21, 534 N.W.2d 897 (Ct. App. 1995), the court
of appeals applied the fundamental purpose test to determine
that restitution is not punishment. Moreover, it observed that
we applied a truncated version of the intent-effects test in
Bollig, 232 Wis. 2d 561, to determine that Wisconsin's Sexual
Offender Registry was not punishment. In Bollig, we emphasized
the lack of punitive intent, but provided only conclusory
analysis of the punitive effects of the registry. See id.,
¶¶23-26.
¶16 Be that as it may, the court of appeals concluded that
Muldrow's claim failed under either test. Muldrow, 377
Wis. 2d 223, ¶23. The court of appeals combined its analysis of
the fundamental purpose test with the intent prong of the
intent-effects test. Id., ¶35. It concluded that the
fundamental purpose/intent of lifetime GPS tracking is
protection of the public, not punishment of the offender. Id.
The court then concluded that the effect of lifetime GPS
tracking is not punitive. Id., ¶¶36-40 (citing Belleau, 811
F.3d at 937-38).
¶17 Muldrow petitioned this court for review, which we
granted on October 17, 2017.
B. Lifetime GPS Tracking
¶18 The DOC has not yet begun tracking Muldrow pursuant to
Wis. Stat. § 301.48(2)(a)3m. because he has completed neither
his probationary supervision on count one nor his sentences
imposed as a consequence for various other criminal conduct.
However, the parties agree that the DOC will begin tracking
9
No. 2016AP740-CR
Muldrow pursuant to § 301.48(2)(a)3m. upon either the conclusion
of his probationary supervision or his release from
incarceration, whichever occurs later. However, pursuant to a
stipulation between the parties, the circuit court took judicial
notice of the practical effects of lifetime GPS tracking as
described in the district court opinion in Belleau, 132 F. Supp.
3d 1085, rev'd on other grounds, 811 F.3d 929 (7th Cir. 2016).
¶19 Certain serious sex offenders are subject to lifetime
GPS tracking. Wis. Stat. § 301.48(2).12 Though offenders are
constantly tracked, the DOC reviews the data in only two
12
Offenders are subject to lifetime GPS tracking when
released from DOC supervision after conviction (or released from
Department of Health Services supervision after acquittal on the
basis of mental disease or defect) for a violation of Wis. Stat.
§§ 948.02 or 948.025 in one of four sets of circumstances. Wis.
Stat. § 301.48(2)(a)1.-5.
1. (i) the offender had sexual contact or intercourse
with (ii) a victim who is unrelated to the offender, (iii) is
under 13 years old, and (iv) suffered great bodily harm as a
result of the sexual contact or intercourse. Wis. Stat.
§ 301.48(1)(cm)1.
2. (i) the offender had sexual intercourse with (ii) a
victim who is not related to the offender and (iii) is under 12
years old. Wis. Stat. § 301.48(1)(cm)2.
3. (i) the offender had sexual intercourse (ii) by use or
threat of force or violence (iii) with a victim who is not
related to the offender that (iv) is under 16 years old. Wis.
Stat. § 301.48(1)(cn)1.
4. (i) the offender had sexual contact (ii) by use or
threat of force or violence (iii) with a victim who is not
related to the offender that (iv) is under 16 years old when (v)
the offender was over 18 years old. Wis. Stat.
§ 301.48(1)(cn)2.
10
No. 2016AP740-CR
circumstances. Each night, DOC personnel view location data
from the previous day to confirm the offender's whereabouts.
Belleau, 132 F. Supp. 3d at 1091, rev'd on other grounds, 811
F.3d 929 (7th Cir. 2016). Second, DOC personnel receive an
alert whenever an offender leaves an inclusion zone13 or lingers
in an exclusion zone.14 Id.; Wis. Stat. § 301.48(3)(a)3.
¶20 Though called "lifetime" GPS tracking, some offenders
may be released from tracking. Wis. Stat. § 301.48(6)-(7m). An
offender who was not convicted of a crime during the period of
tracking and who was not previously committed pursuant to Wis.
