2010AP496 State v. Freland

Listen to this article

Sex Offender Registration
Plea withdrawal

Where a defendant’s failure to register as a sex offender should have been a misdemeanor rather than a felony, he is entitled to withdraw his guilty plea.

“In order for the circuit court to satisfy itself that a factual basis exists for the plea, the court must find that ‘“the conduct which the defendant admits constitutes the offense charged.”’ State v. Lackershire, 2007 WI 74, ¶33, 301 Wis. 2d 418, 734 N.W.2d 23 (quoted source omitted). ‘A defendant’s failure to realize that the conduct to which [he or] she pleads guilty does not fall within the offense charged is incompatible with that plea being “knowing” and “intelligent.”’ Id., ¶35. That is precisely Freland’s situation.”

“We have concluded that Freland’s failure to register as a sex offender is a misdemeanor under Wis. Stat. § 301.45(6)(a)2. and not a felony under § 301.45(6)(a)1. Therefore, the factual basis ‘does not fall within the offense charged [and] is incompatible with that plea being “knowing” and “intelligent.”’ Id.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP496 State v. Freland

Dist. IV, Wood County, Potter, J., Sherman, J.

Attorneys: For Appellant: Zell, Michael D., Stevens Point; For Respondent: St. John, Rebecca Rapp, Madison; Poth, Angela B., Wisconsin Rapids

Full Text