                                                                2018 WI 52

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:               2016AP740-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        DeAnthony K. Muldrow,
                                  Defendant-Appellant-Petitioner.

                               REVIEW OF DECISION OF THE COURT OF
                          Reported at 377 Wis. 2d 223, 900 N.W.2d 859
                              PDC No: 2017 WI App 47 - Published

OPINION FILED:          May 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 21, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Manitowoc
   JUDGE:               Jerome L. Fox

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Leonard Kachinsky and Kachinsky
Law Offices, Neenah.


       For the plaintiff-respondent, there was a brief filed by
Tiffany      M.     Winter,    assistant   attorney      general,    and   Brad   D.
Schimel,      attorney        general.     There   was   an   oral   argument     by
Tiffany M. Winter.
                                                                              2018 WI 52
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2016AP740-CR
(L.C. No.    2009CF334)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                           FILED
      v.
                                                                     MAY 18, 2018
DeAnthony K. Muldrow,
                                                                        Sheila T. Reiff
              Defendant-Appellant-Petitioner.                        Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1      MICHAEL      J.   GABLEMAN,    J.    A    defendant       who    enters     a
guilty plea waives numerous constitutional rights.                             State v.

Bangert,       131      Wis. 2d 246,        270,       389     N.W.2d 12         (1986).

Accordingly, "[u]nder the Due Process Clause of the Fourteenth

Amendment     to     the   United   States    Constitution,[1]         a   defendant's


      1
       The Due Process Clause of the Fourteenth Amendment to the
United     States     Constitution    states     "[n]o     State
shall . . . deprive any person of life, liberty, or property[]
without due process of law . . . ."     U.S. Const. amend. XIV,
§ 1.
                                                                          No.    2016AP740-CR



guilty     plea    must    be"    entered        in    a    knowing,      voluntary,     and

intelligent       fashion.       State      v.    Cross,      2010   WI    70,    ¶16,    326

Wis. 2d 492, 786 N.W.2d 64.                This means, inter alia, the circuit

court must notify the defendant of any direct consequence of his

guilty plea.       Brady v. United States, 397 U.S. 742, 755 (1970).

A   direct   consequence         of    a   guilty      plea    is    one    that    "has   a

definite, immediate, and largely automatic effect on the range

of a defendant's punishment."                State v. Bollig, 2000 WI 6, ¶16,

232   Wis. 2d 561,        605    N.W.2d 199.           We    have    identified      direct

consequences of a plea as being those that impose punishment.

Id., ¶17.

      ¶2     The    legislature            has    codified         this     prerequisite,

requiring circuit courts to "[a]ddress the defendant personally

and   determine       that       the       plea       is    made     voluntarily         with

understanding of the nature of the charge and the potential

punishment if convicted" before the court accepts a guilty plea.

Wis. Stat. § 971.08(1)(a) (2015-16).2                       A defendant who is not

accurately informed of the punishment that could result from his
guilty plea may be entitled to withdraw that plea.                                 State v.

Taylor, 2013 WI 34, ¶32, 347 Wis. 2d 30, 829 N.W.2d 482.

      ¶3     Petitioner DeAnthony K. Muldrow pled guilty to second-

degree sexual assault contrary to Wis. Stat. § 948.02(2).                                This

conviction subjects Muldrow to (as is relevant here) lifetime



      2
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                             2
                                                                            No.   2016AP740-CR



GPS tracking pursuant to Wis. Stat. § 301.48.3                             Muldrow moved to

withdraw his guilty plea on the grounds that his plea was not

knowing4 because he was never informed that lifetime GPS tracking

is   a       consequence     of     a    conviction         for    second-degree        sexual

assault.

         ¶4       The parties agree that the circuit court failed to

inform        Muldrow     that    his        guilty    plea       would    subject     him   to

lifetime          GPS   tracking.        The    issue       in    this    case    is   whether

lifetime GPS tracking is a "punishment" such that due process

requires a defendant be informed of it before entering a plea of

guilty.           The   Manitowoc       County       Circuit      Court5    concluded     that

lifetime GPS tracking is not punishment, and so denied Muldrow's

motion to withdraw his plea.                        The court of appeals affirmed.

State        v.   Muldrow,   2017       WI    App     47,   ¶1,    377    Wis. 2d 223,       900

N.W.2d 859.


         3
       Lifetime GPS tracking applies after an offender has
completed all sentences and any periods of probationary
supervision. See Wis. Stat. §§ 301.48(2)(a)3-3m. It should be
noted that an offender may be subject to GPS tracking during
extended supervision and probation pursuant to other statutory
provisions.   See, e.g., Wis. Stat. §§ 973.01(5), (9); see also
Wis. Stat. § 301.48(2)(a)1m.   These, however, are not at issue
in the present case, as Muldrow     challenges only lifetime GPS
tracking pursuant to § 301.48(2)(a)3-3m. and does not challenge
GPS tracking during extended supervision or probation.
         4
       Muldrow did not specify in his motion to withdraw his plea
in the circuit court whether his plea was not knowing,
voluntary, or intelligent——or some combination thereof.    Before
this court, Muldrow argues only that his plea was not knowing.
         5
             Honorable Jerome L. Fox, presiding.


                                                 3
                                                                  No.    2016AP740-CR



      ¶5   This case presents us with an opportunity to set forth

the   proper    test   for    determining       whether       a      sanction6     is

"punishment"    such   that   due    process    requires       a     defendant     be

informed of it before entering a plea of guilty.                   We must first,

therefore, determine what that test is.

      ¶6   We hold that the intent-effects test is the proper

test used to determine whether a sanction is punishment such

that due process requires a defendant be informed of it before

entering a plea of guilty.

      ¶7   After   determining       the     proper    test       for    whether    a

sanction   is   punishment        such   that   due        process      requires    a

defendant be informed of it before entering a plea of guilty, we

must apply that test to the facts of Muldrow's case.

      ¶8   Applying the intent-effects test, we hold that neither

the intent nor effect of lifetime GPS tracking is punitive.

Consequently,    Muldrow     is   not    entitled     to    withdraw      his    plea

because the circuit court was not required to inform him that

his guilty plea would subject him to lifetime GPS tracking.
Accordingly, we affirm.