Stat. ch. 980 may petition for termination of lifetime tracking
after 20 years. § 301.48(6)(b). In addition, the DOC may
petition to terminate lifetime tracking of an offender who is
"permanently physically incapacitated." § 301.48(7). Finally,
lifetime GPS tracking is terminated if the offender moves out of
Wisconsin. § 301.48(7m).
¶21 The GPS tracker is attached to the offender's ankle by
a black neoprene rubber strap. Belleau, 132 F. Supp. 3d at
1090, rev'd on other grounds, 811 F.3d 929 (7th Cir. 2016). The
offender is prohibited from ever removing it. Id. To that end,
the tracker is waterproof up to 15 feet to allow for bathing and
13
An inclusion zone is an area that the offender is
prohibited from leaving. Wis. Stat. § 301.48(1)(c).
14
An exclusion zone is an area that the offender is
prohibited from entering other than to pass through. Wis. Stat.
§ 301.48(1)(a).
11
No. 2016AP740-CR
swimming. Id. The tracker can, however, cause blistering,
especially when wet. Id.
¶22 The tracker is approximately 2.5 x 3.5 x 1.5 inches.
Id. Though small, the tracker is noticeable; its position at
the bottom of the offender's ankle means that it is always
visible if the offender wears shorts or sits down while wearing
pants. Id. at 1091. Even if the tracker is totally covered by
the offender's pants, it nonetheless creates a noticeable bulge
on the offender's pant leg. Id.
¶23 The tracker must be charged for one hour once per day,
which requires the offender to stay close enough to an
electrical outlet for the cord to reach. Id. at 1090. The
tracker has a speaker that can play messages sent from DOC
personnel, such as orders to call the DOC, orders to report to
the DOC, reminders of upcoming appointments with DOC personnel,
and warnings for low batteries. Id. at 1091. These messages
can be heard by anyone within earshot of the offender. Id.
II. STANDARD OF REVIEW
¶24 Whether a plea was entered knowingly, voluntarily, and
intelligently is a question of constitutional fact. Bollig, 232
Wis. 2d 561, ¶13. We uphold the circuit court's findings of
historical fact unless clearly erroneous. Id. We apply
constitutional principles to those historical facts de novo.
Id.
¶25 In determining whether Wis. Stat. § 301.48 is
punishment, we must interpret the statute. We interpret the
12
No. 2016AP740-CR
statute de novo. State v. Negrete, 2012 WI 92, ¶15, 343
Wis. 2d 1, 819 N.W.2d 749.
III. ANALYSIS
¶26 We first consider the proper test for determining
whether a sanction is "punishment" such that due process
requires a defendant be informed of it before entering a plea of
guilty. We hold that the intent-effects test is the proper test
used to determine whether a potential sanction is punishment
such that due process requires a defendant be informed of it
before entering a plea of guilty.
¶27 Next, we apply the intent-effects test to the facts of
Muldrow's case. Applying the intent-effects test, we hold that
neither the intent nor effect of lifetime GPS tracking is
punitive and, consequently, the circuit court was not required
to inform Muldrow of it.
A. Whether a Sanction is Punishment Such that Due Process
Requires a Defendant be Informed of it Before Entering a Plea of
Guilty is Determined by Application of the Intent-Effects Test.
¶28 The State brings to our attention three proposed tests
to determine whether a sanction is punishment. First, the State
asks us to adopt a bright-line rule whereby only imprisonment
and fines are punishment. The State grounds this test on State
v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 N.W.2d 761. We
reject this proposal because to do otherwise would be to read
too much into our holding in Finley. We did not undertake a
comprehensive analysis of what constitutes punishment in that
case because it was not centered on the question of what kind of
13
No. 2016AP740-CR
sanctions constitute punishment. Rather, in Finley, the circuit
court's error was misstating the defendant's potential term of
imprisonment——a sanction that is indisputably punishment. Id.,
¶8.
