State v. George E. Savage

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 22, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP90-CR Cir. Ct. No. 2016CF3498

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GEORGE E. SAVAGE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS, Judge. Order reversed and cause
remanded with directions.

Before Brash, P.J., Kessler and Dugan, JJ.

¶1 DUGAN, J. George E. Savage appeals the judgment of conviction,
following his guilty plea to one count of violation of the sex offender registry
statute. He also appeals the order denying his postconviction motion.
No. 2019AP90-CR

¶2 Savage argues that the trial court erred in denying his postconviction
motion to withdraw his guilty plea because Savage established that, due to the
constitutionally ineffective assistance of his trial counsel, his guilty plea was not
knowing, voluntary, and intelligent.1

¶3 We conclude that the trial court misconstrued our supreme court’s
holding in State v. Dinkins and, as a result, it failed to properly analyze Savage’s
allegation that trial counsel was ineffective. See id., 2012 WI 24, 339 Wis. 2d 78,
810 N.W.2d 787. Therefore, we reverse the trial court’s order and remand this
matter with directions that the trial court make proper findings of fact and properly
analyze Savage’s ineffective assistance of counsel claim in light of our discussion
regarding Dinkins.2

BACKGROUND

¶4 In March 2016, Savage was in prison for exposing his genitals to a
child and his failure to register as a sex offender. On March 23, 2016, he was
released from prison and placed on extended supervision with discretionary global
positioning satellite monitoring (GPS). Further, as a result of Savage’s conviction

1
Savage’s postconviction motion to withdraw his guilty plea alleged that trial counsel
was ineffective in two ways. Savage’s motion also asserted that trial counsel told him multiple
times that if he pled guilty, he would not receive more than two years of initial confinement, that
any sentence in the criminal case would be concurrent with his two-year revocation sentence, and
that he would not receive any additional jail time. However, on appeal Savage explicitly states
that the sentencing issue “is not presently before this [c]ourt” (underlining omitted). Therefore,
Savage is deemed to have abandoned that issue.
2
While Savage appeals from both a judgment and order, we address only the order for
the reasons set forth in this opinion.

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No. 2019AP90-CR

for exposing his genitals to a child he was ordered to register as a sex offender
until 2024.3

¶5 On May 18, 2016, Savage cut off his GPS bracelet and absconded
from his extended supervision. On August 4, 2016, the State charged Savage with
violating the sex offender registry statute and an arrest warrant was issued. The
complaint charged that Savage “on or about Thursday May 5, 2016 … has
knowingly failed to comply with reporting requirements under WIS. STAT.
§§ 301.45(2) to (4)[.]”4 As factual support for the charge, the complaint alleged:

The defendant has failed to provide the Department with
updated information within 10 days after a change to the
information required to be provided by WIS. STAT.
[§] 301.45(2)(a). [In this case, where he was residing.]
The defendant was released from prison on 3/23/16. On
May 18, 2016, the agent of record informed the SORP that
the defendant cut off his GPS bracelet and absconded from
supervision.

Ultimately, Savage was arrested on the warrant and made an initial appearance in
this case before a Milwaukee County Circuit Court court commissioner.
Subsequently, the State and Savage reached a plea agreement and on May 23,
2017, the trial court presided over a combined guilty plea and sentencing hearing.

¶6 During the plea portion of the hearing, the State outlined the terms of
the plea agreement under which Savage would plead guilty to the charge, and the
State would recommend one year of confinement in the Milwaukee County House

3
Therefore, at the time of his release onto extended supervision Savage was both being
supervised by the Department of Corrections and had to comply with reporting requirements of
the Sex Offender Registration Program (SORP).
4
All references to the Wisconsin Statutes are to the 2017-2018 version unless otherwise
noted.

