State v. Dinkins

2012 WI 24, 810 N.W.2d 787, 339 Wis. 2d 78, 2012 WL 798790, 2012 Wisc. LEXIS 20

• Court: Wisconsin Supreme Court
• Decided: March 13, 2012
• Docket: No. 2009AP1643-CR
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 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.

¶ 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.

¶ 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)l.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.

¶ 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, and equal protection.

¶ 21. The circuit court issued a memorandum decision and order. It stated that "the evidence adduced at the preliminary examination seems to indicate that [Dinkins] attempted to comply with the statute, but has been unable to find housing for himself upon release." Noting that it took "no position on the propriety or wisdom of the criminal prosecution in this matter," the circuit court denied Dinkins' motions. It stated: "the statute criminalizes the knowing failure to provide the information. Intentional failure is not required." (Emphasis in original.)

¶ 22. Subsequently, after reviewing the evidence adduced at the preliminary hearing, the circuit court found Dinkins guilty as charged.⁷ It withheld sentence and placed him on probation for 30 months. During sentencing, the circuit court commented: "I assume [the DOC is] going to have to find him a place. I mean, he can't find himself a place."

¶ 23. The circuit court imposed 90 days at the Dodge County Jail as a condition of probation. It commented that once the DOC found housing for Dinkins, the court would "stay the balance of the conditional jail and get him transferred to that placement." The court urged the DOC "to obtain a placement as soon as reasonably practicable[.]"

¶ 24. Dinkins filed a motion for postconviction relief. The circuit court denied his motion, and Dinkins appealed.

¶ 25. The court of appeals reversed based on its interpretation of the term "residing." State v. Dinkins, 2010 WI App 163, 330 Wis. 2d 591, 794 N.W.2d 236. It referred to an "apparent unintended gap" in the statute that is created by the "questionable assumption" that "all soon-to-be-released prisoners are able, in advance of leaving prison, to identify a location at which they may reside." Id., ¶ 4.

¶ 26. We note that in response to the court of appeals' opinion, the DOC has attempted to close this unintended gap by issuing Wisconsin Department of Corrections Administrative Directive #11-04, DOC-1356 (Rev.), effective July 1, 2011. The directive provides guidance for addressing homeless registrants who are on active DOC supervision as well as homeless registrants who have been terminated from supervision.⁸ Because it was not in effect at the time of Dinkins' violation and prosecution, this new directive does not resolve the issues presented in this case.

II

¶ 27. We begin by clarifying what is not at issue in this case. It is undisputed that Dinkins was required to register, and continues to be required to register, as a sex offender. It is undisputed that, as part of his registration, Dinkins is required to provide his address. This case is not about whether homeless registrants are "exempt" from registration requirements. They are not.

¶ 28. Rather, this case presents the narrow question of whether, under the circumstances where Dinkins attempted to comply with the registration requirements but was unable to find housing, he can be convicted of a felony for failing to notify the DOC of "[t]he address at which" he would "be residing" upon his release from prison. To resolve this question, we must interpret the sex offender registry statute. Statutory interpretation is a question of law, which we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Leitner, 2002 WI 77, ¶ 16, 253 Wis. 2d 449, 646 N.W.2d 341.

¶ 29. Statutory interpretation begins with the plain language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We generally give words and phrases their common, ordinary, and accepted meaning. Id. "However, the plain meaning [of a statute] is seldom determined in a vacuum!.]" Osterhues v. Bd. Adjustment for Washburn County, 2005 WI 92, ¶ 24, 282 Wis. 2d 228, 698 N.W.2d 701 (citing Kalal, 271 Wis. 2d 633, ¶ 46). Accordingly, we interpret statutory language "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." Kalal, 271 Wis. 2d 633, ¶ 46. Additionally, we interpret statutory language "reasonably, to avoid absurd or unreasonable results." Id. An interpretation that contravenes the manifest purpose of the statute is unreasonable. Id., ¶ 49.

