State v. Anthony M. Schmidt ( 2021 )

2021 WI 65SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP616-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Anthony M. Schmidt,
Defendant-Appellant.
ON PETITION TO BYPASS
OPINION FILED: June 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 8, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Phillip A. Koss
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined, and in which ANN WALSH BRADLEY, DALLET, and HAGEDORN,
JJ., joined with respect to Parts I, II, and III.A. ROGGENSACK,
J., filed a concurrence, in which REBECCA GRASSL BRADLEY, J.,
joined. HAGEDORN, J., filed an opinion concurring in part, and
dissenting in part, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by
Christopher P. August, assistant state public defender and Office
of the State Public Defender, Milwaukee. There was an oral argument
by Christopher P. August.
For the plaintiff-respondent, there was a brief filed by Eric
M. Muellenbach, assistant attorney general; with whom on the brief
was Joshua L. Kaul, attorney general. There was an oral argument
by Eric M. Muellenbach.
2021 WI 65NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP616-CR
(L.C. No. 2018CF636)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 18, 2021
Anthony M. Schmidt, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined, and in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ.,
joined with respect to Parts I, II, and III.A. ROGGENSACK, J.,
filed a concurrence, in which REBECCA GRASSL BRADLEY, J., joined.
HAGEDORN, J., filed an opinion concurring in part, and dissenting
in part, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court for
Walworth County, Phillip A. Koss, Judge. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This case is before
the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (2019-
20).1 Anthony Schmidt brought this action challenging the Walworth
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
No. 2020AP616-CR
County circuit court's2 judgment imposing a child pornography
surcharge for 14 images of child pornography, pursuant to Wis.
Stat. § 973.042(2), and order denying Schmidt's postconviction
motion seeking to withdraw his guilty plea or, in the alternative,
have the circuit court vacate the child pornography surcharges for
the eight images of child pornography that formed the basis of
Schmidt's read-in charges of possession of child pornography.
¶2 Schmidt was charged with 14 counts of possession of child
pornography and one count of failing to register for the sex
offender registry. As part of a plea agreement, Schmidt pled
guilty to six counts of possession of child pornography, and the
State dismissed and read in the remaining charges. The circuit
court accepted this plea agreement and convicted Schmidt of the
six counts of possession of child pornography. At sentencing, the
circuit court sentenced Schmidt to 30 years, consisting of 15 years
of initial confinement and 15 years of extended supervision. The
circuit court also imposed a $500 child pornography surcharge,
pursuant to Wis. Stat. § 973.042(2), for each of the 14 images of
child pornography for which Schmidt was charged.
¶3 After sentencing, Schmidt filed a postconviction motion
seeking to have the circuit court (1) allow him to withdraw his
guilty plea, (2) vacate the child pornography surcharges imposed
for the eight images of child pornography that formed the basis of
Schmidt's read-in charges of possession of child pornography, and
(3) grant a hearing on both issues. Schmidt argued that he should
2 The Honorable Phillip A. Koss presided.
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No. 2020AP616-CR
be permitted to withdraw his plea because the circuit court failed
to adequately inform him during the plea colloquy about the child
pornography surcharge, which he alleged was a punishment attaching
to his conviction. In the alternative, he argued that the circuit
court could not impose a child pornography surcharge for images of
child pornography that form the basis of read-in charges of
possession of child pornography. The circuit court denied
Schmidt's postconviction motion without a hearing, determining
that it did not need to inform Schmidt of the child pornography
surcharge during the plea colloquy, and that it could order the
child pornography surcharge for the images of child pornography
that formed the basis of read-in charges of possession of child
pornography. We agree.
¶4 We conclude that the child pornography surcharge is not
punitive, so the circuit court did not need to inform Schmidt of
the child pornography surcharge during the plea colloquy.
Consequently, the circuit court did not err when it denied
Schmidt's postconviction motion to withdraw his guilty plea. We
also conclude that the child pornography surcharge applies to
images of child pornography that form the basis of read-in charges
of sexual exploitation of a child or possession of child
pornography, so long as those images of child pornography are
connected to and brought into relation with the convicted
individual's offense of sexual exploitation of a child or
possession of child pornography. Accordingly, we affirm the
circuit court's judgment imposing the child pornography surcharge
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No. 2020AP616-CR
for 14 images of child pornography, and the order that denied plea
withdrawal.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶5 On December 13, 2018, the State filed a criminal
complaint against Schmidt, alleging five counts——specifically,
four counts of possession of child pornography and one count of
failing to comply with requirements of the sex offender registry.3
The State later filed an information increasing the number of
counts against Schmidt to 14 counts of possession of child
pornography and retaining the one count of failing to comply with
requirements of the sex offender registry.