3
No. 2019AP90-CR

of Correction. The trial court then engaged in a plea colloquy with Savage, which
included questioning him about his understanding of the charge against him, the
maximum possible penalties for the charge, and the accuracy of information
contained on the plea questionnaire and waiver of rights form. The trial court also
reviewed the elements of the offense. The trial court then accepted Savage’s
guilty plea, and found him guilty of the offense of violating the sex offender
registry statute. Savage does not challenge the sufficiency of the court’s plea
colloquy.

¶7 During the sentencing portion of the hearing, the State recommended
a one-year sentence in the House of Correction. The prosecutor told the trial court
that Savage was released from prison on his prior case on March 23, 2016. She
stated that Savage was on discretionary GPS and extended supervision and that,
just under two months later, he cut off his GPS and he was in absconder status
with the Department of Corrections related to his extended supervision. She then
argued that Savage was “either going to maintain compliance with the sex
offender registry or eventually he’s just going to start going to prison if he can’t
return a letter.”5

¶8 Trial counsel then addressed the trial court regarding sentencing.
She began by discussing the circumstances of the offense, stating,

I don’t know how you can return a letter if you don’t have
an address for which the letter to be sent [sic].

5
The record reflects that when the SORP staff learned that Savage absconded from his
extended supervision, the staff sent a letter to Savage at an address that he had reported to the
SORP on May 16, 2016, as his temporary address. The letter was returned with the label,
“Attempted—Not Known.” Savage never responded to the letter and we surmise this is the letter
the prosecutor was referencing. On June 17, 2016, Savage called the SORP staff to tell them that
he did not receive his letter.

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No. 2019AP90-CR

I believe that was the issue for Mr. Savage and
sadly for many others that … are incarcerated. Ultimately
the sentence is finished, completed, and they are released
but often released back into the community with nothing.
And I believe that was the situation for Mr. Savage.

In reviewing the notes from the agent and the
registry, he was, in fact, calling in, leaving messages with
phone numbers, with addresses, emails which he could
actually access at a library or other community centers and
trying to do so.

....

It is noted in those reports it appears his intent was
to remain compliant, but there’s also an acknowledgment
that it can be difficult. And I quote, “This is happening
quite a bit especially with the homeless.”

I believe that this is exactly the situation for
Mr. Savage. The GPS here was discretionary. I don’t
know what the thought was behind that or the reasoning.
But Mr. Savage literally was staying where he could
whether it was empty buildings, back of a car, stairwells.

... I believe he was doing the best he could.

....

I also note they kept sending letters to an address
where, in fact, the letters were returned.”

Trial counsel advised the trial court that Savage was currently serving a two-year
and three-day sentence on the revocation of his extended supervision and
requested that the trial court impose a concurrent sentence.

¶9 The trial court imposed a concurrent sentence of thirty months of
initial confinement, followed by twenty-four months of extended supervision.
Judgment was entered on May 24, 2017.

¶10 On April 10, 2018, Savage, then represented by postconviction
counsel, filed a motion for postconviction relief. Savage’s motion alleged that he
should be allowed to withdraw his guilty plea based on manifest injustice because

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No. 2019AP90-CR

his trial counsel was prejudicially ineffective in communicating with and advising
him during the entire plea process, which led to a guilty plea that was
“involuntary, ignorant, and wrongly obtained.”

¶11 As relevant to this appeal, Savage averred in his supporting affidavit
that trial counsel “had never informed [him] that good faith efforts to comply with
[his] sex offender supervision requirements would bar [his] conviction.” Savage
further averred,

Essentially, I was homeless during the relevant period of
time. I now understand that this homelessness was a
defense to my ability to provide an address. [Trial counsel]
had advised me of the elements of the offense, but she had
never advised me that this defense was available to me. I
had informed her of my homelessness, and my inability to
provide an address due to this homelessness. I would have
proceeded to trial had I realized from [trial counsel] that I
could pursue this defense.

… I only signed the plea agreement because of these
representations, omissions, and promise(s). If not for these
representations, omissions, and promise(s), I would have
proceeded to jury trial.