¶29 In the alternative, the State encourages us to adopt
the "fundamental purpose" test. The fundamental purpose test
looks to "the fundamental purpose of the sentencing provision at
issue" in order to determine whether a particular sanction
constitutes punishment. Dugan, 193 Wis. 2d at 620. Put another
way, the fundamental purpose test is really the intent-effects
test without consideration of any punitive effect of the
sanction. We see no reason to adopt this test as it provides a
less comprehensive and, therefore, less useful analysis than the
third test proposed by the State, the intent-effects test.
¶30 The third time here indeed being the charm, we choose
to adopt the State's final proposed standard, the intent-effects
test. The intent-effects test was first articulated by the
United States Supreme Court in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-70 (1963). The issue in Mendoza-Martinez was
whether a statute that automatically stripped American
citizenship, without any hearing, from a person who left the
country to avoid the draft violated the right to due process.
Id. at 165-66. The Court held that forfeiture of citizenship
was a punishment that could be imposed only after conviction in
a criminal trial with all of the protections of the Fifth and
Sixth Amendments to the United States Constitution. Id. at 167.
14
No. 2016AP740-CR
¶31 In determining whether forfeiture of citizenship was a
punishment, the Court first looked to the "statute's primary
function," i.e., intent. Id. at 169. However, the Court's
analysis did not end there.15 The Court also considered whether
the effect of the statute was "penal or regulatory in
character." Id. at 168. To aid its determination of the effect
of the statute, the Court set out seven non-exclusive factors:
[1] Whether the sanction involves an affirmative
disability or restraint, [2] whether it has
historically been regarded as a punishment, [3]
whether it comes into play only on a finding of
scienter, [4] whether its operation will promote the
traditional aims of punishment——retribution and
deterrence, [5] whether the behavior to which it
applies is already a crime, [6] whether an alternative
purpose to which it may rationally be connected is
assignable for it, and [7] whether it appears
excessive in relation to the alternative purpose
assigned . . . .
Id. (footnotes omitted).
¶32 The intent-effects test is used in many contexts to
determine whether a sanction is punishment. The United States
Supreme Court applied the intent-effects test to determine
whether Alaska's sex offender registry was punishment for
purposes of the ex post facto clause, Smith, 538 U.S. 84;
whether monetary penalties and revocation of occupational
licenses were punishment such that a subsequent criminal
15
This is in contrast to the fundamental purpose test. We
agree with the court of appeals that the fundamental purpose
test is equivalent to the intent prong of the intent-effects
test. State v. Muldrow, 2017 WI App 47, ¶24, 377 Wis. 2d 223,
900 N.W.2d 859.
15
No. 2016AP740-CR
prosecution based on the same conduct violated the Fifth
Amendment's double jeopardy clause, Hudson v. United States, 522
U.S. 93 (1997); and whether monetary penalties assessed against
those who discharged hazardous substances into navigable waters
were punishment such that a requirement that a person report any
such discharge violated the Fifth Amendment's protection against
compulsory self-incrimination, United States v. Ward, 448 U.S.
242 (1980).
¶33 Wisconsin courts have similarly used the intent-
effects test to determine whether a sanction is punishment in
multiple contexts. For example, Wisconsin courts have applied
it to determine whether civil commitment pursuant to Wis. Stat.
ch. 980 is punishment such that it violates either the ex post
facto clause or double jeopardy clause, State v. Rachel, 2002 WI
81, 254 Wis. 2d 215, 647 N.W.2d 762; whether the mandatory DNA
surcharge is punishment such that it violates the ex post facto
clause, Scruggs, 373 Wis. 2d 312; and whether monetary penalties
for those who do not comply with a county ordinance regulating
large gatherings are punishment such that they may be imposed
only after a criminal trial with full Fifth and Sixth Amendment
protections, Sauk Cty. v. Gumz, 2003 WI App 165, 266
Wis. 2d 758, 669 N.W.2d 509.
¶34 Other jurisdictions have applied the intent-effects
test to the issue of whether a sanction is punishment such that
the defendant must be informed of it in order for a guilty plea
to be knowing, voluntary, and intelligent. People v. Cole, 817
16
No. 2016AP740-CR
N.W.2d 497 (Mich. 2012); Ward v. State, 315 S.W.3d 461 (Tenn.
