This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.
Another day, another DNA surcharge issue for SCOW to consider. The court of appeals recently certified State v. Odom (for a second time), which asks the question of whether the DNA surcharge is a potential punishment that must be covered in a plea colloquy. And there are petitions for review filed by both the state and the defendant in State v. Williams regarding whether it violates the ex post facto clause to mandate a DNA surcharge on a defendant who gave a sample and paid the surcharge in a prior case. As the certification notes, the issue in this case has some bearing on the issues in Odom and Williams, for if a court can waive the surcharge, then it probably doesn’t constitute punishment or create an ex post facto problem. (Certification at 5-6).
Why can’t the court of appeals resolve the issue in this case? Predictably enough, the state points to the presumption that “shall” is mandatory and argues the legislature evinced its intent to make the surcharge mandatory by changing the previous version of § 973.046 in 2013 Wis. Act 20, §§ 2353 and 2354) to say a court “shall” impose a surcharge for all criminal convictions, not just sex offenses. That’s why the cases addressing surcharges imposed under the amended statute have described the surcharge as mandatory. (Certification at 2-3).
But wait, Cox argues: In Act 20, § 2348 the legislature also made the crime victim and witness assistance surcharge under § 973.045(1) mandatory, but it do so by saying the surcharge “shall” be imposed and then saying that it “may not be waived, reduced, or forgiven for any reason.” If “shall” removes discretion by itself, the legislature’s extra “we really mean it” language is surplusage. To avoid that result, and in light of the general rule that sentencing courts are afforded great discretion, “shall” should be read as “may”. (Certification at 3-4). The court acknowledges the force of Cox’s arguments, but concludes it cannot hold the surcharge is discretionary in light of the statements in prior cases that the surcharge is mandatory. (Certification at 4).
So stay tuned. If SCOW grants this certification along with Odom and Williams they could lay a lot of DNA issues to rest this term.