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DNA Surcharge – Timeliness of Challenge

State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief

Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits:

¶5        When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification.  Pursuant to WIS. STAT. § 973.19, a defendant may move for sentence modification within ninety days after sentencing.  Nickel filed his motion more than six years after entry of his judgment of conviction on December 11, 2002, well outside the time limits imposed under § 973.19.  While a defendant may obtain postconviction review of a sentence within the time limits of a direct appeal, see WIS. STAT.§ 974.02 and WIS. STAT. RULE 809.30, Nickel’s deadline for pursuing a direct appeal expired twenty days after his sentencing when he failed to file a notice of intent to pursue postconviction relief, see State v. Lagundoye, 2004 WI 4, ¶20 and n.13, 268 Wis. 2d 77, 674 N.W.2d 526.[4] Therefore, Nickel’s judgment of conviction became final when he did not challenge the conviction or the sentence within the deadlines for doing so.  See id. (judgment of conviction is final after a direct appeal from that judgment and any right to a direct review of the appellate decision is no longer available).  Despite Nickel’s contention to the contrary, Cherry does not give the trial court the authority to revise a sentence after a criminal conviction becomes final.

¶6        In arriving at this conclusion, we have considered and rejected the notion that the DNA surcharge is neither a sentence nor a component of a sentence.[5] In State v. Galvan, 2007 WI App 173, ¶11, 304 Wis. 2d 466, 736 N.W.2d 890, this court held that a contribution surcharge under WIS. STAT. § 973.06 is a financial obligation and “is not itself a sentence or a component of a sentence.”  However, in State v. Campbell, 2006 WI 99, ¶68, 294 Wis. 2d 100, 718 N.W.2d 649, our supreme court observed that § 973.06 “authorizes a court to impose certain costs, fees, and surcharges upon a defendant as part of his sentence.”  (Emphasis added.)  Moreover, we agree with the amicus curiae that Galvan’s interpretation is inapplicable given the differences in the language of § 973.06 and WIS. STAT. § 973.046, which authorizes the imposition of the DNA surcharge.  Section 973.06 simply lists the “costs, fees, and surcharges taxable against the defendant” generally.  These include, for example, costs incurred in connection with arrest, witness fees and court-appointed counsel fees.  Sec. 973.06(1)(a), (b), (e).  However, § 973.046 expressly authorizes the DNA surcharge only in cases in which “a court imposes a sentence or places a person on probation for a felony conviction.”  Because the DNA surcharge is expressly dependent on the underlying sentence or probation for a felony conviction, it is part of Nickel’s sentence.

Neither § 974.06 nor new-factor analysis has a time limit. However, Nickel raises no constitutional or jurisdictional basis for attack, a requirement under § 974.06. And, the holding of Cherry, requiring proper exercise of discretion with respect to imposing DNA surcharge, isn’t a “new factor.” ¶¶7-8.

An oddity: the court came to this very conclusion in a recent decision also recommended for publication, State v. Singleton, No. 2009AP2089-CR, 6/23/10, but that decision was ordered unpublished 8/25/10. Not clear, of course, why Singleton wasn’t published, or why the publication prospects of Nickel – which appears to add little if anything to Singleton – are greater. In any event, even if Nickel isn’t published, there are now two decisions that may be cited for persuasive effect on the same point: untimely challenge to DNA surcharge isn’t supported.

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