2010).
¶35 We conclude that the intent-effects test is the proper
test to determine whether a sanction is punishment such that due
process requires a defendant be informed of it before entering a
plea of guilty. We do so not out of habit or blind adherence to
custom. We do so because the intent-effects test has been
effectively applied by courts in multiple contexts and,
consequently, brings with it a broad and deep base of case law,
which provides us with the type of helpful guidance necessary to
our analysis of the issue we address herein. Winnebago Cty. v.
J.M., 2018 WI 37, ¶41, ___ Wis. 2d ___, ___ N.W.2d ___ (adopting
the Strickland16 standard in Wis. Stat. ch. 51 commitments
because, inter alia, "the Strickland standard carries with it a
developed body of case law that will aid courts in the efficient
and timely resolution of claims of ineffective assistance of
counsel").
B. Application of the Intent-Effects Test to Wis. Stat.
§ 301.48 Leads us to Conclude that Lifetime GPS Tracking is Not
Punishment.
¶36 In his application of the intent-effects test, Muldrow
relies primarily on the district court's decision in Belleau,
132 F. Supp. 3d 1085, rev'd, 811 F.3d 929 (7th Cir. 2016), as
well as the Michigan Supreme Court's decision in Cole, 817
N.W.2d 497. He does so in order to lay the foundation that Wis.
16
Strickland v. Washington, 466 U.S. 668 (1984).
17
No. 2016AP740-CR
Stat. § 301.48 is punitive. For its part, the State relies
primarily on the Seventh Circuit's decision in Belleau, 811 F.3d
929. Though, of course, we are not bound by the Seventh
Circuit's decision in Belleau, we are persuaded by it because it
correctly applies the law, whereas the decision of the district
court does not. See Madison Teachers, Inc. v. Walker, 2014 WI
99, ¶68, 358 Wis. 2d 1, 851 N.W.2d 337 ("While the Seventh
Circuit's analysis of Act 10 is not binding on this court, we
find no reason to disagree with its clear and rational
articulation of the law."). Further, Cole is distinguishable
from the present case due to differences between the Michigan
and Wisconsin lifetime GPS tracking statutes.
1. The intent of lifetime GPS tracking is not punitive.
¶37 "Determining whether the legislature intended [a]
statute to be punitive 'is primarily a matter of statutory
construction . . . .'" Scruggs, 373 Wis. 2d 312, ¶17 (quoting
Rachel, 254 Wis. 2d 215, ¶40). Accordingly, we use the rules of
statutory construction to determine "whether the legislature
expressly or impliedly indicated" whether Wis. Stat. § 301.48 is
"a civil remedy or a criminal penalty." Id., ¶18.
¶38 Statutory interpretation begins with the plain meaning
of the text. State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Context
and structure are important to statutory meaning. Id., ¶46.
Where a statutory provision is codified is indicative of whether
the legislature intended a provision to be punitive. Smith, 538
18
No. 2016AP740-CR
U.S. at 94; Scruggs, 373 Wis. 2d 312, ¶24; see also Tyson v.
State, 51 N.E.3d 88, 93 (Ind. 2016).
¶39 Muldrow relies on the Michigan Supreme Court's
decision in Cole, 817 N.W.2d 497, to argue that the intent of
lifetime GPS tracking is punitive. We are not persuaded. The
Michigan lifetime GPS tracking statute is readily
distinguishable from Wis. Stat. § 301.48. For instance, the
Michigan lifetime GPS tracking statute states, in relevant part:
A person convicted . . . [of] criminal sexual
conduct . . . against an individual less than 13 years
of age shall be sentenced to lifetime electronic
tracking . . .
Mich. Comp. Laws § 750.520n (emphasis added). Additionally, a
plain reading of the relevant Michigan statutes makes clear that
the Michigan legislature intended its lifetime GPS tracking
statutory scheme to be a punitive measure:
(2) Criminal sexual conduct in the first degree is a
felony punishable as follows:
. . .