      6
       Though the colloquial definitions of "sanction" and
"punishment" may be similar, courts routinely use "sanction" as
a general term for a negative consequence that may or may not
rise to the level of "punishment."      See, e.g., Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168 (1963); Turner v. Glickman,
207 F.3d 419, 430 (7th Cir. 2000); State v. Rachel, 2002 WI 81,
¶42, 254 Wis. 2d 215, 647 N.W.2d 762.


                                         4
                                                                      No.     2016AP740-CR



                I.    FACTUAL AND PROCEDURAL BACKGROUND

                               A.    Muldrow's Plea

     ¶9     In 2009, the State charged Muldrow with five counts of

criminal conduct as a consequence of an incident in which he had

forcible intercourse with a 15-year-old girl.                       He reached a plea

agreement with the State whereby he agreed to plead guilty to

the first two counts:          second-degree sexual assault of a child

contrary to Wis. Stat. § 948.02(2)7 ("count one"), and third-

degree    sexual     assault    contrary          to    Wis.    Stat.    § 940.225(3)8

("count two").        In exchange, the State agreed to dismiss, but

read into the record for purposes of sentencing, the remaining

three     counts.       Further,          Muldrow       and     the     State    jointly

recommended    the     following          sentence:            an   18-year     deferred

judgment agreement ("DJA") on count one, and one year initial

confinement    followed    by       one    year    of    extended     supervision      on

count two.    If Muldrow complied with the terms of the DJA, count

one would be dismissed.9            Because of other sentences not relevant



     7
       "Whoever has sexual contact or sexual intercourse with a
person who has not attained the age of 16 years is guilty of a
Class C felony." Wis. Stat. § 948.02(2).
     8
       "Whoever has sexual intercourse with a person without the
consent of that person is guilty of a Class G felony."      Wis.
Stat. § 940.225(3).
     9
       The conditions of the DJA included: no new violations of
the criminal law, no contact with the victim, compliance with
the Wisconsin sex offender registry, no sexual contact or
intercourse with anyone under the age of 18, and compliance with
all conditions of extended supervision.


                                            5
                                                                           No.     2016AP740-CR



here, Muldrow would be under Department of Corrections ("DOC")

supervision for the first 12.5 years of the DJA.

      ¶10    The   State       moved    to        vacate    the     DJA    in     2015   after

Muldrow violated the terms of his extended supervision in a

different case by, inter alia, cutting off the GPS tracker he

was   required      to        wear     as     a     condition       of     that      extended

supervision,       absconding,          and        using     controlled           substances.

Muldrow did not contest the facts underlying the State's motion.

The circuit court vacated the DJA and ordered that a judgment of

guilt be entered on count one.                    The court then withheld sentence

and placed Muldrow on ten years of probationary supervision.

Additionally,       following        the      judgment       of     guilt        being   taken

against     him    as    to    count        one,    and    by     dint     of     Wis.   Stat.

§ 301.48(2)(a)3m.,            Muldrow       became        subject     to    lifetime       GPS

tracking.10

      ¶11    Muldrow moved to withdraw his plea in October 2015——

approximately six months after the DJA was revoked and judgment

of conviction was entered on count one.                      His motion alleged that
his guilty plea was not made in a knowing fashion because the

circuit court did not inform him that pleading guilty to count

one would subject him to lifetime GPS tracking pursuant to Wis.

Stat. § 301.48(2)(a)3m.              Muldrow contended that his unknowing

guilty plea was a violation of his right to due process because


      10
       During the          time of his             probationary supervision, GPS
tracking    would          occur   by              operation   of   Wis.    Stat.
§ 301.48(2)(a)1m.


                                               6
                                                                 No.   2016AP740-CR



lifetime    GPS     tracking   is   a     punishment   for   a    conviction    of

second-degree sexual assault of a child of which the circuit

court was required to notify him.

      ¶12   Muldrow relied to a great extent on a federal district

court decision that concluded lifetime GPS tracking violated the

Ex   Post   Facto    Clause    of   the   United   States    Constitution11     if

applied to a person convicted before the statute was in effect.

Belleau v. Wall, 132 F. Supp. 3d 1085 (E.D. Wis. 2015), rev'd,

811 F.3d 929 (7th Cir. 2016).                 The threshold question for ex

post facto violations is the same as the threshold question in

the present case:        is the sanction "punishment?"             In concluding

that lifetime GPS tracking is punishment, the district court in

Belleau applied the intent-effects test, which is commonly used

by state and federal courts in ex post facto decisions.                    Id. at

      11
       The   Ex   Post  Facto  Clause   of   the United  States
Constitution    states,   in   relevant    part,  "[n]o   state
shall . . . pass any . . . ex post facto law." U.S. Const. art.
I, § 10.

     The Wisconsin Constitution also prohibits passage of ex
post facto laws.   Wis. Const. art. I, § 12 ("No . . . ex post
facto law . . . shall ever be passed.").       We construe the
protections afforded by Article I, Section 12 of the Wisconsin
Constitution to be equivalent to those afforded by Article I,
Section 10 of the United States Constitution.     See State v.
Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994); see also
State v. Houghton, 2015 WI 79, ¶50, 364 Wis. 2d 234, 868
N.W.2d 143 (internal quotation marks and quoted source omitted)
(alterations in original) ("Where . . . the language of the
provision in the state constitution is virtually identical to
that of the federal provision . . . , Wisconsin courts have
normally construed the state constitution consistent with the
United States Supreme Court's construction of the federal
constitution.").


                                          7
                                                                           No.    2016AP740-CR



1095; see also, e.g., Smith v. Doe, 538 U.S. 84 (2003); State v.

Scruggs,    2017       WI    15,    373     Wis. 2d 312,      891    N.W.2d 786.            The

district     court      determined          that     the   intent     of     lifetime       GPS

tracking is not punitive, but the effect is.                           Belleau, 132 F.

Supp. 3d at 1104.