The parties filed briefs on the motion and on January 3, 2019, the trial court
conducted an evidentiary hearing at which both trial counsel and Savage testified.

¶12 At the conclusion of the hearing, the trial court rendered an oral
decision denying Savage’s postconviction motion. The trial court found that trial
counsel did not tell Savage that he had a defense “because [Savage] did not have a
defense.” The trial court further found that “[a]s a result, there is not prejudice as
a result of [trial counsel] not telling him that there was a defense.” A brief written
order denying the motion was also entered on January 3, 2019. This appeal
followed.

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No. 2019AP90-CR

DISCUSSION

¶13 Savage argues that the trial court erred in denying his postconviction
motion to withdraw his guilty plea because he established that, as a result of trial
counsel’s prejudicial ineffectiveness, his guilty plea was not knowing, voluntary,
and intelligent. Savage relies upon the failure of trial counsel to inform him that
good faith efforts to comply with the sex offender registry requirements could be a
defense to the charge.

I. Standard of review and applicable law

¶14 A defendant who seeks to withdraw a guilty plea after sentencing
must prove by clear and convincing evidence that a refusal to allow plea
withdrawal would result in manifest injustice. State v. Taylor, 2013 WI 34, ¶24,
347 Wis. 2d 30, 829 N.W.2d 482. A defendant may bring a Nelson/Bentley6
motion to withdraw his or her plea on manifest injustice grounds based on a factor
extrinsic to the plea colloquy that renders the plea infirm. See State v. Sulla, 2016
WI 46, ¶25, 369 Wis. 2d 225, 880 N.W.2d 659. One way a defendant may
demonstrate manifest injustice is to establish that he or she received ineffective
assistance of counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859
N.W.2d 44. In other words, a defendant who shows that his or her counsel was
ineffective has demonstrated a manifest injustice that entitles the defendant to
withdraw his plea. State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816 N.W.2d
177.

6
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), modified by State v. Bentley,
201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

7
No. 2019AP90-CR

¶15 To establish that trial counsel was ineffective, the defendant has the
burden of proving that trial counsel’s performance was deficient and that he or she
was prejudiced as a result of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, the
defendant must show that his or her counsel’s representation “fell below an
objective standard of reasonableness” considering all the circumstances. Id. at
688. In order to satisfy the prejudice prong of the Strickland test, the defendant
seeking to withdraw his or her plea must allege facts to show “that there is a
reasonable probability that, but for the counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” State v. Bentley, 201 Wis. 2d
303, 312, 548 N.W.2d 50 (1996) (citing Hill v. Lockhart, 474 U.S. 53, 59 (1985)).

¶16 Whether trial counsel was ineffective is a question of constitutional
fact that we analyze under a mixed standard of review. See Dillard, 358 Wis. 2d
543, ¶86. We will uphold the trial court’s findings of fact unless they are “clearly
erroneous.” See id. However, we independently review whether those facts
constitute ineffective assistance. See id.

II. The trial court erred in applying Dinkins

A. Savage did not concede that case law regarding a
Dinkins defense is unsettled

¶17 Savage argues that trial counsel’s performance was deficient
because, although she knew that Savage was homeless, trial counsel failed to
inform him that, under Dinkins, good faith efforts to comply with registration
requirements could be a defense.

¶18 Citing State v. Breitzman, the State argues that, in order to
demonstrate that trial counsel’s performance was deficient, Savage would need to

8
No. 2019AP90-CR

raise an issue of “settled law.” See id., 2017 WI 100, ¶49, 378 Wis. 2d 431, 904
N.W.2d 93. The State then argues that Savage cannot demonstrate that trial
counsel was ineffective for failing to raise a “Dinkins good-faith” defense because
in his request for oral argument and publication on appeal he conceded that “[t]his
[a]ppeal involves issues of law which are not settled.” The State argues that
Savage’s statement is a concession, which establishes that trial counsel’s failure to
raise a Dinkins good faith defense did not fall below the objective standard of
reasonableness as necessary to sustain Savage’s ineffective assistance of counsel
claim.

