COURT OF APPEALS

DECISION

DATED AND FILED

October 12, 2022

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. 2021AP2174 Cir. Ct. No. 2018JV62

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE INTEREST OF B.S.S., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

 PETITIONER,

 V.

B.S.S.,

 RESPONDENT.

APPEAL from orders of the circuit court for Manitowoc County: 

MARK ROHRER, Judge. Affirmed. 
2021AP2174

2

¶1 GROGAN, J.1 B.S.S. appeals from orders2 denying her motion to 

stay the requirement that she register as a juvenile sex offender. She argues that 

she is entitled to a new hearing on her motion to stay in front of a different judge 

because: (1) the circuit court’s comments about ordering her to register during an 

earlier hearing evidenced the circuit court’s actual bias, which should have 

triggered recusal; and (2) the circuit court erroneously exercised its discretion in 

denying her motion to stay because it failed to link her risk of re-offending to its 

consideration of the need to protect the public. This court affirms.

I. BACKGROUND

¶2 In April 2018, the State filed a delinquency petition against B.S.S. in 

Manitowoc County alleging she committed two counts of first-degree sexual 

assault against a child under the age of thirteen. At the time the State filed the

petition, B.S.S. was fifteen years old, and her victim was an eight-year-old boy 

who had reported that B.S.S. had been sexually assaulting him since he was four 

or five years old. B.S.S. (whose mother was good friends with the victim’s 

mother) began assaulting the victim by showing him a pornographic video and

teaching him how to kiss like the people in the video. The assaults then 

progressed to touching each other sexually and culminated in sexual intercourse. 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2

 Specifically, she appeals from the August 21, 2019 Dispositional Order and the 

November 24, 2021 order denying her postdispositional motion to modify the Dispositional 

Order.
2021AP2174

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These assaults occurred over four years in three different counties,

3

either when 

B.S.S. lived with the victim’s family or nearby. The victim reported that B.S.S. 

told him not to tell anyone. 

¶3 After a series of delays not pertinent here, B.S.S. entered no-contest 

pleas to reduced charges on June 4, 2019. She pled to third-degree sexual assault, 

contrary to WIS. STAT. § 940.225(3), and exposing genitals to a child, contrary to 

WIS. STAT. § 948.10(1)(b), and the circuit court thereafter entered an order 

adjudicating B.S.S. delinquent under WIS. STAT. § 938.12. At the plea hearing, 

after the circuit court accepted B.S.S.’s pleas, the prosecutor and B.S.S.’s lawyer 

disagreed about whether the circuit court should immediately proceed to 

disposition. B.S.S.’s lawyer wanted to delay disposition to obtain a psychosexual 

evaluation from an expert. The prosecutor objected because this case had been 

pending for over one year and because the court would likely have the Manitowoc 

County Human Services Department (Department) conduct an evaluation 

regardless of what the defense expert concluded. The circuit court denied the 

defense request for delay, noting the Department would do an evaluation, but not 

until after disposition, and because it was concerned about the victim’s rights due 

to the case having been pending for “a significant period of time[.]” The circuit 

court explained that “under the law [B.S.S. is] required to report” to the sex 

 

3

 The three counties were Manitowoc, Kewaunee, and Washington. This court notes that 

B.S.S., in both her first brief and her Reply brief, incorrectly identifies this case as arising in

Milwaukee County, and in her first brief lists this case as “On Appeal from Order Terminating 

Parental Rights[.]” Although this court certainly understands that attorneys need not create every 

cover sheet from scratch, it is important to make sure the first page of the brief correctly identifies 

the appeal. Additionally, the court acknowledges B.S.S.’s complaint in her Reply brief about 

careful attention to detail—particularly the State’s repeated failure to properly format and cite 

quotations and cases referenced throughout its brief—and assures B.S.S. that this court gives 

every appellant and respondent its careful attention. That said, parties filing briefs in appellate 

courts should take the time to properly format work product and follow applicable citation rules. 
2021AP2174

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offender registry and that any dispositional order could be amended later by 

motion. B.S.S.’s lawyer indicated he “want[ed] the [c]ourt to have some expert 

opinion on [B.S.S.’s] level of risk before it decides whether or not to stay the [sex 

offender] reporting.” The circuit court set the disposition date for June 28th. 

¶4 At a hearing on June 11, 2019, the circuit court addressed B.S.S.’s

request to provide funding for her to obtain a psychosexual evaluation. The circuit 

court seemingly saw B.S.S.’s request as unnecessary because the statutes required 

it to make B.S.S. “subject to the [sex offender] registry[,]” specifically noting that,

based on “the charge that has been pled to and the age” of the victim, the statutory 

exceptions to sex offender registration in WIS. STAT. § 301.45(1m) did not apply 

in this case. When B.S.S.’s lawyer explained he wanted the evaluation because he

planned to ask the court to stay the sex-offender-registration requirement, the State 

responded that, based on B.S.S.’s adjudication of third-degree sexual assault, this 

case falls under WIS. STAT. § 938.34(15m)(bm), which says “the court shall 

require the juvenile to comply with the reporting requirements,” and the only way 

to avoid that mandate is through “a motion made by the juvenile[.]” Id. The 

circuit court agreed that in order to stay B.S.S.’s sex-offender-registration 

requirement, she would need to file a motion “requesting that [she] not be subject 

to the sex offender registry[.]” 