      ¶13    Shortly before the circuit court hearing on Muldrow's

motion,     the    United         States    Court    of    Appeals    for        the   Seventh

Circuit reversed the district court's conclusion that lifetime

GPS tracking is punishment.                  Belleau v. Wall, 811 F.3d 929 (7th

Cir. 2016).        The panel unanimously concluded that lifetime GPS

tracking     is    a    less       onerous     sanction      than    civil        commitment

pursuant to Wis. Stat. ch. 980.                      Id. at 937.       Thus, the court

reasoned, "if civil commitment is not punishment, as the Supreme

Court has ruled, then a fortiori, neither is having to wear an

anklet monitor."            Id.

      ¶14    The circuit court, relying on the Seventh Circuit's

decision in Belleau, denied Muldrow's motion to withdraw his

plea.     The circuit court concluded that lifetime GPS tracking is
not punishment and, consequently, Muldrow did not have a right

to   be   informed          that    his     guilty    plea    would    result          in   its

imposition.

      ¶15    The       court       of      appeals     affirmed.            Muldrow,        377

Wis. 2d 223, ¶1.            The court of appeals observed a certain lack

of clarity as to the correct test for determining whether a

particular sanction is punishment such that due process requires

a defendant be informed of it before entering a plea of guilty.
Id., ¶15.         It noted, for example, that in State v. Dugan, 193
                                               8
                                                                          No.    2016AP740-CR



Wis. 2d 610, 620-21, 534 N.W.2d 897 (Ct. App. 1995), the court

of appeals applied the fundamental purpose test to determine

that restitution is not punishment.                    Moreover, it observed that

we applied a truncated version of the intent-effects test in

Bollig, 232 Wis. 2d 561, to determine that Wisconsin's Sexual

Offender Registry was not punishment.                    In Bollig, we emphasized

the   lack    of    punitive      intent,       but    provided       only       conclusory

analysis of the punitive effects of the registry.                                  See id.,

¶¶23-26.

      ¶16     Be that as it may, the court of appeals concluded that

Muldrow's      claim    failed     under        either       test.          Muldrow,       377

Wis. 2d 223, ¶23.        The court of appeals combined its analysis of

the   fundamental       purpose    test     with       the    intent       prong    of     the

intent-effects        test.       Id.,     ¶35.          It    concluded         that      the

fundamental        purpose/intent         of     lifetime           GPS     tracking        is

protection of the public, not punishment of the offender.                                  Id.

The   court    then     concluded     that       the    effect       of     lifetime       GPS

tracking is not punitive.                Id., ¶¶36-40 (citing Belleau, 811
F.3d at 937-38).

      ¶17     Muldrow   petitioned       this     court       for    review,       which    we

granted on October 17, 2017.

                          B.   Lifetime GPS Tracking

      ¶18     The DOC has not yet begun tracking Muldrow pursuant to

Wis. Stat. § 301.48(2)(a)3m. because he has completed neither

his   probationary      supervision       on     count       one    nor    his    sentences

imposed as a consequence for various other criminal conduct.
However, the parties agree that the DOC will begin tracking
                                            9
                                                             No.    2016AP740-CR



Muldrow pursuant to § 301.48(2)(a)3m. upon either the conclusion

of   his     probationary      supervision     or    his      release       from

incarceration, whichever occurs later.          However, pursuant to a

stipulation between the parties, the circuit court took judicial

notice of the practical effects of lifetime GPS tracking as

described in the district court opinion in Belleau, 132 F. Supp.

3d 1085, rev'd on other grounds, 811 F.3d 929 (7th Cir. 2016).

     ¶19   Certain serious sex offenders are subject to lifetime

GPS tracking.     Wis. Stat. § 301.48(2).12          Though offenders are

constantly    tracked,   the   DOC   reviews   the    data     in    only   two

     12
       Offenders are subject to lifetime GPS tracking when
released from DOC supervision after conviction (or released from
Department of Health Services supervision after acquittal on the
basis of mental disease or defect) for a violation of Wis. Stat.
§§ 948.02 or 948.025 in one of four sets of circumstances. Wis.
Stat. § 301.48(2)(a)1.-5.

     1.   (i) the offender had sexual contact or intercourse
with (ii) a victim who is unrelated to the offender, (iii) is
under 13 years old, and (iv) suffered great bodily harm as a
result of the sexual contact or intercourse.       Wis. Stat.
§ 301.48(1)(cm)1.

     2.   (i) the offender had sexual intercourse with (ii) a
victim who is not related to the offender and (iii) is under 12
years old. Wis. Stat. § 301.48(1)(cm)2.

     3.   (i) the offender had sexual intercourse (ii) by use or
threat of force or violence (iii) with a victim who is not
related to the offender that (iv) is under 16 years old. Wis.
Stat. § 301.48(1)(cn)1.

     4.   (i) the offender had sexual contact (ii) by use or
threat of force or violence (iii) with a victim who is not
related to the offender that (iv) is under 16 years old when (v)
the   offender   was   over   18   years  old.      Wis.   Stat.
§ 301.48(1)(cn)2.


                                     10
                                                           No.     2016AP740-CR



circumstances.          Each night, DOC personnel view location data

from the previous day to confirm the offender's whereabouts.

Belleau, 132 F. Supp. 3d at 1091, rev'd on other grounds, 811

F.3d 929 (7th Cir. 2016).           Second, DOC personnel receive an

alert whenever an offender leaves an inclusion zone13 or lingers

in an exclusion zone.14       Id.; Wis. Stat. § 301.48(3)(a)3.

     ¶20       Though called "lifetime" GPS tracking, some offenders

may be released from tracking.        Wis. Stat. § 301.48(6)-(7m).            An

offender who was not convicted of a crime during the period of

tracking and who was not previously committed pursuant to Wis.

Stat. ch. 980 may petition for termination of lifetime tracking

after     20   years.     § 301.48(6)(b).     In   addition,     the   DOC   may

petition to terminate lifetime tracking of an offender who is

"permanently physically incapacitated."            § 301.48(7).        Finally,

lifetime GPS tracking is terminated if the offender moves out of

Wisconsin.      § 301.48(7m).