Ill

¶ 30. We begin our analysis by examining the text of the relevant statutory provisions. Wisconsin Stat. § 301.45 establishes a statewide registry of sex offenders. That statute provides that the registry "shall contain" information about each registrant, including, among other things, identifying information, employment information, and "[t]he address at which the person is or will be residing." Wis. Stat. § 301.45(2)(a)5.

¶ 31. Registrants who are not under DOC or DHS supervision "shall provide" the required information to the DOC. Wis. Stat. § 301.45(2)(d). "If the person is being released from prison because he or she has reached the expiration date of his or her sentence," the registrant must provide the required information to the DOC "no later than 10 days before being released from prison." Wis. Stat. § 301.45(2)(e)4.

¶ 32. Subsection (6) prescribes penalties for violating the sex offender registration statute. It provides that a registrant who "knowingly fails to comply with any requirement to provide information" is "guilty of a Class H felony."⁹ Wis. Stat. § 301.45(6)(a)1.

¶ 33. In isolation, the penalty subsection of the statute appears to criminalize the failure to provide required information — without regard to the registrant's ability to provide that information. However, it is a well-settled principle of statutory construction that "the plain meaning [of a statute] is seldom determined in a vacuum," and we therefore do not read words of a statute in isolation. Osterhues, 282 Wis. 2d . Instead, "statutory 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." Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 34. When the penalty subsection is read in context, two propositions become clear. First, the legislature anticipated that a registrant might be unable to provide the required information. Second, the legislature set forth an alternative procedure for monitoring the whereabouts of registrants who are unable to provide an address without imposing criminal liability.

¶ 35. Wisconsin Stat. §§ 301.45(2)(b)-(d) set forth the manner in which information required for sex offender registration is provided to the DOC. The manner depends upon whether the registrant is under the supervision of the DOC, under the supervision of the DHS, or not supervised by either department. When the registrant is not under any supervision, the statute specifically anticipates that the registrant may be unable to provide the required information.

¶ 36. Subsection (2) provides in part:

(b) If the [DOC] has supervision over a person subject to [the registration requirements], the [DOC] shall enter into the registry under this section the information specified in par. (a) concerning the person.

(c) If the [DHS] has supervision over a person subject to [the registration requirements], [the DHS], with the assistance of the person, shall provide the information specified in par. (a) to the [DOC] in accordance with the rules under sub. (8).

(d) A person subject to [the registration requirements] who is not under the supervision of the [DOC] or the [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.

Wis. Stat. § 301.45(2)(b)-(d) (emphasis added).

¶ 37. The term "unable" is not defined in the statute. When a term is not defined, a general principle of statutory construction is that the term should be given its "common, ordinary, and accepted meaning." Kalal, 271 Wis. 2d 633, ¶ 45.

¶ 38. One dictionary defines "unable" as "lacking the necessary power, authority, or means, not able; incapable." American Heritage Dictionary of the English Language 1940 (3d ed. 1992). Another defines "unable" as "lacking the necessary power, competence, etc., to accomplish some specified act." Random House Unabridged Dictionary 2052 (2d ed. 1993). In the context of the statute, we conclude 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.

¶ 39. The second proposition which becomes clear when the statute is read in context is that the legislature set forth an alternative procedure by which required information can be provided. Under sub. (2)(f), the DOC may require a registrant to report to a police station to provide any required information "that the person has not previously provided":

The [DOC] may require a [registrant] to provide the [DOC] with his or her fingerprints, a recent photograph of the person and any other information required under par. (a) that the person has not previously provided. The [DOC] may require the person to report to a place designated by the [DOC], including an office or station of a law enforcement agency, for the purpose of obtaining the person's fingerprints, the photograph or other information.

Wis. Stat. § 301.45(2)(f) (emphasis added).