¶6 On April 1, 2019, the circuit court held a plea hearing
after the State and Schmidt reached a plea agreement. The plea
agreement, which was filed with the circuit court, stated that
"Schmidt will plead guilty to counts 1-6 [each a count of
possession of child pornography], the State will move to dismiss
and read-in the remaining charges, a [presentence investigation]
will be requested by the parties, and both sides will be free to
argue for the appropriate sentence." Schmidt also submitted a
completed Plea Questionnaire/Waiver of Rights form. Included in
the Plea Questionnaire/Waiver of Rights form, Schmidt acknowledged
that he faced "a $500.00 surcharge for each image or each copy of
3 Schmidt was previously convicted of possession of child
pornography and, as a part of that conviction, was required to
register as a sex offender.
4
No. 2020AP616-CR
an image [of child pornography]" upon the circuit court accepting
his guilty plea.
¶7 The circuit court engaged in a standard plea colloquy
with Schmidt before accepting his guilty plea. At no time did the
court inform Schmidt that he faced a surcharge for each image of
child pornography associated with his crimes. The court accepted
Schmidt's guilty plea, entered its judgment of conviction, and
ordered a presentence investigation.
¶8 On May 28, 2019, the circuit court held a sentencing
hearing. The court sentenced Schmidt to 30 years, consisting of
15 years of initial confinement and 15 years of extended
supervision. The circuit court also imposed a surcharge for 14
images of child pornography; specifically, the six images of child
pornography that formed the basis of the six convictions and the
eight images of child pornography that formed the basis of
Schmidt's read-in charges of possession of child pornography.
¶9 On December 18, 2019, Schmidt filed a motion to withdraw
his guilty plea or, in the alternative, to have the circuit court
vacate the child pornography surcharges imposed for the eight
images of child pornography that formed the basis of his read-in
counts of possession of child pornography. He asserted that the
child pornography surcharge is a punishment that the circuit court
was required to inform him of during the plea colloquy. Because
the circuit court did not do so, Schmidt claims that his plea was
not knowing, intelligent, and voluntary, and that therefore he was
entitled to withdraw his plea. He also contended, in the
alternative to plea withdrawal, that the circuit court could not
5
No. 2020AP616-CR
impose the child pornography surcharge for the images of child
pornography that formed the basis of his read-in counts of
possession of child pornography because the court imposed a
sentence for only six counts, not 14 counts, of possession of child
pornography. Accordingly, Schmidt argued, the circuit court
should vacate the child pornography surcharge for the eight images
of child pornography that formed the basis of his read-in charges
of possession of child pornography.
¶10 On March 31, 2020, the circuit court issued its order
denying Schmidt's postconviction motion without a hearing.
Specifically, the court determined that the child pornography
surcharge was not punishment, so it did not need to inform Schmidt
of the surcharge prior to accepting his guilty plea. The court
also determined that it had the power to impose the child
pornography surcharge for the eight images of child pornography
that formed the basis of the eight read-in charges of possession
of child pornography and correctly exercised its authority when it
did so.
¶11 Schmidt appealed. On October 16, 2020, while the case
was still pending before the court of appeals, Schmidt petitioned
this court to bypass the court of appeals, pursuant to Wis. Stat.
§ (Rule) 809.60. We granted Schmidt's petition to bypass the court
of appeals and took jurisdiction of this case.
II. STANDARD OF REVIEW
¶12 Schmidt asks this court to review the circuit court's
denial of his postconviction motion to withdraw his guilty plea
6
No. 2020AP616-CR
after he was sentenced. "We review a circuit court's decision to
deny a plea withdrawal motion under an erroneous exercise of
discretion standard." State v. Savage, 2020 WI 93, ¶24, 395
Wis. 2d 1, 951 N.W.2d 838 (citing State v. Nash, 2020 WI 85, ¶27,
394 Wis. 2d 238, 951 N.W.2d 404). "A defendant seeking to withdraw
a plea after sentencing must show by clear and convincing evidence
that 'allowing the withdrawal of the plea is necessary to correct
a manifest injustice.'" Id. (quoting Nash, 394 Wis. 2d 238, ¶32).