¶19 However, the State cites no case law or rule for the proposition that
such a statement on publication is tantamount to a concession that the case law is
unsettled for purposes of an ineffective assistance of counsel claim. The State also
does not develop an argument why we should consider such a statement as a
concession for that purpose. Therefore, we decline to further consider the State’s
contention. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992).

B. After Dinkins, the law on the issue in this case is not
unsettled

¶20 The State also argues that, even without Savage’s concession, the
law was unsettled. The State asserts that the trial court properly rejected Savage’s
ineffective assistance of counsel claim where it correctly recognized that Dinkins
did not apply to Savage’s situation because the case involved narrow
circumstances that are inapplicable to Savage’s case.

¶21 In Dinkins, the defendant was convicted for failing to comply with
the requirement to provide notice of his address not later than ten days prior to

9
No. 2019AP90-CR

release from prison because he had reached his maximum discharge date. See id.,
339 Wis. 2d 78, ¶1. Dinkins was unable to locate housing before his release, and
the State charged him with a registry violation before his release. See id. The
supreme court held 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.” See Dinkins, 339 Wis. 2d 78, ¶52.

¶22 The State argued that Dinkins did not apply to this situation and the
trial court agreed. In analyzing Dinkins, the trial court compared Savage’s
circumstances—living on the street and perhaps being homeless—and Dinkins’
circumstances—being in prison and being unable to report where he would live
after his release from prison.7 The trial court concluded that in Dinkins’ situation
reporting the address where he would reside after his release from prison was
“impossible,” whereas in Savage’s situation reporting the address where he would
reside was not impossible. The trial court interpreted Dinkins as “stand[ing] for
the proposition that if it is impossible for a person to report an address because of
something outside of their control like, for example, being in prison at the time,
then there may be a defense.”

¶23 Contrary to the trial court’s ruling, our supreme court in Dinkins did
not limit its decision to situations where it was impossible for sex offender
registrants to report an address because of something outside of their control such

7
The trial court focused on two statements in State v. Dinkins which it stated, when read
together, were “at a minimum confusing and at worst poorly written.” The first statement was
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.” See id.,
2012 WI 24, ¶52, 339 Wis. 2d 78, 810 N.W.2d 787. The second statement was that
“[h]omelessness is not a defense.” See id., ¶44.

10
No. 2019AP90-CR

as being in prison. Rather, the court stated “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.” See id., 339 Wis. 2d 78, ¶4.

¶24 The Dinkins court held, “[W]e conclude that a registrant cannot be
convicted of violating [the statute] for failing to report the address at which he will
be residing when he is unable to provide this information.” Id., ¶5. The Dinkins
court explained that, in the context of WIS. STAT. § 301.45(2)(b)-(d), a registrant is
“unable” to provide the required information when that information does not exist,
despite the registrant’s reasonable attempt to provide it. See Dinkins, 339 Wis. 2d
78, ¶¶36-38. Pursuant to this language, the registrant must make reasonable
attempts to provide the required information. See id. It need not be impossible for
the registrant to report the required information because of something outside of
the registrant’s control like, for example, being in prison at the time. See id., ¶¶3-
5, 46. The trial court and the State misinterpreted Dinkins.

¶25 The Dinkins court reasoned that “[t]he sex offender registration
statute is not intended to be punitive in nature.” See id., ¶49. “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.” Id.

¶26 Based upon the language and reasoning in Dinkins “that a registrant
cannot be convicted of violating [the statute] for failing to report the address at
which he will be residing when he is unable to provide this information[,]” we
conclude that trial court erred as a matter of law when it held that Dinkins did not

11
No. 2019AP90-CR

apply to Savage’s situation.8 Id., ¶52 (emphasis added). We further conclude that,
contrary to the State’s assertion, the law was not unsettled after Dinkins.