¶ 40. Exercising its authority under this statute, the DOC can require a registrant who is unable to provide an address to report to a local police station upon release. Id. If, upon reporting to the police station, the registrant continues to be unable to provide an address, the DOC can require him to continue reporting to the police station on a regular basis until he is able to do so. Id. Meanwhile, it can require the registrant to provide information about the places he is frequenting. Id.

¶ 41. The parties agree that the registration requirements protect the public by assisting law enforcement officers to monitor known sex offenders. By exercising its authority under sub. (2)(f), the DOC can ensure that a registrant who is unable to provide required information provides its functional equivalent and therefore can be effectively monitored without resorting to a preemptive prosecution.¹⁰

¶ 42. The State's brief makes scant reference to sub. (2) (f). The implication of its argument is that there is no need to consider this alternative statutory procedure because all homeless registrants are inherently capable of supplying information about where they "will be residing" 10 days in advance of release.

¶ 43. The State asserts: "because everyone has to live and sleep somewhere (even if descriptively 'homeless'), a soon-to-be-released sex offender . . . necessarily knows that he will be living and sleeping somewhere upon leaving prison . . . and thus is inherently capable of providing that information before release." The State contends that a registrant who is unable to find housing can comply with the requirements by providing the address of a park bench or other on-the-street location where he intends to sleep.

¶ 44. While 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, we disagree with the State's interpretation of the statute. If listing a park bench or other on-the-street location were sufficient to satisfy the requirements, the purpose of the statute would be significantly undermined. Such an interpretation is unreasonable.

¶ 45. The sex offender registration statute "does not evince the [legislature's] intent to punish sex offenders, but rather reflects the [legislature's] intent to protect the public and assist law enforcement." State v. Bollig, 2000 WI 6, ¶ 21, 232 Wis. 2d 561, 605 N.W.2d 199. This purpose is served when the public and law enforcement officers have accurate information about the whereabouts of known sex offenders so that they can be monitored.

¶ 46. Prison confinement limits not only a registrant's ability to secure a residence, but also the registrant's ability to learn about places where he could potentially live upon release. From the vantage point of prison, a registrant may well be unaware of locations in the community where homeless individuals are permitted to congregate and sleep. If listing a park bench is sufficient to satisfy the reporting requirement, a homeless registrant will be encouraged to simply provide an uninformed guess, with no assurance that the registrant would actually be able to stay in that location.

¶ 47. An uninformed guess reported for the sole purpose of technical compliance with the statute would provide little protection for the public. On the contrary, it might provide false reassurance that Dinkins' whereabouts were known.

¶ 48. Further, once a registrant has reported an address to the DOC, that registrant has a 10-day grace period to update any information that has changed. Wis. Stat. § 301.45(4)(a). If transient registrants may simply guess at a possible location and then need not report any change in location for 10 days, they could easily slip off the grid, altogether undermining the purposes underlying registration. Accordingly, we disagree with the State's assertion that a registrant can comply with the statute by listing a park bench or other on-the-street location as his residence.

¶ 49. A final principle of statutory interpretation that informs our discussion is that a statute must be interpreted "reasonably, to avoid absurd or unreasonable results." Kalal, 271 Wis. 2d 633, ¶ 46. The sex offender registration statute is not intended to be punitive in nature. Bollig, 232 Wis. 2d 561, ¶ 21. It is unreasonable to think that the legislature intended that a registrant be prosecuted for a Class H felony, which carries a maximum sentence of six years in prison, for failing to provide information which the registrant was unable to provide.

¶ 50. The unreasonableness of such an interpretation is further illustrated by reviewing the other reporting requirements. In addition to providing "the address at which [the registrant] is or will be residing," a registrant must provide the "name and address of place at which [the registrant] is or will be employed." Wis. Stat. § 301.45(2)(a)8. Just like the registrant's residence, the name and address of the registrant's employer must be provided 10 days prior to release. Wis. Stat. § 301.45(2)(e)4.

