State v. Jamal L. Williams ( 2018 )

2018 WI 59
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP883-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jamal L. Williams,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 377 Wis. 2d 247, 900 N.W.2d 310
PDC No: 2017 WI App 46 - Published
OPINION FILED: May 30, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 16, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Timothy G. Dugan and Ellen R. Brostrom
JUSTICES:
CONCURRED: ABRAHAMSON, J., concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING: ROGGENSACK, C.J., and A.W. BRADLEY, J., did not
participate.
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed and an oral argument by Sopen B. Shah, deputy solicitor
general, with whom on the briefs were Brad D. Schimel, attorney
general, and Misha Tseytlin, solicitor general.
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Christopher P. August, assistant
state public defender.
2018 WI 59
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP883-CR
(L.C. No. 2013CF2025)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
MAY 30, 2018
Jamal L. Williams,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed in
part; affirmed in part.
¶1 REBECCA GRASSL BRADLEY, J. We review a petition by
the State and a cross-petition by Jamal L. Williams challenging
the court of appeals' decision, which held: (1) the mandatory
$250 DNA surcharge the circuit court ordered Williams to pay
violated the Ex Post Facto Clauses of the Wisconsin and United
States Constitutions; and (2) the circuit court did not rely on
an improper factor when it sentenced Williams.1 The State and
1
State v. Williams, 2017 WI App 46, 377 Wis. 2d 247, 900
N.W.2d 310.
No. 2016AP883-CR
Williams each petitioned for review on the issues decided
against them. The State claims the DNA surcharge statute does
not violate the Ex Post Facto Clauses and Williams claims the
sentencing court improperly increased his sentence because he
exercised his right to object to restitution. We reverse the
court of appeals on the DNA surcharge issue and affirm on the
sentencing issue.
I. BACKGROUND
¶2 In April 2013, victim R.W. died during an attempted
armed robbery of victim B.P. Williams was arrested and told
police the following: Williams arranged to buy marijuana from
B.P. and before meeting B.P. for the drug buy, Williams drove
his car to pick up his brother, Tousani Tatum. When Tatum
entered Williams' car, Tatum displayed a gun and disclosed his
plan to rob B.P. Williams then drove to the drug-buy location.
Williams claims he unsuccessfully attempted to change Tatum's
mind about robbing B.P. B.P. arrived at the drug-buy location
in a car driven by R.W., who remained in the car. Williams and
Tatum got out of their car, and Williams called B.P. over.
While B.P. began to weigh the correct amount of marijuana, Tatum
put his gun to B.P.'s head, demanding his money and drugs. B.P.
broke free and fled, after which Tatum fired into R.W.'s car.
Immediately after Tatum fired the shots, Williams and Tatum fled
in Williams' car.
¶3 R.W. died from a gunshot wound. R.W.'s three-year-old
daughter, who was in the car at the time, was not physically
hurt. Williams and his brother were initially charged as co-
2
No. 2016AP883-CR
defendants with one count of felony murder. The cases were
later severed, and in November 2013, the State filed an amended
information charging Williams with four counts: (1) first-
degree reckless homicide; (2) attempted armed robbery; (3)
first-degree recklessly endangering safety——all three as party
to a crime; and (4) felon in possession of a firearm. At the
time of the incident, Williams was on extended supervision for a
prior conviction.
¶4 The State attempted to negotiate a plea with Williams,
hoping to get him to testify against his brother. Williams
repeatedly rejected all offered plea bargains and insisted on
going to trial. Tatum's case was tried first. The jury
convicted him of felony murder and felon in possession of a
firearm and the circuit court sentenced Tatum to 24 years of
initial confinement, followed by 10 years of extended
supervision. Shortly thereafter, Williams agreed to plead
guilty to the reduced charge of attempted armed robbery as party
to a crime. After accepting Williams' plea, the circuit court
ordered a presentence investigation report (PSI). The PSI agent
met with Williams on February 19, 2014. The report contains
four full pages listing Williams' prior record, consisting of 35
entries. The PSI report emphasizes two points: (1) Williams'
"atrocious lack of remorse"; and (2) Williams' "very savvy"
ability to outsmart the criminal justice system. The PSI writer
said Williams "minimized his behavior in every single arrest or
placed blame on another person" and cared only about himself.
When the agent asked if Williams had any remorse, he answered
3
No. 2016AP883-CR
"most definitely" explaining he felt bad for his own brother,
mother, and son——without mentioning the victims at all, until
the PSI writer brought them up. Williams objected to discussing
the homicide because, according to Williams, R.W.'s death had
nothing to do with his conviction for attempted armed robbery.
¶5 The report reflects that Williams' arrests began when
he was 12 years old, and "the only significant periods he has
had without arrest are when he was incarcerated." The report
also discusses Williams' repeated incidents of absconding from
supervision, violating the rules, and dishonesty. The writer
noted that Williams "appeared to be proud and seemingly found it
humorous how many times, charges [against him] have been
dropped." The report also points out that even after Williams
pled guilty, he was blaming an unknown third person for the
shooting in an attempt to exonerate himself and his brother of
all responsibility.
¶6 On March 12, 2014, twenty-one days after his meeting
with the PSI writer, Williams was sentenced.2 The prosecutor's
remarks focused on: (1) Williams' lack of remorse (stating in
part: "There's no remorse for what happened here and he's
taking no responsibility for [R.W.'s] death."); (2) his
participation in a drug deal with a gun while on extended
2
The Honorable Timothy G. Dugan, Milwaukee County Circuit
Court, presiding. The Honorable Ellen R. Brostrom, Milwaukee
County Circuit Court, presided over the Machner hearing and
signed the final postconviction order. See State v. Machner, 92
Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
4
No. 2016AP883-CR
supervision; (3) his criminal record; and (4) the fact that, as
the older brother, Williams could have acted to prevent the
homicide. The State asked the circuit court to make Williams
pay $794 restitution for R.W.'s burial costs, because even
though "he wasn't convicted of the homicide," "the homicide was
a direct extension of this armed robbery."
¶7 R.W.'s fiancée, the mother of the three-year-old who
witnessed R.W.'s death, asked the circuit court to impose the
maximum sentence. She explained the devastating and lasting
effects the incident had on her daughter and herself.
¶8 Williams' lawyer also focused on remorse, claiming
that Williams' remorse for his own family does not mean Williams
lacked remorse for the victims. When asked for his position on
restitution, Williams' lawyer responded that the shooting was
not a foreseeable consequence of the drug deal and should be
viewed as "a separate transaction and [Williams] should not be
held accountable for that -- that $794."