     ¶21       The GPS tracker is attached to the offender's ankle by

a black neoprene rubber strap.              Belleau, 132 F. Supp. 3d at
1090, rev'd on other grounds, 811 F.3d 929 (7th Cir. 2016).                  The

offender is prohibited from ever removing it.           Id.      To that end,

the tracker is waterproof up to 15 feet to allow for bathing and



     13
       An inclusion zone is an area that the offender                         is
prohibited from leaving. Wis. Stat. § 301.48(1)(c).
     14
       An exclusion zone is an area that the offender is
prohibited from entering other than to pass through. Wis. Stat.
§ 301.48(1)(a).


                                     11
                                                                            No.    2016AP740-CR



swimming.         Id.      The tracker can, however, cause blistering,

especially when wet.             Id.

      ¶22    The tracker is approximately 2.5 x 3.5 x 1.5 inches.

Id.     Though small, the tracker is noticeable; its position at

the   bottom      of     the    offender's         ankle    means    that    it    is    always

visible if the offender wears shorts or sits down while wearing

pants.      Id. at 1091.          Even if the tracker is totally covered by

the offender's pants, it nonetheless creates a noticeable bulge

on the offender's pant leg.                  Id.

      ¶23    The tracker must be charged for one hour once per day,

which     requires        the    offender          to     stay    close     enough       to   an

electrical outlet for the cord to reach.                             Id. at 1090.             The

tracker     has    a     speaker      that    can       play   messages     sent    from      DOC

personnel, such as orders to call the DOC, orders to report to

the DOC, reminders of upcoming appointments with DOC personnel,

and warnings for low batteries.                         Id. at 1091.        These messages

can be heard by anyone within earshot of the offender.                              Id.

                                II.    STANDARD OF REVIEW
      ¶24    Whether a plea was entered knowingly, voluntarily, and

intelligently is a question of constitutional fact.                               Bollig, 232

Wis. 2d 561, ¶13.               We uphold the circuit court's findings of

historical        fact    unless       clearly          erroneous.        Id.       We    apply

constitutional          principles      to     those       historical     facts     de    novo.

Id.

      ¶25    In        determining       whether           Wis.     Stat.       § 301.48       is

punishment, we must interpret the statute.                              We interpret the


                                               12
                                                                     No.     2016AP740-CR



statute   de    novo.      State    v.    Negrete,      2012    WI    92,        ¶15,   343

Wis. 2d 1, 819 N.W.2d 749.

                                 III.    ANALYSIS

    ¶26    We    first     consider      the   proper    test    for        determining

whether   a     sanction    is     "punishment"       such     that        due    process

requires a defendant be informed of it before entering a plea of

guilty.   We hold that the intent-effects test is the proper test

used to determine whether a potential sanction is punishment

such that due process requires a defendant be informed of it

before entering a plea of guilty.

    ¶27    Next, we apply the intent-effects test to the facts of

Muldrow's case.         Applying the intent-effects test, we hold that

neither   the    intent    nor     effect      of   lifetime    GPS        tracking     is

punitive and, consequently, the circuit court was not required

to inform Muldrow of it.

   A. Whether a Sanction is Punishment Such that Due Process
Requires a Defendant be Informed of it Before Entering a Plea of
 Guilty is Determined by Application of the Intent-Effects Test.
    ¶28    The State brings to our attention three proposed tests

to determine whether a sanction is punishment.                   First, the State

asks us to adopt a bright-line rule whereby only imprisonment

and fines are punishment.           The State grounds this test on State

v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 N.W.2d 761.                                  We

reject this proposal because to do otherwise would be to read

too much into our holding in Finley.                   We did not undertake a

comprehensive analysis of what constitutes punishment in that
case because it was not centered on the question of what kind of


                                         13
                                                                 No.     2016AP740-CR



sanctions constitute punishment.                Rather, in Finley, the circuit

court's error was misstating the defendant's potential term of

imprisonment——a sanction that is indisputably punishment.                        Id.,

¶8.

       ¶29     In the alternative, the State encourages us to adopt

the "fundamental purpose" test.                  The fundamental purpose test

looks to "the fundamental purpose of the sentencing provision at

issue"    in      order   to   determine    whether     a   particular     sanction

constitutes punishment.          Dugan, 193 Wis. 2d at 620.            Put another

way, the fundamental purpose test is really the intent-effects

test     without     consideration     of       any   punitive   effect     of   the

sanction.         We see no reason to adopt this test as it provides a

less comprehensive and, therefore, less useful analysis than the

third test proposed by the State, the intent-effects test.

       ¶30     The third time here indeed being the charm, we choose

to adopt the State's final proposed standard, the intent-effects

test.        The intent-effects test was first articulated by the

United States Supreme Court in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-70 (1963).               The issue in         Mendoza-Martinez      was

whether       a     statute     that   automatically         stripped      American

citizenship, without any hearing, from a person who left the

country to avoid the draft violated the right to due process.

Id. at 165-66.            The Court held that forfeiture of citizenship

was a punishment that could be imposed only after conviction in

a criminal trial with all of the protections of the Fifth and

Sixth Amendments to the United States Constitution.                    Id. at 167.


                                           14
                                                                    No.      2016AP740-CR



      ¶31    In determining whether forfeiture of citizenship was a

punishment, the Court first looked to the "statute's primary

function," i.e., intent.               Id. at 169.         However, the Court's

analysis did not end there.15             The Court also considered whether

the   effect     of    the      statute     was    "penal    or     regulatory        in

character."      Id. at 168.        To aid its determination of the effect

of the statute, the Court set out seven non-exclusive factors:

      [1] Whether the sanction involves an affirmative
      disability   or   restraint,   [2]   whether   it  has
      historically been regarded as a punishment, [3]
      whether it comes into play only on a finding of
      scienter, [4] whether its operation will promote the
      traditional   aims   of   punishment——retribution  and
      deterrence, [5] whether the behavior to which it
      applies is already a crime, [6] whether an alternative
      purpose to which it may rationally be connected is
      assignable for it, and [7] whether it appears
      excessive in relation to the alternative purpose
      assigned . . . .
Id. (footnotes omitted).

