State v. Dinkins

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Justia Opinion Summary

The circuit court found William Dinkins guilty of knowingly failing to comply with the sex offender registration statute, which required Dinkins to provide the address at which he would be residing ten days prior to his release from prison. The court found that Dinkins attempted to comply with the statute but was unable to find housing for himself prior to his release. The court of appeals reversed. The State appealed, contending that homelessness was not a defense to failing to comply with the registration requirements and that Dinkins could have complied with the statute by listing a park bench or other on-the-street location as the place he would be residing. The Supreme Court affirmed, holding that a registrant cannot be convicted of violating the statute for failing to report the address at which he will be residing when he is unable to provide this information.

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2012 WI 24 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP1643-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. William Dinkins, Sr., Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 330 Wis. 2d 591, 794 N.W.2d 236 (Ct. App. 2010-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: March 13, 2012 September 6, 2011 CIRCUIT DODGE ANDREW P. BISSONNETTE ROGGENSACK, J. concurs (Opinion filed). ZIEGLER, J. dissents (Opinion filed). GABLEMAN, J. joins dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant, there was a brief and oral argument by Steven D. Phillips, assistant state public defender. 2012 WI 24 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP1643-CR (L.C. No. 2008CF233) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent-Petitioner, FILED v. MAR 13, 2012 William Dinkins, Sr., Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 published ANN WALSH BRADLEY, J. decision of the court Affirmed. The State seeks review of a of appeals that reversed a judgment and order of the circuit court finding William Dinkins, Sr. guilty of knowingly failing to comply with the sex offender registration statute.1 That statute required Dinkins to provide the Department of Corrections (DOC) with "the address at which [he] . . . will 1 be residing" at least ten days prior to his State v. Dinkins, 2010 WI App 163, 330 Wis. 2d 501, 794 N.W.2d 236 (reversing judgments of the circuit court for Dodge County, Judge Andrew P. Bissonnette, presiding). No. release prison.2 from The circuit court found 2009AP1643-CR that Dinkins attempted to comply with the registration requirements but was unable to find Nevertheless, housing relying for on himself the prior testimony to his adduced release. at the preliminary hearing, the circuit court adjudged Dinkins guilty of a Class H felony. ¶2 The State asserts that the court of appeals erred in reversing the circuit court's judgment. It contends that homelessness is not a defense to failing to comply with the registration requirements and that Dinkins could have complied with the statute by listing a park bench or other on-the-street location as the place he would be residing. ¶3 We agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements. However, we disagree that Dinkins was capable of complying with the statute by listing a park bench or other onthe-street location. ¶4 In examining the text and context of the sex offender registration statute, we determine that the legislature anticipated that a registrant might be unable to provide the information required by the statute. Significantly, the legislature set forth an alternative procedure for monitoring 2 Wisconsin Stat. §§ 301.45(2)(a)5., (2)(d), and (2)(e)4. All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 2 No. the whereabouts of registrants who are unable 2009AP1643-CR to provide an address without imposing criminal liability. ¶5 By applying well-settled principles of statutory construction, we conclude that a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will provide this information. be residing when he is unable to We determine that a registrant is unable to provide the required information when that information does not exist, despite the registrant's reasonable attempt to provide it. Here, the circuit court found that Dinkins attempted to comply with the statute, that he was unable to find housing on his own, and that the DOC would have to find housing for him. These findings are not clearly erroneous. Accordingly, albeit upon a different rationale, we affirm the court of appeals. I ¶6 In 1999, Dinkins was convicted of a sex offense and received a 10-year sentence. He served his sentence, without parole, at Oshkosh Correctional Institution. ¶7 As a collateral consequence of his 1999 conviction, Dinkins must § 301.45. register as a sex offender under Wis. Stat. That statute provides that 10 days prior to release from prison, Dinkins was required to provide certain information to the DOC, residing." including "[t]he address" at which he Wis. Stat. §§ 301.45(2)(a)5. and (2)(e)(4). "will be Knowing failure to comply with the registration requirements is, with 3 No. one exception that is inapplicable here, a 2009AP1643-CR Class H felony. Wis. Stat. § 301.45(6)(a)1.3 ¶8 Dinkins' maximum discharge date was July 20, 2008. As of that date, he would no longer be under the supervision of the DOC.4 ¶9 On several occasions in the months leading up to his maximum discharge date, Dinkins conferred with Myra Smith, a DOC social worker employed at the prison. According to DOC records, Dinkins initially resisted the DOC's request that he provide information about his post-release plans. However, once he was informed that he could be charged with a crime for failure to provide the residence. daughter information, Dinkins He hope upon expressed release, and he made efforts could to that he made unsuccessful secure live with a his efforts to contact her and other family members. ¶10 Smith A little more than a month before his discharge date, assisted Dinkins in filling labeled Sex Offender Registration. out a standardized form Smith filled out Dinkins' 3 As an additional consequence of his conviction, Dinkins is subject to lifetime GPS tracking under Wis. Stat. § 301.48. 4 Dinkins was sentenced prior to the advent of the truth in sentencing statutory scheme. Accordingly, he was eligible for mandatory release on a certain date as determined by the parole board. See Wis. Stat. § 302.11(1) and (1g). When an inmate is released on parole prior to the completion of his sentence, the inmate is released into the custody of the DOC. Wis. Stat. § 304.06(3). Here, Dinkins served until his maximum release date. But for the criminal complaint issued in this case, he would have been released into the community without DOC supervision. 