State v. Savage
| Decision Date | 23 December 2020 |
| Docket Number | No. 2019AP90-CR,2019AP90-CR |
| Citation | 395 Wis.2d 1,951 N.W.2d 838,2020 WI 93 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. George E. SAVAGE, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner, there were briefs filed by Sonya Bice Levinson and Donald V. Latoraca, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sonya Bice.
For the defendant-appellant, there was a brief filed by Mark S. Rosen and Rosen and Holzman, LTD., Waukesha. There was an oral argument by Mark S. Rosen.
An amicus curiae brief was filed on behalf of Wisconsin Association of Criminal Defense Lawyers by Ellen Henak, Robert R. Henak, and Henak Law Office, S.C., Milwaukee.
¶1 This is a review of an unpublished decision of the court of appeals, State v. Savage, No. 2019AP90-CR, unpublished slip op., 2020 WL 356735 (Wis. Ct. App. Jan. 22, 2020), reversing the Milwaukee County circuit court's1 judgment and order denying George E. Savage's postconviction motion to withdraw his guilty plea. We reverse.
¶2 Savage was charged with "violation of sex offender registry" for failing to provide an updated address. Savage entered a guilty plea and was sentenced. Nearly one year later, Savage filed a motion to withdraw his guilty plea, arguing that his trial counsel provided ineffective assistance such that his plea was not knowing, intelligent, or voluntary. He argues that his trial counsel was ineffective because she failed to inform Savage that State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787, provided him with an allegedly viable defense that, as a homeless registrant, he is "exempt" from sex offender registration requirements. Savage asserts that if he had known of this alleged defense, he would not have pleaded guilty to the charge and would have instead proceeded to trial.
¶3 After a Machner 2 hearing on Savage's postconviction motion, the circuit court denied Savage's motion, explaining that Savage's trial counsel did not provide ineffective assistance because Dinkins was inapplicable to his case. The court of appeals reversed, holding that the circuit court misconstrued Dinkins, and remanded the case to the circuit court to analyze Savage's ineffective assistance of counsel claim. The court of appeals' interpretation of Dinkins is wrong.
¶4 We conclude that counsel was not ineffective and Savage is not entitled to withdraw his plea post-sentencing. Savage failed to prove by clear and convincing evidence that manifest injustice merits plea withdrawal because Dinkins does not conclude that homeless sex offenders are "exempt" from registration requirements. Thus, Savage's trial counsel did not provide ineffective assistance in failing to inform Savage about Dinkins because Dinkins does not provide Savage with a defense.3 Accordingly, we reverse.
¶5 On November 3, 2014, Savage was convicted of exposing his genitals to a child. For this conviction, the circuit court imposed a sentence of one year and six months of initial confinement with two years of extended supervision. Additionally, the circuit court ordered Savage to register as a sex offender for ten years, pursuant to Wis. Stat. § 973.048 (2017-18).4 While on the sex offender registry, Savage was required to comply with the reporting requirements under Wis. Stat. § 301.45, including providing updated information to the Department of Corrections (DOC) at regular intervals.
¶6 On March 22, 2016, the day before his initial confinement was to end, Savage signed a Sex Offender Registration form. This form essentially restates the requirements of Wis. Stat. § 301.45 and registers an individual on the sex offender registry. The statute and the form require that a sex offender registrant provide information and subsequent changes to that information such as the registrant's residence, employment, e-mail addresses, internet identifiers, school enrollment, and name change. On the form, instead of listing an address, Savage indicated that he was homeless. At the end of this form was a "Notice of Requirements to Register." It stated, in relevant part, that "when on Wisconsin [DOC] Supervision" the registrant must, Savage initialed after this section to indicate that he understood the requirement for reporting changes in information to his Community Corrections Agent and the Sex Offender Registry Program.
¶7 The following day, Savage was released from his confinement. Because of his homelessness, Savage was placed on a discretionary GPS monitor, pursuant to DOC Administrative Directive #15-12.5 This guidance document requires a homeless sex offender registrant to "call and speak with the [Probation and Parole Agent] once every seven days, on a weekday, to report ‘HOMELESS’ status and the location(s) in the city where he/she has been frequenting and sleeping for the previous seven days and plans for the next seven days." DOC Admin. Directive #15-12. The sex offender registrant must also "report the addresses or nearest locations where he/she has frequented and slept, and his/her anticipated residence plan for the upcoming week" and "also update any other required registry data changes." Id.
¶8 Savage remained compliant with his sex offender registry requirements for several months. However, on May 5, 2016, Savage cut off his GPS bracelet and absconded from supervision. Savage's Community Corrections Agent informed the Sex Offender Registry Program of his absconder status on May 18, 2016.
¶9 Savage called the Sex Offender Registry Program hotline twice over the next month providing an updated address, but he never called to update his Community Corrections Agent, as the Sex Offender Registration form required.6 Savage's last confirmed call to the hotline occurred on June 17, 2016. From May 5 until he was subsequently arrested, Savage continued his non-compliance with supervision.
¶10 On August 4, 2016, the State filed a criminal complaint in the circuit court charging Savage with a single count of "violation of sex offender registry." The State alleged Savage "knowingly failed to comply with reporting requirements under Wis. Stat. §§ 301.45(2) to (4), contrary to Wis. Stat. § 301.45(6), contrary to [ Wis. Stat. §§] 301.45(6)(a)1., 939.50(3)(h)." Specifically, Savage "failed to provide the [DOC] with updated information after a change to the information required to be provided by Wis. Stat. sec. 301.45(2)(a)." Savage's judgment of conviction from his 2014 crime and his signed Sex Offender Registration Form were attached to the criminal complaint. The court issued a felony arrest warrant for Savage.
¶11 Savage was arrested and made his initial appearance before the circuit court on February 17, 2017. The court found probable cause for the charge and advised Savage of the maximum penalties, stating, if convicted, he "could face maximum penalties of a $10,000 fine, six years imprisonment." Savage stated that he understood these charges. In a discussion about bail and bail conditions, Savage's trial counsel stated the following:
I believe for Mr. Savage, Your Honor, this is not a situation where he's unwilling or refusing to follow any registry requirements. He, given homelessness, simply has been unable to do so given that he's simply not going to be able to post any cash bail whatsoever. As the court is aware, there is the felony [violation of parole] hold in place for Mr. Savage. I would ask for a PR bond or a minimum amount of cash bail. I doubt he could pay anything at all.
The court ordered a $1,000 signature bond with conditions.
¶12 On February 28, 2017, Savage waived his right to a preliminary hearing, and the State filed an Information alleging the same criminal count and penalties stated in the complaint. Savage then entered a plea of not guilty to the charge contained in the Information.
¶13 On May 23, 2017, after learning that the parties reached a plea agreement, the circuit court held a plea hearing. The State informed the court that Savage filed his Plea Questionnaire/Waiver of Rights form indicating that he would plead guilty to the charge.7
¶14 Savage does not assert that the circuit court conducted a defective plea colloquy. Rather, his argument is that because counsel did not properly advise him of a defense under Dinkins, his guilty plea was not knowingly, intelligently, and voluntarily made.
¶15 Immediately after accepting Savage's guilty plea, the circuit court heard arguments from both the State and Savage regarding sentencing. The State, in accordance with the plea agreement, recommended one year in the House of Corrections. As relevant to this appeal, Savage's trial counsel made the following sentencing argument regarding his homelessness:
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