¶9 In addressing the court, Williams said he was taking
full responsibility for his actions, apologized to the victims,
and expressed the following:
I feel bad. I've been feelin' bad for this whole
year. For something over a drug deal, somebody lost
their life, somebody lost their father, somebody lost
their son and somebody lost their grandson. I ain't
tryin' to make myself sound better even though I'm --
going to prison, losing my son too, but she lost her
father forever. So I just want to apologize to her
and her family and the mother and father. I feel
remor[s]e for everything I've done.
5
No. 2016AP883-CR
¶10 The circuit court began its sentencing remarks by
discussing the three main sentencing factors: (1) nature of the
offense; (2) character of the defendant; and (3) community
protection.3 The circuit court:
 explained the extremely serious nature of Williams' crime
and how Williams could have prevented R.W.'s death;
 discussed Williams' character and how his decision to
leave the scene instead of calling for help reflected
poorly on his character;
 observed that although Williams pled guilty, that
decision appeared "strategic" since it did not occur
until a jury convicted Williams' brother;
 mentioned Williams' numerous contacts with the criminal
justice system and how Williams failed to avail himself
of its many attempts to help him; and
 noted many of the PSI report's comments about Williams——
including his failure to accept responsibility, his
delight in frequently avoiding punishment for his
criminal acts, his repeated disregard for the rules while
on electronic monitoring in the past, and his failure to
take the opportunities he was afforded to turn his life
around.
¶11 The circuit court found Williams to be "a risk and a
danger to the community because of [his] continued conduct and
3
See McCleary v. State, 49 Wis. 2d 263, 274-76, 182
N.W.2d 512 (1971).
6
No. 2016AP883-CR
[his] continued criminal violations." It noted positive aspects
of Williams' character such as his high school diploma, ability
to read, decision to take some college classes, and self-report
of drug avoidance except the "sporadic use of marijuana." The
circuit court discussed the COMPAS analysis, which put Williams
in "a high risk for general recidivism" and in need of "a high
level of supervision."4 It then commented on the PSI agent's
assessment that Williams had no remorse, observing that the
agent had been supervising Williams and trying to get him to
turn his life around. The circuit court noted:
You believe your brother was unfairly treated and
that you suggest a fair sentence would include time
served and probation as fair punishment, that although
a family lost their son and a father, you don't know
how sending you to prison is going to make that any
better.
The crime is extremely serious. It's had a
profound impact on the victims, their families, the
community, and, as you noted yourself to the [PSI]
writer, you could have stopped this at any time but
you didn't.
Considering all of those factors, clearly this is
a prison sentence. In the circumstance[,] probation
would unduly depreciate the seriousness of the
offense.
¶12 The circuit court next addressed Williams'
rehabilitative needs and the conditions of his extended
4
COMPAS is the acronym for Correctional Offender Management
Profiling for Alternative Sanctions. See State v. Loomis, 2016
WI 68, ¶4 n.10, 371 Wis. 2d 235, 881 N.W.2d 749.
7
No. 2016AP883-CR
supervision. Afterwards, for the first time, the circuit court
commented on restitution:
I don't think I have authority to order
restitution. Had you been convicted of the felony
murder, party to a crime, certainly yes, but the
nature of itself, the nature of the attempt armed
robbery doesn't justify the restitution or give me
authority, and I think the fact that you're not
willing to join in on that also reflects your lack of
remorse under the circumstances, and I'm certainly
considering that.[5]
¶13 The circuit court imposed the mandatory DNA surcharge,
and "all the other mandatory assessments, surcharges and costs"
and fees, ordering them "to be paid from 25 percent of any
prison funds, [and] upon release to extended supervision convert
to a civil judgment." It then advised Williams of the
consequences of being convicted of a felony before finally
pronouncing the sentence:
Considering all of those factors and
circumstances, the Court is going to sentence you to
the State Prison for a period of initial confinement
of 10 years, extended supervision of 7.5 years for a
total of 17.5 years consecutive to any other sentence.
¶14 In May 2014, Williams filed a motion seeking to vacate
the DNA surcharge. His motion was based on the former DNA
surcharge statute, which gave circuit courts discretion to
impose the surcharge except with respect to certain enumerated
5
We are not convinced that restitution could not be ordered
under these circumstances. See State v. Canady, 2000 WI App 87,
234 Wis. 2d 261, 610 N.W.2d 147 (requiring a "causal nexus"
between crime and damage). However, because the State forfeited
this issue, we do not address it.
8
No. 2016AP883-CR
sex crimes. Williams claimed that because the circuit court
failed to exercise any discretion, the DNA surcharge should be
vacated. The circuit court denied the motion, ruling that the
surcharge was mandatory because Williams was sentenced after the
effective date of the new DNA surcharge statute. Wis. Stat.
§ 973.046 (2013-14).6
¶15 Williams then filed a postconviction motion seeking:
(1) plea withdrawal based on ineffective assistance of counsel;
(2) resentencing because the circuit court relied on Williams
declining to stipulate to restitution, a factor Williams
considers improper; and (3) removal of the DNA surcharge on the
basis that it violated the Ex Post Facto Clauses as applied to
him. Ultimately, the circuit court denied Williams' motion in
its entirety.
¶16 Williams appealed, raising only the sentencing and DNA
surcharge issues. The court of appeals upheld Williams'
sentence, concluding that the sentencing court relied on a
proper sentencing factor——lack of remorse——and not on Williams'
failure to stipulate to restitution. See State v. Williams,
2017 WI App 46, ¶19, 377 Wis. 2d 247, 900 N.W.2d 310. The court
of appeals reversed on the DNA surcharge issue, concluding two
of its prior decisions, State v. Elward, 2015 WI App 51, 363
Wis. 2d 628, 866 N.W.2d 756, and State v. Radaj, 2015 WI App 50,
363 Wis. 2d 633, 866 N.W.2d 758, required it to remand this
6
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
9
No. 2016AP883-CR
issue to the circuit court. Williams, 377 Wis. 2d 247, ¶¶23-26.
The court of appeals believed the circuit court should have
applied the discretionary DNA surcharge statute in effect when
Williams committed his crime, Wis. Stat. § 973.046(1g)(2011-12),
rather than the mandatory DNA surcharge statute in effect when
Williams was sentenced, Wis. Stat. § 973.046(1r)(2013-14).
Williams, 377 Wis. 2d 247, ¶26. The court of appeals agreed
with Williams that Wis. Stat. § 973.046(1r), as applied to him,
violated the Ex Post Facto Clauses. Williams, 377 Wis. 2d 247,
¶26.