¶5 B.S.S. did not file a motion to stay the sex-offender-registration 

requirement at the June 11, 2019 hearing, but instead filed a motion to adjourn the 

June 28th disposition date, so she “could obtain a sex offender psychosexual 

evaluation[.]” B.S.S. acknowledged that the only way she could avoid registering 

as a sex offender was if the circuit court stayed the requirement pursuant to WIS.
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STAT. § 938.34(16)4 because: (1) her crime fell under § 938.34(15m)(bm),5 which 

says “the court shall require the juvenile to comply with the reporting 

requirements” (emphasis added); and (2) B.S.S.’s victim was under twelve years 

old at the time she assaulted him, and therefore the statutory exceptions in WIS.

STAT. § 301.45(1m) allowing a sexual offender to avoid registration do not apply.

¶6 On June 14, 2019, the State objected to B.S.S.’s motion. It said the 

statutes required B.S.S. to file a motion to stay if she wanted to ask the circuit 

 

4

 WISCONSIN STAT. § 938.34(16), which addresses staying an order, states that:

After ordering a disposition under this section, [the court may]

enter an additional order staying the execution of the 

dispositional order contingent on the juvenile’s satisfactory 

compliance with any conditions that are specified in the 

dispositional order and explained to the juvenile by the court. If 

the juvenile violates a condition of his or her dispositional order, 

the agency supervising the juvenile or the district attorney or 

corporation counsel in the county in which the dispositional 

order was entered shall notify the court and the court shall hold a 

hearing within 30 days after the filing of the notice to determine 

whether the original dispositional order should be imposed, 

unless the juvenile signs a written waiver of any objections to 

imposing the original dispositional order and the court approves 

the waiver. If a hearing is held, the court shall notify the parent, 

juvenile, guardian, and legal custodian, all parties bound by the 

original dispositional order, and the district attorney or 

corporation counsel in the county in which the dispositional 

order was entered of the time and place of the hearing at least 3 

days before the hearing. If all parties consent, the court may 

proceed immediately with the hearing. The court may not 

impose the original dispositional order unless the court finds by a 

preponderance of the evidence that the juvenile has violated a 

condition of his or her dispositional order.

5

 B.S.S. pled to third-degree sexual assault, contrary to WIS. STAT. § 940.225(3), which 

is listed in WIS. STAT. § 938.34(15m)(bm) (“If the juvenile is adjudicated delinquent on the basis 

of a violation ... of s. ... 940.225 (1), (2), or (3) ... the court shall require the juvenile to comply 

with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a 

motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (1m).”).
2021AP2174

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court to stay her sex-offender-registration requirements under WIS. STAT.

§ 938.34(16).

¶7 The circuit court held a hearing on June 14, 2019 to address B.S.S.’s 

motion to adjourn for the purpose of obtaining a psychosexual evaluation, and the 

circuit court ultimately denied the request. It found that B.S.S. did not file a 

motion to stay the sex-offender-registration requirement, but in deciding the 

motion to adjourn, the court nevertheless discussed the law pertinent to what 

factors a circuit court looks at when evaluating a motion to stay sex offender 

registration. After listing all the factors, the circuit court noted B.S.S.’s request for 

a psychosexual evaluation would address only one of the factors a court is 

required to consider—namely, B.S.S.’s “likeliness to reoffend.” See WIS. STAT.

§ 938.34(15m)(c)5 (“The probability that the juvenile will commit other violations 

in the future.”). The circuit court then, “purely for the sake of this record,” 

concluded that even if it assumed a psychosexual evaluation resulted in the “best 

case scenario” for B.S.S.—that she would “not reoffend in the future”—this single 

factor could not overcome the court’s “concern about protecting the public” based 

on the “other factors” it would be required to consider, including “the seriousness 

of the offense.” It explained: 

 Let’s focus on the seriousness of the offense. We have a 

situation here where in the beginning of this situation, there 

was grooming behavior going on by the juvenile against a 

young person around four to five years of age. At the time, 

that made her roughly about 12. That type of behavior is 

very serious and very concerning, because this isn’t just 

someone just trying to experiment. There’s grooming 

going on when saying where to hide the [pornography] tape 

and educating a child about this, and telling the child to be 

quiet, as has been said in the complaint, if I recall. 

 Next, continuing with the seriousness of the offense, we

have a situation here where these assaults are occurring 

over a number of years and in two different residences, 
2021AP2174

7

minimum, where this took place. Again, escalating the 

seriousness of the offense. 

 The type of behavior that was involved involved both

sexual assaults involving oral sex between the parties, both 

vaginal and penile, but penile to vaginal intercourse as 

well. Again, the multiple types of actions taking place also 

enhances and aggravates the seriousness of the offense. 

 The difference in age between the juvenile and the 

victim is significant as is supposed to be looked at by factor 

one, which would warrant a finding of being appropriate to 

register for the sex offender registry. 

 The relationship between the juvenile and the victim of 

the violation. It’s almost as if this young person, this 

juvenile, befriended this young boy and took advantage of 

him. Again, under that factor, another reason why she 

would register. 