"A defendant can meet that burden by showing that he or she did
not knowingly, intelligently, and voluntarily enter the plea."
State v. Fugere, 2019 WI 33, ¶16, 386 Wis. 2d 76, 924 N.W.2d 469.
¶13 "Whether a guilty plea was entered knowingly,
intelligently, and voluntarily is a question of constitutional
fact." Id., ¶17 (citing State v. Muldrow, 2018 WI 52, ¶24, 381
Wis. 2d 492, 912 N.W.2d 74). "This court upholds a circuit court's
findings of fact unless clearly erroneous, and '[d]etermines
independently whether those facts demonstrate that the defendant's
plea was knowing, intelligent, and voluntary.'" Id. (alteration
in original) (quoting State v. Brown, 2006 WI 100, ¶19, 293
Wis. 2d 594, 716 N.W.2d 906).
¶14 Schmidt also asserts that there were deficiencies in the
plea colloquy conducted by the circuit court. "This court
determines the sufficiency of the plea colloquy and the necessity
of an evidentiary hearing, questions of law, independently of the
circuit court and court of appeals but benefiting from their
analyses." State v. Hoppe, 2009 WI 41, ¶17, 317 Wis. 2d 161, 765
N.W.2d 794.
7
No. 2020AP616-CR
¶15 Furthermore, Schmidt argues that the child pornography
surcharge is punishment, and that the child pornography surcharge
cannot apply to images of child pornography that form the basis of
read-in charges of sexual exploitation of a child or possession of
child pornography. Both of these arguments require us to interpret
Wis. Stat. § 973.042, which we do de novo. Muldrow, 381
Wis. 2d 492, ¶25.
III. ANALYSIS
¶16 We begin our analysis with Schmidt's claim that he is
entitled to withdraw his guilty plea. We then turn to his
alternative argument that we should vacate the circuit court's
imposition of the child pornography surcharge for the images of
child pornography that formed the basis of his read-in charges of
possession of child pornography.
A. Schmidt Is Not Entitled To Withdraw His Guilty Plea.
1. Principles of plea withdrawal, plea
colloquies, and punishment
¶17 To withdraw a plea after sentencing, as is the case here,
the defendant "bears the heavy burden to demonstrate by 'clear and
convincing evidence' that withdrawal is necessary to avoid
'manifest injustice.'" Fugere, 386 Wis. 2d 76, ¶24 (quoted source
omitted). "A plea is 'manifestly unjust' in violation of the Due
Process Clause of the United States Constitution if it was not
entered 'knowingly, intelligently, and voluntarily.'" Id.(quoting Bradshaw v. Stumpf, 545 U.S. 175, 182-83 (2005)). "A
plea not entered knowingly, intelligently, and voluntarily
8
No. 2020AP616-CR
violates fundamental due process, and a defendant therefore may
withdraw the plea as a matter of right." State v. Taylor, 2013 WI
34, ¶25, 347 Wis. 2d 30, 829 N.W.2d 482.
¶18 For a defendant's plea to be knowing, intelligent, and
voluntary, "the circuit court must notify the defendant of any
direct consequence of his guilty plea." Muldrow, 381 Wis. 2d 492,
¶1. "A direct consequence of a guilty plea, is one that 'has a
definite, immediate, and largely automatic effect on the range of
a defendant's punishment.'" Id. (quoting State v. Bollig, 2000 WI
6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199). While a circuit court
must inform a defendant of a direct consequence of a guilty plea,
the circuit court does not need to inform a defendant of
"collateral consequences" of a defendant's plea for the plea to be
knowing, intelligent, and voluntary. Fugere, 386 Wis. 2d 76, ¶20.
"Collateral consequences are indirect and do not flow from the
conviction." Id. (quoting State v. Byrge, 2000 WI 101, ¶61, 237
Wis. 2d 197, 614 N.W.2d 477). "In evaluating whether a
consequence of a defendant's plea is direct or collateral, courts
look to whether the consequence is a punishment." Id.¶19 "The legislature has codified this prerequisite,
requiring circuit courts to '[a]ddress the defendant personally
and determine that the plea is made voluntarily with understanding
of the nature of the charge and the potential punishment if
convicted' before the court accepts a guilty plea." Muldrow, 381
Wis. 2d 492, ¶2 (alteration in original) (quoting Wis. Stat.