¶17 In a footnote, the court of appeals stated it believed
that Elward and Radaj were wrongly decided, but it lacked the
authority to overrule these cases. Williams, 377 Wis. 2d 247,
¶26 n.10 (quoting Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997)).
¶18 Judge Brian K. Hagedorn concurred, supporting the
court of appeals' final footnote and urging us to overrule
Elward and Radaj because both cases "sit in uneasy, unsettled
tension" with State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891
N.W.2d 786. Williams, 377 Wis. 2d 247, ¶43 (Hagedorn, J.,
concurring). In Scruggs, we held that a DNA surcharge is not
punishment under the "intent-effects" test set forth in Hudson
v. United States, 522 U.S. 93 (1997), and therefore Scruggs
failed to prove that the new mandatory DNA surcharge statute
violated ex post facto laws. Scruggs, 373 Wis. 2d 312, ¶¶1, 16,
50.
10
No. 2016AP883-CR
¶19 Both the State and Williams petitioned for review. We
granted both petitions. Because the State filed its petition
first, we treat Williams' petition as the cross-petition.
II. DISCUSSION
A. State's Petition for Review——DNA Surcharge
¶20 The State asks us to reverse the court of appeals'
decision on the DNA surcharge and overturn Elward and Radaj
because the mandatory DNA surcharge statute is not punitive in
intent or effect; therefore, the State argues, the statute is
not an ex post facto law.
1. Standard of Review
¶21 Whether a statute violates the Ex Post Facto Clauses
of the Wisconsin and United States Constitutions is a question
of law this court reviews de novo. Scruggs, 373 Wis. 2d 312,
¶12; U.S. Const. art. I, §§ 9-10, cl. 1; Wis. Const. art. I,
§ 12.7 The Ex Post Facto Clauses prohibit enforcement of a
statute "which makes more burdensome the punishment for a
crime[] after its commission." Scruggs, 373 Wis. 2d 312, ¶14.
To determine whether a statute is punitive, we apply the
"intent-effects" test. See Hudson, 522 U.S. at 99.
2. Intent
7
Article I, Sections 9 and 10 of the United States
Constitution provide: "No bill of attainder or ex post facto
Law shall be passed" and "No state shall . . . pass any . . . ex
post facto Law . . . ." Article 1, Section 12 of the Wisconsin
Constitution provides: "No . . . ex post facto law . . . shall
ever be passed . . . ."
11
No. 2016AP883-CR
¶22 The first part of the intent-effects test requires us
to examine whether the legislature intended the new mandatory
DNA surcharge, Wis. Stat. § 973.046(1r), to be punishment. If
the mandatory surcharge is intended to punish, it cannot be
applied to defendants who committed crimes prior to its
enactment. Just last term, we answered this question in
Scruggs. We engaged in a thorough statutory analysis and
concluded that the legislature did not intend § 973.046(1r) as
punishment. See Scruggs, 373 Wis. 2d 312, ¶¶3, 17-38. Although
the facts in Scruggs differ slightly from the facts in Williams'
case,8 our statutory analysis applies equally here. The
statutory text imposing the mandatory DNA surcharge evinces no
intent to punish. The legislature termed the payment a
"surcharge" not a "fine," it drew a distinction between "a fine
imposed in a criminal action and a surcharge imposed in that
action," and it linked the surcharge to legislation that
dramatically increased the number of people required to provide
DNA samples to be analyzed, stored, and maintained in the DNA
databank. See id., ¶¶17, 21, 23-26.
¶23 The intent of the surcharge is not to punish, but to
fund costs associated with the expanded DNA databank. Id.,
¶¶24-26, 30. Significantly, the surcharge imposed is not meant
to cover the costs associated with collecting and analyzing the
8
Both Scruggs and Williams committed crimes before——but
were sentenced after——the effective date of the mandatory DNA
surcharge statute. Unlike Scruggs, Williams already submitted a
DNA sample in 2009 for a prior conviction.
12
No. 2016AP883-CR
particular DNA sample from the individual convicted defendant
standing before the sentencing court. Indeed, the new law
requires every person arrested for a felony to give a DNA
sample. See 2013 Wis. Act 20, § 2343; Wis. Stat. §§ 970.02(8),
165.76, 165.84(7)(ab).9 But, an arrestee is not ordered to pay
any DNA surcharge unless he is convicted. See Wis. Stat.
§ 973.046(1r). The collected surcharges cover costs associated
with taking, processing, analyzing, and storing all the DNA
samples of those arrested for felonies but not convicted. The
surcharges offset costs associated with collection, analysis,
and maintenance of all samples. Scruggs, 373 Wis. 2d 312, ¶27
(citing Legis. Fiscal Bureau, DNA Collection at Arrest and the
DNA Analysis Surcharge, Paper #410 to J. Comm. on Fin. 2-3, 8
(May 23, 2013)).
3. Misapplication of DNA surcharge's purpose
in Elward and Radaj
¶24 In considering early DNA surcharge challenges, courts
took a narrow view of the legislature's non-punitive intent.
Some courts wrongly assumed the imposed surcharge funded only
the collection, processing, and maintenance of the specific DNA
sample for which the defendant paid the surcharge. In doing so,
9
Wisconsin Stat. § 165.76(1) lists who is required to give
a DNA sample. Paragraph (gm) requires a person "arrested for a
violent crime, as defined in s. 165.84(7)(ab)" to give a sample.
Wisconsin Stat. § 165.84(7)(ab) defines "violent crime" as a
felony violation (listing each specific felony statute) as well
as the "solicitation, conspiracy, or attempt" to commit the
felony violations listed in subsection (7)(ab)1.
13
No. 2016AP883-CR
they failed to recognize the broader purpose of the expanded DNA
databank funded by the mandatory surcharges assessed against
convicted defendants:
The DNA databank is a broad criminal justice tool used
to solve old crimes, exonerate the innocent, and rule
in and rule out suspects in criminal investigations.
Similarly, the funding mechanism for this is, on its
face, not directly connected to the gathering and
analysis of samples. It does not charge all who
submit samples, only those convicted. And it provides
that repeat offenders who may have already submitted
samples will need to pay anyway. In short, the
surcharge is plainly designed to function as a sort of
tax on convicted criminals for use of the criminal
justice system in support of broad public safety
goals——goals far beyond any individual defendant and
their DNA.
Williams, 377 Wis. 2d 247, ¶32 (Hagedorn, J., concurring).
