State v. Freland

Decision Date26 May 2011
Docket NumberNo. 2010AP496.,2010AP496.
Citation2011 WI App 80,800 N.W.2d 18,334 Wis.2d 772
PartiesSTATE of Wisconsin, Plaintiff–Respondent,†v.Yancy D. FRELAND, Defendant–Appellant.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Michael D. Zell of Zell Law Office, Stevens Point.On behalf of the plaintiff-respondent, the cause was submitted on the brief of Rebecca Rapp St. John, assistant attorney general, and J.B. Van Hollen, attorney general.

There was oral argument by Rebecca Rapp St. John.Before VERGERONT, P.J., SHERMAN and BLANCHARD, JJ.SHERMAN, J.

Yancy Freland appeals a judgment of conviction for failing to provide sex offender information, contrary to Wis. Stat. § 301.45(2)(e) 2m. (2007–08),1 a class H felony, and an order denying his postconviction motion to withdraw his guilty plea to that offense. Freland contends that his plea was not knowing, voluntary or intelligent because he was not aware that the conviction underlying his § 301.45(2)(e) 2m. offense, an out-of-state conviction, was eligible for misdemeanor treatment under § 301.45(6). We: (1) interpret § 301.45(6) to provide misdemeanor treatment for out-of-state sexual offenses that are comparable to misdemeanor sex offenses under Wisconsin law; (2) conclude that Freland's underlying out-of-state conviction was comparable to a Wisconsin misdemeanor sex offense; and (3) conclude that Freland's plea was not knowingly, intelligently, or voluntarily entered because he was not aware that his violation was eligible for misdemeanor treatment under § 301.45(6), and was not aware that his violation of § 301.45(2)(e) 2m. was a misdemeanor, not a class H felony. Consequently, we reverse the circuit court's denial of Freland's motion to withdraw his plea and remand for further proceedings.

I. BACKGROUND

¶ 2 In November 2000, Freland was convicted in Minnesota of criminal sexual conduct in the fifth degree, a gross misdemeanor, contrary to Minn. Stat. § 609.3451.1(1). “A person is guilty of criminal sexual conduct in the fifth degree: (1) if the person engages in nonconsensual sexual contact.” Minn. Stat. § 609.3451.1(1). As a result of the conviction, Freland was required to register as a sex offender in Minnesota.

¶ 3 In May 2007, Freland was charged in Wisconsin with failing to provide the Wisconsin Department of Corrections with sex offender information, as a Class H felony,2 contrary to Wis. Stat. § 301.45(2)(e) 2m. In August 2007, Freland was convicted of this charge upon his guilty plea. Sentence was withheld and he was placed on probation. One year later, on August 6, 2008, Freland's probation was revoked and he was sentenced to four years of imprisonment, with two years of initial confinement and two years of extended supervision.

¶ 4 On September 14, 2009, Freland filed a postconviction motion to withdraw his plea on the grounds that he was wrongfully convicted of a felony, rather than a misdemeanor, and that his plea was therefore not knowingly, intelligently and voluntarily given. At the motion hearing, Freland argued that under Wis. Stat. § 301.45(6), failure to register as a sex offender is a misdemeanor if the underlying conviction was for an offense that is a misdemeanor and the offender has not previously been convicted for failure to register as a sex offender.3 Freland asserted that the Minnesota conviction giving rise to the requirement for him to register as a sex offender was a misdemeanor.

¶ 5 In response, the State argued at the motion hearing that the plain language of Wis. Stat. § 301.45(6)(a) 2. affords misdemeanor treatment for failure to register as a sex offender only if the requirement to register arose under certain particular Wisconsin statutes, effectively arguing that only Wisconsin misdemeanor sex offenses qualify. The circuit court denied Freland's motion to withdraw his plea. Freland appeals.

II. DISCUSSION

¶ 6 Freland contends that he is entitled to withdraw his plea because it was not knowingly, intelligently and voluntarily given since he was not aware that the potential penalty he faced for violating Wis. Stat. § 301.45(2)(e) 2m. was a misdemeanor, not a class H felony, under § 301.45(6)(a).4

¶ 7 Before we can address whether Freland's plea was knowingly, intelligently and voluntarily given, we must first determine whether he is correct that his violation of Wis. Stat. § 301.45(2)(e) 2m. constituted a misdemeanor.

