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Inquiring minds want to know: Can this surcharge be waived?

State v. Michael L. Cox, 2016AP1745-CR, District 2, 8/29/17, certification granted 10/17/17, affirmed, 2018 WI 67; case activity (including briefs)

Issue certified

This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.

Another day, another DNA surcharge issue for SCOW to consider. The court of appeals recently certified State v. Odom (for a second time), which asks the question of whether the DNA surcharge is a potential punishment that must be covered in a plea colloquy. And there are petitions for review filed by both the state and the defendant in State v. Williams regarding whether it violates the ex post facto clause to mandate a DNA surcharge on a defendant who gave a sample and paid the surcharge in a prior case. As the certification notes, the issue in this case has some bearing on the issues in Odom and Williams, for if a court can waive the surcharge, then it probably doesn’t constitute punishment or create an ex post facto problem. (Certification at 5-6).

Why can’t the court of appeals resolve the issue in this case? Predictably enough, the state points to the presumption that “shall” is mandatory and argues the legislature evinced its intent to make the surcharge mandatory by changing the previous version of § 973.046 in 2013 Wis. Act 20, §§ 2353 and 2354) to say a court “shall” impose a surcharge for all criminal convictions, not just sex offenses. That’s why the cases addressing surcharges imposed under the amended statute have described the surcharge as mandatory. (Certification at 2-3).

But wait, Cox argues: In Act 20, § 2348 the legislature also made the crime victim and witness assistance surcharge under § 973.045(1) mandatory, but it do so by saying the surcharge “shall” be imposed and then saying that it “may not be waived, reduced, or forgiven for any reason.” If “shall” removes discretion by itself, the legislature’s extra “we really mean it” language is surplusage. To avoid that result, and in light of the general rule that sentencing courts are afforded great discretion, “shall” should be read as “may”. (Certification at 3-4). The court acknowledges the force of Cox’s arguments, but concludes it cannot hold the surcharge is discretionary in light of the statements in prior cases that the surcharge is mandatory. (Certification at 4).

So stay tuned. If SCOW grants this certification along with Odom and Williams they could lay a lot of DNA issues to rest this term.

{ 2 comments… add one }
  • Peter Heyne August 30, 2017, 12:47 pm

    The Supreme Court would be well served to look to its neighbor to the southwest: just last year, the Iowa Supreme Court issued a thoughtful, detailed decision finding that fine surcharges are in fact a form of punishment the trial court must disclose during plea proceedings. Because the court did not disclose the surcharges, the defendant was entitled to withdraw his plea. State v. Fisher, 877 N.W.2d 676 (Iowa 2016).

    Specifically, Fisher pleaded to a drug charge that had a mandatory minimum fine ($315), but also some mandatory surcharges, totaling $560.25:
    1. A thirty-five percent criminal penalty surcharge,
    2. A drug abuse resistance education surcharge of $10, and
    3. A law enforcement initiative surcharge of $125.

    Without reprinting the entire analysis, the core of the argument was that labels don’t control–rather, one looks to the purpose. If compensatory (like restitution, court costs, reimbursement for the cost of court-appointed counsel), then not punitive. The decision cites the 7th Circuit case cited in the Wisc. DNA cases, Mueller v. Raemisch, upholding the annual registration fee for the sex offender database because it was “intended to compensate the state for the expense of maintaining the sex offender registry”). A user fee is compensatory.

    Thus, a one-time “user fee” for the collection, submission, and analysis of/entry into the databank of a defendant’s DNA is compensatory. Those actions have a real-world and *targeted* cost in time, effort, etc..

    In contrast, the Iowa Supreme Court held:
    “The State insisted at oral argument that surcharges cannot be characterized as punishment because the funds collected—or at least some of them—are used for ‘remedial’ purposes, such as crime and drug abuse prevention. But the funds collected through regular fines themselves are used for similarly beneficent purposes. They are deposited into the general fund which supports various state priorities including medical assistance and education. See Iowa Code § 602.1305; id. § 602.8108. This does not make them any less punitive.” Id. at 686.

    The crux of the DNA surcharge issue: is the purpose of the new expanded DNA surcharge law a general “tax” on all convicted offenders, to support the databank generally? Or, as the actual grammar of the statutes hold, is the surcharge a specific cost tied to the defendant’s own DNA?

    Notably, neither § 20.455(2)(Lm) nor § 165.77(2)(a) discuss general funding for the DNA database as a whole, e.g., overhead, annual cost of overall equipment and staff, etc.. Rather, Wis. Stat. § 165.77 discusses the rules that govern testing of each individual DNA specimen received. Consistently, the statutes use the *singular*: “a human biological specimen.” Thus, costs “to administer” § 165.77, i.e., the DNA database, should not mean broadly the overall costs to administer the entire database, but the targeted cost to analyze **a** single sample against the database. Thus, the legislature has made a clear earmark: all monies from a DNA surcharge must go to the collection and analysis of that DNA sample. The surcharge does not go to a general DNA fund for future use, especially future analysis of other people’s DNA.

  • Peter Heyne August 30, 2017, 12:52 pm

    To follow up on the last post, just this month the Iowa Court of Appeals followed up on a question that the Iowa Supreme Court left unanswered:

    “As Goodwin was not fully informed as to the mandatory surcharge attached to the minimum and maximum possible fine that could be imposed following his guilty plea, we conclude the plea was not knowing and voluntary.” State v. Goodwin, No. 16-1407, 2017 WL 3283293, at *2 (Iowa Ct. App. Aug. 2, 2017)

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