4 No. name, his crime. identifying She checked information, "unemployed" and in 2009AP1643-CR information the place about for his providing employment information and "does not drive" in the place for providing vehicle information. ¶11 In the place designated for providing his "residence street," Smith entered: "To be determined by Agent." testified: "I've used that [designation] before individual does not have an approved residence. it is within days before a person is She later when an And sometimes getting out that a where a residence is found, and then this can be updated." ¶12 According to Smith, in the typical case homeless registrant would be subject to extended supervision or parole upon release from incarceration, a DOC agent would look "for a transitional house of some sort." living [arrangement] . . . in a halfway However, in a maximum discharge case like Dinkins', the DOC provides "[u]sually no help" because it is understaffed and has no responsibility for supervising registrant upon release.5 5 Q: In a situation where the discharge date and the [mandatory release] date are one in the same, what response do you get from Community Corrections when they are asked to help a defendant find a place to live? . . . A: . . . Usually no help. Q: And do helpful? they provide a reason why they're not A: I think they're as understaffed as we are. Q: Do they have any resources once someone discharges or any authority to set them up in a halfway house? 5 the No. ¶13 2009AP1643-CR DOC records indicate that Lisa Gallitz, a DOC agent, made efforts to contact family members who would be willing to take in Dinkins, all to no avail. She later explained, "I have e-mails high showing that people as as the Secretary of Department of Corrections were involved in this situation." ¶14 On July 1, 2008, Gallitz sent the following email to advise the Sex Offender Registry Program (SORP) that Dinkins had been unable to secure a residence: I was told to contact you regarding William Dinkins. . . . He does not have a residence plan at this point. . . . I have done quite a bit of work to try to locate a family member willing to take him in so we can set up GPS. However, he really doesn't have much for family. His daughter, who he is counting on, hasn't returned my call even after I left her a message that I would like a call back either way. My supervisor said . . . to contact you because if he doesn't provide a residence to SORP 10 days prior to release/discharge, he can be charged. ¶15 On July 3, Gallitz advised Smith that registrants who are actively seeking a residence but unable to find one are not typically charged with a crime: Per my conversation with [SORP] this morning, this is still a wait and see situation. [The SORP employee's] experience is that the DA has not charged someone who is actively seeking residence prior to release but just unable to find anything. So, law enforcement and the DA's office will not get involved until after the fact if he fails to keep SORP informed of his residence and fails to cooperate with GPS. So, we are no further ahead at this point. We still have the Sgt from Oshkosh on board to transport him on 7/20/08 but need a residence yet. And, GPS cannot be arranged A: I'm not familiar with that. I don't believe they have authority, but I do not know. 6 No. until we have an address.6 at this point. ¶16 Nevertheless, four 2009AP1643-CR Not sure what else to say days prior to his scheduled release, the DOC sent a letter to the Dodge County District Attorney requesting that Dinkins be prosecuted for violating the sex offender registration statute. District Attorney's petition The circuit court granted the for a writ of habeas corpus ad prosequendum, and Dinkins' initial appearance was scheduled for July 18. ¶17 On the morning daughter called Gallitz. of the initial appearance, Dinkins' She indicated that she would like to take her father into her home, but she was unable to do so because she had a three-year-old daughter and because her fiancé and her landlord would not agree to the arrangement. ¶18 Following his initial appearance, Dinkins was released into the custody of the Dodge County Jail on a $10,000 cash bond. the He filed a motion to dismiss the complaint, arguing that circuit court lacked jurisdiction. Dinkins relied on Wis. Stat. § 301.45(2)(d), which provides: A person subject to [registration requirements] who is not under the supervision of the [DOC] or the department of health services [DHS] shall provide the information specified in par. (a) to the [DOC] in accordance with the rules under sub. (8). If the 6 Although DOC employees repeatedly stated that it was necessary for Dinkins to have a land line to install GPS monitoring, that appears to not be the case. After oral argument, the State submitted a letter advising the court that in the case of a sex offender who lacks a fixed address, the DOC uses cellular GPS trackers that do not require a land line but need to be charged every day. 7 No. 2009AP1643-CR person is unable to provide an item of information specified in par. (a), the [DOC] may request assistance from a circuit court or the [DHS] in obtaining that item of information. A circuit court and the [DHS] shall assist the [DOC] when requested to do so under this paragraph. Dinkins asserted that criminal prosecution was not the appropriate remedy for his failure to provide an address. ¶19 At the scheduled preliminary hearing, the court denied Dinkins' motion to dismiss, concluding that the option provided in Wis. Stat. § 301.45(2)(d) was permissive, not mandatory. The court heard testimony from Smith, Gallitz, and another witness. It found that there was probable violated Wis. Stat. § 301.45(6). cause to believe Dinkins Dinkins entered a not guilty plea. ¶20 The parties did not dispute the relevant facts. Rather, they disagreed about the legal implications of those facts whether a person in Dinkins' position could be convicted of a felony for failing to provide his residence 10 days prior to release from additional prison. motions to To that end, dismiss, Dinkins arguing filed (1) three selective prosecution; (2) insufficient probable cause; and (3) that the statute was unconstitutional due to vagueness, overbreadth, and equal protection. ¶21 order. The circuit court issued a memorandum decision and It stated that "the evidence adduced at the preliminary examination seems to indicate that [Dinkins] attempted to comply with the statute, but himself upon release." has been unable to find housing for Noting that it took "no position on the 8 No. 2009AP1643-CR propriety or wisdom of the criminal prosecution in this matter," the circuit court denied Dinkins' statute criminalizes information. the knowing motions. It stated: "the failure to provide the Intentional failure is not required." (Emphasis in original.) ¶22 Subsequently, after reviewing the evidence adduced at the preliminary hearing, the circuit court found