¶25 Based on faulty assumptions, courts mistakenly
attempted to correlate a particular surcharge with what they
thought were the actual costs attributable to a defendant's
individual DNA sample. This led courts to declare that Wis.
Stat. § 973.046 (2013-14) violated the Ex Post Facto Clauses and
vacate DNA surcharges when: (1) DNA samples were not actually
being taken, see Elward, 363 Wis. 2d 628, ¶7; and (2) the
statute required a defendant convicted of four crimes to pay
four separate surcharges, even though he gave only a single DNA
sample, see Radaj, 363 Wis. 2d 633, ¶32. Elward and Radaj were
wrongly decided, based on erroneous reasoning, and for the
reasons explained below, must be overruled.
¶26 Under the mandatory DNA surcharge statute, enacted in
2013 Wis. Act 20, courts sentencing defendants after January 1,
14
No. 2016AP883-CR
2014, were required to impose the mandatory DNA surcharge: $250
for each felony conviction and $200 for each misdemeanor
conviction. See Wis. Stat. § 973.046; 2013 Wis. Act 20,
§ 9426(1)(am). However, the Act did not permit the State to
collect DNA samples from convicted misdemeanants until April 1,
2014. See 2013 Wis. Act 20, § 9426(1)(bm).
¶27 Elward involved a defendant who was sentenced between
January 1, 2014 and April 1, 2014. The sentencing court imposed
the mandatory DNA surcharge, but the court of appeals reversed.
363 Wis. 2d 628, ¶1-2. The court of appeals held the DNA
surcharge statute imposed ex post facto punishment for any
defendant sentenced for a misdemeanor conviction between January
1, 2014, and April 1, 2014, because these defendants would pay
surcharges "to maintain a database of which they could never be
a part because they could never be ordered to actually provide a
sample." Id., ¶2. The Elward court reasoned:
As a result, the $200 surcharge bore no relation to
the cost of the DNA test because he never had to
submit to a test. The State received money for
nothing. This served only to punish Elward without
pursuing any type of regulatory goal.
Id., ¶7. The court of appeals misunderstood that the $200
surcharge imposed on Elward was not to pay for his own personal
DNA sample, but to offset the costs associated with the newly
expanded DNA databank and other DNA-related activities within
the State.
¶28 The court of appeals in Radaj made a similar error in
concluding that the surcharge-per-conviction part of Wisconsin's
15
No. 2016AP883-CR
statute violated the Ex Post Facto Clauses by causing Radaj to
pay $250 for each of his four convictions without any link
between the surcharge and the actual costs associated with
either "analyzing Radaj's" DNA sample or with comparing Radaj's
DNA profile to "other biological specimens collected as part of
a future investigation." 363 Wis. 2d 633, ¶¶30-32. The Radaj
court based its decision in part on the fact that Radaj was not
being ordered to provide four separate DNA specimens for
testing. Id., ¶32. The Radaj court mistakenly believed the
amount of the DNA surcharge must have a rational connection to
the actual cost of Radaj's personal DNA sample in order for it
to escape classification as punitive. Although a rational
connection between the surcharge and a non-punitive purpose is
one factor considered in examining whether the surcharge has the
effect of punishment (which we examine in the next section), the
Radaj court misguidedly limited its discussion to Radaj's
specimen specifically instead of the regulatory activities of
the DNA database as a whole.
¶29 The non-punitive purpose of the mandatory DNA
surcharge statute is not to cover the DNA-analysis-related costs
incurred for the specific conviction for which it is being
imposed. Rather, the non-punitive purpose is to fund the costs
associated with the DNA databank by charging those necessitating
its existence——convicted criminals. That means a defendant pays
a surcharge for every conviction irrespective of whether his DNA
profile already exists in the databank and whether he submits
only one DNA sample. This is what the law says. We overrule
16
No. 2016AP883-CR
Elward and Radaj. The reasoning employed in those cases was
unsound and the cases were wrongly decided. Because the court
of appeals' majority opinion in this matter relied on Elward and
Radaj, its holding on the DNA surcharge is faulty and must be
reversed. See Johnson Controls, Inc. v. Employers Ins. of
Wausau, 2003 WI 108, ¶¶94-100, 264 Wis. 2d 60, 665 N.W.2d 257
(discussing that departure from stare decisis occurs when a
"prior decision is unsound in principle" and "may turn on
whether the prior case was correctly decided" (first citing
State v. Outagamie Cty. Bd., 2001 WI 78, ¶30, 244 Wis. 2d 613,
628 N.W.2d 376; then citing Planned Parenthood of S.E. Pa v.
Casey, 505 U.S. 833, 999 (1992)(Scalia, J., concurring in part
and dissenting in part))).
4. Effect
¶30 The second part of the intent-effects test requires us
to examine the effect of the DNA surcharge statute. See
Scruggs, 373 Wis. 2d 312, ¶39 (citing Hudson, 522 U.S. at 104).
Regardless of the legislature's non-punitive intent for imposing
the mandatory DNA surcharge, we consider whether it in effect
operates as punishment. See id. Only the "clearest proof" will
"override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty." Hudson,
522 U.S. at 100. Seven factors guide our analysis of whether
the mandatory DNA surcharge actually punishes the defendant:
(1) does the statute involve an affirmative disability or
restraint; (2) has the sanction at issue historically been
regarded as punishment; (3) will the sanction be imposed only
17
No. 2016AP883-CR
after a finding of scienter; (4) does the statute promote the
traditional aims of punishment——retribution and deterrence; (5)
is the behavior to which it applies already a crime; (6) is
there an alternative purpose to which it may be rationally
connected; and (7) is the sanction excessive in relation to the
alternative purpose assigned. See Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963).
¶31 We applied these seven factors in Scruggs and
concluded only the fifth factor favors characterizing the
mandatory surcharge as punitive. Scruggs, 373 Wis. 2d 312,
¶¶42-49. The same is true here.10
a. Is the surcharge an affirmative disability or restraint?
¶32 The State says the surcharge does not disable or
restrain a defendant because it is not a form of imprisonment.
Williams argues the surcharge imposes a disability on
defendants, who are often indigent, by burdening them with
"severe financial sanctions" "over and over, for each and every
conviction." There is certainly no evidence in this case that
the $250 surcharge disabled or restrained Williams in any way.
He reported to the PSI writer that his girlfriend deposits
$200/month in his prison account and another friend deposits $50
into his prison account "from time to time." In any event,
"disability" and "restraint" are normally understood to mean
imprisonment, which the $250 surcharge cannot effectuate. See
10
The fifth factor is discussed under sub-heading "e."
