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Imposition of DNA surcharge for every felony committed before January 1, 2014, violates ex post facto prohibition

State v. Gregory Mark Radaj, 2015 WI App 50; case activity (including briefs)

A defendant who committed a felony before the effective date of the law mandating a $250 DNA surcharge for each felony conviction, but who is sentenced after that effective date, cannot be made to pay the surcharge on each felony conviction because that violates the prohibition against ex post facto laws. Instead, the defendant may only be subject to a single discretionary surcharge of $250.

Radaj was convicted of four felonies that he committed in 2013. At the time he committed the offenses, the law provided for a discretionary DNA surcharge of $250, unless the conviction was for a specified sex crime, in which case the surcharge was mandatory. See Wis. Stat. § 973.046(1g) and (1r) (2011-12). But by the time he was sentenced in March 2014, the statute had been amended to require a $250 surcharge for each felony conviction. See § 973.046(1r)(a), as amended by 2013 Wis. Act 20, §§ 23532354, 2355, and 9426(1)(am) (effective January 1, 2014). Thus, Radaj was required to pay a $1,000 DNA surcharge (four felonies x $250), significantly more than the discretionary $250 surcharge provided for under the law in effect at the time he committed his crimes. (¶¶2-5).

The court of appeals holds that applying the mandatory surcharge for each felony conviction violates the constitutional prohibitions against ex post facto laws. There is no dispute that the new mandatory surcharge law applies retroactively to crimes committed before the effective date, given that it is keyed to the date of sentencing. (¶12). Instead, the disputed question is whether the new law is a nonpunitive civil statute or a punitive criminal statute, and that question is decided by applying the two-part “intent-effects” test. State v. Rachel, 2002 WI 81, ¶¶39-42, 254 Wis. 2d 215, 647 N.W.2d 762. That test first asks whether the legislature’s intent was to punish or rather was to impose a non-punitive regulatory scheme; if the legislature’s intent was non-punitive, the test then asks whether, despite that fact, the effect of the law is punitive. (¶¶13-14).

The court assumes without deciding the legislature intended the law to be non-punitive (¶¶16-22) because, under the factors for assessing the law’s effect, Rachel, 254 Wis. 2d 215, ¶43, the court concludes that the effect of the law is punitive. The most relevant factors are whether the surcharge is “rationally … connected” to some non-punitive purpose and whether the surcharge “appears excessive in relation to” the non-punitive purpose the legislature assigned to it. (¶24). “If there is no rational connection and the fee is excessive in relation to the activities it is intended to fund, then the fee in effect serves as an additional criminal fine, that is, the fee is punitive.” (¶25). That is precisely the problem with a mandatory surcharge based on the number of convictions:

¶30      As the Seventh Circuit in Mueller [v. Raemisch, 740 F.3d 1128 (7th Cir. 2014),] recognized, the connection between a surcharge and the costs it is intended to cover need not be perfect to be rational. Thus, we must give the legislature broad leeway to select a surcharge amount. But under the scheme at issue here, the legislature has imposed a multiplier that corresponds not to costs, but to the number of convictions. For this surcharge scheme to be non-punitive, there must be some reason why the cost of the DNA-analysis-related activities under Wis. Stat. §§ 973.046 and 165.77 increases with the number of convictions. We perceive no reason why this might be true. ….

¶31      As is clear from the statutes, the DNA surcharge is used to cover the cost of the DNA “analysis” of the biological specimen that the circuit court must order a defendant to provide at the time the court orders the surcharge. See Wis. Stat. §§ 973.046(1r) and 973.047(1f). Although there is no burden on the State, we note that the State does not suggest, and could not seriously suggest, that the court must order (and that the state crime laboratories must analyze) as many biological specimens as there are convictions. See § 973.047(1f) (stating that the court shall require the defendant to submit “a” biological specimen). Thus, we fail to see any link between the initial DNA analysis and the number of convictions.

¶32      Other costs that may come later under Wis. Stat. § 165.77 include the cost of comparing the defendant’s DNA profile to the DNA profile of other biological specimens collected as part of a future investigation. See Wis. Stat. § 165.77(2)(a)1.a. and 2. and (3). However, we can conceive of no reason why such costs would generally increase in proportion to the number of convictions, let alone in direct proportion to the number of convictions.

Because the state did not respond to Radaj’s argument about the appropriate remedy, the court adopts (without deciding the appropriateness of) Radaj’s remedy, and so directs the circuit court to apply the surcharge statute that was in effect when Radaj committed his crimes. “Under that statute, the circuit court exercises discretion to determine whether Radaj should be assessed a $250 DNA surcharge. See Wis. Stat. § 973.046(1g) (2011-12); State v. Cherry, 2008 WI App 80, ¶5, 312 Wis. 2d 203, 752 N.W.2d 393.” (¶38).

It is important to be aware of the narrowness of this decision. As the court itself explains:

¶7        We pause here to stress two apparent limitations on the applicability of our discussion to other defendants. First, it is important to our analysis that Radaj was convicted of multiple crimes and, therefore, the surcharge increased with each conviction. We do not resolve whether there is an ex post facto problem if all of the facts were the same except that Radaj had been convicted of a single crime. Second, there obviously is no ex post facto problem in applying the DNA surcharge statute to criminal defendants on a going-forward basis. That is, had Radaj committed his crimes after the DNA surcharge statute’s effective date [of January 1, 2014], he obviously could not assert an ex post facto violation, regardless whether the surcharge is punitive.

Thus, a decision on the legality of applying the mandatory surcharge to a single felony committed before January 1, 2014, will have to wait for another day. And, challenging the imposition of surcharge for each and every felony committed after January 1, 2014, will require some basis other than the ex post facto clauses. What might that be? Good question. Substantive due process? The prohibition against excessive fines? Any other ideas? Post your thoughts below.

Apart from the question of imposing the surcharge, consider this: If the surcharge is mandatory for each felony, must the defendant be advised of the surcharge, along with the maximum fine and period of imprisonment, when entering a plea? If so, a defendant not so advised has an argument for withdrawing the plea.

Finally, as the court notes (¶10 n.5), a separate appeal addresses the ex post facto claim as to the imposition of the DNA surcharge for misdemeanor convictions. Our post on that case is here.

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