Dinkins guilty as charged.7 It withheld sentence and placed him on probation for 30 months. During sentencing, the circuit court commented: "I assume [the DOC is] going to have to find him a place. I mean, he can't find himself a place." ¶23 The circuit court imposed 90 days at the Dodge County Jail as a condition of probation. It commented that once the DOC found housing for Dinkins, the court would "stay the balance of the conditional placement." jail and get him transferred to that The court urged the DOC "to obtain a placement as soon as reasonably practicable[.]" ¶24 Dinkins filed a motion for postconviction relief. The circuit court denied his motion, and Dinkins appealed. ¶25 The court of appeals reversed interpretation of the term "residing." based on its State v. Dinkins, 2010 WI App 163, 330 Wis. 2d 591, 794 N.W.2d 236. It referred to an "apparent unintended gap" in the statute that is created by the 7 Because there was no dispute of fact, Dinkins waived his right to a jury trial and agreed that the court could decide the case on the basis of the exhibits and testimony elicited at the preliminary hearing. 9 No. "questionable assumption" that "all 2009AP1643-CR soon-to-be-released prisoners are able, in advance of leaving prison, to identify a location at which they may reside." ¶26 We note that in Id., ¶4. response to the court of appeals' opinion, the DOC has attempted to close this unintended gap by issuing Wisconsin Department of Corrections Administrative Directive #11-04, DOC-1356 (Rev.), effective July 1, 2011. The directive provides guidance for addressing homeless registrants who are on active DOC supervision as well as homeless registrants who have been terminated from supervision.8 Because it was not in effect at the time of Dinkins' violation and prosecution, this new directive does not resolve the issues presented in this case. II ¶27 case. We begin by clarifying what is not at issue in this It is undisputed that Dinkins was required to register, 8 The directive provides that registrants who have been terminated from supervision need not obtain placement approval prior to establishing a residence or moving to a new residence. Wis. Dep't of Corrections Admin. Directive #11-04, DOC-1356 (Rev.). If the registrant is "unable to secure permanent residence," the registrant must call the Sex Offender Registry every seven days to report "homeless" status, the locations where the registrant has been frequenting and sleeping in the past seven days, and the registrant's anticipated plan for the upcoming seven days. Id. When possible, the registrant must also provide an emergency contact person and telephone number. Id. Terminated registrants who fail to adhere to this policy are subject to non-compliance prosecution. Id. The validity of this new directive is not before the court and is not addressed in this opinion. 10 No. 2009AP1643-CR and continues to be required to register, as a sex offender. It is undisputed that, as is part of his required to provide his address. homeless registrants requirements. ¶28 whether, registration, Dinkins This case is not about whether are "exempt" from registration narrow question of attempted to They are not. Rather, under this the case presents circumstances the where Dinkins comply with the registration requirements but was unable to find housing, he can be convicted of a felony for failing to notify the DOC of "[t]he address at which" he would "be residing" upon his release from prison. interpret the sex interpretation independently is of To resolve this question, we must offender a the registry question of determinations court and the court of appeals. statute. law, Statutory which rendered we the by review circuit State v. Leitner, 2002 WI 77, ¶16, 253 Wis. 2d 449, 646 N.W.2d 341. ¶29 Statutory interpretation language of the statute. begins with the plain State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We generally give and words meaning. and Id. phrases their common, ordinary, accepted "However, the plain meaning [of a statute] is seldom determined in a vacuum[.]" Osterhues v. Bd. Adjustment for Washburn County, 2005 WI 92, ¶24, 282 Wis. 2d 228, 698 N.W.2d 701 (citing Kalal, 271 Wis. 2d 633, ¶46). Accordingly, we interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or 11 closely-related statutes." No. Kalal, 271 Wis. 2d 633, ¶46. Additionally, 2009AP1643-CR we interpret statutory language reasonably, to avoid absurd or unreasonable results." Id. An interpretation that contravenes the manifest purpose of the statute is unreasonable. Id., ¶49. III ¶30 relevant We begin our analysis by examining the text of the statutory provisions. Wisconsin Stat. establishes a statewide registry of sex offenders. provides each that the registrant, registry including, "shall among contain" other § 301.45 That statute information things, about identifying information, employment information, and "[t]he address at which the person is or will be residing." ¶31 Wis. Stat. § 301.45(2)(a)5. Registrants who are not under DOC or DHS supervision "shall provide" the required information to the DOC. § 301.45(2)(d). Wis. Stat. "If the person is being released from prison because he or she has reached the expiration date of his or her sentence," the registrant must provide the required information to the DOC "no later than 10 days before being released from prison." ¶32 sex Wis. Stat. § 301.45(2)(e)4. Subsection (6) prescribes penalties for violating the offender registration statute. It provides that a registrant who "knowingly fails to comply with any requirement 12 No. to provide information" is "guilty of a Class 2009AP1643-CR H felony."9 Wis. Stat. § 301.45(6)(a)1. ¶33 appears In isolation, the penalty subsection of the statute to criminalize information without provide that the regard failure to information. the to provide registrant's However, it is a required ability to well-settled principle of statutory construction that "the plain meaning [of a statute] is seldom determined in a vacuum," and we therefore do not read words of a statute in isolation. Wis. 2d 228, ¶24. Osterhues, 282 Instead, "statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in closely-related relation to statutes; and unreasonable results." ¶34 a language reasonably, of to surrounding avoid absurd or or Kalal, 271 Wis. 2d 633, ¶46. When the penalty subsection is read in context, two propositions become clear. that the registrant information. might First, the legislature anticipated be unable to provide the required Second, the legislature set forth an alternative procedure for monitoring the whereabouts of registrants who are 9 Dinkins offers an interpretation of the statute that focuses on the term "knowingly." He argues that the term "knowingly" means not only that the registrant had knowledge of his failure to provide information, but also that the registrant had knowledge of the information itself. The text of the statute does not support such an interpretation. "Knowingly" is an adverb, which modifies the verb phrase "fails . . . to provide." It does not modify the noun "information." 