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Plea hearing courts don’t have to inform defendants about the mandatory DNA surcharge

State v. Arthur Allen Freiboth, 2015AP2535-CR, 7/19/18, District 1 (recommended for publication); case activity (including briefs)

In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:

¶12 To recap, Muldrow holds that the intent-effects test is used to determine whether a sanction is punishment, to which a defendant must be alerted before entering a plea, 381 Wis. 2d 492, ¶¶26-27, and Williams holds that the mandatory DNA surcharge is not punishment under the intent-effects test, 381 Wis. 2d 661, ¶43. Given these holdings, we see no room for Freiboth’s only argument. Understandably, given the timing, in Freiboth’s 2016 briefing to this court he relied heavily on the now overruled Radaj opinion of this court. However, the law now is plain: plea hearing courts do not have a duty to inform defendants about the mandatory DNA surcharge, because the surcharge is not punishment and therefore not a direct consequence of a plea.

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