State v. Tydis Trinard Odom, 2015AP2525-CR; District 2, 11/9/16; certification refused 1/9/17; case activity (including briefs)
Does the imposition of multiple DNA surcharges constitute “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?
This case is a twist on State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758 and State v. Scruggs, 2015 WI App 88, 371 Wis. 2d 604, 365 N.W.2d 377, review granted, 2016 WI 78, 371 Wis. 2d 604, 885 N.W.2d 377.
Radaj held that a $1,000 DNA surcharge for 4 felony convictions violated the constitutional prohibition against ex post facto laws because Radaj committed the crimes that led to the convictions before the new DNA law took effect. Four DNA surcharges were considered “punitive” because they were not rationally connected to, and were excessive in relation to, the surcharge’s intended purpose–funding the expansion of Wisconsin’s DNA data bank. Meanwhile, in Scruggs the court of appeals held that the imposition of a single $250 DNA surcharge is not punitive because its to fund the expansion the State’s DNA data bank, not to punish the defendant. Confused?
In this case, Odom pled guilty or no-contest to 4 crimes, each of which carried a DNA surcharge. The court did not advise him of the surcharges during the plea colloquy. Thus, Odom claimed that his plea was not knowingly, voluntarily and intelligently entered because he was not made aware of this potential “punishment.” The court of appeals worries that the test for punishment under §971.08(1)(a) (which requires courts to advise of potential punishment before accepting a plea) might be different that the test for punishment under ex post facto law. It asks SCOW to sorts this out–especially since SCOW will decide Scruggs this term.
The court of appeals also highlighted the practical effects of the decision in this case:
The State notes correctly that there are a host of other surcharges that are imposed upon conviction and, like with the DNA surcharge, on a per-conviction basis. For example, WIS. STAT. § 973.045 imposes a crime victim and witness assistance surcharge if a sentence or probation is imposed and for each felony and misdemeanor conviction. Is this surcharge punishment and, thus, would courts have to advise of this surcharge before accepting a guilty or no contest plea?
Moreover, the oddity of finding that multiple surcharges are punishment would mean that in those cases where a defendant pleads to multiple counts, a court would have to inform him or her of the amount of surcharges that would be imposed. However, if a defendant pleads only to one count, then a court has no obligation to inform him or her of the DNA surcharge. This inconsistency has the potential to cause confusion. (Certification at 15).
But of course, unlike the lesser surcharges, defendants face many, many more days in jail now, should they either refuse to pay the required amount, or worse, simply be unable to pay; at $25 a day, 10 days on each count. Some sort of threshold into a potential and substantial loss of liberty realm must surely have been crossed into here now, one would think, since this particular funding method for the DNA collection program was authorized.
Not to mention here, while on the subject again as well, the hugely compromising collateral consequence that should be forewarned of here too, prior to accepting a plea, of forever being entered in DOJ’s grand data bank, once a defendant enters a plea of no contest or guilty.
It is notable that at the recent oral arguments for Scruggs, the State expressly confirmed that the State is not asking the Court to overrule Radaj or Elward (after all, the State did not file petitions for review in those cases). And both the State and Defense agreed that the many other factual situations were not on the table. So Scruggs will likely be a very narrow holding.