13 No. unable to provide an address without 2009AP1643-CR imposing criminal liability. ¶35 manner Wisconsin in which Stat. §§ 301.45(2)(b)-(d) set information required registration is provided to the DOC. whether the registrant is under the for forth sex the offender The manner depends upon supervision of the DOC, under the supervision of the DHS, or not supervised by either department. When the registrant is not under any supervision, the statute specifically anticipates that the registrant may be unable to provide the required information. ¶36 Subsection (2) provides in part: (b) If the [DOC] has supervision over a person subject to [the registration requirements], the [DOC] shall enter into the registry under this section the information specified in par. (a) concerning the person. (c) If the [DHS] has supervision over a person subject to [the registration requirements], [the DHS], with the assistance of the person, shall provide the information specified in par. (a) to the [DOC] in accordance with the rules under sub. (8). (d) A person subject to [the registration requirements] who is not under the supervision of the [DOC] or the [DHS] shall provide the information specified in par. (a) to the [DOC] in accordance with the rules under sub. (8). If the person is unable to provide an item of information specified in par. (a), the [DOC] may request assistance from a circuit court or the [DHS] in obtaining that item of information. A circuit court and the [DHS] shall assist the [DOC] when requested to do so under this paragraph. Wis. Stat. § 301.45(2)(b)-(d) (emphasis added). ¶37 a term The term "unable" is not defined in the statute. is not defined, a general 14 principle of When statutory No. construction is that the term ordinary, and accepted meaning." ¶38 One necessary dictionary power, should given its "common, Kalal, 271 Wis. 2d 633, ¶45. defines authority, be 2009AP1643-CR or "unable" means, not as "lacking able; the incapable." American Heritage Dictionary of the English Language 1940 (3d ed. 1992). power, Another defines "unable" as "lacking the necessary competence, etc., to accomplish some specified Random House Unabridged Dictionary 2052 (2d ed. 1993). context of "unable" the to statute, provide the we conclude required that a act." In the registrant information when is that information does not exist, despite the registrant's reasonable attempt to provide it. ¶39 The second proposition which becomes clear when the statute is read in context is that the legislature set forth an alternative provided. to procedure by which required information can be Under sub. (2)(f), the DOC may require a registrant report to a police station to provide any required information "that the person has not previously provided": The [DOC] may require a [registrant] to provide the [DOC] with his or her fingerprints, a recent photograph of the person and any other information required under par. (a) that the person has not previously provided. The [DOC] may require the person to report to a place designated by the [DOC], including an office or station of a law enforcement agency, for the purpose of obtaining the person's fingerprints, the photograph or other information. Wis. Stat. § 301.45(2)(f) (emphasis added). ¶40 Exercising its authority under this statute, the DOC can require a registrant who is unable to provide an address to 15 No. report to a local police station upon release. 2009AP1643-CR Id. If, upon reporting to the police station, the registrant continues to be unable to continue provide reporting an address, to the police until he is able to do so. registrant to frequenting. ¶41 protect provide the Id. DOC can station on require a him to regular basis Meanwhile, it can require the information about the places he is Id. The parties agree that the registration requirements the public by assisting monitor known sex offenders. law enforcement officers to By exercising its authority under sub. (2)(f), the DOC can ensure that a registrant who is unable to provide required information provides its functional equivalent and therefore can be effectively monitored without resorting to a preemptive prosecution.10 ¶42 (2)(f). The State's brief makes scant reference to sub. The implication of its argument is that there is no need to consider this alternative statutory procedure because all homeless information registrants about where are they inherently "will be capable residing" of 10 supplying days in advance of release. 10 Contrary to the dissent's assertion, homeless registrants cannot leave "law enforcement, the Wisconsin public, and their victims in the dark about their whereabouts without any repercussions whatsoever." Dissent, ¶112. If the DOC requires a registrant to report to the police station and provide information under Wis. Stat. § 301.45(2)(f) and the registrant knowingly fails to do so, it would appear that the State could charge the registrant for "knowingly fail[ing] . . . to provide information under subs. (2) to (4)[.]" Wis. Stat. § 301.45(6). 16 No. ¶43 2009AP1643-CR The State asserts: "because everyone has to live and sleep somewhere (even if descriptively 'homeless'), a soon-tobe-released sex offender . . . necessarily knows that he will be living and sleeping somewhere upon leaving prison . . . and thus is inherently release." capable of providing that information before The State contends that a registrant who is unable to find housing can comply with the requirements by providing the address of a park bench or other on-the-street location where he intends to sleep. ¶44 While we agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements, we interpretation of the statute. on-the-street location disagree with the State's If listing a park bench or other were sufficient to satisfy the requirements, the purpose of the statute would be significantly undermined. ¶45 Such an interpretation is unreasonable. The sex offender registration statute "does not evince the [legislature's] intent to punish sex offenders, but rather reflects the [legislature's] intent to protect the public and assist law enforcement." State v. Bollig, 2000 WI 6, ¶21, 232 Wis. 2d 561, 605 N.W.2d 199. This purpose is served when the public and law enforcement officers have accurate information about the whereabouts of known sex offenders so that they can be monitored. ¶46 Prison confinement limits not only a registrant's ability to secure a residence, but also the registrant's ability 17 No. to learn about release. places where he could 2009AP1643-CR potentially live upon From the vantage point of prison, a registrant may well be unaware of locations in the community where homeless individuals