§ 971.08(1)(a)). "A defendant who is not accurately informed of
9
No. 2020AP616-CR
the punishment that could result from his guilty plea may be
entitled to withdraw his plea." Id.¶20 When a defendant has shown that he or she was not
accurately informed of a punishment, the circuit court does not
automatically grant the defendant's plea withdrawal request. See
Fugere, 386 Wis. 2d 76, ¶24. Instead, the circuit court may hold
an evidentiary hearing where the State may prove that, despite the
failure to inform him of the punishment, the defendant's plea was
indeed knowing, intelligent, and voluntary. Id.
2. The child pornography surcharge is not punishment.
¶21 With these principles in mind, we turn to Schmidt's
challenge in this case. Schmidt alleges that he is entitled to
plea withdrawal, or an evidentiary hearing, because the child
pornography surcharge is punishment that he was not informed of
during his plea colloquy.
¶22 Despite the clear mandate that the circuit court must
inform the defendant of all punishments, it is not always clear
whether a particular sanction constitutes punishment. See, e.g.,
Muldrow, 381 Wis. 2d 492 (determining whether lifetime GPS
tracking constitutes punishment); Bollig, 232 Wis. 2d 561(determining whether a sex offender registration requirement
constitutes punishment); State v. Williams, 2018 WI 59, 381
Wis. 2d 661, 912 N.W.2d 373 (determining whether a DNA surcharge
constitutes punishment). To determine whether a sanction is
punishment, we adopted the "intent-effects test" from Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-70 (1963). Muldrow, 381
Wis. 2d 492, ¶30.
10
No. 2020AP616-CR
¶23 This intent-effects test consists of two independent
inquiries to determine whether the sanction is punishment. The
first inquiry requires courts to "look to the 'statute's primary
function' to determine the statute's intent," as expressed in the
plain text of the statute. Fugere, 386 Wis. 2d 76, ¶38 (quoting
Mendoza-Martinez, 372 U.S. at 169); State ex rel. Kalal v. Cir.
Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. If the statute's primary function is to impose
punishment, we end the inquiry, and the sanction is deemed
punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). If the
statute's primary function is not punitive, we then turn to the
second inquiry, which requires the court to consider "whether the
effect of the statute was 'penal or regulatory in character.'"
Muldrow, 381 Wis. 2d 492, ¶31 (quoting Mendoza-Martinez, 372 U.S.
at 168). If the effect of the statute was penal in character, the
sanction is deemed punishment. Thus, if either the statute's
primary function is punitive or the sanction is in effect punitive
in character, we must deem the sanction to be punishment.
¶24 Accordingly, we must determine whether the statute's
primary function is punitive or the effect of the child pornography
surcharge is punishment. Such an inquiry is "a matter of statutory
construction." See Hudson v. United States, 522 U.S. 93, 99
(1997). The child pornography surcharge is codified in Wis. Stat.
§ 973.042(2), which provides:
11
No. 2020AP616-CR
If a court imposes a sentence or places a person on
probation for a crime under [Wis. Stat. §§] 948.05[4]
or 948.12[5] and the person was at least 18 years of age
when the crime was committed, the court shall impose a
child pornography surcharge of $500 for each image or
each copy of an image associated with the crime. The
court shall determine the number of images or copies of
images associated with the crime by a preponderance of
the evidence and without a jury.[6]
¶25 Having set forth the specific statute at issue, we now
turn to an analysis of the intent-effects test to determine whether
the child pornography surcharge is punishment.
a. Intent of the child pornography surcharge
¶26 The first half of the intent-effects test requires us to
determine whether the primary function of the child pornography
surcharge statute, Wis. Stat. § 973.042(2), is punitive. See
Williams, 381 Wis. 2d 661, ¶22. Both parties agree that the
primary function of the child pornography surcharge is not
punitive. We agree. See State v. Scruggs, 2017 WI 15, 373
Wis. 2d 312, 891 N.W.2d 786 (holding that the primary function of
the DNA surcharge statute was not punitive); Williams, 381
Wis. 2d 661 (same).
