COURT OF APPEALS
DATED AND FILED
August 11, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Brent S. Watling,
from judgments and orders of the circuit court for
¶1 BROWN, C.J. Forty-six-year-old Brent S. Watling repeatedly sexually assaulted a fourteen-year-old girl. As part of the judgment of conviction, the circuit court required him to register as a sex offender. Watling appeals the registration requirement on grounds that the court did not explain why registration was in the interest of the public’s protection. We disagree and conclude that the record supports the court’s exercise of discretion. Watling also appeals the sentences on two other convictions, alleging that the court improperly required sex offender registration for these as well. He points out that these convictions are not within the sex offender registration statute. He contends that the circuit court did not have the authority to order registration as to the non-sex offenses just because the court also ordered registration as to the sexual assault charges. We conclude, however, that he misreads the court’s sentencing structure. The circuit court ordered Watling to register based on his sexual assault conviction only; the other convictions only referred to the registration requirement in his sexual assault case. The court ordered only that, as a condition of supervision on those remaining convictions, he must adhere to the order for sex offender registration. We further hold that the court had a legal basis to do so and affirm.
¶2 Watling’s wife complained to the Walworth county sheriff’s
department that Watling had battered her.
While investigating the battery complaint, the sheriff’s department
learned that Watling had repeatedly sexually assaulted a fourteen-year-old girl
and that Watling had two wives (one from the state of Washington and one from
¶3 Pursuant to a plea agreement, Watling pled guilty to three counts of fourth-degree sexual assault and one count each of bigamy, felony bail jumping, and OWI-second offense. Three charges of second-degree sexual assault of a child, five charges of felony and misdemeanor bail jumping, and other charges were dismissed and read-in; both sides were free to argue. The presentence investigation report writer recommended periods of confinement and extended supervision and that the conditions of extended supervision include registration with the Wisconsin Sex Offender Registration Program. At sentencing, the State was silent regarding sex offender registration; Watling asked that the court not require registration.
¶4 However, after sentencing Watling to terms of initial confinement and extended supervision, the court said that one of the conditions on the terms of extended supervision would be “registration with [the] sex offender registration program.” The court explained that “his behaviors [were] significant”; he was forty-six years old and “[h]e had sexual contact with a 14-year-old girl including fondling her breasts and digitally and orally penetrating her vagina, and having her perform oral sex on him.” The court discussed how his conduct showed “little regard for the laws of society,” that he “denies and takes no responsibility for his action[s],” and that “his demeanor in court … was poor in that he disregarded conditions of bond.” It concluded that “he should comply with the sex offender registration program for the safety of the public.” Clarification was made that “the sex offender registration [would] appear in particular on the judgment for [the fourth-degree sexual assault convictions].”
¶5 The court referenced the registration requirement in the judgment of conviction for all three cases—the sexual assault case, the bigamy case, and the bail jumping case. The sexual assault case stated: “Must register as a sex offender.” The court included the following identical orders in the bigamy and bail jumping cases as a condition of his sentence: Watling must “[r]egister as a sex offender as required in [the sexual assault case].”
¶6 Watling filed a postconviction motion arguing that the court lacked the authority to order registration as a sex offender in the felony bail jumping case and that the court misused its sentencing discretion when it required him to register as a sex offender for the fourth-degree sexual assault and bigamy convictions. The court denied the motion, commenting that Watling’s conduct was sexually-motivated and that the protection of the public requires that he register. Watling appeals.
¶7 We begin by discussing whether it was proper for the circuit
court to order Watling to register as a sex offender for the three counts of fourth-degree
sexual assault. The sex-offender
registration statute, Wis. Stat. § 301.45
establishes a sex-offender registry and imposes registration and reporting
requirements upon persons who meet certain statutory criteria. State v. Martel, 2003 WI 70, ¶10,
¶8 We review a circuit court’s sentencing decision under the
clearly erroneous standard of review. State
v. Gardner, 230
¶9 Wisconsin Stat. § 973.048(1m)(a) explains that when a person is sentenced or placed on probation pursuant to certain enumerated offenses, the circuit court may order sex offender registration in the exercise of sentencing discretion if the court determines that the underlying conduct was sexually motivated and that registration would be in the interest of public protection. Watling concedes that the sexual assault was sexually motivated but disputes the circuit court’s determination that sex offender registration was in the interest of public protection. He argues that the circuit court failed to consider any of the factors in § 973.048(3) regarding whether registration was required for public protection.
¶11 Watling contends that the circuit court failed to consider that despite the discrepancy in ages, the victim appeared older and was drinking in a bar when they met, no one alleged that the victim did not willingly participate, there was no evidence of violence, verbal abuse or mental health issues that would have made the victim incapable of evaluating the consequences of her conduct, and this was Watling’s first sexual assault. Under our standard of review, however, we review whether the circuit court acted within the realm of its discretion, not whether there is an alternate or better conclusion.