18
No. 2016AP883-CR
LaCrosse v. Commodity Futures Trading Comm'n, 137 F.3d 925, 931
(7th Cir. 1998) (quoting Hudson, 522 U.S. at 104).
b. Is the surcharge historically viewed as punishment?
¶33 In Scruggs, we determined that historically, a
surcharge has not been viewed as punishment. Scruggs, 373
Wis. 2d 312, ¶42. Williams urges us to reconsider. He claims
our conclusion rested on a citation to Hudson, and Hudson relied
on a citation to Helvering v. Mitchell, 303 U.S. 391 (1938), and
Helvering relied on cases that all involved non-punitive
remedial sanctions. Williams distinguishes the surcharge from a
remedial sanction because the latter involves "regulatory
takings designed to reimburse the State for some perceived
'loss' owing to the 'defendant's' conduct" in contrast to the
surcharge, which Williams contends is really a fine designed to
punish the defendant.
¶34 We identify no historical evidence supporting
Williams' characterization of a surcharge as punishment.
Although the surcharge might not align exactly with the remedial
sanction cases from the late 1800s and early 1900s referenced in
Helvering, a surcharge resembles a non-punitive remedial
sanction much more than punishment. See Williams, 377
Wis. 2d 247, ¶33 (Hagedorn, J., concurring) (listing examples of
many other surcharges in our statutes "not denominated criminal
fines, yet are assessed against convicted criminals or those
subject to civil forfeitures"). The DNA surcharge is money paid
to the State to offset the costs the State incurs in maintaining
19
No. 2016AP883-CR
the DNA databank, which exists only because defendants commit
crimes.
c. Is a finding of scienter required?
¶35 Williams concedes that no finding of scienter is
required to impose the surcharge. The absence of the scienter
requirement shows "the statute is not intended to be
retributive." Kansas v. Hendricks, 521 U.S. 346, 362 (1997).
d. Does a surcharge promote retribution and deterrence?
¶36 We held in Scruggs the $250 surcharge was relatively
small and therefore did not promote the traditional punitive
aims of retribution and deterrence. Scruggs, 373 Wis. 2d 312,
¶45. The Fourth Circuit Court of Appeals reached the same
conclusion regarding South Carolina's $250 DNA surcharge. See
In re DNA Ex Post Facto Issues, 561 F.3d 294, 300 (4th Cir.
2009) ("[T]he relatively small size of the fee also indicates
that it was not intended to have significant retributive or
deterrent value."). Comparing the deterrent effect and
retributive value (if any) of a $250 surcharge to the 17.5 year
sentence Williams is serving buttresses this conclusion. A $250
payment is unlikely to deter anyone from engaging in illegal
activity. And the corrective impact of a $250 fee pales in
comparison to the penal power of a lengthy prison sentence.
e. Does the surcharge apply to conduct already a crime?
¶37 The State and Williams agree that the surcharge
applies to conduct that was already a crime——namely, felony and
misdemeanor convictions. This factor weighs in favor of
concluding that the surcharge operates as a punishment despite
20
No. 2016AP883-CR
the legislature's non-punitive intent. The seven Mendoza-
Martinez factors, however, are only "guideposts" and the list is
"not exhaustive nor is any one factor dispositive." Scruggs,
373 Wis. 2d 312, ¶41 (quoting Hudson, 522 U.S. at 99; citing
Smith v. Doe, 538 U.S. 84, 97 (2003)).
f. Is the surcharge rationally connected to
alternative purpose?
¶38 The text of Wis. Stat. § 973.046(3) explicitly
broadcasts the non-punitive alternative purpose of the mandatory
DNA surcharge statute by directing the use of the collected
surcharges: "All moneys collected" shall be "utilized under s.
165.77." Wisconsin Stat. § 165.77 provides rules relating to
collecting, analyzing, and maintaining DNA biological specimens.
An alternative non-punitive purpose undoubtedly exists for the
DNA surcharges. The only question is whether the surcharge is
rationally connected to the DNA database activities. Judge
Hagedorn aptly answers this question and we adopt his reasoning:
The DNA databank is a crime-solving, crime-fighting
public safety tool. It supports law enforcement
investigatory efforts and, in so doing, saves time,
money, and resources that might be otherwise devoted.
It serves criminal defendants who might be wrongly
accused, or even worse, wrongly convicted. In short,
the DNA databank was expanded to further support,
assist, and improve the administration of criminal
justice in the state of Wisconsin. The funding
mechanism, then, must be seen in this light. The
legislature needed additional funds for this broader
cause, and decided to place the burdens not on those
necessarily required to give a sample, but on those
convicted of crimes. Policy merits aside, it is
altogether rational to assess a fee aimed at solving
crimes against those who commit them; at the very
21
No. 2016AP883-CR
least, it is no less rational than the multitude of
fees and surcharges that work exactly the same way.
Williams, 377 Wis. 2d 247, ¶41 (Hagedorn, J., concurring). The
legislature created a "user fee" assessed against those
responsible for necessitating the databank. The more crimes
committed, the more times the user pays the fee. The law does
not require the legislature to set a surcharge with precision;
the surcharge imposed must bear only "an approximate relation to
the cost it is meant to offset." Scruggs, 373 Wis. 2d 312, ¶46
(quoting Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir.
2014)). The costs from the DNA surcharge are meant to offset
all of the expenses associated with DNA-database related
activities. The user fees are reasonably connected to that non-
punitive purpose. It makes sense to have those who "use" the
criminal justice system more often——i.e., repeat offenders——
contribute more to offset the costs their actions generate.
g. Is the surcharge excessive in relation to
alternative purpose?
¶39 The State says the surcharge is not excessive.
Williams disagrees and points to what he alleges is a
substantial State surplus stemming from paid DNA surcharges. To
determine whether the surcharge is excessive in relation to its
non-punitive purpose, we must compare the amount of the
surcharge with the overall expenses the State incurs because of
the charged population's conduct. See Mueller, 740 F.3d at
1134-35; Myrie v. Comm'r N.J. DOC, 267 F.3d 251, 258 (3d Cir.
2001). The surcharge must be "grossly disproportionate to the
annual cost" to prove it is excessive. Mueller, 740 F.3d at
22
 No. 2016AP883-CR
1134; see also Myrie, 267 F.3d at 261. We examine not "whether
the legislature has made the best choice possible to address the
problem it seeks to remedy," but "whether the regulatory means
chosen are reasonable." Smith, 538 U.S. at 105.