(d) In addition to any other penalty imposed
under subdivision (a) or (b), the court shall
sentence the defendant to lifetime electronic
tracking under section 520n.
Mich. Comp. Laws § 750.520b(2)(d) (emphasis added).
(2) Criminal sexual conduct in the second degree is a
felony punishable as follows:
. . .
(b) In addition to the penalty specified in
subdivision (a), the court shall sentence the
defendant to lifetime electronic tracking under
section 520n . . .
19
No. 2016AP740-CR
Mich. Comp. Laws § 750.520c(2)(b) (emphasis added).
¶40 In Cole, the Michigan Supreme Court quite reasonably
concluded that lifetime GPS tracking is intended to be punitive
because the relevant statutes expressly refer to it as a
"penalty." Cole, 817 N.W.2d at 502-03. Or, put another way, it
is, by the plain language of the statute, a "punishment."17 See
id. In stark contrast, the language, structure, and context of
Wis. Stat. § 301.48 demonstrate that our legislature did not
intend lifetime GPS tracking to be punitive.
¶41 Our legislature has set forth the purpose of chapters
301-304, which include "provid[ing] a just, humane[,] and
efficient program of rehabilitation of offenders." Wis. Stat.
§ 301.001.18 "We take the legislature at its word." Wis. Med.
17
"Punishment" is defined, inter alia, as a
"penalty . . . assessed against a person who has violated the
law." Black's Law Dictionary 1428 (10th ed. 2014).
18
Wisconsin Stat. § 301.001 states in whole:
The purposes of this chapter and chs. 302 to 304 are
to prevent delinquency and crime by an attack on their
causes; to provide a just, humane and efficient
program of rehabilitation of offenders; and to
coordinate and integrate corrections programs with
other social services. In creating the department of
corrections, chs. 301 to 304, the legislature intends
that the state continue to avoid sole reliance on
incarceration of offenders and continue to develop,
support and maintain professional community programs
and placements.
Express statements of legislative purpose are part of a
plain-meaning inquiry. Wilmet v. Liberty Mut. Ins. Co., 2017 WI
App 16, ¶13, 374 Wis. 2d 413, 893 N.W.2d 251 (citing State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶49, 271
Wis. 2d 633, 681 N.W.2d 110).
20
No. 2016AP740-CR
Soc'y, Inc. v. Morgan, 2010 WI 94, ¶102, 328 Wis. 2d 469, 787
N.W.2d 22. These purposes are indisputably non-punitive in
nature, and are reflective of an intent to rehabilitate
offenders and protect the public rather than to punish
offenders.
¶42 The structure and context of Wis. Stat. § 301.48
demonstrate that the legislature considers punitive sanctions
intended to punish criminal conduct to be distinct from
regulatory sanctions, which are intended to have a focus that
encompasses a broad array of considerations as opposed to the
singular nature of punishment of the offender. The legislature
set out sanctions that are indisputably punishment——imprisonment
and fines——in chapter 939. See Finley, 370 Wis. 2d 402, ¶4.
The legislature set out many of the sanctions it considers
regulatory in nature in chapter 301 and has interspersed others
throughout the statutes.
¶43 Conversely, lifetime GPS tracking is located in
chapter 301, which sets forth both the organizational overview
for the DOC and administrative matters such as: purchasing care
and services for prisoners, Wis. Stat. § 301.08; payment of
benefits, Wis. Stat. § 301.085; and purchases, bills, audits,
and payments, Wis. Stat. § 301.10. In contrast, disciplinary
procedures such as punishments for misbehavior by those subject
to DOC supervision, e.g., solitary confinement, are contained in
chapter 302. See, e.g., Wis. Stat. § 302.40.
¶44 Wisconsin Stat. § 301.48 is, in fact, surrounded by
statutes that establish various safeguards to protect the public
21
No. 2016AP740-CR
from persons convicted of criminal conduct. See generally Wis.
Stat. §§ 301.45-301.49. When courts have had the opportunity to
review whether these safeguards constitute punishment, the
statutes have, in every instance, been found to be non-punitive
in nature.