 There is no bodily harm. The Court at this time is not 

aware of mental illness or deficiency on this young man. 

But even without that, again, based on as I go through these 

factors and the seriousness of the offense, the Court is 

going to require her to register. 

 Next, the probability that the juvenile will commit other 

violations in the future. Not only do we have this victim on 

multiple occasions being subject to sexual assaults by this 

juvenile, she also has been charged and she’s currently 

under a consent decree in Washington County for another 

offense, a sexual offense.[6]

 ....

 Again, any other factor that I deem relevant.... I would 

deem the multitudes of the assaults, the multiple locations 

where they took place, the grooming behavior. 

 And as such, again, even if, best case scenario, this 

Court would receive a report from [B.S.S.’s] expert stating 

that there’s a substantial or significant likelihood that she 

would not reoffend in the future, even in spite of that, the 

 

6

 At the time of this hearing, the circuit court mistakenly believed the victim in 

Washington County was a different person. It was not. At the dispositional hearing, the circuit 

court had the correct information. 
2021AP2174

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Court when analyzing these factors and the seriousness of 

the offense, would require her to register as a sex offender. 

 As a result of that, the Court feels it would not be 

necessary to have a psycho-sex evaluation prior to 

disposition. 

¶8 The circuit court emphasized that “for the sole purposes of” deciding 

B.S.S.’s motion to adjourn disposition to allow time for a psychosexual report, it

would assume that report would be favorable to B.S.S. (that B.S.S. is “low risk, 

not going to offend, public not in danger”). It confirmed that even with such a 

report, it would require B.S.S. to register because “the seriousness of the offense”

and all the other factors would outweigh a favorable psychosexual report. 

¶9 B.S.S.’s lawyer then requested that the circuit court allow B.S.S. to 

file a motion to stay sex offender registration even though it appeared “the Court 

has indicated some prejudgment on this issue.” The circuit court responded: 

 It’s not a prejudgment, it’s an analysis of the factors. 

Prejudgment means like I’ve decided this case before I 

walked out here and was going to do whatever I wanted no 

matter what. I made a judgment based upon what is 

contained in that complaint, based upon this juvenile’s 

history.

 Again, maybe the parties can explain to me at a later 

date, because I’m not going to grant the expert to do a 

psycho-sex evaluation for the reasons stated on this record. 

¶10 After “an extensive conference with the attorneys off the record,” the 

State recounted what the circuit court agreed to do. First, B.S.S. could file a 

motion to stay pursuant to WIS. STAT. § 938.34(16). Second, it ordered the 

Department to do a psychosexual evaluation. Third, the parties would meet the 

week of June 24th for the court “to enter a scheduling order with strict timelines” 

for the stay motion and to set a disposition date. 
2021AP2174

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¶11 The dispositional hearing was set for August 21, 2019. On 

August 14, 2019, after the parties met with the circuit court to confirm the hearing 

date, B.S.S. filed two motions: (1) a motion to stay sex offender reporting under 

WIS. STAT. § 938.34(16); and (2) a motion for recusal under WIS. STAT. § 757.19. 

The State responded with a letter on August 15, 2019, noting that during the 

August 14th meeting with the circuit court, B.S.S. “never mentioned the filing of 

[these two] motions which would possibly delay the proceedings” and requested 

“that the court address these matters prior to the hearing so that the State may give 

the crime victims appropriate information as to what matters will be taken up next 

week.” On August 20, 2019, B.S.S. sent a letter to the court requesting it not rely 

on the psychosexual report from the court-appointed evaluator, Jane LepakJostsons. Lepak-Jostsons’ report noted that, although “[t]here is no actuarial 

instrument for juvenile females to predict recidivism[,]” it was her opinion that 

B.S.S. “is at high-risk [to] commit another sexual assault or other criminal 

activity.”

¶12 At the August 21, 2019 dispositional hearing, the circuit court began 

by addressing B.S.S.’s additional motions. First, it denied B.S.S.’s motion for 

recusal, finding there were no grounds for it to conclude it could not be impartial. 

Second, it ruled it would follow the law as to whether to consider Lepak-Jostsons’ 

report and determine what weight to afford it during the dispositional hearing. 

Third, it explained it would address B.S.S.’s motion to stay sex offender 

registration later during the dispositional portion of the hearing. 

¶13 During the dispositional hearing, the victim’s mother addressed the 

circuit court. She explained to the circuit court that the “extremely graphic” nature 

of B.S.S.’s assaults on her son, which began “when he was three or four years 

old[,]” was “quite horrifying[.]” She said her “eight year old had experienced” 
2021AP2174

10

things that she, even though she was in her “late 30’s,” had not experienced. She 

reported that she has “an all-horrifying fear that some day [her son] might himself 

become an offender” and has her son in counseling, hoping “to stop this cycle of 

abuse dead in its tracks.” She said B.S.S. assaulted her son at the same time 

B.S.S. “had a boyfriend who was 17 or 18 years old[.]” She told the court that if 

she had known about the “youthful predator right in my own home I would have 

done more to protect my child. And I think there, I think other children need 

protection as well.” She recounted that they did not see B.S.S. for a period of two 

years, but when they moved back to Manitowoc, “the abuse had picked up right 

back where it left off after a couple years separation. That fact was very 

significant for me.” 