¶40 Under this standard, we are not convinced the
surcharge is excessive in relation to the non-punitive purpose.
As the State points out, DNA-related activities, including
operating and maintaining a statewide database, are expensive.
The money generated from the surcharges pays for all the DNA
kits used to take samples from every person arrested for a
felony and every person convicted of a misdemeanor. The
surcharges cover the salaries of the analysts employed to
perform the DNA-related work. For one year alone, the DNA
testing kits cost over $1 million dollars.11
¶41 Citing a Legislative Fiscal Bureau report dated May 9,
2017, Williams says the excessive nature of the surcharges has
resulted in a substantial surplus. See Legislative Fiscal
Bureau Paper #408, Crime Laboratory and Drug Law Enforcement
Surcharge and DNA Surcharge Overview (May 9, 2017) (projecting a
2018-19 ending balance of $2,322,100).
¶42 We do not view Williams' argument as the "clearest
proof" that the current surcharges are excessive in relation to
the non-punitive purpose. See Hudson, 522 U.S. at 100. First,
11
The State's attorney represented both in her brief and at
oral argument that the DNA testing kits alone cost over $1
million annually. Williams' attorney did not contest the
State's figures.
23
No. 2016AP883-CR
the report Williams cites shows the DNA surcharge funds combined
with the funds received from a separate surcharge.12 It is
impossible to discern which surcharge created the surplus.
Second, the report reflects consistently declining revenue in
the fund holding the DNA surcharges each budget year.
Additionally, the law does not and cannot demand mathematical
precision in setting and collecting just the right amount of
surcharges necessary to fund the DNA databank. Multiple unknown
variables——including the number of arrests, the amount of
convictions, the volume of DNA related crimes, and the manpower
needed to analyze the unknown——render the exact cost of
operating the databank unpredictable year-to-year. Judicially
requiring the legislature to enact annual revisions to the
actual dollar amount of a DNA surcharge to adjust for less crime
in one year and more crime in the next would encroach on
legislative policy-making and create administrative havoc.
Accordingly, the legislature must be given broad leeway to
select a surcharge amount.
5. Summary
¶43 Applying the intent-effects test, we conclude the
intent of the mandatory DNA surcharge was not punitive. Rather,
12
The separate surcharge is identified as the "CLDLE"
surcharge, which is the acronym for Crime Laboratory and Drug
Law Enforcement. Joint Comm. On Fin., Legis. Fiscal Bureau,
Paper #409, at 1 (Wis. 2017), https://docs.legis.wisconsin.gov/m
isc/lfb/budget/2017_19_biennal_budget/050_budget_papers/409_just
ice_crime_laboratory_dna_analysis_kits.pdf (last visited May 17,
2018).
24
No. 2016AP883-CR
it was intended to fund the costs associated with the broad
expansion of the DNA databank and all the activities related to
it. Likewise, a review of the precedential factors guiding our
analysis shows that the mandatory DNA surcharge statute does not
have a punitive effect. Accordingly, the statute does not
violate the Ex Post Facto Clauses. Finally, we overrule Elward
and Radaj, and we reverse the decision of the court of appeals
in this matter as to the DNA surcharge.13 All three opinions
incorrectly14 held DNA surcharges to be unconstitutional ex post
facto violations on the basis that the actual costs incurred for
the individual convicted defendant had to be rationally
connected to the non-punitive purpose. This narrow approach
failed to recognize the non-punitive purpose underlying the
mandatory DNA surcharge: to generate funds to cover costs
incurred by the State in solving crimes utilizing a statewide
DNA databank.
B. Williams' Cross-Petition for Review——Sentencing
¶44 Williams contends the circuit court erroneously
exercised its sentencing discretion by relying on an improper
factor. More specifically, Williams claims the circuit court
imposed a harsher sentence because Williams refused to agree to
13
As noted in part B., we affirm the court of appeals'
decision in this case on the sentencing issue.
14
We recognize the court of appeals in this case was bound
to follow State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866
N.W.2d 756, and State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633,
866 N.W.2d 758. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997).
25
No. 2016AP883-CR
pay restitution. Williams argues that he has a right to object
to paying restitution and successfully doing so should not cause
a sentencing court to increase his sentence. The State responds
that: (1) the circuit court did not actually rely on Williams'
unwillingness to pay restitution; (2) even if it did, this was
not an improper factor; and (3) any error was harmless. We hold
the circuit court may refer to a defendant's failure to
voluntarily pay restitution when the reference is directly
linked to a proper sentencing factor. Because the circuit
court's reference to restitution at Williams' sentencing was
directly linked to a proper sentencing consideration——Williams'
lack of remorse——the sentencing court did not erroneously
exercise its discretion.
1. Standard of Review & Applicable Law
¶45 We will not disturb a sentencing decision unless the
circuit court erroneously exercised its discretion. State v.
Alexander, 2015 WI 6, ¶16, 360 Wis. 2d 292, 858 N.W.2d 662. A
circuit court erroneously exercises its discretion in imposing a
sentence if it "actually relies on clearly irrelevant or
improper factors." Id., ¶17 (quoting State v. Harris, 2010 WI
79, ¶66, 326 Wis. 2d 685, 786 N.W.2d 409); see also McCleary v.
State, 49 Wis. 2d 263, 274-76, 182 N.W.2d 512 (1971). To
establish error, a defendant must prove by clear and convincing
evidence that a circuit court relied on improper factors.
Alexander, 360 Wis. 2d 292, ¶17. A defendant must prove both
that the factor was improper and that the circuit court actually
relied on it. Id., ¶¶18-27.
26
 No. 2016AP883-CR
¶46 There are three main factors circuit courts must
consider in determining a defendant's sentence: (1) the gravity
of the offense; (2) the character of the defendant; and (3) the
need to protect the public. Id., ¶22. The circuit court may
also consider secondary factors, including:
(1) Past record of criminal offense; (2) history
of undesirable behavior pattern; (3) the
defendant's personality, character and social
traits; (4) result of presentence investigation;
(5) vicious or aggravated nature of the crime;
(6) degree of the defendant's culpability; (7)
defendant's demeanor at trial; (8) defendant's
age, educational background and employment
record; (9) defendant's remorse, repentance and
cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the
public; and (12) the length of pretrial
detention.