A. Wisconsin Stat. § 301.45(6)(a) 2.

1. Wisconsin Stat. § 301.45(6)(a) 2. Applies to Out–of–State Misdemeanors

¶ 8 Wisconsin Stat. § 301.45(6) sets forth the penalties for failure to comply with Wisconsin's sex offender registration requirements. The subsection relevant to this case reads:

(a) Whoever knowingly fails to comply with any requirement to provide information under subs. (2) to (4) is subject to the following penalties: 5

1. Except as provided in subd. 2., the person is guilty of a Class H felony.

2. The person may be fined not more than $10,000 or imprisoned for not more than 9 months or both if all of the following apply:

a. The person was ordered under s. 51.20(13)(ct)1m., 938.34(15m)(am), 938.345(3), 971.17(1m)(b)1m., or 973.048(1m) to comply with the reporting requirements under this section based on a finding that he or she committed or solicited, conspired, or attempted to commit a misdemeanor.

b. The person was not convicted of knowingly failing to comply with any requirement to provide information under subs. (2) to (4) before committing the present violation.

Section 301.45(6).

¶ 9 Both Freland and the State take somewhat different approaches to the interpretation of Wis. Stat. § 301.45(6) than they did before the circuit court. They now agree that out-of-state convictions may warrant misdemeanor treatment under § 301.45(6)(a) 2. However, they disagree on both the legal basis for that conclusion and how to determine which prior convictions qualify as misdemeanors under § 301.45(6)(a) 2.

¶ 10 Statutory interpretation presents a question of law which we review de novo. State v. Cole, 2000 WI App 52, ¶ 3, 233 Wis.2d 577, 608 N.W.2d 432. The goal of statutory interpretation is to give effect to the intent of the legislature. Lake City Corp. v. City of Mequon, 207 Wis.2d 155, 162, 558 N.W.2d 100 (1997). An appellate court begins with the plain language of the statute itself. Id. However, we do not read statutory language in isolation. We examine the language ‘as part of a whole; in relation to the language of surrounding or closely related statutes.’ State v. Warbelton, 2008 WI App 42, ¶ 13, 308 Wis.2d 459, 747 N.W.2d 717 (quoted source omitted). We, therefore, consider Wis. Stat. § 301.45(6) in the context of the entirety of § 301.45, the statute of which it is a part and which creates and defines the sex offender registration program.

¶ 11 Wisconsin Stat. § 301.45(1g) lists fifteen circumstances under which a person is required to register as a sex offender. Included in this list is a person who “is registered as a sex offender in another state or is registered as a sex offender with the federal bureau of investigation under 42 USC 14072.” Section 301.45(1g)(f). Also required to register are persons who have “been found to have committed a sex offense by another jurisdiction.” Section 301.45(1g)(g).6

¶ 12 Wisconsin Stat. § 301.45(1d)(am)1. specifically defines has been [f]ound to have committed a sex offense by another jurisdiction” to include a person who has been convicted “for a violation of a law of another state that is comparable to a sex offense.” 7 Taken as a whole, the language of § 301.45 evidences a legislative intent to include out-of-state sex offenses. By its express language, § 301.45(1g) includes only those out-of-state offenses that are “comparable to a [Wisconsin] sex offense.”

¶ 13 Based upon this legislative intent, we interpret Wis. Stat. § 301.45(6)(a) 2. to include out-of-state misdemeanors that are “comparable to a sex offense.” See § 301.45(1d)(am)1.8

2. Minnesota Stat. § 609.3451.1(1) is “Comparable to a Sex Offense”

¶ 14 Having determined that out-of-state misdemeanor convictions that are comparable to Wisconsin misdemeanors are included within the scope of Wis. Stat. § 301.45(6)(a) 2., we next determine whether the Minnesota statute under which Freland was previously convicted is “comparable to a sex offense.”

¶ 15 This court has addressed the issue of how out-of-state crimes are compared with Wisconsin criminal law requirements in two recent cases. See State v. Campbell, 2002 WI App 20, 250 Wis.2d 238, 642 N.W.2d 230; State v. Collins, 2002 WI App 177, 256 Wis.2d 697, 649 N.W.2d 325.

¶ 16 In Campbell, we considered whether an Ohio forgery law would constitute a felony in Wisconsin for purposes of Wisconsin's felon in possession of a firearm prohibition. Under Wis. Stat. § 941.29(1)(b) (2009–10), a person is prohibited from possessing a firearm if he or she was [c]onvicted of a crime elsewhere that would be a felony if committed in this state.” See also Campbell, 250 Wis.2d 238, ¶ 5, 642 N.W.2d 230. Campbell argued that, because the Ohio felony forgery statute was broader than the Wisconsin felony forgery statute, prohibiting conduct that the Wisconsin law did not, we could not consider the Ohio law comparable to the Wisconsin law. We disagreed:

We agree with Campbell that the Ohio forgery statute is broader than Wisconsin's, and that looking solely at the language of the Ohio Statute would be insufficient to prove that Campbell was guilty of possessing a firearm as a felon. However, we are not limited to considering the language of the statute.

Rather, we agree with the State that the circuit court was entitled to look at the underlying conduct supporting Campbell's conviction. The term “crime” is defined in Wis. Stat. § 939.12 as conduct which is prohibited by state law and punishable by fine or imprisonment or both.” (...

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