III. Because the trial court misconstrued the holding in
Dinkins it failed to properly analyze Savage’s
postconviction allegations

¶27 As previously noted, based on the trial court’s erroneous
interpretation of Dinkins, the trial court held that trial counsel’s failure to tell
Savage that he may have had a defense under Dinkins was not deficient
performance because Savage did not have a defense under Dinkins. Its holding
was premised solely on its erroneous interpretation of Dinkins. The trial court
was wrong. Pursuant to the holding in Dinkins, Savage may have a defense for
his failure to register as a sex offender.

¶28 We conclude that, in light of Dinkins and the trial court’s finding
that trial counsel failed to tell Savage that he may have a defense under Dinkins,
the trial court should have analyzed whether trial counsel was ineffective under
Strickland, 466 U.S. at 687. However, the trial court did not make any findings of
fact and failed to engage in any analysis on the issue. It relied exclusively on its

8
We note that the dissent’s interpretation of the majority opinion in Dinkins differs from
that of trial court and the State. The dissent states that

[p]ursuant to the majority opinion, the newly pronounced dictate
is that a convicted and released sex offender who … is not
otherwise subject to any supervision, can no longer be adjudged
criminally liable for failing to provide to the [SORP] his or her
address as required … so long as he or she claims to be homeless
and unable to find housing.

See id., 339 Wis. 2d 78, ¶88 (Ziegler J., dissenting) (emphasis added).

12
No. 2019AP90-CR

conclusion that Savage did not have a defense under Dinkins for its finding that
trial counsel’s conduct was not deficient and that there was no prejudice.9

¶29 We conclude that, because the trial court misconstrued the holding in
Dinkins, it failed to properly analyze Savage’s allegations that trial counsel was
ineffective. Therefore, we remand the matter to the trial court to make a proper
analysis of Savage’s allegations based upon the holding in Dinkins. We note that
in State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, our supreme
court stated that:

[W]hen an appellate court remands for a Machner[10]
hearing, it must leave both the deficient performance and
the prejudice prongs to be addressed, because whether a
defendant was prejudiced depends upon the existence of
deficient performance. If trial counsel testifies at the
Machner hearing that the choice under attack was based on
a trial strategy, which the circuit court finds reasonable, it is
“virtually unassailable” and the ineffective assistance claim
fails.

Sholar, 381 Wis. 2d 560, ¶54 (citations omitted). We conclude that the holding in
Sholar applies equally to this case.

9
We note that, in contrast, the trial court made specific findings of fact regarding
Savage’s other postconviction motion allegation that trial counsel told him that he would not
receive more than two years of initial confinement, that any sentence would be concurrent with
his two-year revocation sentence, and that he would not receive any additional jail time. The trial
court weighed trial counsel’s credibility and Savage’s credibility and found that trial counsel told
Savage “on at least two occasions that the [trial] court did not have to follow the
recommendation.” It then concluded there was no prejudice.
10
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979), holds that
an evidentiary hearing is a prerequisite for consideration of an ineffective assistance of counsel
claim.

13
No. 2019AP90-CR

CONCLUSION

¶30 We conclude that the trial court misconstrued our supreme court’s
decision in Dinkins and that, as a result, it failed to make proper findings of fact
and failed to engage in any analysis of Savage’s allegations that trial counsel was
constitutionally ineffective in representing him because she failed to advise him
that he had a potential good faith defense under Dinkins.

¶31 Based on our discussion above, we remand the matter to the trial
court with directions that it engage in a proper analysis of Savage’s allegations
based upon the holding in Dinkins. To be clear, this court is neither finding that
trial counsel’s performance was deficient nor that Savage suffered any prejudice.
We are merely remanding this case to the trial court to make the proper findings of
fact and conclusions of law regarding Savage’s allegations that trial counsel was
ineffective in representing him.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

14