State v. Dinkins

• Decision Date: 13 March 2012
• Docket Number: No. 2009AP1643–CR.,2009AP1643–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. William DINKINS, Sr., Defendant–Appellant.
• Court: Wisconsin Supreme Court

2012 WI 24

339 Wis.2d 78

810 N.W.2d 787

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.William DINKINS, Sr., Defendant–Appellant.

No. 2009AP1643–CR.

Supreme Court of Wisconsin.

Argued Sept. 6, 2011.Decided March 13, 2012.

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.

ANN WALSH BRADLEY, J.

[339 Wis.2d 81] ¶ 1 The State seeks review of a published decision of the court 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 be residing” at least ten days prior to his release from prison.² The circuit court found that Dinkins attempted to comply with the registration requirements but was unable to find housing for himself prior to his release. Nevertheless, relying on the testimony adduced 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.

[339 Wis.2d 82] ¶ 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 on-the-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 the whereabouts of registrants who are unable 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 be residing when he is unable to provide this information. 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.

[339 Wis.2d 83] ¶ 7 As a collateral consequence of his 1999 conviction, Dinkins must register as a sex offender under Wis. Stat. § 301.45. That statute provides that 10 days prior to release from prison, Dinkins was required to provide certain information to the DOC, including “[t]he address” at which he “will be residing.” Wis. Stat. §§ 301.45(2)(a)5. and (2)(e)(4). Knowing failure to comply with the registration requirements is, with one exception that is inapplicable here, a 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 information, Dinkins made efforts to secure a residence. He expressed hope that he could live with his daughter upon release, and he made unsuccessful efforts to contact her and other family members.

[339 Wis.2d 84] ¶ 10 A little more than a month before his discharge date, Smith assisted Dinkins in filling out a standardized form labeled Sex Offender Registration. Smith filled out Dinkins' name, his identifying information, and information about his crime. She checked “unemployed” in the place for 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.” She later testified: “I've used that [designation] before when an individual does not have an approved residence. And sometimes it is within days before a person is getting out that a residence is found, and then this can be updated.”

¶ 12 According to Smith, in the typical case where a homeless registrant would be subject to extended supervision or parole upon release from incarceration, a DOC agent would look “for a transitional living [arrangement] ... in a halfway house of some sort.” 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 the registrant upon release.⁵

¶ 13 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 showing that people as high 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 until we have an address. ⁶ NOT SURE WHAT ELSE to say at this point.

¶ 16 Nevertheless, four 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. The circuit court granted the District Attorney's petition for a writ of habeas corpus ad prosequendum, and Dinkins' initial appearance was scheduled for July 18.

¶ 17 On the morning of the initial appearance, Dinkins' daughter called Gallitz. 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 fiance 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. He filed a motion to dismiss the complaint, arguing that the 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 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 cause to believe Dinkins violated Wis. Stat. § 301.45(6). 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 prison. To that end, Dinkins filed three additional motions to dismiss, arguing (1) selective prosecution; (2) insufficient probable cause; and (3) that the statute was unconstitutional due to vagueness, overbreadth,...