¶14 B.S.S.’s lawyer then renewed the request for their own psychosexual 

evaluation and to adjourn disposition. The circuit court denied the request, noting 

it appointed a neutral examiner to perform the evaluation. Next, the circuit court 

asked B.S.S. what she was disputing with regard to disposition. Her lawyer 

explained that all the dispositional requests were joint, except that B.S.S. 

requested that the circuit court stay the sex-offender-registration requirement 

“until close to the end of her supervision[.]” 

¶15 The State asked the circuit court to deny the request to stay sex 

offender registration. It focused on the seriousness of the offenses, the lengthy 

period of time over which the abuse occurred, and the fact that B.S.S. “sexually 

abuse[d] a much younger boy” whom she lived with at times “in different homes 

and different locations throughout this county and throughout the state.” The State 

acknowledged that B.S.S. had been victimized herself, that she was in treatment, 

and that she herself was a juvenile. But, it emphasized that none of those factors 

changed the seriousness of the offense, the harm to this victim, the ongoing abuse 
2021AP2174

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that did not stop until the victim reported it, and that it involved sexual intercourse 

with an eight-year old. Further, the State pointed out that although B.S.S. may do 

well while in a treatment center, “[h]er issues are deep [seated] and long term, and 

they are not going to disappear over night and they are not going to disappear 

during the length of the juvenile court order[,]” and in relatively short order, 

B.S.S. would be on her own in the community. The State argued that keeping 

B.S.S. on the juvenile sex offender registry would protect the public by limiting 

her ability to reside in “certain shelters and certain areas where people could be at 

risk” and would allow law enforcement and others to “keep tabs” on her. The 

State also argued keeping B.S.S. on the juvenile sex offender registry “would 

provide an additional protection to the community, and tool for law enforcement.” 

The State reminded the circuit court that B.S.S. “has the burden to prove by clear 

and convincing evidence that based on the factors enumerated ... a stay should be 

granted in her case.” 

¶16 B.S.S.’s lawyer acknowledged the seriousness of the offenses, the 

aggravating nature of the age difference, and the fact that the victim’s young age 

could be considered a mental deficiency. B.S.S.’s lawyer, however, wanted to 

focus on “any other factor” and “the probability that the juvenile will commit 

other violations in the future.” He then discussed B.S.S.’s troubled childhood and 

how the assaults perpetrated on her normalized sexual assault. He argued that 

registering as a juvenile sex offender does not decrease recidivism and that

registration would not give B.S.S. any ongoing support—it might actually make it 

harder for her to find housing, get a job, or go to college. He pointed out that 

B.S.S.’s social worker described B.S.S. as “well behaved” and that, by waiting a 

year, the circuit court would be able to better gauge whether B.S.S. would be a 

risk to the public such that she should be ordered to register as a sex offender.
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¶17 The circuit court asked B.S.S. if she would like to make a statement

before it made its decision, but B.S.S. declined. The circuit court then addressed 

all the pertinent factors. First, it noted if this occurred in adult court, B.S.S. would 

be looking at potentially “60 years in a prison setting.” The court saw B.S.S.’s 

offenses as very serious, noting they took place “over a significant period of time” 

and started when the victim “was four to five years of age ... until he was about 

eight or nine -- roughly from 2012 to 2017.” It found it aggravating that the 

assaults involved “multiple forms,” including “both intercourse and oral 

intercourse”; occurred in different places in different counties; involved “a 

relationship of trust ... developed over a period of time”; and involved “the 

closing of doors,” which demonstrated B.S.S. planned to commit acts she knew to 

be wrong. The court believed the “grooming process” that “[s]tarted with viewing 

pornography to then eventually progressing to intercourse” increased the “gravity 

of the offense.” 

¶18 Next, the circuit court noted the mitigating factors, including that 

B.S.S.: (1) was herself a victim of sexual assault; (2) had experienced horrible 

things; and (3) was making progress, going to school, participating in sports, and 

participating in treatment. But, it was concerned by B.S.S.’s lack of empathy, 

particularly because she herself was a sexual abuse victim. 

¶19 The circuit court, finding that “the needs of the community would be 

[met by] requiring the juvenile to be adjudicated for a sex offender offense as she 

has been, [and] that she [be] placed on an order with conditions,” adopted the 

conditions for disposition set forth in the court report. Next, it turned to B.S.S.’s 

request to stay sex offender registration. In analyzing that request, the court

addressed each of the WIS. STAT. § 938.34(15m)(c) factors that our supreme court 

concluded should be considered in deciding a § 938.34(16) motion to stay sex 
2021AP2174

13

offender registration. See State v. Cesar G., 2004 WI 61, ¶50, 272 Wis. 2d 22, 

682 N.W.2d 1. First, it saw the offenses as very serious. Second, it saw the 

significant age gap (six-to-seven years), the victim’s young age (four-to-five years

old) when the assaults began, the lengthy period of time over which the assaults 

occurred (four years), and the continuation of the assaults on the victim when he 

was eight—despite fifteen-year-old B.S.S. having a boyfriend—as weighing in 

favor of ordering registration. The court explained that the age difference that

allowed B.S.S. to befriend this young child, gain his trust, groom him by first 

exposing him to pornography and then engaging in sexual intercourse for her 

sexual gratification, “warrant[ed] a finding of not granting the stay.”