Id., ¶22 (quoted sources omitted). When imposing sentence, a
circuit court cannot rely on inaccurate information, race or
national origin, gender, alleged extra-jurisdictional offenses,
or the defendant's or victim's religion. Id., ¶¶18, 23. In
addition, a circuit court may not impose "a harsher sentence
solely because [a defendant] availed himself of one of his
constitutional rights," Buckner v. State, 56 Wis. 2d 539, 550,
202 N.W.2d 406 (1972) (emphasis added), or vindictively impose a
harsher sentence when a defendant has succeeded in getting his
first sentence vacated or overturned by exercising his appellate
rights, State v. Church, 2003 WI 74, ¶¶1, 28-39, 262
Wis. 2d 678, 665 N.W.2d 141.
¶47 Outside of these prohibitions, the circuit court has
"wide discretion in determining what factors are relevant" and
27
No. 2016AP883-CR
what weight to give to each factor. State v. Gallion, 2004 WI
42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197.
2. Application
¶48 There is no dispute that the circuit court considered
the three primary sentencing factors. It noted the serious
nature of the crime, addressed both positive and negative
factors regarding Williams' character, and discussed the need to
protect the public. We therefore turn our attention to whether
Williams proved by clear and convincing evidence that the
circuit court actually relied on an improper factor when
imposing sentence.
a. Is a position on restitution an improper factor?
¶49 Williams insists that a sentencing court cannot
consider a defendant's successful objection to paying
restitution. He argues that because he has a statutory right to
challenge restitution, it is improper for the circuit court to
use his successful challenge as an aggravating factor against
him. He also contends that successful restitution challenges do
not reflect a lack of remorse. Although we agree with Williams
that a sentencing court should not vindictively increase a
defendant's sentence based solely on his decision to challenge
restitution, see Church, 262 Wis. 2d 678, ¶28; Buckner, 56
Wis. 2d at 550, Williams fails to demonstrate by clear and
convincing evidence that his position on restitution was an
improper sentencing factor.
¶50 The circuit court's discussion regarding restitution
did not stand alone as an independent factor in the sentencing
28
No. 2016AP883-CR
transcript. Rather, the circuit court's sole reference to
restitution came toward the end of the circuit court's
sentencing remarks and was intertwined with its consideration of
Williams' character and lack of remorse, as evidenced only in
part by Williams' position that he was not responsible for
restitution. It is important to note the theme permeating both
the PSI report and the sentencing remarks——Williams was not
sorry that his actions caused the death of another human being.
The PSI writer described Williams' lack of remorse as
"atrocious" and emphasized Williams' attitude that his crime had
nothing to do with R.W.'s death. The prosecutor and the defense
lawyer both focused on remorse. Williams' remorse, or lack
thereof, dominated the sentencing hearing. While a defendant's
position on paying restitution is not listed among the primary
or secondary sentencing factors, his lack of remorse, evidenced
by his attitude regarding restitution, certainly can be relevant
to sentencing considerations.
¶51 Sentencing courts may not vindictively punish a
defendant solely for exercising a constitutional right.15
Alabama v. Smith, 490 U.S. 794, 798-801 (1989); Church, 262
Wis. 2d 678, ¶¶28-39. But when the restitution factor is
15
To be clear, Williams' right to challenge restitution
arises from our statutes, not the constitution. See Wis. Stat.
§ 973.20(13)(c); Canady, 234 Wis. 2d 261, ¶9. Defendants do,
however, have a constitutional due process right not to be
sentenced based on improper factors upon which a court actually
relies. See State v. Harris, 2010 WI 79, ¶33, 326 Wis. 2d 685,
786 N.W.2d 409.
29
No. 2016AP883-CR
inextricably intertwined with a defendant's character and lack
of remorse, its consideration is proper. The restitution factor
at issue here was not Williams' decision to challenge
restitution, or the fact that his challenge was successful, but
rather Williams' disavowal of responsibility for R.W.'s death
and unwillingness to contribute to funeral costs. Williams
showed no insight that his choice to drive to the drug buy,
despite his brother's possession of a gun and his brother's
armed robbery plan, resulted in R.W.'s death. Under these
circumstances, Williams failed to convince us that the
sentencing court's single reference to restitution constituted
an improper factor.
b. Actual reliance
¶52 Our conclusion that the circuit court's restitution
remark did not constitute an improper sentencing factor disposes
of Williams' cross-petition. For the sake of completeness, we
briefly address the actual reliance issue. In determining
whether a circuit court actually relied on an improper
sentencing factor, we review the sentencing transcript as a
whole and consider the allegedly improper comments in context.
Harris, 326 Wis. 2d 685, ¶45. Actual reliance occurs only when
the circuit court paid "explicit attention" to an improper
factor, and when the improper factor formed the "basis for the
sentence." Alexander, 360 Wis. 2d 292, ¶25.
¶53 The circuit court's remarks as a whole did not
concentrate explicit attention on Williams' decision to
challenge restitution. Rather, the sentencing remarks
30
No. 2016AP883-CR
demonstrate the circuit court focused on the three primary
sentencing factors, as well as Williams' clear lack of remorse.16
The basis of this sentence was not Williams' decision to
challenge restitution but rather the seriousness of the offense,
Williams' poor character as evidenced by his lack of remorse,
and the need to protect the public. The sole reference to
restitution bore a reasonable nexus to the relevant factor of
Williams' lack of remorse. In context, the circuit court in no
way tied the length of the sentence to Williams' exercise of his
statutory right to challenge restitution. See Harris, 326
Wis. 2d 685, ¶¶4, 59, 67 (ruling actual reliance not proven when
improper factors "bear a reasonable nexus to proper sentencing
factors"). Nothing in the transcript suggests the circuit court
increased Williams' sentence solely because he challenged
restitution. Accordingly, Williams failed to establish actual
reliance.
III. CONCLUSION
¶54 We hold the mandatory DNA surcharge statute is not an
ex post facto law because the surcharge is not punishment under
the intent-effects test. The legislature intended the
surcharges to offset the costs associated with its broad
expansion of the statewide DNA databank, and the effect of the
16
The circuit court's decision suggests it saw Williams'
last minute expression of remorse as gamesmanship and did not
believe him. Even in his attempt to be remorseful, Williams
focused on himself and losing his son by going to prison.
31
No. 2016AP883-CR
surcharges do not override the legislature's non-punitive
intent.
¶55 In addressing ex post facto challenges, our court of
appeals in this case was bound to apply Elward and Radaj, which
erroneously required the DNA surcharge to represent the
particular costs associated solely with a single defendant in
order to be declared non-punitive. We overrule these cases
because each is wrongly decided and based on faulty reasoning.
