COURT OF APPEALS

DECISION

DATED AND FILED

January 22, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

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

¶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. 
No. 2019AP90-CR

3

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.
No. 2019AP90-CR

4

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. 
No. 2019AP90-CR

5

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 
No. 2019AP90-CR

6

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. 
No. 2019AP90-CR

7

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). 
No. 2019AP90-CR

8

¶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 
No. 2019AP90-CR

9

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 
No. 2019AP90-CR

10

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. 
No. 2019AP90-CR

11

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 
No. 2019AP90-CR

12

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).
No. 2019AP90-CR

13

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. 
No. 2019AP90-CR

14

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.