¶20 Third, the circuit court found that bodily harm did not occur, so this 

factor weighed in favor of granting the stay. Fourth, the court saw the mental 

deficiency factor as neutral because it was unsure whether the victim’s young age 

could be considered a mental deficiency. Fifth, in addressing the probability the 

juvenile would re-offend, the court observed that the psychosexual evaluation 

acknowledged there is no “actuarial instrument to predict recidivism” for juvenile 

sex offenders. Based on that, it concluded this factor would not weigh in favor of

or against the requested stay. 

¶21 Sixth, the circuit court addressed the “any other factor” catchall 

consideration. Here, it considered “the length of time [the assaults] went on, the 

planning that went on, the grooming that went on, and the lack of empathy[.]” It 

saw these factors as favoring denial of the stay. Finally, the court discussed the 

protection of the public, concluding that putting B.S.S. on the “registry will have 

some type of effect on protecting the public.” It found the burden for imposing the 

stay rested with B.S.S., and in looking at the factors, it found B.S.S. failed to meet 
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the burden. The court entered the Dispositional Order on August 22, 2019, and it 

required B.S.S. to register as a juvenile sex offender. 

¶22 In January 2021, B.S.S. filed a postdisposition motion seeking to 

modify the Dispositional Order and asking the circuit court to conduct another 

hearing on her motion to stay sex offender registration. Her grounds for the 

motion rested in a postdisposition psychosexual evaluation conducted by 

Dr. Dawn M. Pflugradt, who concluded that B.S.S. was a low risk to re-offend. In 

May 2021, the circuit court held a hearing to take Dr. Pflugradt’s testimony. 

Dr. Pflugradt testified that she met with B.S.S. for eighty minutes and found her to 

be at low risk to commit another sexual offense because she is similar to most 

female sex offenders, who have a base rate of re-offending of “about 1.5 percent 

over three years and about seven percent over 18 years.” Dr. Pflugradt admitted 

that much of B.S.S.’s information came from self-reporting and that she did not 

view the age difference or the relationship as risk factors. In Dr. Pflugradt’s 

experience, very few female sex offenders re-offend after getting caught. She 

confirmed that her report acknowledged there is no instrument in use for analyzing 

recidivism rates in females. 

¶23 In November 2021, the circuit court rendered an oral decision 

denying B.S.S.’s motion. It noted it had reviewed the transcript from the 

August 21, 2019 dispositional hearing and its conclusion that B.S.S. “failed to 

prove by clear and convincing evidence that a stay from the sex offender registry 

was appropriate.” It adopted its previous analysis from the August 21st decision 

and explained that, based on the statute and Cesar G., the risk of re-offending 

factor is simply one of the factors a court considers—a court is not obligated to 

find it is the most weighty factor or that it outweighs all the other factors. It 

explained that Dr. Pflugradt’s testimony regarding the absence of any instrument 
2021AP2174

15

to measure female recidivism was consistent with the information the court had 

when it made its decision in August 2019. It noted that Dr. Pflugradt based her

opinion on B.S.S.’s self-reporting and found Dr. Pflugradt’s opinion about 

B.S.S.’s “low risk to re-offend” not as credible because of her reliance on selfreporting. The court was also troubled by Dr. Pflugradt’s opinion that the 

significant age difference was “not pertinent in determining whether [B.S.S.] 

should be subject to the [sex offender] registry.” Finally, the court decided that 

even if it accepted Dr. Pflugradt’s opinion that B.S.S. was a low risk to re-offend, 

“this evidence would not overcome the other factors this Court examined under 

Cesar G. that support the conclusion that she should be subject to the sex offender 

registry[,]” and it therefore denied B.S.S.’s motion to modify the 

Dispositional Order. The circuit court entered a written order denying the motion. 

¶24 B.S.S. filed a motion requesting the circuit court to reconsider its 

decision and provided an additional “affidavit”

7

from Dr. Pflugradt. The court 

denied the reconsideration motion. B.S.S. now appeals.

II. DISCUSSION

¶25 B.S.S. makes two arguments on appeal: (1) the circuit court should 

have recused itself based on actual bias; and (2) the circuit court erroneously 

exercised its discretion by denying her stay request without connecting her 

re-offending risk to a need to protect the public. This court rejects both 

contentions.

 

7

 This document is titled “affidavit,” but appears to be a supplemental letter report.
2021AP2174

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A. Actual Bias

¶26 B.S.S. contends the circuit court evidenced a great risk of actual bias 

during its hearing on her motion requesting funding to obtain a psychosexual 

evaluation before disposition. She says the court’s comments about requiring her 

to register as a sex offender even if an evaluator concluded she was a low risk 

constituted prejudgment. She also asserts the court treated her unfairly when it: 

(1) found the re-offense risk factor to be neutral at the dispositional hearing 

because it lacked sufficient information to assess risk; (2) rejected Dr. Pflugradt’s 

report because Dr. Pflugradt had not read the police reports and relied on selfreporting; and (3) relied on all the statutory factors except for re-offense risk. 

