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(Permissive) DNA Surcharge – Exercise of Discretion

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment.


¶9        We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Such is the exercise of discretion contemplated both by the statute and our supreme court’s pronouncement in State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197 (The exercise of discretion contemplates a process of reasoning: “‘This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standard.’”) (citation omitted).

¶10      Thus, in exercising discretion, the trial court must do something more than stating it is imposing the DNA surcharge simply because it can. We also do not find the trial court’s explanation that the surcharge was imposed to support the DNA database costs sufficient to conclude that the trial court properly exercised its discretion. To reach such a conclusion would eliminate the discretionary function of the statute as a DNA surcharge could be imposed in every single felony case using such reasoning. We are not going to attempt to provide a definite list of factors for the trial courts to consider in assessing whether to impose the DNA surcharge. We do not want to limit the factors to be considered, nor could we possibly contemplate all the relevant factors for every possible case. In an effort to provide some guidance to the trial courts, however, we conclude that some factors to be considered could include: (1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent.

The court of appeals has long held that a sentencing court erroneously exercises discretion when it treats as mandatory a disposition that in fact is discretionary. E.g., State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981) (sentence overturned where court stated it would never grant probation on drug offense). Cherry fits precisely within that paradigm, at least as a pragmatic matter, in that the sentencing court also treated as mandatory something that is discretionary. The court of appeals, then, could have simply cited Martin and then gone on to other business. But it didn’t, relying instead on Gallion, which makes the impact broader. In brief, the court seems more than willing to apply Gallion to aspects of sentence other than imprisonment—not just this costs case but also, and recently, fines, State v. Ahern Ramel, 2007 WI App 271, ¶14 (“under Gallion some explanation of why the court imposes a fine is required”). The factors will differ depending on the context, of course, but that there must be some articulation of relevant factors may not be doubted.


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