OAG 2-17

DNE

(See PDF for image)     STATE OF WISCONSIN

    DEPARTMENT OF JUSTICE



BRAD D. SCHIMEL

ATTORNEY GENERAL

Paul W. Connell

Deputy Attorney General

Delanie M. Breuer

Chief of Staff

114 East, State Capitol

P.O. Box 7857

Madison, WI 53707-7857

608/266-1221

TTY 1-800-947-3529

September 1, 2017

OAG–02–17

Mr. Jon E. Litscher

Secretary

Wisconsin Department of Corrections

3099 East Washington Avenue
Post Office Box 7925
Madison, WI 53707-7925

Dear Secretary Litscher:

¶ 1.

You ask if a statute governing law enforcement bulletins for sex offenders with multiple criminal convictions applies when the convictions occur at the same time or stem from the same criminal complaint. Your question concerns Wis. Stat. § 301.46(2m)(am), which is triggered by convictions, or findings of not guilty by reason of mental disease or defect, “on 2 or more separate occasions.”[1] When triggered, the statute requires an agency releasing a sex offender into the community to send a bulletin to local law enforcement.

¶ 2.

I conclude that the language referring to convictions “on 2 or more separate occasions” refers to the number of convictions, including multiple convictions imposed at the same time and based on the same complaint.[2] The Wisconsin Supreme Court has interpreted the “separate occasions” language in an analogous sentencing statute and concluded that the term refers to the number of convictions. I reach the same conclusion here.

¶ 3.

The meaning of “separate occasions” is a question of statutory interpretation. “[S]tatutory language is interpreted 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 closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. “The legislature is presumed to act with full knowledge of existing case law when it enacts a statute,” so statutes are interpreted in light of the law at the time of their enactment. Strenke v. Hogner, 2005 WI 25, ¶ 28, 279 Wis. 2d 52, 694 N.W.2d 296.

¶ 4.

The statutory language you ask about appears in Wis. Stat.
§ 301.46(2m)(am). The section was created by 1995 Wis. Act 440, which revised some existing sex offender registration and notification regulations and also created new ones, including section 301.46(2m)(am). See 1995 Wis. Act 440, § 75; State ex rel. Kaminski v. Schwarz, 2001 WI 94, ¶ 52, 245 Wis. 2d 310, 630 N.W.2d 164 (describing the statutory changes). The resulting sex offender statutes “reflect an ‘intent to protect the public and assist law enforcement’ and are ‘related to community protection.’” Kaminski, 245 Wis. 2d 310, ¶ 41 (quoting State v. Bollig, 2000 WI 6, ¶¶ 21–22, 232 Wis. 2d 561, 605 N.W.2d 199).

¶ 5.

For example, Act 440 created subsections in Wis. Stat. § 301.45 that govern sex offender registration by requiring sex offenders to provide information, including their current residence and other data. It also created Wis. Stat. § 301.46, which complements Wis. Stat. § 301.45. Section 301.46 includes provisions for accessing or distributing sex offender information, including law enforcement access, notification for victims, and public access to some registry information.
See, e.g., Wis. Stat. § 301.46(2)–(3), (5)–(5n).

¶ 6.

In addition to general law enforcement access to information,
Wis. Stat. § 301.46 includes a bulletin provision. When certain sex offenders are released into the community, the agency with jurisdiction over the offender may be required to send a bulletin to local law enforcement. See Wis. Stat. § 301.46(2m). The bulletins include the registrant’s identifying information, residence, offense history, and other information that may be useful to law enforcement. Wis. Stat.
§ 301.46(2m)(b).

¶ 7.

The bulletins are either optional or mandatory depending on the offender’s circumstances. The non-mandatory provision applies if the offender has a conviction “on one occasion only.” See Wis. Stat. § 301.46(2m)(a)1. In that instance, the agency may issue a bulletin if “such notification is necessary to protect the public.” Wis. Stat. § 301.46(2m)(a)1.–2. (using “may” instead of “shall”).

¶ 8.