¶27 “The right to an impartial judge is fundamental to our notion of due 

process.” State v. Goodson, 2009 WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 

385. In reviewing bias claims, this court presumes “that a judge has acted fairly, 

impartially, and without prejudice.” State v. Herrmann, 2015 WI 84, ¶24, 364 

Wis. 2d 336, 867 N.W.2d 772. “To overcome that presumption, the burden is on 

the party asserting judicial bias to show bias by a preponderance of the evidence.” 

Miller v. Carroll, 2020 WI 56, ¶16, 392 Wis. 2d 49, 944 N.W.2d 542. “If a party 

rebuts this presumption and shows a due process violation, the error is structural 

and not subject to a harmless error analysis.” Id. This court’s review is de novo. 

Goodson, 320 Wis. 2d 166, ¶7.

¶28 Here, B.S.S. alleges the circuit court was objectively biased. 

“Objective bias can exist in two situations: (1) where there is an appearance of 

bias; and (2) where objective facts demonstrate that a judge treated a party 

unfairly.” State v. Marcotte, 2020 WI App 28, ¶17, 392 Wis. 2d 183, 943 N.W.2d 

911. The appearance of bias is sufficient when it “reveals a great risk of actual 
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bias.” Herrmann, 364 Wis. 2d 336, ¶67. “[C]omments indicating a circuit court 

has prejudged a defendant’s sentence can give rise to objective bias.” Marcotte, 

392 Wis. 2d 183, ¶20. The test is whether a reasonable person would conclude 

prejudgment from the comments, “not what a reasonable trial judge, a reasonable 

appellate judge, or even a reasonable legal practitioner would conclude.” State v. 

Gudgeon, 2006 WI App 143, ¶26, 295 Wis. 2d 189, 720 N.W.2d 114.

¶29 B.S.S. failed to show actual bias or a great risk of actual bias. First, 

despite B.S.S.’s claim, the circuit court’s comments during the hearing on her 

motion for funding, which ultimately related to the stay factors the court would 

have to address if and when B.S.S. filed a motion to stay the juvenile sexoffender-registration requirement,8 do not demonstrate prejudgment or a risk of 

bias as to disposition or as to a yet-to-be-filed motion to stay juvenile sex offender 

registration. This is so because the comments B.S.S. complains about arose in the 

context of the circuit court explaining why it was denying B.S.S.’s request for 

funding after B.S.S.’s lawyer repeatedly argued the psychosexual evaluation was 

needed in order to support a future motion to stay sex offender registration

because an evaluation would specifically address B.S.S.’s likelihood of 

re-offending (one of the stay factors). Thus, in this context, the court’s analysis as 

to whether it would grant the funding request was necessarily intertwined with its 

ultimate analysis of the factors it would be required to consider in addressing a 

future motion to stay.

 

8

 The comments at issue occurred at a June 14, 2019 hearing, and disposition did not

occur until August 21, 2019. Additionally, B.S.S. had not yet filed a motion to stay. The text of 

WIS. STAT. § 938.34(16) itself refers to the circuit court imposing a stay “[a]fter ordering a 

disposition[.]” (Emphasis added.)
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¶30 In explaining its rationale, which was premised on an assumption that 

the evaluation B.S.S. sought would be favorable to her and indicate a low 

likelihood of re-offending, the circuit court aptly provided its reasons for denying 

funding for the psychosexual evaluation. Thus, in this context—which was 

necessitated by B.S.S.’s own argument as to why funding for the evaluation was 

necessary—the circuit court’s analysis of the stay factors did not constitute 

prejudgment or actual bias. Rather, the court’s analysis, which was based on both

its assumption that B.S.S. would not re-offend and its consideration of the other 

pertinent factors, led it to conclude that because it would not grant a stay as to the 

sex-offender-registration requirement, it was unnecessary to grant the funding 

request. Accordingly, the circuit court’s comments related to the stay factors were

appropriate here because they related directly to its reason for denying B.S.S.’s 

funding request. Under these circumstances, a reasonable person who reviewed 

the Record in this case would not conclude that the circuit court acted with bias.

9

 

¶31 B.S.S. also claims the circuit court treated her unfairly after denying 

her request for a psychosexual evaluation because, at the dispositional hearing, it 

said the re-offense risk factor was neutral because it did not have sufficient 

information to determine B.S.S.’s risk. B.S.S. contends that if the circuit court 

 

9

 B.S.S. relies on multiple cases, including State v. Marcotte, 2020 WI App 28, 392 

Wis. 2d 183, 943 N.W.2d 911; State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 

N.W.2d 385; and State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, but 

those cases are distinguishable and do not control. Here, unlike in those cases, the circuit court 

largely had the information relevant to disposition and a motion to stay before it when it analyzed 

the stay factors, all of which were part of the Record, in addressing B.S.S.’s funding request. To 

the extent that it did not have information from a psychosexual evaluation, it assumed the 

evaluation would be favorable to B.S.S. for the purpose of its analysis. Moreover, the court’s 

comments arose in the context of B.S.S’s funding argument, which was indisputably intertwined 

with the factors a court must consider when addressing a motion to stay juvenile sex offender 

registration.
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19

would have granted her motion to obtain an evaluation before the dispositional 

hearing, the court would have had Dr. Pflugradt’s report with her opinion on the 

probability B.S.S. would re-offend.