      ¶32    The intent-effects test is used in many contexts to

determine whether a sanction is punishment.                    The United States

Supreme     Court     applied    the    intent-effects       test      to     determine
whether     Alaska's     sex     offender       registry    was     punishment       for

purposes    of   the    ex   post    facto      clause,    Smith,      538    U.S.   84;

whether     monetary     penalties        and     revocation      of      occupational

licenses     were     punishment       such     that   a    subsequent         criminal

      15
       This is in contrast to the fundamental purpose test. We
agree with the court of appeals that the fundamental purpose
test is equivalent to the intent prong of the intent-effects
test.   State v. Muldrow, 2017 WI App 47, ¶24, 377 Wis. 2d 223,
900 N.W.2d 859.


                                          15
                                                                No.     2016AP740-CR



prosecution    based   on   the      same     conduct    violated       the    Fifth

Amendment's double jeopardy clause, Hudson v. United States, 522

U.S. 93 (1997); and whether monetary penalties assessed against

those who discharged hazardous substances into navigable waters

were punishment such that a requirement that a person report any

such discharge violated the Fifth Amendment's protection against

compulsory self-incrimination, United States v. Ward, 448 U.S.

242 (1980).

    ¶33   Wisconsin    courts     have      similarly     used        the     intent-

effects test to determine whether a sanction is punishment in

multiple contexts.     For example, Wisconsin courts have applied

it to determine whether civil commitment pursuant to Wis. Stat.

ch. 980 is punishment such that it violates either the ex post

facto clause or double jeopardy clause, State v. Rachel, 2002 WI

81, 254 Wis. 2d 215, 647 N.W.2d 762; whether the mandatory DNA

surcharge is punishment such that it violates the ex post facto

clause, Scruggs, 373 Wis. 2d 312; and whether monetary penalties

for those who do not comply with a county ordinance regulating
large gatherings are punishment such that they may be imposed

only after a criminal trial with full Fifth and Sixth Amendment

protections,    Sauk   Cty.     v.     Gumz,     2003    WI     App     165,      266

Wis. 2d 758, 669 N.W.2d 509.

    ¶34   Other   jurisdictions        have    applied    the    intent-effects

test to the issue of whether a sanction is punishment such that

the defendant must be informed of it in order for a guilty plea

to be knowing, voluntary, and intelligent.               People v. Cole, 817


                                       16
                                                                    No.    2016AP740-CR



N.W.2d 497 (Mich. 2012); Ward v. State, 315 S.W.3d 461 (Tenn.

2010).

       ¶35    We conclude that the intent-effects test is the proper

test to determine whether a sanction is punishment such that due

process requires a defendant be informed of it before entering a

plea of guilty.          We do so not out of habit or blind adherence to

custom.        We   do   so   because    the      intent-effects    test    has    been

effectively         applied     by   courts       in    multiple    contexts       and,

consequently, brings with it a broad and deep base of case law,

which provides us with the type of helpful guidance necessary to

our analysis of the issue we address herein.                    Winnebago Cty. v.

J.M., 2018 WI 37, ¶41, ___ Wis. 2d ___, ___ N.W.2d ___ (adopting

the    Strickland16       standard      in    Wis.     Stat.   ch. 51     commitments

because, inter alia, "the Strickland standard carries with it a

developed body of case law that will aid courts in the efficient

and timely resolution of claims of ineffective assistance of

counsel").

    B. Application of the Intent-Effects Test to Wis. Stat.
 § 301.48 Leads us to Conclude that Lifetime GPS Tracking is Not
                           Punishment.
       ¶36    In his application of the intent-effects test, Muldrow

relies primarily on the district court's decision in Belleau,

132 F. Supp. 3d 1085, rev'd, 811 F.3d 929 (7th Cir. 2016), as

well    as    the    Michigan    Supreme      Court's    decision    in    Cole,    817

N.W.2d 497.         He does so in order to lay the foundation that Wis.


       16
            Strickland v. Washington, 466 U.S. 668 (1984).


                                             17
                                                                         No.     2016AP740-CR



Stat. § 301.48 is punitive.                    For its part, the State relies

primarily on the Seventh Circuit's decision in Belleau, 811 F.3d

929.        Though,     of    course,    we     are    not    bound   by       the   Seventh

Circuit's decision in Belleau, we are persuaded by it because it

correctly applies the law, whereas the decision of the district

court does not.           See Madison Teachers, Inc. v. Walker, 2014 WI

99,    ¶68,    358      Wis. 2d 1,      851    N.W.2d 337        ("While       the    Seventh

Circuit's analysis of Act 10 is not binding on this court, we

find    no    reason         to   disagree      with    its      clear     and       rational

articulation of the law.").                   Further, Cole is distinguishable

from the present case due to differences between the Michigan

and Wisconsin lifetime GPS tracking statutes.

       1.    The intent of lifetime GPS tracking is not punitive.

       ¶37    "Determining         whether      the    legislature         intended       [a]

statute      to    be   punitive     'is      primarily      a   matter     of    statutory

construction . . . .'"              Scruggs, 373 Wis. 2d 312, ¶17 (quoting

Rachel, 254 Wis. 2d 215, ¶40).                 Accordingly, we use the rules of

statutory         construction     to   determine       "whether      the      legislature
expressly or impliedly indicated" whether Wis. Stat. § 301.48 is

"a civil remedy or a criminal penalty."                      Id., ¶18.

       ¶38    Statutory interpretation begins with the plain meaning

of the text.            State ex rel. Kalal v. Circuit Court for Dane

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                               Context

and structure are important to statutory meaning.                                Id., ¶46.

Where a statutory provision is codified is indicative of whether

the legislature intended a provision to be punitive.                             Smith, 538


                                              18
                                                           No.    2016AP740-CR



U.S. at 94; Scruggs, 373 Wis. 2d 312, ¶24; see also Tyson v.

State, 51 N.E.3d 88, 93 (Ind. 2016).

