June 2, 2023 – A statute that requires repeat sex offenders to comply with sex offender registration requirements for life does not apply to an offender convicted of multiple convictions in the same court proceeding, the Wisconsin Supreme Court has ruled in State. Rector, 2023 WI 41 (May 23, 2023).

The decision came on a 4-3 vote. Justice Jill Karofsky wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Brian Hagedorn.

Justice Rebecca Bradley wrote an opinion, concurring in part and dissenting in part, joined by Chief Justice Annette Ziegler and Justice Patience Roggensack.

Cache of Child Pornography

In 2018, the Kenosha County District Attorney charged Corey Rector with ten counts of possession of child pornography. The charges came after the police seized 1,000 images and videos depicting children engaging in a variety of sexual acts from Rector’s residence.

During a single court hearing, Rector pled guilty to five of the ten counts. As part of the sentence, the Kenosha County Circuit Court ordered him to comply with sex offender registration requirements for 15 years.

Motion to Amend Judgment

After the circuit court sentenced Rector, the Department of Corrections (DOC) moved that the circuit court amend the judgement of conviction and order Rector to comply with sex offender registration requirements for life. DOC made the request after concluding that Wis. Stat. section 301.45(5)(b)1. applied to Rector’s case.

Section 301.45(5)(b)1. specifies that a person who’s been convicted of a sex offense “on 2 or more separate occasions” must comply with state sex offender registration requirements for life.

Cross-Appeal

The circuit court denied DOC’s motion. It also denied a post-conviction motion filed by Rector to amend the sentence on the basis that the court’s determination that he was not eligible for the earned release program was improper.

The state and Rector cross-appealed to the Wisconsin Court of Appeals. The court of appeals certified the cross-appeal to the supreme court.

Occasions Include Multiple Activities

Justice Karofsky began her majority opinion by analyzing the plain meaning of the phrase “on 2 or more separate occasions” using dictionary definitions.

“A separate occasion is an incident or time at which an event occurred, which is set apart from another incident or time at which a different event occurred,” Karofsky wrote. “It is clear from the sentence structure that the ‘2 or more separate occasions’ phrase is modifying the conviction for a sex offense rather than the commission of a sex offense.”

Additionally, Justice Karofsky pointed out, section 301.45(5)(b)1. references the possible dispositions of a sex offender’s case rather than referencing the details surrounding the commission of his or her offenses.

“Like different apples purchased during the same trip to the store, or different activities occurring at the same wedding, Rector’s multiple convictions occurred during the same ‘occasion,’” Karofsky wrote.

Prior Interpretation Not Governing

The state argued that the supreme court’s interpretation of the phrase ‘separate occasions’ in section 939.62(2), the criminal repeater statute, should govern the interpretation of the phrase ‘2 or more separate occasions’ in section 301.45(5)(b)1.

Under section 939.62(2), an offender is a repeat offender if he or she “was convicted of a misdemeanor on 3 separate occasions” in the previous five years.

In State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984), the supreme court held that an offender who had been previously convicted of two misdemeanors during a single court proceeding, as well as a third misdemeanor in a separate court proceeding, fell within section 939.62(2)’s reach, even though the two misdemeanors in the single court proceeding involved separate criminal conduct occurring on separate days. 

In State. v. Hopkins, 168 Wis. 2d. 802, 484 N.W.2d 549 (1992), the supreme court held that the term “occasion” in section 939.62(2) meant the number of the defendant’s convictions, and not the number of criminal acts underlying the convictions.

Justice Karofsky acknowledged that under supreme court precedent, a prior construction by the supreme court may aid a plain meaning analysis if: 1) the term at issue has been defined as a legal term of art; or 2) was interpreted in a closely related statute.

But, she reasoned, Wittrock’s interpretation of the term ‘separate occasions’ did not govern the interpretation of “2 or more separate occasions’ in Rector’s case because:

• Wittrock analyzed the term ‘separate occasion’ in the “unique context of the criminal repeater statute,” rather than defining the term;

• “Occasions” and “separate occasions” are not terms of art; and

• ​Sections 301.45 and 939.62 were not so closely related that the term “occasion” should be interpreted the same for both.

Dissent: Majority Misapplied Prior Construction Canon

In her dissent, Justice R.G. Bradley argued that the majority erred by relying on the notion that the prior construction applied only to terms of art.

“A phrase does not have to be a ‘legal term of art’ prior to its initial construction – it becomes one through its construction,” R.G. Bradley wrote.

She also argued that the majority failed to recognize the role the Wittrock holding may have played in the enactment of section 301.45.

“Even assuming the cases were wrongly decided, they changed the background against which the repeat sex offender statute was enacted,” Justice R.G. Bradley wrote. “The legislature presumptively relied on these cases, a point reasonable people expect to inform legal meaning.”  

The majority’s interpretation of section 301.45(5)(b)1., R.G. Bradley argued, would lead to absurd results.

“The majority’s holding invites strategic pleading by the state; the majority would have required Rector to register as a sex offender for life had the prosecutor simply brought one count in one case and the remaining counts in another, with the cases being ajudicated on different days,” Justice R.G. Bradley wrote.