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Defense win! COA reverses and remands for hearing on child porn surcharge

State v. William C. MacDonald, 2020AP605-CR, 10/14/21, District 4 (not recommended for publication); case activity (including briefs)

Section 973.042(2) mandates a $500 surcharge for each image “associated with the crime” of possession of child pornography. The State charged MacDonald with 10 counts of possessing child porn. He pled “no contest” to a single charge. The State dismissed and read in 9 charges at sentencing. It then requested a $5,000 surcharge for the 10 images supporting the conceded and read-in charges. But it also requested (and received) $45,000 for MacDonald’s possession of an additional 90 images for which he was not charged.

MacDonald appealed while State v. Schmidt, 2021 WI 65, ___ Wis. 2d ___, 960 N.W.2d 888 was pending in SCOW. Schmidt held that the child porn surcharge applies not only to images forming the basis of the counts of conviction but also to the images forming the basis of the read-in charges.

Schmidt did not address whether the surcharge statute applies to uncharged read-ins. The court of appeals nevertheless holds that Schmidt (a split opinion with an unclear holding) supports the application of the surcharge to uncharged read-in images “provided that the circuit court finds that those images are ‘associated with the crime'” of possession of child porn. Opinion, ¶20.  Be sure to see our post on Schmidt.

In this case, the sentencing court did not engage in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the one count of conviction. The State even conceded this point. Thus, the court of appeals remands this case to the circuit court for a hearing where it must, by a preponderance of the evidence, find that a given image is associated with the count of conviction.

The court of appeals suggests that the sentencing court consider whether the images supporting uncharged offenses were collected at the same time and found on the same devices as the images that formed the basis of the defendant’s conviction. Opinion, ¶24.

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