¶32 This court rejects B.S.S.’s contention. The circuit court’s statements 

regarding risk assessment at the dispositional hearing related to the undisputed fact 

that no actuarial instrument exists to assess recidivism in female juvenile 

offenders. This information came from Lepak-Jostsons’ report as well as an 

article B.S.S. submitted that said the same thing as to juveniles more generally. 

Dr. Pflugradt’s report likewise agreed there is no instrument to evaluate a female 

juvenile’s risk of re-offending. The court’s comments that B.S.S. complains about 

do not show unfairness; rather, they show the court acknowledged an undisputed 

fact. Further, Lepak-Jostsons’ report opined that B.S.S. was a high risk to 

re-offend. The circuit court ignored that opinion because of the lack of an 

actuarial instrument.

¶33 Likewise, this court rejects B.S.S.’s claim that the circuit court 

treated her unfairly in its assessment of Dr. Pflugradt’s opinion. Dr. Pflugradt 

testified that she relied on B.S.S.’s self-reports in forming her opinions and told 

the circuit court she did not read the police reports. Thus, it was entirely 

reasonable for the court to consider those facts in deciding whether Dr. Pflugradt’s 

opinion should change the court’s previous decision about denying B.S.S.’s stay 

motion. “[T]he trier of fact is the sole arbiter of the credibility of witnesses and 

alone is charged with the duty of weighing the evidence.” State v. Below, 2011 

WI App 64, ¶4, 333 Wis. 2d 690, 799 N.W.2d 95. This court will not substitute its

judgment for the circuit court’s unless the evidence it relied on was “inherently or 

patently incredible—that kind of evidence [that] conflicts with the laws of nature 
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20

or with fully-established or conceded facts.” State v. Tarantino, 157 Wis. 2d 199, 

218, 458 N.W.2d 582 (Ct. App. 1990).

¶34 B.S.S. believes the circuit court acted unfairly because it did not see 

Dr. Pflugradt’s opinions as a reason to exclude B.S.S. from the sex offender 

registry. But, there is nothing in the Record to suggest the court’s credibility 

determinations were wrong. Rather, what the Record reflects is that the court 

believed both Lepak-Jostsons’ and Dr. Pflugradt’s representations that there is no 

instrument upon which a juvenile female’s recidivism risk may be assessed. As a 

result, the circuit court did not accept either evaluator’s opinion about B.S.S.’s risk 

of re-offending. Lepak-Jostsons opined that B.S.S.’s risk was high, and 

Dr. Pflugradt opined that B.S.S.’s risk was low. Instead of accepting one over the 

other, the circuit court disregarded both because everyone agreed there is no 

reliable instrument to determine B.S.S.’s risk. Even still, the circuit court said 

that, even if it were to accept that B.S.S. was low risk, given all the other relevant 

factors it was required to consider, B.S.S. failed to establish by clear and 

convincing evidence that her required sex offender registration should be stayed.

¶35 B.S.S.’s final unfairness contention is that the circuit court ignored 

the risk of re-offense factor at the dispositional hearing, but then at the 

postdisposition hearing said it could not ignore the other pertinent factors. This 

court disagrees with B.S.S.’s characterization. The circuit court did not ignore any 

of the factors it was required to consider—to the contrary, it carefully analyzed

each of them. The fact that the circuit court found the risk of re-offense factor to 

be neutral because there is no actuarial assessment to reliably determine risk does 

not support B.S.S.’s contention.
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B. Erroneous Exercise of Discretion

¶36 B.S.S. also contends the circuit court erroneously exercised its 

discretion when it refused to excuse her from the sex-offender-registration 

requirement without “connecting her risk of reoffending sexually to a need to 

protect the public.” She believes that a circuit court cannot deny a motion to stay 

sex offender registration unless the court finds the juvenile has an elevated risk of 

re-offending because, absent an elevated risk, having B.S.S. on the registry does 

not protect the public. This court disagrees.

¶37 A circuit court’s discretionary decision is reviewed under the 

erroneous exercise of discretion standard. Cesar G., 272 Wis. 2d 22, ¶42. “An 

appellate court will affirm a circuit court’s discretionary decision as long as the 

circuit court ‘examined the relevant facts, applied a proper standard of law, and, 

using a demonstrated rational process, reached a conclusion that a reasonable 

judge could reach.’” Id. (citation omitted).

¶38 Although B.S.S.’s argument may be logical in a practical sense, our 

supreme court in Cesar G. plainly held that “when deciding whether to stay its sex

offender registration order under [WIS. STAT.] § 938.34(16)[,]” “the circuit court 

should consider the seriousness of the offense, as well as the factors listed in WIS.
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STAT. § 938.34(15m)(c) and repeated in [WIS. STAT.] § 301.45(1m)(e)[.]”

10

 

Cesar G., 272 Wis. 2d 22, ¶¶47, 49. This is exactly what the circuit court did.

¶39 WISCONSIN STAT. § 938.34(15m)(c) provides:

In determining under par. (am)1. whether it would be in the 

interest of public protection to have the juvenile report 

under s. 301.45, the court may consider any of the 

following:

 1. The ages, at the time of the violation, of the juvenile 

and the victim of the violation.

 2. The relationship between the juvenile and the victim 

of the violation.