      ¶39   Muldrow   relies    on   the   Michigan    Supreme       Court's

decision in Cole, 817 N.W.2d 497, to argue that the intent of

lifetime GPS tracking is punitive.         We are not persuaded.          The

Michigan       lifetime   GPS     tracking       statute     is      readily

distinguishable from Wis. Stat. § 301.48.             For instance, the

Michigan lifetime GPS tracking statute states, in relevant part:

      A   person    convicted . . . [of]   criminal   sexual
      conduct . . . against an individual less than 13 years
      of age shall be sentenced to lifetime electronic
      tracking . . .
Mich. Comp. Laws § 750.520n (emphasis added).              Additionally, a

plain reading of the relevant Michigan statutes makes clear that

the   Michigan    legislature   intended   its   lifetime    GPS    tracking

statutory scheme to be a punitive measure:

      (2) Criminal sexual conduct in the first degree is a
      felony punishable as follows:

       . . .

            (d) In addition to any other penalty imposed
            under subdivision (a) or (b), the court shall
            sentence the defendant to lifetime electronic
            tracking under section 520n.
Mich. Comp. Laws § 750.520b(2)(d) (emphasis added).

      (2) Criminal sexual conduct in the second degree is a
      felony punishable as follows:

       . . .

            (b) In addition to the penalty specified in
            subdivision (a), the court shall sentence the
            defendant to lifetime electronic tracking under
            section 520n . . .

                                     19
                                                               No.    2016AP740-CR



Mich. Comp. Laws § 750.520c(2)(b) (emphasis added).

      ¶40    In Cole, the Michigan Supreme Court quite reasonably

concluded that lifetime GPS tracking is intended to be punitive

because     the    relevant   statutes    expressly    refer     to    it   as    a

"penalty."        Cole, 817 N.W.2d at 502-03. Or, put another way, it

is, by the plain language of the statute, a "punishment."17                   See

id.   In stark contrast, the language, structure, and context of

Wis. Stat. § 301.48 demonstrate that our legislature did not

intend lifetime GPS tracking to be punitive.

      ¶41    Our legislature has set forth the purpose of chapters

301-304,     which    include   "provid[ing]    a     just,     humane[,]        and

efficient program of rehabilitation of offenders."                    Wis. Stat.

§ 301.001.18       "We take the legislature at its word."              Wis. Med.

      17
       "Punishment"    is   defined,    inter   alia,  as   a
"penalty . . . assessed against a person who has violated the
law." Black's Law Dictionary 1428 (10th ed. 2014).
      18
           Wisconsin Stat. § 301.001 states in whole:

      The purposes of this chapter and chs. 302 to 304 are
      to prevent delinquency and crime by an attack on their
      causes; to provide a just, humane and efficient
      program of rehabilitation of offenders; and to
      coordinate and integrate corrections programs with
      other social services. In creating the department of
      corrections, chs. 301 to 304, the legislature intends
      that the state continue to avoid sole reliance on
      incarceration of offenders and continue to develop,
      support and maintain professional community programs
      and placements.

     Express statements of legislative purpose are part of a
plain-meaning inquiry. Wilmet v. Liberty Mut. Ins. Co., 2017 WI
App 16, ¶13, 374 Wis. 2d 413, 893 N.W.2d 251 (citing State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶49, 271
Wis. 2d 633, 681 N.W.2d 110).


                                     20
                                                                               No.      2016AP740-CR



Soc'y, Inc. v. Morgan, 2010 WI 94, ¶102, 328 Wis. 2d 469, 787

N.W.2d 22.         These     purposes       are     indisputably              non-punitive        in

nature,     and     are     reflective        of     an        intent         to     rehabilitate

offenders     and     protect         the     public           rather       than        to    punish

offenders.

      ¶42    The    structure         and   context            of    Wis.      Stat.         § 301.48

demonstrate that the legislature considers punitive sanctions

intended     to     punish      criminal       conduct              to   be     distinct        from

regulatory sanctions, which are intended to have a focus that

encompasses a broad array of considerations as opposed to the

singular nature of punishment of the offender.                                 The legislature

set out sanctions that are indisputably punishment——imprisonment

and fines——in chapter 939.                  See Finley, 370 Wis. 2d 402, ¶4.

The   legislature         set   out    many    of        the    sanctions          it    considers

regulatory in nature in chapter 301 and has interspersed others

throughout the statutes.

      ¶43    Conversely,        lifetime           GPS     tracking           is     located      in

chapter 301, which sets forth both the organizational overview
for the DOC and administrative matters such as:                                purchasing care

and   services      for    prisoners,       Wis.         Stat.       § 301.08;          payment   of

benefits, Wis. Stat. § 301.085; and purchases, bills, audits,

and payments, Wis. Stat. § 301.10.                         In contrast, disciplinary

procedures such as punishments for misbehavior by those subject

to DOC supervision, e.g., solitary confinement, are contained in

chapter 302. See, e.g., Wis. Stat. § 302.40.

      ¶44    Wisconsin Stat. § 301.48 is, in fact, surrounded by
statutes that establish various safeguards to protect the public
                                              21
                                                                  No.     2016AP740-CR



from persons convicted of criminal conduct.                  See generally Wis.

Stat. §§ 301.45-301.49.           When courts have had the opportunity to

review      whether    these      safeguards     constitute      punishment,      the

statutes have, in every instance, been found to be non-punitive

in nature.

      ¶45    Wisconsin      Stat.     §§ 301.45     and     301.46      govern    the

Wisconsin     sex     offender     registry.     Section 301.45      requires     sex

offenders to register with the Wisconsin sex offender registry.

Section 301.46 regulates the use of information in the registry.

We   held    that     mandatory    compliance     with    the    registry    is   not

punishment in Bollig, 232 Wis. 2d 561, ¶21; see also id., ¶20

(collecting     cases      from    other   jurisdictions        holding    that   sex

offender registries are not punishment); Smith, 538 U.S. at 105-

06   (holding       that    Alaska's       sex   offender       registry     is   not

punishment).        Likewise, the fee assessed against sex offenders

to pay for the registry has been found not to be punishment.

Mueller v. Raemisch, 740 F.3d 1128, 1135 (7th Cir. 2014).

      ¶46    Wisconsin      Stat.    § 301.47,      the    statute      immediately
preceding lifetime GPS tracking, prohibits sex offenders from

changing their names (whether legally or through common usage).

