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COA: no error in noting Domestic Abuse on JOC even though surcharge waived

State v. Amanuel A. Ayele, 2019AP432, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayele pleaded to a battery after an attack on his father, with whom he lived. The state had charged the crime as an incident of domestic abuse carrying a surcharge under Wis. Stat. § 973.o55 but moved, as part of the plea deal, to remove this provision. The court wouldn’t go along though, and Ayele pleaded anyway. What the court did do is waive the actual imposition of the surcharge under § 973.055(4). But the judgment of conviction still notes “Domestic Abuse Assessments” in the description of the charge, and Ayele wants the notation struck.

Right away, you may wonder why Ayele cares. The court of appeals poses this question too, noting that “Ayele studiously avoids mentioning any adverse consequences of the circuit court’s decision other than an alleged mistake in the verbiage in the judgment itself.” (¶15). The likely answer lies in Wis. Stat. § 939.621, which increases the penalty for any subsequent crime of domestic abuse if there have been two others in the preceding ten years, and makes any subsequent misdemeanor a felony.

The court of appeals notes that the facts of the complaint, to which the parties stipulated as a factual basis, satisfy the statutory criteria for the surcharge, and adds that Ayele “does not develop an argument or cite this court to any legal authority supporting the proposition that a judgment of conviction for an offense that implicates WIS. STAT. § 973.055 cannot indicate as much when the court has waived the $100 surcharge in full pursuant to § 973.055(4).” (¶14). So, the judgment stays as-is.

Except, the court of appeals helpfully notes, that despite the circuit court’s oral pronouncement that the surcharge itself be waived, the $100 still appears on both the JOC and the assessment of costs. It suggests that the circuit court fix this apparent scrivener’s error on remand. (¶16).

{ 3 comments… add one }
  • Laurie Osberg November 13, 2019, 7:21 am

    The domestic abuse tag can have many other collateral consequences, including employment and housing. For some reason, CCAP rules instruct clerks to note a domestic abuse modifier on a charge reduced to an ordinance. This has been distressing for those who have rightfully pointed out that they were not found guilty of a domestic abuse crime. Something to keep in mind in plea negotiations.

  • Peter Heyne November 14, 2019, 10:35 pm

    To be hyper technical: “Wis. Stat. § 939.621, which increases the penalty for any subsequent crime of domestic abuse if there’s a prior *one*.” There actually have to be *two* prior qualifying criminal convictions (w/in 10 years) for which the court imposed or waived the Domestic Abuse Surcharge.

    Also, to respond to the comment above, Wis. Stat. § 973.055(1)(a) and (b) permits the court to impose the DV surcharge for municipal ordinances that correspond to the criminal code. E.g., to s. 940.201, 941.20, 941.30, 943.01, 943.011, 943.14, 943.15, 946.49, 947.01 (1), 947.012 or 947.0125. But not being criminal convictions, these ordinances do not count to set up the DV Repeater under Wis. Stat. § 939.621(1)(b). But it still looks bad on CCAP, to be sure.

  • admin November 15, 2019, 12:42 pm

    Right you are, Peter. Post has been edited accordingly.

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