In the Interest of Cesar G., 02-2106.

• Decision Date: 03 June 2004
• Docket Number: No. 02-2106.,02-2106.
• Citation: 272 Wis.2d 22,682 NW 2d 1,2004 WI 61
• Parties: In the Interest of Cesar G., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Cesar G., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

2004 WI 61

272 Wis.2d 22

682 NW 2d 1

In the Interest of Cesar G., a person Under the Age of 18:

State of Wisconsin, Petitioner-Respondent, v. Cesar G., Respondent-Appellant-Petitioner.

No. 02-2106.

Supreme Court of Wisconsin.

Oral Argument: March 24, 2004.

Opinion Filed: June 3, 2004.

For the respondent-appellant-petitioner there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.

For the petitioner-respondent the cause was argued by Shannon Wittenberger, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. SHIRLEY S. ABRAHAMSON, C.J.

This case is a review of an unpublished decision of the court of appeals.¹ Cesar G. seeks review of a court of appeals decision affirming the circuit court's order of the circuit court for Brown County, Richard J. Dietz, judge, refusing to stay that portion of the dispositional order requiring Cesar to register as a sex offender. We granted review on two issues:

1) Does Wis. Stat. § 938.34(16) (2001-02)² authorize a circuit court to stay that part of a dispositional order requiring a delinquent child to register as a sex offender?³

2) If a circuit court has discretion to stay a dispositional order requiring a delinquent child to register as a sex offender, what criteria should the circuit court consider in exercising that discretion?

¶ 2. We answer the first question in the affirmative. A circuit court has discretion under Wis. Stat. § 938.34(16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender.

¶ 3. In response to the second question, we conclude that in determining whether to stay such an order, a circuit court should consider the seriousness of the offense as well as the factors enumerated in Wis. Stat. §§ 938.34(15m)(c) and 301.45(1m)(e). The court of appeals concluded that the circuit court properly exercised its discretion in the present case by refusing to stay the sex offender registration requirement. We disagree with the court of appeals.

¶ 4. We conclude that the circuit court based its decision not to issue the stay on the incorrect assumption that it did not have the authority to issue a stay under Wis. Stat. § 938.34(16). Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court to exercise its discretion in deciding whether to issue a stay based on the appropriate factors.

I

¶ 5. Cesar G. was adjudicated delinquent for first-degree sexual assault, contrary to Wis. Stat. § 940.225(1)(c), and first-degree sexual assault of a child, party to a crime, contrary to Wis. Stat. § 948.02(1). Cesar was 12 years old at the time of the assault.

¶ 6. At trial, 12-year-old Elizabeth M. testified that she, Cesar, Tony, and Kristian were at Cesar's house listening to music and hanging out. According to Elizabeth, she and the three boys went into Cesar's garage and Tony closed and locked the door to the garage. Cesar told her to "flash" them and she refused. Cesar then grabbed her arms and Tony grabbed her legs and she fell. Once Elizabeth was on the ground Tony pulled her shirt over her head and Tony and Cesar grabbed her breasts. Elizabeth struggled to get away but Cesar and Tony were holding her down. Tony then pulled the victim's pants and underwear down and put his fingers in her vagina. Cesar then put his fingers in her vagina and she kicked and he stopped. They then let her up and everyone left the garage.

¶ 7. Cesar testified that he only grabbed the victim to try to help her get away from Tony and that he never touched her sexually. The court found Cesar delinquent on both counts: first-degree sexual assault and first-degree sexual assault of a child, party to a crime.

¶ 8. At a dispositional hearing a social worker from the Brown County Human Services Department Juvenile Court Unit recommended that Cesar be placed at Lincoln Hills School. The circuit court ordered a psychological evaluation to help appraise dispositional alternatives. The psychologist recommended in-home placement with intensive supervision. The circuit court ordered that Cesar G. be placed at Lincoln Hills School but then stayed the execution of that order. The circuit court did not, however, stay the numerous other provisions set forth in the dispositional order.⁴

¶ 9. Cesar's attorney requested the circuit court to stay that portion of the dispositional order requiring Cesar to register as a sex offender. The circuit court denied the motion.

