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SCOW will address whether mandatory DNA surcharge violates ex post facto clause

State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point)

1. Is the imposition of a single mandatory $250 DNA surcharge an ex post facto violation with respect to a defendant who committed his offense when the surcharge was discretionary and who previously had provided a DNA sample in another case?

2. Is Jamal Williams entitled to resentencing because the circuit court sentenced him based on an improper factor, namely, the fact that Williams refused to stipulate to restitution for which he was not legally responsible?

As our post on the court of appeals decision explained, the court of appeals agreed with Williams that imposing the mandated DNA surcharge on him constituted an ex post facto violation, given that he committed the offense in this case before the surcharge became mandatory, he had already provided a sample, and he been assessed a surcharge in a prior case. The court said it was bound to reach this conclusion in light of State v. Elward, 2015 WI App 51, 363 Wis. 2d 1, 866 N.W.2d 756, and State v. Radaj, 2015 WI App 50, 363 Wis.2d 633, 866 N.W.2d 758, which established that imposition of a mandatory DNA surcharge violates the ex post facto prohibition if it relates to an offense committed prior to the effective date of the mandatory DNA surcharge statute and no DNA-analysis-related activity occurs in relation to the particular conviction for which the surcharge is imposed.

But the court of appeals also said it believed Radaj and Elward were wrongly decided (¶¶26 n.10, 28), though of course can’t overrule those decisions. Thus the state’s petition for review, which asks whether Radaj and Elward were correctly decided or should be overruled, and notes that the ex post facto holding in those cases has had implications beyond imposition of the DNA surcharge. In particular, the conclusion that the mandatory surcharge may be punitive spawned the argument now under review in State v. Odom. With the court now reviewing this case along with Odom, the long saga of DNA surcharge litigation may be nearing its conclusion.

The second issue arises because at sentencing the circuit court denied the state’s restitution claim after an objection by Williams’s attorney but immediately thereafter said “I think the fact that you’re not willing to join in on [the restitution] also reflects your lack of remorse under the circumstances, and I’m certainly considering that.” Williams argued he was entitled to resentencing because it was improper for the circuit court to base its sentencing decision on his assertion of his legal right not to pay restitution, but the court of appeals held the factor did not form part of the basis for Williams’s sentence, despite the fact the circuit court gave “explicit attention” to the fact that Williams objected to the State’s restitution claim.

The supreme court’s grant of Williams’s petition for review of this issues means it will decide whether a trial court can properly consider a defendant’s refusal to stipulate to restitution when imposing sentencing and, if not, whether the trial court did that in this case. This is an important question, as criminal defendants have a statutory right to contest restitution claims, and many defendants choose to exercise this right. If sentencing courts can properly consider a defendant’s objection to restitution as an aggravating factor, this will have an obvious chilling effect on meritorious restitution challenges.

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