¶45 Wisconsin Stat. §§ 301.45 and 301.46 govern the
Wisconsin sex offender registry. Section 301.45 requires sex
offenders to register with the Wisconsin sex offender registry.
Section 301.46 regulates the use of information in the registry.
We held that mandatory compliance with the registry is not
punishment in Bollig, 232 Wis. 2d 561, ¶21; see also id., ¶20
(collecting cases from other jurisdictions holding that sex
offender registries are not punishment); Smith, 538 U.S. at 105-
06 (holding that Alaska's sex offender registry is not
punishment). Likewise, the fee assessed against sex offenders
to pay for the registry has been found not to be punishment.
Mueller v. Raemisch, 740 F.3d 1128, 1135 (7th Cir. 2014).
¶46 Wisconsin Stat. § 301.47, the statute immediately
preceding lifetime GPS tracking, prohibits sex offenders from
changing their names (whether legally or through common usage).
The only court to analyze whether § 301.47 is punitive concluded
22
No. 2016AP740-CR
that it is not. Doe v. Raemisch, 895 F. Supp. 2d 897, 908 (E.D.
Wis. 2012), rev'd on other grounds, Mueller, 740 F.3d at 1133.19
¶47 The final two sections (Wis. Stat. §§ 301.475 and
301.49) of chapter 301 have never been challenged as punitive.
Section 301.475 requires sex offenders to notify school
officials when the offender seeks to enter school property.
Section 301.49 establishes an analogous GPS tracking program for
persons who violate a domestic abuse or harassment restraining
order or injunction.
¶48 A review of the three provisions for terminating
lifetime GPS tracking indicate that the intent of tracking is
protecting the public. The three means of terminating tracking—
—upon motion of the offender after 20 years of full compliance,
upon motion of the DOC based on offender incapacitation, and
upon the offender moving out of state——are tailored to ensure an
offender is tracked only when he poses a threat to Wisconsin
residents. See supra, ¶19. This tailoring strongly indicates
that the intent of lifetime GPS tracking centers more closely
around the protection of the public than it does punishment of
19
The district court concluded that enforcing Wis. Stat.
§ 301.47 against a sex offender convicted before its passage did
not violate the ex post facto clause because § 301.47 creates a
new crime rather than increasing punishment for a prior crime.
Doe v. Raemisch, 895 F. Supp. 2d 897, 908 (E.D. Wis. 2012). The
Seventh Circuit reversed the district court's decision because
the plaintiffs did not have standing to challenge § 301.47.
Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014).
Consequently, the Seventh Circuit did not reach the merits of
whether § 301.47 is punishment. Id.
23
No. 2016AP740-CR
the offender. Put simply, if punishment was the objective, the
legislature would have had no reason to allow termination of
"lifetime" GPS tracking.
2. The effect of lifetime GPS tracking is not punitive.
¶49 We now consider whether lifetime GPS tracking "is so
punitive in effect as to transform [it] into a criminal
penalty." Scruggs, 373 Wis. 2d 312, ¶39 (citing Rachel, 254
Wis. 2d 215, ¶42). We give the legislature's decision to label
a statute as a civil remedy "great deference." Id., ¶20 (citing
Rachel, 254 Wis. 2d 215, ¶42). "[O]nly the clearest proof will
suffice to override legislative intent and transform what has
been denominated a civil remedy into a criminal penalty."
Hudson, 522 U.S. at 100 (internal quotation marks omitted)
(citing Ward, 488 U.S. at 249).
a. We determine whether lifetime GPS tracking is punitive by
applying the seven Mendoza-Martinez factors.
i. Whether lifetime GPS involves an affirmative disability or
restraint.
¶50 The "paradigmatic affirmative restraint" is
imprisonment. Smith, 538 U.S. at 100. Lifetime GPS tracking
does not resemble imprisonment because the offender is not
confined and has substantial freedom of movement (subject only
to inclusion zones and exclusion zones). As the Seventh Circuit
persuasively stated, "if civil commitment is not punishment, as
the Supreme Court has ruled, then a fortiori, neither is having
to wear an anklet monitor." Belleau, 811 F.3d at 937.