are permitted to congregate and sleep. If listing a park bench is sufficient to satisfy the reporting requirement, a homeless registrant will be encouraged to simply provide an uninformed guess, with no assurance that the registrant would actually be able to stay in that location. ¶47 An uninformed guess reported for the sole purpose of technical compliance with protection for the public. the statute would provide little On the contrary, it might provide false reassurance that Dinkins' whereabouts were known. ¶48 Further, once a registrant has reported an address to the DOC, that registrant has a 10-day grace period to update any information that has changed. Wis. Stat. § 301.45(4)(a). If transient registrants may simply guess at a possible location and then need not report any change in location for 10 days, they could easily slip off the grid, altogether undermining the purposes underlying registration. the State's assertion that a Accordingly, we disagree with registrant can comply with the statute by listing a park bench or other on-the-street location as his residence. ¶49 A final principle of statutory interpretation that informs our discussion is that a statute must be interpreted "reasonably, to avoid absurd or unreasonable results." 271 Wis. 2d 633, ¶46. Kalal, The sex offender registration statute is not intended to be punitive in nature. 18 Bollig, 232 Wis. 2d 561, No. ¶21. 2009AP1643-CR It is unreasonable to think that the legislature intended that a registrant be prosecuted for a Class H felony, which carries a maximum sentence of six years in prison, for failing to provide information which the registrant was unable to interpretation is provide. ¶50 The further unreasonableness illustrated requirements. by of such reviewing an the other reporting In addition to providing "the address at which [the registrant] is or will be residing," a registrant must provide the "name and address of place at which [the registrant] is or will be employed." the registrant's Wis. Stat. § 301.45(2)(a)8. residence, the name and Just like address of the registrant's employer must be provided 10 days prior to release. Wis. Stat. § 301.45(2)(e)4. ¶51 If prosecuted the for legislature failing to intended provide that a information, registrant even if be that information does not exist despite an attempt to provide it, a registrant who is unable to secure employment could also be subjected to a Class H felony for failing to provide employment information 10 days in advance of release from prison. Surely the legislature could not have intended such an unreasonable result. ¶52 By applying well-settled principles of statutory construction, we conclude that a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will be residing when he was unable to provide this information. We determine that a registrant is 19 No. 2009AP1643-CR unable to provide the required information when that information does not exist, despite the registrant's reasonable attempt to provide it.11 ¶53 We emphasize that our interpretation of the statute is unlikely to apply to a large number of registrants. Typically, registrants leaving prison will be under the supervision of the DOC or the DHS. residence is The DOC has recently declared: "Lacking a unacceptable as a supervision strategy. Every effort must be made . . . in establishing a residence if the offender is unable to propose suitable housing." Wis. Dep't of Corrections Admin. Directive #11-04. ¶54 new Additionally, looking forward, the DOC has promulgated reporting requirements and guidelines for addressing the 11 At the outset, the dissent mischaracterizes the holding of the majority and asserts facts that are unfounded. See dissent, ¶88. The dissent takes aim at a straw man by mischaracterizing the majority's holding and then attacking its own mischaracterized version. Under our holding, a registrant must do much more than merely "claim" homelessness to avoid prosecution for failing to provide an address. Rather, a registrant must be unable to find housing, despite reasonably attempting to do so. If a circuit court concludes that the registrant did not reasonably attempt to find housing, a prosecution may proceed. Additionally, the "facts" relied upon by the dissent are not in this record. See dissent, ¶¶90-91. It has long been the law that an appellate court's review is circumscribed by the record before it. See, e.g., Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964). Tempting as it may be to conduct our own inquires outside the circuit court's record, we, as well as the litigants before us, are required to adhere to the rule of law. 20 No. problem presented in this case. Id. 2009AP1643-CR When read in conjunction with the DOC's authority under Wis. Stat. § 301.45(2)(f), the directive may provide additional monitoring for registrants who have been terminated from supervision secure housing. ¶55 and who are unable to Id. Having interpreted the statutory language, we turn to applying that interpretation to the facts of this case. Here, the circuit court found that Dinkins "attempted to comply with the statute, but has been unable to find housing for himself upon release." During sentencing, the court reiterated that finding: "I assume [the DOC is] going to have to find him a place. I mean, he can't find himself a place." court's discussion is the assessment that Implicit in the Dinkins reasonably attempted to find housing for himself but was unsuccessful. ¶56 It is undisputed that Dinkins did not have a home of his own. The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing. A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance.12 The circuit court's finding that 12 Q: "[I]t was never really discussed that there may be other options other than his daughter's residence? A: I never suggested anything else. Q: Okay. Essentially, the onus was put on him to come up with a residence, correct? A: That's correct. 21 No. 2009AP1643-CR Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous. IV ¶57 term Although our interpretation focuses on the statutory "unable," statutory the term: court of appeals focused "residing." Thus, before on a different concluding our analysis, we pause to address an issue raised by the court of appeals' interpretation. ¶58 The court of appeals concluded that the term "residing" means "to live in a location for an extended period of time." Dinkins, 330 Wis. 2d 591, ¶20. It appeared to acknowledge that its interpretation would apply to all homeless registrants, and that under its interpretation, the statute would "fail[] to ensure that persons who lack 'an address at which they are or will be residing'--i.e., homeless registrants--provide information about their whereabouts to the [DOC]." Id., ¶25 n.12. Q: There was no it wasn't explained to him that there were other options other than him coming up with his own residence? A: Well, I'm not aware of any other option. Because when he came out on July 20th, he was no longer on supervision. So the Department of Corrections was responsible to pick him up, transport him, wait until the GPS was hooked up; and then we were no longer . . . we didn't have any authority on him at that point. 