¶ 51. If the legislature intended that a registrant be prosecuted for failing to provide information, even if that information does not exist despite an attempt to provide it, a registrant who is unable to secure employment could also be subjected to a Class H felony for failing to provide employment information 10 days in advance of release from prison. Surely the legislature could not have intended such an unreasonable result.

¶ 52. 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 was 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.¹¹

¶ 53. We emphasize that our interpretation of the statute is unlikely to apply to a large number of registrants. Typically, registrants leaving prison will be under the supervision of the DOC or the DHS. The DOC has recently declared: "Lacking a residence is unacceptable as a supervision strategy. Every effort must be made... in establishing a residence if the offender is unable to propose suitable housing." Wis. Dep't of Corrections Admin. Directive #11-04.

¶ 54. Additionally, looking forward, the DOC has promulgated new reporting requirements and guidelines for addressing the problem presented in this case. Id. When read in conjunction with the DOC's authority under Wis. Stat. § 301.45(2)(f), the directive may provide additional monitoring for registrants who have been terminated from supervision and who are unable to secure housing. Id.

¶ 55. Having interpreted the statutory language, we turn to applying that interpretation to the facts of this case. Here, the circuit court found that Dinkins "attempted to comply with the statute, but has been unable to find housing for himself upon release." During sentencing, the court reiterated that finding: "I assume [the DOC is] going to have to find him a place. I mean, he can't find himself a place." Implicit in the court's discussion is the assessment that Dinkins reasonably attempted to find housing for himself but was unsuccessful.

¶ 56. It is undisputed that Dinkins did not have a home of his own. The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing. A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance.¹² The circuit court's finding that Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous.

IV

¶ 57. Although our interpretation focuses on the statutory term "unable," the court of appeals focused on a different statutory term: "residing." Thus, before concluding our analysis, we pause to address an issue raised by the court of appeals' interpretation.

¶ 58. The court of appeals concluded that the term "residing" means "to live in a location for an extended period of time." Dinkins, 330 Wis. 2d 591, ¶ 20. It appeared to acknowledge that its interpretation would apply to all homeless registrants, and that under its interpretation, the statute would "failQ to ensure that persons who lack 'an address at which they are or will be residing' — i.e., homeless registrants— provide information about their whereabouts to the [DOC]." Id., ¶ 25 n.12.

¶ 59. We do not agree with the court of appeals' interpretation of the term "residing." Certainly, an address where a registrant intended to live for an extended period of time would constitute a place where a registrant "will be residing." However, we think the statutory term "residing" is broader, encompassing more temporary living arrangements as well.

¶ 60. The term "residing" is undefined in the statute and the relevant administrative code. The court of appeals' narrow interpretation of the term would appear to undermine the purpose of the statute. It would ill serve the statute's purpose to exempt a class of registrants who are without a location to live "for an extended period of time," without regard to the registrant's ability to secure some type of temporary or transitional housing.

¶ 61. In sum, 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.

¶ 62. 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.

¶ 63. 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.

By the Court.

The decision of the court of appeals is affirmed.

1 State v. Dinkins, 2010 WI App 163, 330 Wis. 2d 501, 794 N.W2d 236 (reversing judgments of the circuit court for Dodge County, Judge Andrew E Bissonnette, presiding).

2 Wisconsin Stat. §§ 301.45(2)(a)5., (2)(d), and (2)(e)4. All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

3 As an additional consequence of his conviction, Dinkins is subject to lifetime GPS tracking under Wis. Stat. § 301.48.

4 Dinkins was sentenced prior to the advent of the truth in sentencing statutory scheme. Accordingly, he was eligible for mandatory release on a certain date as determined by the parole board. See Wis. Stat. § 302.11(1) and (lg). When an inmate is released on parole prior to the completion of his sentence, the inmate is released into the custody of the DOC. Wis. Stat. § 304.06(3). Here, Dinkins served until his maximum release date. But for the criminal complaint issued in this case, he would have been released into the community without DOC supervision.