¶12 Watling also asserts that the court did not explain its decision and made only the conclusory statement that the crime was sexually motivated and that sex offender registration was in the interest of public protection. Admittedly, the circuit court’s analysis was not as comprehensive as it could have been. But, when we look at the sentencing transcript, we conclude that the circuit court did more than just make “the conclusory statement that the crime was sexually motivated and that sex offender registration was in the interest of public protection” as Watling alleges.
¶13 The circuit court explained in its oral sentencing decision that Watling was forty-six years old where as the victim was fourteen years old, that both Watling and the victim had emotional problems and that Watling had a long history of drug and alcohol problems. The circuit court concluded that Watling needed to “adopt a better attitude” and “fully admit to all of his criminal and abusive actions,” that confinement was “necessary to protect the public from further criminal actions” because it was “clear that Mr. Watling [had] little regard for the laws of society,” and that not all of the counseling could be accomplished in confinement.
¶14 As to the probability of future violations, the circuit court commented on Watling’s propensity for criminal activity as he had a series of convictions in the 1980s and then again in the 2000s, and that the time period of his military enlistment “pretty much correlates with the time period of while he was free from any type of criminal activity.” The court also commented that Watling “denies and takes no responsibility for his action[s]” and “clearly has no idea how to avoid this behavior in the future”; “Watling chose to reside with his wife in direct violation of his bond.”
¶15 Moreover, even when a circuit court fails to articulate its
reasoning, we will independently review the record to determine whether there
is any reasonable basis for the circuit court’s discretionary decision. State v. Davidson, 2000 WI 91, ¶53,
¶16 Watling also argues we should reverse because the circuit court
allegedly erred by ordering him to register as a sex offender in association
with his bigamy and bail jumping convictions.
Watling asserts that this was erroneous because there was no independent
basis to order registration for his bigamy and bail jumping offenses under the
specific sex offender registration statute.
In support, he cites the holding in Martel, 262
¶17 What the circuit court actually ordered in the bigamy and bail
jumping convictions was that Watling comply with the sex offender registration
mandate in the sexual assault case while on supervision for those related
crimes. As the State points out, Watling
was ordered to register as a sex offender for his sexual assault offenses only;
the conditions in the bigamy and bail jumping cases related back to the order
in the sexual assault case. There was no
order to register based on his bigamy conviction or his bail jumping
conviction. We also point out that the
conditions for all of the cases were alike since, by virtue of the plea
agreement, Watling was sentenced in all three counts at the same hearing. The conditions of extended supervision and
probation in the remaining two counts were based on the same facts and the same
dismissed and read-in charges we discussed above. We therefore conclude that it was reasonable
and appropriate for the court to refer to the registration requirement in the
sexual assault case because the condition was reasonably related to the dual
purposes of extended supervision—rehabilitation and the public interest.
¶18 Watling replies that, under State v. Oakley, 2000 WI
37, ¶27, 234 Wis. 2d 528, 609 N.W.2d 786, a court cannot order that a defendant
comply with a condition mandated in another case if there is a specific
statutory section governing when the condition may be applied. This is a misstatement of the holding in Oakley,
a case that this court is very familiar with, it having originated in this
district. Oakley agreed with Judge
Harry Snyder’s dissent, which stated that conditions of probation should not be
used as a collection device for the payment of old fines. See id., ¶2.
Judge Snyder was concerned that our majority opinion would be
tantamount to reinventing the concept of a debtor’s prison—punishing a person
for nonpayment of a fine which would otherwise not be subject to a possible
loss of liberty. See State v. Oakley, 226
¶19 Oakley has absolutely zero to do with the facts and circumstances here. We are not concerned about the possibility of loss of liberty for failure to pay an old fine. Rather, we are concerned about a person convicted of sexually assaulting a fourteen-year-old girl on numerous occasions—thus flouting the law of this state and punishable by imprisonment rather than a mere fine, committing bigamy by being married to two different women at the same time—thus flouting the law in this state and punishable by imprisonment rather than a mere fine, and bail jumping—thus flouting the law of this state, not to mention a specific admonition by the circuit court and which behavior is punishable by imprisonment rather than a fine. In short, the conditions of supervision are designed to get this man to adhere to the laws of society. And the sentence is geared to that purpose. We reject Watling’s reliance on Oakley.
¶20 Further, Watling has not explained what difference the circuit court’s orders in the bigamy and bail jumping cases make since he is already required to register as a sex offender in the sexual assault case. We therefore affirm the circuit court’s judgments and orders in toto.
By the Court.—Judgments and orders affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.