¶ 10. On appeal, Cesar argued that the circuit court denied his request because it incorrectly concluded that it did not have the authority to stay the sex offender registration requirement. The court of appeals determined that the circuit court had assumed that it had the authority to stay the registration requirement and that it properly exercised its discretion when it denied Cesar's request to stay the sex offender registration requirement.

II

¶ 11. We turn first to the issue of whether a circuit court has authority under Wis. Stat. § 938.34(16) to stay a dispositional order requiring a delinquent child to register as a sex offender. Interpretation of a statute presents a question of law that this court decides independently of the circuit court and court of appeals but benefiting from their analyses.

¶ 12. We begin with Wis. Stat. § 938.34(15m)(am), which states that "except as provided in par. (bm)," if a juvenile is adjudicated delinquent on the basis of a violation under chapters 940, 944, or 948 or §§ 943.01 to 943.15, the circuit court may require the juvenile to comply with the registration requirements of § 301.45 if the court determines that the underlying conduct was sexually motivated and that it would be in the interest of public protection to have the juvenile register.⁵ The word "may" in (15m)(am) appears to grant the circuit court discretion to determine whether to require a juvenile to comply with the registration requirements of § 301.45. Cesar was adjudicated delinquent on the basis of violations of chapters 940 and 948 and thus comes within § 938.34 (15m)(am).

¶ 13. We must next determine whether Cesar falls within the "except clause" of Wis. Stat. § 939.35(15)(am). The except clause refers to § 939.34(15m)(bm). Wisconsin Stat. § 938.34 (15m)(bm) states that if a juvenile is adjudicated delinquent on the basis of a violation of one or more of the statutes listed in that section, then "the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45(1m)."⁶ Cesar falls within (bm). He was found delinquent based on violations of two of the statutes listed under Wis. Stat. § 938.34(15m)(bm). The word "shall" in (15m)(bm) appears to require a circuit court to mandate compliance with the registration requirements unless the juvenile falls within § 301.45(1m).

¶ 14. Thus far our analysis leads to the conclusion that the circuit court was required to order Cesar to comply with sex offender registration pursuant to Wis. Stat. § 301.45(1m).

¶ 15. As a result, we must examine Wis. Stat. § 301.45(1m) to determine whether a circuit court may relieve Cesar from the registration requirement under Wis. Stat. § 301.45.⁷ Section 301.45(1m) lists several requirements, all of which must be met before an individual may qualify for an exception to the registration requirement. Cesar does not meet these requirements and does not qualify for the section 301.45(1m) exception.

¶ 16. We therefore turn to the statutory provision for a stay to determine whether the stay provision would enable a circuit court to stay that part of a dispositional order requiring the juvenile to register. The stay provision of Wis. Stat. § 938.34(16) provides that after ordering a disposition under § 938.34, a circuit court may "enter an additional order staying the execution of the dispositional order."⁸

¶ 17. The State argues that the stay provision of Wis. Stat. § 938.34(16) is not applicable to the registration requirement. The State asserts that because § 301.45 requires registration of juvenile delinquents and provides an exception, § 301.45 cannot be trumped by § 938.34(16) relating to a stay. Nothing in the texts of the statutory provisions supports the State's interpretation.

¶ 18. The State further contends that because Wis. Stat. § 938.34(16) refers to the staying of a dispositional order and not to the conditions set forth in that order, like registration, the stay provision does not apply to the registration requirement. The State posits that the registration requirement listed in Cesar's dispositional order is not a disposition, but instead is "a condition of a disposition." The State argues that upon adjudication of a qualified sex offense, a dispositional order includes a placement (the disposition) and conditions, such as treatment, payment of fines or restitution, or compliance with sex offender treatment.

¶ 19. The State argues that the sex offender registration requirement is a condition rather than a disposition for two reasons: It "cannot stand alone"; and Wis. Stat. § 938.354(16) allows for a stay of a dispositional order, not a stay of conditions or parts of a dispositional order. In other words, if a dispositional order (the placement) is stayed, the stay is contingent on the completion of conditions.

¶ 20. The State's argument relies in large part on the court of appeals decision in In re Daniel T.⁹ In that case, the circuit court ordered placement of the juvenile defendant in custody for one year and registration as a sex offender pursuant to Wis. Stat. § 301.45. Daniel T. sought to have his registration requirement stayed, but the circuit court questioned its authority to do so. The court of appeals adopted the disposition-condition distinction and held that § 301.45 provides the only...