The only court to analyze whether § 301.47 is punitive concluded




                                           22
                                                                        No.    2016AP740-CR



that it is not.       Doe v. Raemisch, 895 F. Supp. 2d 897, 908 (E.D.

Wis. 2012), rev'd on other grounds, Mueller, 740 F.3d at 1133.19

     ¶47    The     final   two    sections          (Wis.     Stat.    §§ 301.475     and

301.49) of chapter 301 have never been challenged as punitive.

Section 301.475       requires          sex        offenders     to     notify     school

officials    when    the    offender      seeks       to     enter    school    property.

Section 301.49 establishes an analogous GPS tracking program for

persons who violate a domestic abuse or harassment restraining

order or injunction.

     ¶48    A   review      of    the    three       provisions        for    terminating

lifetime GPS tracking indicate that the intent of tracking is

protecting the public.           The three means of terminating tracking—

—upon motion of the offender after 20 years of full compliance,

upon motion of the DOC based on offender incapacitation, and

upon the offender moving out of state——are tailored to ensure an

offender is tracked only when he poses a threat to Wisconsin

residents.      See supra, ¶19.           This tailoring strongly indicates

that the intent of lifetime GPS tracking centers more closely
around the protection of the public than it does punishment of


     19
       The district court concluded that enforcing Wis. Stat.
§ 301.47 against a sex offender convicted before its passage did
not violate the ex post facto clause because § 301.47 creates a
new crime rather than increasing punishment for a prior crime.
Doe v. Raemisch, 895 F. Supp. 2d 897, 908 (E.D. Wis. 2012). The
Seventh Circuit reversed the district court's decision because
the plaintiffs did not have standing to challenge § 301.47.
Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014).
Consequently, the Seventh Circuit did not reach the merits of
whether § 301.47 is punishment. Id.


                                              23
                                                                      No.       2016AP740-CR



the offender.         Put simply, if punishment was the objective, the

legislature would have had no reason to allow termination of

"lifetime" GPS tracking.

       2.    The effect of lifetime GPS tracking is not punitive.

       ¶49    We now consider whether lifetime GPS tracking "is so

punitive      in    effect      as   to    transform       [it]    into     a     criminal

penalty."          Scruggs, 373 Wis. 2d 312, ¶39 (citing Rachel, 254

Wis. 2d 215, ¶42).             We give the legislature's decision to label

a statute as a civil remedy "great deference."                      Id., ¶20 (citing

Rachel, 254 Wis. 2d 215, ¶42).                "[O]nly the clearest proof will

suffice to override legislative intent and transform what has

been    denominated        a    civil     remedy   into     a     criminal       penalty."

Hudson,      522    U.S.   at    100    (internal     quotation       marks       omitted)

(citing Ward, 488 U.S. at 249).

  a.    We determine whether lifetime GPS tracking is punitive by
            applying the seven Mendoza-Martinez factors.

 i.     Whether lifetime GPS involves an affirmative disability or
                              restraint.
       ¶50    The      "paradigmatic             affirmative         restraint"          is

imprisonment.         Smith, 538 U.S. at 100.               Lifetime GPS tracking

does    not    resemble        imprisonment      because    the     offender       is   not

confined and has substantial freedom of movement (subject only

to inclusion zones and exclusion zones).                    As the Seventh Circuit

persuasively stated, "if civil commitment is not punishment, as

the Supreme Court has ruled, then a fortiori, neither is having

to wear an anklet monitor."               Belleau, 811 F.3d at 937.




                                            24
                                                                No.     2016AP740-CR



       ¶51    Muldrow is "restrained" in the sense that he must be

close enough to an electrical outlet to charge the GPS tracker

for one hour each day.           However, sitting near a wall for an hour

per day is so "minor and indirect" a restraint that it does not

have    the    effect    of     punishment.       Id.   at    943     (Flaum,    J.,

concurring) (quoting Smith, 538 U.S. at 100).

       ii.    Whether lifetime GPS tracking has historically been
                          regarded as punishment.
       ¶52    Lifetime    GPS     tracking      has   not    historically       been
regarded as punishment——largely because GPS is relatively new

technology.      Id. (Flaum, J., concurring).           Muldrow contends that

lifetime GPS tracking resembles historical forms of punishment

such as public shaming.           The analogy fails because any "shaming"

in the GPS tracker context is an unintended byproduct of the

associated technology and can be minimized, if not eliminated——

albeit, at some inconvenience——by the offender.                 The GPS tracker

is as small as present technology permits20 and is placed in a

discreet      location——the      bottom    of   the   offender's      ankle.     In

contrast, public shaming was intended to bring as much attention
as possible to the offender's status.                 Dan M. Kahan & Eric A.

Posner, Shaming White-Collar Criminals:                 A Proposal for Reform

of the Federal Sentencing Guidelines, 42 J. Law & Econ. 365, 368


       20
       It has been noted elsewhere that just as with other
electronic devices, as technology advances, the size and,
therefore, the apparentness of the monitor will be reduced.
Belleau v. Wall, 811 F.3d 929, 939 (7th Cir. 2016) (Flaum, J.,
concurring).


                                          25
                                                                         No.       2016AP740-CR



(1999) ("Shaming is the process by which citizens publicly and

self-consciously           draw       attention       to   the    bad   dispositions           or

actions of an offender . . . ."); see also Belleau, 811 F.3d at

943 (Flaum, J., concurring).

  iii.       Whether lifetime GPS tracking comes into play only on a
                            finding of scienter.
       ¶53    Lifetime GPS tracking is contingent upon a criminal

conviction (or acquittal by reason of mental disease or defect).

Wis. Stat. §§ 301.48(2)(a)1-5.                  However, no scienter is required
for the imposition of lifetime GPS tracking.                            If the statutory

criteria      are    met,       the    offender       is   subject      to    lifetime     GPS

tracking.          See Wis. Stat. § 301.48(2).                    This is analogous to

civil commitment pursuant to chapter 980, which similarly relies

on   a   prior       conviction,         but      does     not     contain     a     scienter

requirement         for     the       commitment       itself.          See    Wis.       Stat.

