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SCOW to address child pornography surcharge

State v. Anthony M. Schmidt, 2020AP616-CR, petition for bypass granted 12/28/20; case activity

  1. Does Wis. Stat. §973.042 (the child pornography surcharge statute) permit the circuit court to impose a child pornography surcharge for an offense that is “read in” for sentencing purposes?
  2. Is the child pornography surcharge a punishment that must be explained during a plea colloquy? If so, was Schmidt entitled to a hearing on his claim that the plea colloquy was deficient in this case?

The plain language of §973.042 provides that the court shall impose a surcharge for each image associated with a crime under s. 948.05 or 948.12. Schmidt argues that a dismissed and read in charge is not  “associated” with an offense resulting in conviction, so the surcharge should not apply to these charges. The same issue is pending in two other appeals.  See State v. Kuehn, Appeal No. 20182355-CR (unpublished)(petition for review held in abeyance pending decision in this case) and State v. McDonald, Appeal No.2020AP605-CR (pending in District 4, submitted on briefs).  See our post on Kuehn here.

As for the second issue, Schmidt pled guilty to 6 counts of possessing child pornography, and 8 other charges were dismissed and read-in. The circuit court imposed a $500 child pornography surcharge for all 14 offenses. Smith argues that under cases like State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786 and State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74 the surcharge is a punishment which should be carefully explained to the defendant before the court accepts his guilty plea. As that did not occur in Smith’s case he contends that his plea colloquy was deficient.

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