24
No. 2016AP740-CR
¶51 Muldrow is "restrained" in the sense that he must be
close enough to an electrical outlet to charge the GPS tracker
for one hour each day. However, sitting near a wall for an hour
per day is so "minor and indirect" a restraint that it does not
have the effect of punishment. Id. at 943 (Flaum, J.,
concurring) (quoting Smith, 538 U.S. at 100).
ii. Whether lifetime GPS tracking has historically been
regarded as punishment.
¶52 Lifetime GPS tracking has not historically been
regarded as punishment——largely because GPS is relatively new
technology. Id. (Flaum, J., concurring). Muldrow contends that
lifetime GPS tracking resembles historical forms of punishment
such as public shaming. The analogy fails because any "shaming"
in the GPS tracker context is an unintended byproduct of the
associated technology and can be minimized, if not eliminated——
albeit, at some inconvenience——by the offender. The GPS tracker
is as small as present technology permits20 and is placed in a
discreet location——the bottom of the offender's ankle. In
contrast, public shaming was intended to bring as much attention
as possible to the offender's status. Dan M. Kahan & Eric A.
Posner, Shaming White-Collar Criminals: A Proposal for Reform
of the Federal Sentencing Guidelines, 42 J. Law & Econ. 365, 368
20
It has been noted elsewhere that just as with other
electronic devices, as technology advances, the size and,
therefore, the apparentness of the monitor will be reduced.
Belleau v. Wall, 811 F.3d 929, 939 (7th Cir. 2016) (Flaum, J.,
concurring).
25
No. 2016AP740-CR
(1999) ("Shaming is the process by which citizens publicly and
self-consciously draw attention to the bad dispositions or
actions of an offender . . . ."); see also Belleau, 811 F.3d at
943 (Flaum, J., concurring).
iii. Whether lifetime GPS tracking comes into play only on a
finding of scienter.
¶53 Lifetime GPS tracking is contingent upon a criminal
conviction (or acquittal by reason of mental disease or defect).
Wis. Stat. §§ 301.48(2)(a)1-5. However, no scienter is required
for the imposition of lifetime GPS tracking. If the statutory
criteria are met, the offender is subject to lifetime GPS
tracking. See Wis. Stat. § 301.48(2). This is analogous to
civil commitment pursuant to chapter 980, which similarly relies
on a prior conviction, but does not contain a scienter
requirement for the commitment itself. See Wis. Stat.
§ 980.02(2). We held in Rachel, 254 Wis. 2d 215, ¶51, that
requiring a criminal conviction as a prerequisite to civil
commitment did not mean that the commitment itself had a
scienter requirement. Rachel's reasoning applies with equal
strength here.
iv. Whether lifetime GPS will promote the traditional aims of
punishment——deterrence and retribution.
¶54 We acknowledge that lifetime GPS tracking likely
promotes deterrence because the offender knows that his location
is constantly known to authorities——indeed, this is likely one
of the purposes of lifetime GPS tracking. Belleau, 811 F.3d at
944 (Flaum, J., concurring). However, a statute is not punitive
26
No. 2016AP740-CR
simply because it may deter crime. As the United States Supreme
Court has recognized, "[a]ny number of governmental programs
might deter crime without imposing punishment." Smith, 538 U.S.
at 102. Lifetime GPS tracking is one such program.
¶55 A statute promotes retribution if it "affix[es]
culpability for prior criminal conduct." Kansas v. Hendricks,
521 U.S. 346, 362 (1997). Though many offenders are subject to
lifetime GPS tracking because they were found guilty of a
criminal offense, some are subject to lifetime GPS tracking
because they were found not guilty due to mental disease or
defect. Wis. Stat. §§ 301.48(2)(a)4-5. In Hendricks, the Court
relied heavily on the fact that some of the persons committed
pursuant to Kansas's sexually violent person law were not
criminally responsible in order to reach its conclusion that the
statute did not promote retribution. Hendricks, 521 U.S. at
362. It did so as a result of its reasoning that if some of the
committed persons were not criminally responsible, then the
statute was not seeking to affix culpability upon them for any
prior criminal conduct. Id. The same reasoning applies here.