4Wisconsin Stat. § 948.05 criminalizes sexual exploitation
of a child, including the recording and displaying of children
engaging in sexually explicit conduct and the sale, distribution,
and promotion of recordings of children engaging in sexually
explicit conduct.
5Wisconsin Stat. § 948.12 criminalizes possession of child
pornography.
6"In this section, 'image' includes a video recording, a
visual representation, a positive or negative image on exposed
film, and data representing a visual image." Wis. Stat.
§ 973.042(1).
12
No. 2020AP616-CR
¶27 In Scruggs, we determined that the primary function of
the DNA surcharge statute was not punitive. Scruggs, 373
Wis. 2d 312, ¶3. We reached this conclusion based on the plain
text of the statute because "[t]he legislature termed the payment
a 'surcharge' not a 'fine,' . . . and it linked the surcharge to
legislation that dramatically increased the number of people
required to provide DNA samples to be analyzed, stored, and
maintained in the DNA databank." Williams, 381 Wis. 2d 661, ¶22
(summarizing the Scruggs court's analysis).
¶28 The child pornography surcharge shares both of these
characteristics. Just as with the DNA surcharge, the legislature
termed the payment a surcharge rather than a fine. See Wis. Stat.
§ 973.042(2), (5), (6). Moreover, the surcharge is linked to
funding of investigations of sexual exploitation of children and
possession of child pornography and grants to eligible public
agencies or nonprofit organizations that provide counseling
services to victims of sexual assault. Wis. Stat.
§ 20.455(5)(gj).7 Therefore, in light of the plain text of
§ 973.042, the primary function of the child pornography surcharge
is not punitive.
7Wisconsin Stat. § 20.455(5)(gj) provides that "[a]ll moneys
received from any child pornography surcharge imposed under
[§] 973.042 for investigating offenses under [§] 948.05 or 948.12
and for making grants under [§] 165.93(2)(a)."
Wisconsin Stat. § 165.93(2)(a) in turn provides that "[t]he
[Department of Justice] shall provide grants to eligible
organizations from the appropriations under [§] 20.455(5)(e) and
(gj) to provide services for sexual assault victims."
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No. 2020AP616-CR
b. Effect of the child pornography surcharge
¶29 The second inquiry of the intent-effects test requires
us to independently consider the effect of the child pornography
surcharge. See Williams, 381 Wis. 2d 661, ¶30. Regardless of the
statute's non-punitive primary function for imposing the child
pornography surcharge, we must consider whether the child
pornography surcharge is "so punitive in form and effect as to
render [it] criminal despite" the statute's primary function to
the contrary. Scruggs, 373 Wis. 2d 312, ¶39 (quoting State v.
Rachel, 2002 WI 81, ¶42, 254 Wis. 2d 215, 647 N.W.2d 762). "Only
the 'clearest proof' will 'override [the statute's primary
function] and transform what has been denominated a civil remedy
into a criminal penalty.'" Williams, 381 Wis. 2d 661, ¶30 (quoting
Hudson, 522 U.S. at 100).
¶30 Seven factors, referred to as the Mendoza-Martinez
factors, guide our analysis of whether a sanction is punitive in
effect. These factors are:
(1) does the statute involve an affirmative disability
or restraint; (2) has the sanction at issue historically
been regarded as punishment; (3) will the sanction be
imposed only after a finding of scienter; (4) does the
statute promote the traditional aims of punishment——
retribution and deterrence; (5) is the behavior to which
it applies already a crime; (6) is there an alternative
purpose to which it may be rationally connected; and (7)
is the sanction excessive in relation to the alternative
purpose assigned.
Williams, 381 Wis. 2d 661, ¶30 (citing Mendoza-Martinez, 372
U.S. at 168-69). The Mendoza-Martinez factors "are 'neither
exhaustive nor dispositive' but are 'useful guideposts'" in
14
No. 2020AP616-CR
ascertaining if the effect of a statute is punitive. Smith, 538
U.S. at 97 (citations omitted). And these factors must be applied
on the face of the statute, rather than to the facts and
circumstances of an individual defendant. Hudson, 522 U.S. at
100; contra Williams, 381 Wis. 2d 661, ¶67 (Abrahamson, J.,
concurring) (advocating to answer these questions "on a case-by-
case basis").