⁵

Q: In a situation where the discharge date and the [mandatory release] date are one in the same, what response do you get from Community Corrections when they are asked to help a defendant find a place to live? . . .

A: . . . Usually no help.

Q: And do they provide a reason why they're not helpful?

A: I think they're as understaffed as we are.

Q: Do they have any resources once someone discharges or any authority to set them up in a halfway house?

A: I'm not familiar with that. I don't believe they have authority, but I do not know.

6 Although DOC employees repeatedly stated that it was necessary for Dinkins to have a land line to install GPS monitoring, that appears to not be the case. After oral argument, the State submitted a letter advising the court that in the case of a sex offender who lacks a fixed address, the DOC uses cellular GPS trackers that do not require a land line but need to be charged every day.

7 Because there was no dispute of fact, Dinkins waived his right to a jury trial and agreed that the court could decide the case on the basis of the exhibits and testimony elicited at the preliminary hearing.

8 The directive provides that registrants who have been terminated from supervision need not obtain placement approval prior to establishing a residence or moving to a new residence. Wis. Dep't of Corrections Admin. Directive #11-04, DOC-1356 (Rev.). If the registrant is "unable to secure permanent residence," the registrant must call the Sex Offender Registry every seven days to report "homeless" status, the locations where the registrant has heen frequenting and sleeping in the past seven days, and the registrant's anticipated plan for the upcoming seven days. Id. When possible, the registrant must also provide an emergency contact person and telephone number. Id. Terminated registrants who fail to adhere to this policy are subject to non-compliance prosecution. Id.

The validity of this new directive is not before the court and is not addressed in this opinion.

9 Dinkins offers an interpretation of the statute that focuses on the term "knowingly." He argues that the term "knowingly" means not only that the registrant had knowledge of his failure to provide information, but also that the registrant had knowledge of the information itself.

The text of the statute does not support such an interpretation. "Knowingly" is an adverb, which modifies the verb phrase "fails... to provide." It does not modify the noun "information."

10 Contrary to the dissent's assertion, homeless registrants cannot leave "law enforcement, the Wisconsin public, and their victims in the dark about their whereabouts without any repercussions whatsoever." Dissent, ¶ 112. If the DOC requires a registrant to report to the police station and provide information under Wis. Stat. § 301.45(2)(f) and the registrant knowingly fails to do so, it would appear that the State could charge the registrant for "knowingly fail[ing] ... to provide information under subs. (2) to (4)[.]" Wis. Stat. § 301.45(6).

11 At the outset, the dissent mischaracterizes the holding of the majority and asserts facts that are unfounded. See dissent, ¶ 88.

The dissent takes aim at a straw man by mischaracterizing the majority's holding and then attacking its own mischaracterized version. Under our holding, a registrant must do much more than merely "claim" homelessness to avoid prosecution for failing to provide an address. Rather, a registrant must be unable to find housing, despite reasonably attempting to do so. If a circuit court concludes that the registrant did not reasonably attempt to find housing, a prosecution may proceed.

Additionally, the "facts" relied upon by the dissent are not in this record. See dissent, ¶¶ 90-91. It has long been the law that an appellate court's review is circumscribed by the record before it. See, e.g., Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964). Tempting as it may be to conduct our own inquires outside the circuit court's record, we, as well as the litigants before us, are required to adhere to the rule of law.

¹²

Q: "[I]t was never really discussed that there may be other options other than his daughter's residence?

A: I never suggested anything else.

Q: Okay. Essentially, the onus was put on him to come up with a residence, correct?

A: That's correct.

Q: There was no — it wasn't explained to him that there were other options other than him coming up with his own residence?

A: Well, I'm not aware of any other option. Because when he came out on July 20th, he was no longer on supervision. So the Department of Corrections was responsible to pick him up, transport him, wait until the GPS was hooked up; and then we were no longer — ... we didn't have any authority on him at that point.