22 No. ¶59 We do not agree with the interpretation of the term "residing." court 2009AP1643-CR of appeals' Certainly, an address where a registrant intended to live for an extended period of time would residing." broader, constitute a place where a registrant "will be However, we think the statutory term "residing" is encompassing more temporary living arrangements as well. ¶60 The term "residing" is undefined in the statute and the relevant administrative code. The court of appeals' narrow interpretation of the term would appear to undermine the purpose of the statute. It would ill serve the statute's purpose to exempt a class of registrants who are without a location to live "for an extended registrant's period ability to of time," secure without some type regard of to temporary the or transitional housing. ¶61 In sum, we agree with the State that homeless registrants are not exempt from registration requirements and that homelessness is not a defense to failing to comply with the registration requirements. However, we disagree that Dinkins was capable of complying with the statute by listing a park bench or other on-the-street location. ¶62 In examining the text and context of the sex offender registration statute, we determine that the legislature anticipated that a registrant might be unable to provide the information required by the statute. Significantly, the legislature set forth an alternative procedure for monitoring 23 No. the whereabouts of registrants who are unable 2009AP1643-CR to provide an address without imposing criminal liability. ¶63 By applying well-settled principles of statutory construction, we conclude that a registrant cannot be convicted of violating Wis. Stat. § 301.45(6) for failing to report the address at which he will provide this information. be residing when he is unable to We determine that a registrant is unable to provide the required information when that information does not exist, despite the registrant's reasonable attempt to provide it. Here, the circuit court found that Dinkins attempted to comply with the statute, that he was unable to find housing on his own, and that the DOC would have to find housing for him. These findings are not clearly erroneous. Accordingly, albeit upon a different rationale, we affirm the court of appeals. By the Court. The decision affirmed. 24 of the court of appeals is No. ¶64 2009AP1643-CR.pdr PATIENCE DRAKE ROGGENSACK, J. (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 whereabouts of convicted sex offenders.1 The majority opinion and the dissenting opinion, as well as this concurrence, struggle with the interpretation compliance of problems a statute that the that Department did not of envision Corrections the (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 unemployed, convicted sex first of step his Wis. William Dinkins, offender, Stat. could Sr., have § 301.45(2)(a)5. a homeless, satisfied the 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. homeless sex Then, because Mr. Dinkins is a convicted offender who was 1 "unable to provide" more 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. 1 No. 2009AP1643-CR.pdr particularized information on residence and employment, the DOC was obligated to request assistance from a circuit court or the Department of prosecution. Health Services (DHS) before See Wis. Stat. § 301.45(2)(d). it could seek 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 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 required 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. majority Therefore, opinion's although reasoning, I do I do agree not agree that Mr. with the Dinkins' conviction should be reversed, and I would remand the matter for 2 No. further proceedings before the circuit court. 2009AP1643-CR.pdr 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 Simply an address convicting provide the should Mr. public result Dinkins or of law in a prosecution.2 immediate Class H felony enforcement with will not meaningful information such that they can locate Mr. Dinkins. Accordingly, although respectfully I do not join the majority opinion, I concur. I. ¶68 On February 4, BACKGROUND 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 imprisonment that concluded on July 20, 2008, his mandatory release date. As a result of his sexual assault conviction and his upcoming release from prison, offender in Mr. accordance § 301.45(2)(d). form Dinkins #1759 with required the to register provisions of as a Wis. sex Stat. He did complete a DOC Sex Offender Registration that § 301.45(2)(a). was elicits the information required by However, because Mr. Dinkins 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 2 See dissent, ¶¶88-89. 3 No. willful violation of the statutory 2009AP1643-CR.pdr registration pursuant to Wis. Stat. § 301.45(6). requirements, That prosecution resulted in Mr. Dinkins' conviction of a Class H felony. II. A. ¶70 DISCUSSION Standard of Review This case requires us to interpret and apply various provisions of § 301.45. the sex Statutory offender registration construction and law, Wis. application questions of law for our independent review. Stat. present 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 analyses of the court of appeals and the circuit court. B. ¶71 prior Id. Wisconsin Stat. §301.45 The parties agree that the information Mr. Dinkins is required to report Failing to report is set out in of the all Wis. Stat. § 301.45(2)(a). information listed in § 301.45(2)(a) may result in prosecution and conviction of a Class H felony. ¶72 Wis. Stat. § 301.45(6). 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. is Id. helpful The context in which statutory terms are considered to our understanding. Id. When the statutory language is unambiguous, we apply the plain, clear meaning of 4 No. the statute. Id. Statutory statutory construction. ¶73 purpose also is 2009AP1643-CR.pdr important to See Kalal, 271 Wis. 2d 633, ¶48. 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. (1g) 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. "may request" that a circuit court For example, the DOC 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 5 No. "unable to provide" the required information 2009AP1643-CR.pdr 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 prosecution requirements. of Mr. Dinkins failing to register. Wis. Stat. Instead, in it circuit immediately court for sought willfully Apparently, the DOC concluded that because § 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. support the purpose of the Kalal, 271 Wis. 2d 633, ¶48. Terms are also interpreted to statute in which they are used. 