§ 980.02(2).             We held in       Rachel, 254 Wis. 2d 215,                 ¶51, that

requiring      a    criminal       conviction         as   a     prerequisite       to   civil

commitment         did    not     mean   that        the   commitment        itself      had   a

scienter      requirement.             Rachel's      reasoning      applies     with      equal
strength here.

 iv.     Whether lifetime GPS will promote the traditional aims of
               punishment——deterrence and retribution.
       ¶54    We     acknowledge         that     lifetime        GPS   tracking         likely

promotes deterrence because the offender knows that his location

is constantly known to authorities——indeed, this is likely one

of the purposes of lifetime GPS tracking.                          Belleau, 811 F.3d at
944 (Flaum, J., concurring).                However, a statute is not punitive


                                                26
                                                                      No.     2016AP740-CR



simply because it may deter crime.                 As the United States Supreme

Court   has       recognized,    "[a]ny    number      of    governmental       programs

might deter crime without imposing punishment."                       Smith, 538 U.S.

at 102.      Lifetime GPS tracking is one such program.

       ¶55    A     statute     promotes    retribution         if      it    "affix[es]

culpability for prior criminal conduct."                      Kansas v. Hendricks,

521 U.S. 346, 362 (1997).            Though many offenders are subject to

lifetime      GPS    tracking    because        they   were    found     guilty       of   a

criminal      offense,    some    are    subject       to    lifetime    GPS    tracking

because they were found not guilty due to mental disease or

defect.      Wis. Stat. §§ 301.48(2)(a)4-5.                 In Hendricks, the Court

relied heavily on the fact that some of the persons committed

pursuant      to    Kansas's     sexually       violent      person     law    were    not

criminally responsible in order to reach its conclusion that the

statute did not promote retribution.                        Hendricks, 521 U.S. at

362.    It did so as a result of its reasoning that if some of the

committed      persons    were    not     criminally        responsible,       then    the

statute was not seeking to affix culpability upon them for any
prior criminal conduct.            Id.     The same reasoning applies here.

This is so because lifetime GPS tracking applies to those who

are criminally culpable for their conduct as well as to those

who are not by reason of mental disease or defect.

 v.    Whether the behavior to which lifetime GPS tracking applies
                         is already a crime.
       ¶56    Where "[e]vidence of a crime . . . is essential to the

[sanction]," then the sanction is more likely punitive.                               Lipke
v. Lederer, 259 U.S. 557, 562 (1922).                  Evidence of past criminal

                                           27
                                                                     No.      2016AP740-CR



conduct (either a conviction or acquittal on the basis of mental

disease      or   defect)    is    necessary        to    trigger        lifetime     GPS

tracking, but no new, uncharged criminal conduct is required.

Wis. Stat. § 301.48(2).           This is in contrast to the tax at issue

in Lipke, which the Court found punitive because it applied only

to alcohol manufacture and sale that was already criminal and

could be separately criminally charged.                  259 U.S. at 561.

   vi. Whether an alternative purpose to which lifetime GPS
   tracking may rationally be connected is assignable for it.
       ¶57   The existence of an alternative non-punitive purpose

for a sanction is considered "the most significant factor" in

determining       whether   the    effect    of     a     sanction       is    punitive.

Belleau, 811 F.3d at 943 (Flaum, J., concurring) (quoting Smith,

538 U.S. at 103).           The non-punitive purpose of lifetime GPS

tracking is protecting the public from future sex offenses.                           Id.

at 937; id. at 943 (Flaum, J., concurring).

       ¶58   Protecting     the    public    from    future        sex    offenses    has

been deemed a non-punitive purpose in analogous contexts:                             sex

offender registration, Smith, 538 U.S. at 103; State v. Smith,
2010    WI    16,    ¶26,   323     Wis. 2d 377,          780      N.W.2d 90;       civil

commitment of sex offenders, Hendricks, 521 U.S. at 363; and

municipal ordinances restricting sex offender residency, City of

S. Milwaukee v. Kester, 2013 WI App 50, ¶30, 347 Wis. 2d 334,

830 N.W.2d 710.

       ¶59   Lifetime GPS tracking has a rational relationship to

this   non-punitive     purpose     because    it        ensures    law       enforcement
will have ready access to evidence of an offender's whereabouts.

                                        28
                                                                     No.    2016AP740-CR



Belleau, 811 F.3d at 938.               This rational relationship may also

work to the benefit of the offender:                   location evidence from

lifetime GPS tracking can prove an accurate alibi just as easily

as it can disprove a false alibi.

    vii.    Whether lifetime GPS tracking appears excessive in
            relation to the alternative purpose assigned.
    ¶60     Lifetime GPS tracking is commensurate with the goal of

protecting the       public.       It provides a middle ground between

releasing    dangerous      sex     offenders        into    the     public       wholly
unsupervised and civil commitment pursuant to chapter 980.                            In

light of the "frightening and high" rate of recidivism for sex

offenders,    the    relatively         minimal   intrusion     of     lifetime      GPS

tracking (especially when compared to chapter 980 commitment) is

not excessive in relation to protecting the public.                        Smith, 538

U.S. at 104.

    ¶61     The     opportunity     to     terminate      tracking,        see    supra,

¶¶19, 45, keeps lifetime GPS tracking closely-tailored to its

purpose.     Unlike any other sanction known to Wisconsin law, any

offender who wishes to discontinue "lifetime" GPS tracking can
terminate    it     by   simply    moving      out   of     state.         Wis.    Stat.

§ 301.48(7m).

                                  IV.    CONCLUSION

    ¶62     We hold that the intent-effects test is the proper

test used to determine whether a sanction is punishment such

that due process requires a defendant be informed of it before

entering a plea of guilty.



                                          29
                                                                 No.    2016AP740-CR



    ¶63     Applying the intent-effects test, we hold that neither

the intent nor effect of lifetime GPS tracking is punitive.

Consequently,    Muldrow     is   not   entitled        to   withdraw    his   plea

because the circuit court was not required to inform him that

his guilty plea would        subject him to lifetime GPS tracking.

Accordingly, we affirm.

    By    the   Court.—The    decision       of   the    court   of    appeals   is

affirmed.




                                        30
    No.   2016AP740-CR




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