In contrast, the mandatory provision, Wis. Stat. § 301.46(2m)(am), applies to offenders with sex offense convictions “on 2 or more separate occasions”:

If an agency with jurisdiction confines a person under s. 301.046, provides a person entering the intensive sanctions program under s. 301.048 with a sanction other than a placement in a Type 1 prison or a jail, or releases a person from confinement in a state correctional institution or institutional care, and the person has been found to be a sexually violent person under
ch. 980 or has, on 2 or more separate occasions, been convicted or found not guilty or not responsible by reason of mental disease or defect for a sex offense or for a violation of a law of this state that is comparable to a sex offense, the agency with jurisdiction shall notify the police chief of any community and the sheriff of any county in which the person will be residing, employed, or attending school and through or to which the person will be regularly traveling.

Wis. Stat. § 301.46(2m)(am)1. (emphasis added); see also § 301.46(2m)(am)2. (applying the same language to offenders who have moved from another state). Thus, whether a bulletin is mandatory turns on whether the offender has been convicted of a sex offense on two or more “separate occasions.” The term “separate occasions” is not defined in the statute.

¶ 9.

You ask whether “separate occasions” means the quantity of convictions regardless whether the convictions occur at the same time and stem from counts in the same criminal complaint. While no case has squarely analyzed the term “separate occasions” in section 301.46(2m)(am),[3] the Wisconsin Supreme Court has interpreted “separate occasions” in an analogous sentencing statute.
See State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984); State v. Hopkins,
168 Wis. 2d 802, 484 N.W.2d 549 (1992). Both Wittrock and Hopkins addressed the repeat offender statute, Wis. Stat. § 939.62(2), which applies if an offender has been convicted of a misdemeanor on three “separate occasions.” Wittrock, 119 Wis. 2d at 666; Hopkins, 168 Wis. 2d at 805. Those cases held that “separate occasions” refers to the quantity of convictions, regardless whether they occurred at the same time in one court proceeding or arose from a single course of criminal conduct.

¶ 10.

In Wittrock, the defendant argued that “3 separate occasions” meant three separate court appearances. He contended that the repeater statute did not apply to him because his three convictions occurred in only two appearances.
119 Wis. 2d at 667. The State argued that the statute did apply because the defendant had been “previously convicted of three separate offenses of disorderly conduct.” Id. The supreme court held that “separate occasions” was ambiguous, permitting resort to legislative history. Id. at 670–71, 674. Looking at that history, the court noted a focus on “quantity of crimes” rather than “time of conviction.”
Id. at 674. The court also reasoned that it would make little sense for sentencing enhancement to turn on whether someone happened to plead to more than one offense in one court appearance. Id. at 674–75. The court concluded that “separate occasions” referred to the number of offenses, not the number of court appearances. Id.

¶ 11.

In Hopkins, the supreme court confirmed Wittrock’s holding and addressed a question left open by the earlier case. The defendant in Hopkins argued that “separate occasions” meant separate incidents of crime, not multiple convictions stemming from a single course of conduct. 168 Wis. 2d at 805. The supreme court disagreed, holding that each conviction is a “separate occasion” for purposes of the statute. Id. Thus, the statute is triggered when a defendant is convicted of three qualifying crimes, regardless whether they were committed on separate occasions and “regardless of the number of court proceedings.” Id. at 805, 808–09. The court focused on the fact of additional criminal activity because that was what the Legislature intended the repeater provision to address. Id. at 810, 813. The Hopkins court made clear that “the quantity of the crimes” was the critical factor and that convictions imposed in the same proceeding could each be counted. Id. at 808–10.

¶ 12.

I conclude that “separate occasions” in Wis. Stat. § 301.46(2m)(am) should be interpreted as referring to the number of convictions, consistent with the supreme court’s interpretation of the repeater statute in Wittrock and Hopkins. In both statutes, the term is used in a similar way: to count convictions either as a measure of criminality or potential dangerousness to the community. It is the fact of additional criminality, as measured by multiple convictions, that matters.