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SCOW to address whether courts must advise defendant of multiple DNA surcharges prior to plea

State v. Tydis Trinard Odom, 2015AP2525-CR, certification granted 9/12/17; case activity (including briefs). This is the second certification of this case; here’s the first.

Issue

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNA surcharges are “punishment,” was incorrect.

What more can we say about this case? Our first post on it concerns the first certification and explains the basic question–is the DNA surcharge “punishment” such that a defendant must know it is a consequence in order to enter a valid guilty plea? The question is obviously related to the question of whether the surcharge is “punitive,” and thus subject to the ex post facto objections some of us spent the last several decades litigating. Those cases, of course, came down every which way, most recently with the supreme court’s decision in Scruggs (post here). That last decision was apparently enough to convince the court of appeals it ought to ask the supreme court to take this case just one more time (here’s our post on that) and, lo and behold, it worked. So, we’ll be posting on this case at least one more time, at which point we’ll have to think of something more to say.

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