It’s looking like “DNA surcharge Day” in the District 2 court of appeals. Williams argued that because he had been ordered to provide a DNA sample and pay the $250 surcharge in a prior case, retroactive application of Wisconsin’s recent mandatory DNA surcharge statute in this case violated the ex post facto clauses of the state and federal constitutions. The court of appeals agreed.
Mandatory DNA surcharge. For a refresher on the mandatory DNA surcharge problem, read ¶¶22-24 of this opinion. The statute is unconstitutional as applied to Williams because:
¶25 When Williams committed the attempted armed robbery in this case, April 25, 2013, the law provided that a circuit court could exercise its discretion in imposing a $250 felony DNA surcharge; it was not mandatory. WIS. STAT. § 973.046(1g) (2011-12). Williams was sentenced after 2013 Wis. Act 20 took effect, requiring the mandatory imposition of a $250 DNA surcharge for every felony conviction. See§ 973.046(1r). At sentencing, the court ordered Williams to provide a DNA sample and pay a $250 DNA surcharge related to this attempted armed robbery conviction.
¶26 The record shows that, in relation to a separate felony offense, a judgment of conviction was entered in 2009 requiring Williams to “[p]rovide DNA sample and pay surcharge” of $250. Williams argues he therefore would not have needed to provide another DNA sample after his conviction in this case. Thus, the mandatory surcharge in this case is not being used to cover the costs of taking a sample from Williams or entering it into the database, so there is no legitimate “fee” reason for Williams to pay another surcharge. Williams insists the mandatory surcharge “is simply punitive, as it is not compensating the State for any additional DNA costs that Williams has created.” The State concedes there is no DNA-analysis-related activity that has occurred or will occur specifically in relation to Williams’ attempted armed robbery conviction in this case. Under these circumstances, based upon our holdings in Elward and Radaj, the mandatory DNA surcharge, which was not mandatory at the time Williams committed this crime, bears “no relation to the cost of a DNA test because he [did not have] to submit to a test,” see Elward, 363 Wis. 2d 628, ¶7, has resulted in “[t]he State receiv[ing] money for nothing,” see id., and is “not rationally connected … to the surcharge’s intended purpose,” Radaj, 363 Wis. 2d 633, ¶35. Under Elward and Radaj, the imposition of the mandatory surcharge here “was a fine, not a fee,” Elward, 363 Wis. 2d 628, ¶7, and “on balance … has a punitive effect and, therefore, the statute is an unconstitutional ex post facto law” as applied to Williams, see Radaj, 363 Wis. 2d 633, ¶35.
¶27 Williams asks that we “vacate the portion of the judgment of conviction that requires him to pay a $250 DNA surcharge.” We decline to do so, and instead follow the procedure we employed in Radaj and remand this case with directions “that the circuit court apply the surcharge statute that was in effect when [Williams] committed [the crime in this case]. Under that statute, the circuit court exercises discretion to determine whether [Williams] should be assessed a $250 DNA surcharge.” See WIS. STAT. § 973.046(1g) (2011-12); Radaj, 363 Wis. 2d 633, ¶38; State v. Cherry, 2008 WI App 80, ¶5, 312 Wis. 2d 203, 752 N.W.2d 393
Judge Hagedorn filed a concurring opinion which joins the majority opinion “in full.” He wrote only “to express [his] view that 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, were wrongly decided, and to urge the Wisconsin Supreme Court to take this case and bring clarity and certainty to this area of law. ” See concurrence ¶28. Actually, he asks SCOW to reverse the court of appeals opinion in this case and “the precedents that bind us.” ¶44.
Improper sentencing factor. Williams also sought resentencing on the grounds that the circuit court improperly sentenced him more harshly due to his refusal to stipulate to restitution for which he was not legally responsible. The court of appeals didn’t buy the argument. It examined the totality of the sentencing record and concluded that Williams’s failed to show that “his failure to stipulate to restitution ‘formed part of the basis for the’ sentence” as required by State v. Alexander, 2015 WI 6, ¶29, 360 Wis. 2d 292, 858 N.W.2d 662.