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 released 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 6 No. 2009AP1643-CR.pdr discretionary, the statutory context makes it mandatory when one observes that the circuit court joint would efforts ensure of the a homeless that department sex and the 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 § 301.45(2)(d). § 301.45(9), compelling which the department of cooperate with provides: department "The of transportation the on and department obtaining department children information under this section." is Wis. Stat. That assistance is required is emphasized by services, § 301.45 assistance. all of of health and families, circuit courts corrections in the shall obtaining Stated otherwise, the focus of 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. of Because no plan was made that would promote the purpose § 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 7 No. requirements of § 301.45(2)(c). (2)(c) incorporate the 2009AP1643-CR.pdr Both para. (2)(d) and para. reporting requirements 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. permitting law Accordingly, both serve the purpose of 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 services employee 3 "To be determined who by completes Agent," the form would be the health subject Wisconsin Stat. § 301.45(2)(c) provides: If the department of health services has supervision over a person subject to sub. (1g), 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). 8 to No. 2009AP1643-CR.pdr 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). ¶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. convicted sex offender who Therefore, because a homeless 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. to Mr. Dinkins' conviction, the DOC However, subsequent 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 4 Administrative Directive #11-04 provides: See dissent, ¶90 n.2. 9 No. 2009AP1643-CR.pdr 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] to 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 Accordingly, the required Administrative registration Directive #11-04 information. may be was not a useful starting point for the circuit court on remand. III. ¶87 Because Wis. CONCLUSION Stat. § 301.45(2)(d) 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 respectfully concur. 10 join the majority opinion, I No. 11 2009AP1643-CR.pdr No. ¶88 ANNETTE KINGSLAND ZIEGLER, J. 2009AP1643-CR.akz (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. § 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 investigating, and assist law apprehending enforcement in locating, offenders in order sex to protect the public the majority provides homeless sex offenders a means to rendering escape those sex from sex offender offenders registration, essentially invisible thereby to law enforcement and to the Wisconsin public. To the majority, it matters convicted not that Dinkins has twice been 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 legislature. offenders The where none legislature 1 has could been provided by have enacted such the a No. procedure, as other state legislatures have.1 2009AP1643-CR.akz 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 unaccounted offender and for, leaves sex contravening registration offenders the statute. very like purpose Surely, the sex enforcement, law of Dinkins 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 registration upon the statute, I plain language conclude of sex offender Dinkins that the was properly convicted of knowingly failing to comply with the requirement that he provide to the DOC the address at which he will be residing other upon his homeless sex release from offenders prison. ought Whether to be exempt Dinkins and 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 1 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). 2 No. Wis. Stat. § 948.02(1) (1997-98). 2009AP1643-CR.akz The complaint2 alleged that on or around April 18, 1998, Dinkins sexually assaulted his then girlfriend's ten-year-old daughter by bending her over the bed and rubbing his penis against her vagina. victim told the along the crack of her buttocks and When asked if anything else happened, 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 assault, According Dinkins complaint to was identified the complaint, living Dinkins' with the at the time of victim's address mother. as in the one Fox The Lake, Wisconsin. ¶92 sexually Dinkins was sentenced to ten years imprisonment for assaulting his ten-year-old victim. He served his sentence at Oshkosh Correctional Institution, a medium security prison, until his maximum discharge date of July 20, 2008. In other words, Dinkins, 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 2 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. 3 No. 2009AP1643-CR.akz 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.W.2d 90; State v. Bollig, 2000 WI 6, ¶¶20-21, 232 Wis. 2d 561, 605 N.W.2d 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, online 232 Wis. 2d 561, access to whereabouts. ¶20. information See In about Wisconsin addition, sex DOC, offenders Sex http://offender.doc.state.wi.us/public/. the Offender public and has their Registry, As part of maintaining the registry, the DOC must collect certain information about each sex offender in Wisconsin, including which the person is or will be residing." "[t]he address § 301.45(2)(a)5. at 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, § 301.45(2)(e)4. no later than July 10, 2008. See Section 301.45(6)(a)1. expressly provides that "[w]hoever knowingly fails to comply with any requirement to 4 No. 2009AP1643-CR.akz provide information" under § 301.45(2) through (4) is guilty of a Class H felony. ¶94 The penalty provision has no exceptions. The registration requirements are no surprise to sex offenders and to Dinkins in particular. In this case, the DOC was responsible for notifying Dinkins of his need to comply with the requirements of the sex offender registration statute. Wis. Stat. § 301.45(3)(b)2. The DOC so notified Dinkins. See 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). 2, 2008, seven weeks before the date of Still, on June 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 5 No. 2009AP1643-CR.akz RESIDENCE, EMPLOYMENT, SCHOOL ENROLLMENT, VEHICLE USE OR CHANGE OF NAME status . . . ." Furthermore, the notice specified that Dinkins with had requirements to comply "[a]t least 10 the days sex prior offender registration to sentence [his] or commitment expiration." ¶96 Smith filled out the sex offender registration form on Dinkins' behalf. The form indicated that Dinkins 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. I 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 maximum busy. From discharge that date, point Smith forward, contacted up until Dinkins weekly" to inquire about his living arrangements. Smith, Dinkins "was always waiting daughter." 