 3. Whether the violation resulted in bodily harm, as 

defined in s. 939.22 (4), to the victim.

 4. Whether the victim suffered from a mental illness or 

mental deficiency that rendered him or her temporarily or 

permanently incapable of understanding or evaluating the 

consequences of his or her actions.

 5. The probability that the juvenile will commit other 

violations in the future.

 7.[11] Any other factor that the court determines may be 

relevant to the particular case. 

 

10

 WISCONSIN STAT. § 938.34(15m)(c) and WIS. STAT. § 301.45(1m)(e) contain 

essentially the same factors except that § 301.45(1m)(e) lists one additional factor not applicable 

here. Section 938.34(15m)(c) relates to violations under § 938.34(15m)(am) where the statutory 

text does not mandate sex offender reporting, but leaves registration to the discretion of the circuit 

court. Our supreme court, in deciding State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 

N.W.2d 1, concluded that circuit courts should also use the § 938.34(15m)(c) factors in 

mandatory reporting § 938.34(15m)(bm) cases where the juvenile filed a motion to stay the 

registration requirements. Section 301.45(1m)(e) covers cases involving § 301.45(1m) 

exceptions. 

11

 The numbering in this statute skips number six.
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¶40 In making both the original decision to deny B.S.S.’s motion to stay 

sex offender registration and its postdisposition decision, the circuit court 

addressed each of the factors from the statutory list. The circuit court started with 

the seriousness of the offense, noting how very serious B.S.S.’s offenses were. It 

considered the significant age difference and the relationship to be aggravating 

factors weighing against a stay. It noted the absence of bodily harm weighed in 

favor of a stay, and the mental deficiency factor was not a part of this case. With 

respect to the probability of re-offending, the circuit court relied on the 

representations that there is no actuarial test to assess recidivism for female 

juvenile offenders. Finally, it looked at other factors it decided were relevant and 

concluded they weighed in favor of retaining the mandatory reporting 

requirement. It determined that keeping B.S.S. on the sex offender registry would 

provide some protection of the public.

¶41 Although B.S.S. certainly would have preferred a circuit court that

placed more weight on Dr. Pflugradt’s opinion than on any other factor, the circuit 

court’s decision not to do so is not an erroneous exercise of discretion. First, if the 

legislature wanted circuit courts to make these decisions based solely on an 

expert’s opinion on risk of re-offending, it could have said so. It did not. It listed 

a variety of factors, and our supreme court in Cesar G. agreed that a circuit court 

should consider the seriousness of the offense and the statutorily enumerated 

factors in deciding a stay motion. Cesar G., 272 Wis. 2d 22, ¶50. Second, the 

circuit court looked at the pertinent facts, applied the correct law by considering 

all of the statutory factors, and reached a reasonable determination in denying 

B.S.S.’s request to avoid sex offender registration. In making these types of 

discretionary decisions, circuit courts are free to give more weight to some factors 

and less weight to others. See, e.g., LeMere v. LeMere, 2003 WI 67, ¶25, 262 
2021AP2174

24

Wis. 2d 426, 663 N.W.2d 789 (recognizing that when statute lists factors to 

consider, circuit court may give “greater weight” to some and conclude that “some 

factors may not be applicable at all”); Ocanas v. State, 70 Wis. 2d 179, 185, 233 

N.W.2d 457 (1975) (“The weight which is to be attributed to each factor is a 

determination which appears to be particularly within the wide discretion of the 

sentencing judge.”). 

¶42 The circuit court’s focus on the seriousness of B.S.S.’s violations, the 

significant age difference, the very young age of the victim when the assaults 

began, the lengthy duration of the ongoing assaults, and the other factors, 

particularly since B.S.S. pled to a crime the legislature determined warranted 

mandatory reporting, constituted a proper exercise of discretion. This is not a 

situation where a circuit court gave too much weight to one factor and ignored 

other relevant factors, which could be an erroneous exercise of discretion. See,

e.g., Harris v. State, 75 Wis. 2d 513, 518, 250 N.W.2d 7 (1977) (recognizing “‘too 

much weight given to one factor in the face of other contravening considerations’” 

may constitute an erroneous exercise of discretion (citation omitted)). The circuit 

court here explained why it did not credit Dr. Pflugradt’s opinion on re-offense 

risk and why it thought the other factors controlled. The circuit court’s decision

was reasonable. Circuit courts are not required to accept every expert opinion 

presented. State v. Kienitz, 221 Wis. 2d 275, 303, 585 N.W.2d 609 (Ct. App. 

1998), aff’d, 227 Wis. 2d 423, 597 N.W.2d 712 (1999) (“The fact-finder may

accept certain portions of an expert’s testimony while rejecting other portions.”). 

Here, both expert reports agreed there is no actuarial instrument to determine 

female juvenile recidivism risk. Moreover, Dr. Pflugradt testified that she assigns 

a low risk of re-offending to any woman offender who “look[s] like a typical 

female sex offender.” Given the difficulty in determining a female juvenile 
2021AP2174

25

offender’s recidivism risk, it was not an erroneous exercise of discretion for the 

circuit court to rely on the other pertinent factors and to conclude that B.S.S. failed 

to meet her burden of proving by clear and convincing evidence that she should be 

excused from the mandatory juvenile sex-offender-registration requirement.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.