The legislature's non-punitive purpose for the mandatory DNA
surcharge was much broader; in essence it serves as the funding
mechanism for a DNA databank that operates as a crime-solving
and crime-fighting public safety tool. The surcharge covers
DNA-related expenses, including the costs of all the kits and
tests not only for those convicted, but also for those who are
only arrested for committing (or attempting to commit) a
felony.17 The surcharges are also used to pay salaries of DNA
analysts who maintain the databank as well as those who gather,
process, and analyze DNA samples and DNA evidence.
¶56 We also hold the circuit court did not erroneously
exercise its discretion when it referenced restitution during
its sentencing remarks. The single restitution reference was
intertwined with remarks about Williams' lack of remorse, a
proper sentencing factor. The restitution remark focused on
Williams' failure to accept responsibility for causing one
17
See supra n.9.
32
No. 2016AP883-CR
victim's death rather than Williams' right to challenge
restitution. Williams failed to prove by clear and convincing
evidence that the sentencing court relied on an improper
sentencing factor.
¶57 Accordingly, we reverse that part of the court of
appeals decision concluding the mandatory DNA surcharge statute
operated as an ex post facto violation, and we reinstate the
$250 surcharge as part of Williams' judgment. We affirm that
part of the court of appeals decision holding the circuit court
properly exercised its sentencing discretion when it sentenced
Williams.
By the Court.—The decision of the court of appeals is
reversed in part and affirmed in part.
¶58 PATIENCE DRAKE ROGGENSACK, C.J., and ANN WALSH
BRADLEY, J., did not participate.
33
No. 2016AP883-CR.ssa
¶59 SHIRLEY S. ABRAHAMSON, J. (concurring). I largely
agree with the analysis of the majority opinion, and I concur in
the mandate.
¶60 Nonetheless, I am concerned with the majority's
discussion of the court of appeals' decision in State v. Radaj.1
Specifically, I disagree with the majority's suggestion that
there is never a circumstance under which the mandatory DNA
surcharge would be considered punishment.2
I
¶61 Under the second part of the "intent-effects" test,
the court determines whether the mandatory DNA surcharge has a
punitive effect despite its non-punitive intent.3 Seven factors
guide the analysis of whether the mandatory DNA surcharge
actually punishes a particular defendant. Among the seven
factors are (1) whether the surcharge promotes the traditional
aims of punishment——retribution and deterrence; and (2) whether
the sanction is excessive in relation to the alternative, non-
punitive purpose assigned to the sanction.4
¶62 Under the mandatory DNA surcharge statute in effect
when Williams was sentenced (and still in effect today), circuit
courts are required to impose upon defendants a surcharge of
1
State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866
N.W.2d 758.
2
See majority op., ¶38.
3
State v. Scruggs, 2017 WI 15, ¶39, 373 Wis. 2d 312, 891
N.W.2d 786.
4
Id., ¶41.
1
 No. 2016AP883-CR.ssa
$200 per misdemeanor conviction and $250 per felony conviction.5
There is no maximum DNA surcharge, and because the surcharge is
calculated on a per-conviction basis, the DNA surcharge varies
from case to case.
¶63 In Radaj, the defendant pleaded guilty to four
felonies. As required by the mandatory DNA surcharge statute,
the circuit court imposed a $1,000 DNA surcharge (i.e., $250 per
felony conviction).6 The court of appeals held that the $1,000
DNA surcharge violated the Ex Post Facto Clauses of the
Wisconsin and United States Constitutions because the surcharge
was "not rationally connected and [was] excessive in relation to
the surcharge's intended purpose, and that its effect [was] to
serve traditionally punitive aims."7
¶64 The court of appeals in Radaj incorrectly assumed that
the purpose of the mandatory DNA surcharge statute was to
reimburse the government for the cost of "DNA-analysis-related
activities" incurred in relation to a particular defendant's
prosecution.8 In State v. Scruggs,9 this court explained that
5
Wis. Stat. § 973.046(1r)(a) (2013-14). When Williams
committed the felony in the instant case, the DNA surcharge was
discretionary, could only be imposed for a felony conviction,
and could not exceed $250. Wis. Stat. § 973.046(1g) (2011-12).
6
Like Williams, the defendant in Radaj committed his crimes
when the surcharge was discretionary but was sentenced when the
surcharge was mandatory.
7
Radaj, 363 Wis. 2d 633, ¶35 (emphasis added).
8
See id., ¶30.
9
State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891
N.W.2d 786.
2
No. 2016AP883-CR.ssa
the mandatory DNA surcharge statute serves as a funding
mechanism for broad expansions to the government's DNA database,
including additional costs associated with collecting,
analyzing, and maintaining DNA samples of those convicted of
misdemeanors and those arrested for, but not convicted of,
felonies.10 Thus, the majority correctly overrules Radaj for
having mistakenly conducted its intent-effects analysis with a
misunderstanding of the broader funding purpose of the mandatory
DNA surcharge statute.
¶65 However, the majority goes too far by suggesting that
a DNA surcharge could never be considered punishment under any
set of circumstances.11
¶66 In the instant case, Williams was convicted of only
one felony. The court does not have before it a defendant with
multiple felony convictions as the court of appeals did in
Radaj.
¶67 The majority should reserve judgment on whether a DNA
surcharge can ever be so expensive that it constitutes
punishment under the facts of a particular case. Without
knowing what the DNA surcharge actually is in a particular case,
how can a court determine whether the surcharge promotes the
10
Id., ¶47.
11
See majority op., ¶38 (characterizing the per-conviction
method of calculating a DNA surcharge as a "user fee" in which
"[t]he more crimes committed, the more times the user pays the
fee").
3
No. 2016AP883-CR.ssa
traditional aims of punishment?12 How can a court determine
whether the surcharge is excessive in relation to the non-
punitive purpose assigned to the mandatory DNA surcharge statute
without knowing what the DNA surcharge actually is?13 Because of
the variable nature of the DNA surcharge, these questions must
be answered on a case-by-case basis.
II
¶68 The majority appears to have again reached beyond the
issues presented in order to answer a question not raised by the
facts of the case before it.14 Due process and judicial
restraint counsel against deciding an issue that was not briefed
or argued by the parties.
¶69 For the foregoing reasons, I do not join the opinion
but concur only in the mandate.
12
See majority op., ¶36 (relying on Williams' single $250
surcharge to conclude that the surcharge does not have a
retributive or deterrent effect).
13
See majority op., ¶¶39-42 (engaging in a fact-specific
analysis of whether Williams' single $250 surcharge is excessive
in relation to the broad funding purpose of the mandatory DNA
surcharge statute).
14
See Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ___
Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, J., dissenting).
4
No. 2016AP883-CR.ssa
1