6 for a Dinkins' "at least According to reply from his No. ¶99 By July 10, 2008, ten days 2009AP1643-CR.akz before his maximum discharge, Dinkins still had not given the DOC any indication as to where he would be residing upon his 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 Wis. Stat. Dinkins was properly § 301.45(6)(a) convicted involves a of violating straightforward interpretation and application of the sex offender registration statute. Our canons of statutory stated and well understood. statutory statute. interpretation interpretation are often- "[W]e have repeatedly held that 'begins with the language of the 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 perfectly addition, relevant to "scope, a context, plain-meaning and purpose interpretation of are an unambiguous statute," so long as they are ascertainable from the 7 No. statute itself. Kalal, 271 Wis. 2d 633, ¶48. plain-meaning interpretation cannot Importantly, "a contravene contextually manifest statutory purpose." 2009AP1643-CR.akz a textually or 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)1. states, in relevant part, that "[w]hoever knowingly fails to comply with any requirement to provide information" under § 301.45(2) through (4) is guilty of a Class H felony. does not homeless Significantly, although it could have, the statute exempt or from its otherwise. reach any Pursuant to certain the sex plain offenders, 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), required information (2)(e)4. Specific included "[t]he to this address case, at the which [he] . . . will be residing" upon his release from prison. See § 301.45(2)(a)5. ¶104 Furthermore, there is that Dinkins knowingly failed to provide his address as required. Dinkins 8 no question No. 2009AP1643-CR.akz 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 the DOC knew, Dinkins' address was merely As far "[t]o be determined"; in other words, Dinkins could be living anywhere in the world. ¶105 Given these circumstances, Dinkins violated the plain language of Wis. Stat. § 301.45(6)(a). initially, seems isolation, the to agree. penalty See subsection The majority, at least majority of the op., statute ¶33 ("In appears to criminalize the failure to provide required information without regard to the registrant's ability to provide information.") This court's analysis ought to end there. the a words of complete.'" statute are plain, "'judicial inquiry that When is 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 properly convicted of violating § 301.45(6)(a). concludes by doing an end-around Dinkins was not The majority so 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 9 No. like Dinkins' homeless sex liability. and set offenders See forth a like him majority op., procedure without ¶¶4, 2009AP1643-CR.akz for dealing imposing 34-41. In with criminal 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 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. § 301.45(2)(d). of subsection Dinkins may As the majority points out, the plain language (2)(d) be contemplates "unable to provide specified" in subsection (2)(a). concurrence, ¶75. option of that an a sex item offender of like information Majority op., ¶36; see also If such is the case, the DOC then has the requesting assistance from 10 a circuit court or the No. 2009AP1643-CR.akz 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 photograph 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, offender § 301.45(2)(d) being exempt and (2)(f) from 3 say nothing criminal about liability a sex under 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. I 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."). 11 No. 2009AP1643-CR.akz § 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 respect that to contains each and all every of the sex required offender in information with 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 station 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. ¶40. Id., 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 12 No. 2009AP1643-CR.akz 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. still, the majority's interpretation leaves Worse homeless sex offenders like Dinkins 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 purpose." of the a textually or contextually manifest (Internal footnote omitted.)). majority's interpretation is statutory The unreasonableness 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 required to prison under for failing § 301.45(2)(a)5. to As provide it his stands address now, as however, Dinkins and other sex offenders like him can claim homelessness; escape criminal Wisconsin public, liability; and their and leave victims in law enforcement, the dark whereabouts without any repercussions whatsoever. the about their 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 registration 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 13 No. 2009AP1643-CR.akz Dinkins cannot be prosecuted for failing to provide to the DOC his or her supervision, address how is and is the not DOC otherwise supposed to under locate the DOC's 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. Kalal, 271 Wis. 2d 633, ¶46 (directing that we See 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 by articulated 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 Act]'s objective of 'comprehensive' registration of sex offenders . . . ." National Guidelines Notification, 73 Fed. Office for Reg. Sex of registration 38,030, statute, 4 Attorney Offender (quoting 42 U.S.C. § 16901 (2006)).4 offender the General; Registration 38,061 (July 2, The and 2008) Similar to Wisconsin's sex the federal Sex Offender All subsequent references to the United States Code are to the 2006 version unless otherwise indicated. 14 No. Registration and Notification Act (SORNA) 2009AP1643-CR.akz requires each sex offender to provide "[t]he address of each residence at which the sex offender § 16914(a)(3). resides SORNA or defines will reside." "resides," with 42 U.S.C. 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. purpose offenders of SORNA, to requirement meet by Nevertheless, in order to fulfill the the the providing USDOJ still functional specific requires equivalent homeless of descriptions of the sex address 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 15 requirement under Wis. Stat. No. § 301.45(2)(a)5., thereby avoiding criminal 2009AP1643-CR.akz liability under § 301.45(6)(a), by providing to 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 Dinkins in order to protect the public. that Dinkins' address As it stood, however, the DOC knew only 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 GABLEMAN joins this dissent. 16 that Justice MICHAEL J. No. 1 2009AP1643-CR.akz