This is so because lifetime GPS tracking applies to those who
are criminally culpable for their conduct as well as to those
who are not by reason of mental disease or defect.
v. Whether the behavior to which lifetime GPS tracking applies
is already a crime.
¶56 Where "[e]vidence of a crime . . . is essential to the
[sanction]," then the sanction is more likely punitive. Lipke
v. Lederer, 259 U.S. 557, 562 (1922). Evidence of past criminal
27
No. 2016AP740-CR
conduct (either a conviction or acquittal on the basis of mental
disease or defect) is necessary to trigger lifetime GPS
tracking, but no new, uncharged criminal conduct is required.
Wis. Stat. § 301.48(2). This is in contrast to the tax at issue
in Lipke, which the Court found punitive because it applied only
to alcohol manufacture and sale that was already criminal and
could be separately criminally charged. 259 U.S. at 561.
vi. Whether an alternative purpose to which lifetime GPS
tracking may rationally be connected is assignable for it.
¶57 The existence of an alternative non-punitive purpose
for a sanction is considered "the most significant factor" in
determining whether the effect of a sanction is punitive.
Belleau, 811 F.3d at 943 (Flaum, J., concurring) (quoting Smith,
538 U.S. at 103). The non-punitive purpose of lifetime GPS
tracking is protecting the public from future sex offenses. Id.
at 937; id. at 943 (Flaum, J., concurring).
¶58 Protecting the public from future sex offenses has
been deemed a non-punitive purpose in analogous contexts: sex
offender registration, Smith, 538 U.S. at 103; State v. Smith,
2010 WI 16, ¶26, 323 Wis. 2d 377, 780 N.W.2d 90; civil
commitment of sex offenders, Hendricks, 521 U.S. at 363; and
municipal ordinances restricting sex offender residency, City of
S. Milwaukee v. Kester, 2013 WI App 50, ¶30, 347 Wis. 2d 334,
830 N.W.2d 710.
¶59 Lifetime GPS tracking has a rational relationship to
this non-punitive purpose because it ensures law enforcement
will have ready access to evidence of an offender's whereabouts.
28
No. 2016AP740-CR
Belleau, 811 F.3d at 938. This rational relationship may also
work to the benefit of the offender: location evidence from
lifetime GPS tracking can prove an accurate alibi just as easily
as it can disprove a false alibi.
vii. Whether lifetime GPS tracking appears excessive in
relation to the alternative purpose assigned.
¶60 Lifetime GPS tracking is commensurate with the goal of
protecting the public. It provides a middle ground between
releasing dangerous sex offenders into the public wholly
unsupervised and civil commitment pursuant to chapter 980. In
light of the "frightening and high" rate of recidivism for sex
offenders, the relatively minimal intrusion of lifetime GPS
tracking (especially when compared to chapter 980 commitment) is
not excessive in relation to protecting the public. Smith, 538
U.S. at 104.
¶61 The opportunity to terminate tracking, see supra,
¶¶19, 45, keeps lifetime GPS tracking closely-tailored to its
purpose. Unlike any other sanction known to Wisconsin law, any
offender who wishes to discontinue "lifetime" GPS tracking can
terminate it by simply moving out of state. Wis. Stat.
§ 301.48(7m).
IV. CONCLUSION
¶62 We hold that the intent-effects test is the proper
test used to determine whether a sanction is punishment such
that due process requires a defendant be informed of it before
entering a plea of guilty.
29
No. 2016AP740-CR
¶63 Applying the intent-effects test, we hold that neither
the intent nor effect of lifetime GPS tracking is punitive.
Consequently, Muldrow is not entitled to withdraw his plea
because the circuit court was not required to inform him that
his guilty plea would subject him to lifetime GPS tracking.
Accordingly, we affirm.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2016AP740-CR
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