¶31 Accordingly, when we apply the seven Mendoza-Martinez
factors here, we look to the statutory language that imposes the
$500 surcharge rather than a potential cumulative effect for a
particular defendant. See Mendoza-Martinez, 372 U.S. at 169. We
conclude, based on our application of the Mendoza-Martinez
factors, that the child pornography surcharge is not punitive in
effect.
i. Is the surcharge an affirmative disability or restraint?
¶32 Schmidt asserts that the child pornography surcharge
imposes an affirmative disability or restraint due to the "extreme
level of financial immiseration entailed by the statute." Schmidt
argues that the child pornography surcharge statute imposes a
disability on defendants because it "is capable of imposing
millions of dollars of financial liability," which "harshly
limit[s] the defendant's ability to reintegrate into society upon
release" and "creates a debt that can never be repaid
and . . . will in fact impact employment, housing, and travel."
However, as we discussed above, when analyzing the child
pornography surcharge statute under the Mendoza-Martinez factors,
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No. 2020AP616-CR
we must look at the statutory language, which imposes a $500
surcharge per image of child pornography. As such, Schmidt's
hypothetical argument that an individual defendant may face
millions of dollars of surcharges is irrelevant to our analysis.
¶33 Furthermore, the child pornography surcharge statute
does not impose an affirmative disability or restraint.
"'[D]isability' and 'restraint' are normally understood to mean
imprisonment." Williams, 381 Wis. 2d 661, ¶32. The child
pornography surcharge "imposes no physical restraint, and so does
not resemble the punishment of imprisonment, which is the
paradigmatic affirmative disability or restraint." Smith, 538
U.S. at 100. Moreover, a $500 surcharge is "less harsh than the
sanctions of occupational debarment, which [the Court has] held to
be nonpunitive." Id. Such a surcharge "does not restrain
activities [defendants] may pursue but leaves them free to change
jobs or residences." Id.¶34 As such, this factor weighs against characterizing the
child pornography surcharge as punishment.
ii. Is the surcharge historically viewed as punishment?
¶35 "[A] surcharge has not been viewed as punishment."
Williams, 381 Wis. 2d 661, ¶33. We have been unable to identify
"historical evidence supporting [the] characterization of a
surcharge as punishment. Although the surcharge might not align
exactly with the remedial sanction cases from the late 1800s and
early 1900s[,] a surcharge resembles a non-punitive remedial
sanction much more than punishment." Id., ¶34. Schmidt requests
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No. 2020AP616-CR
that we depart from this conclusion because of his assertion that
the child pornography surcharge statute authorizes the imposition
of millions of dollars of financial penalties "in conjunction with
proof that the offender has committed a morally blameworthy act."
However, contrary to Schmidt's assertion, the plain language of
the child pornography surcharge statute imposes a $500 surcharge
as the sanction. Accordingly, Schmidt has presented no new
information that suggests that we should depart from our previous
determination that "a surcharge has not been viewed as punishment."
Id., ¶33. As such, this factor undercuts characterizing the child
pornography surcharge as punishment.
iii. Is a finding of scienter required?
¶36 Schmidt concedes that no finding of scienter is required
to impose the surcharge. The absence of the scienter requirements
shows that the statute is not punitive in effect. Id., ¶35
(quoting Kansas v. Hendricks, 521 U.S. 346, 362 (1997)). As such,
this factor militates against characterizing the child pornography
surcharge as punishment.
iv. Does a surcharge promote retribution and deterrence?
¶37 The child pornography surcharge does not promote the
traditional aims of punishment——retribution and deterrence. The
child pornography surcharge statute imposes a $500 surcharge,
which is "relatively small and therefore [does] not promote the
traditional punitive aims of retribution and deterrence." Id.,¶36 (citing Scruggs, 373 Wis. 2d 312, ¶45). The $500 surcharge
"is unlikely to deter anyone from engaging in illegal activity.
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No. 2020AP616-CR
And the corrective impact of a [$500 surcharge] pales in comparison
to the penal power of a lengthy prison sentence." Id. The maximum
sentence for possession of child pornography is 25 years in prison
and $100,000 fine, which is far more retributive and deterring
than the $500 surcharge. As such, this factor undermines
characterizing the child pornography surcharge as punishment.
v. Does the surcharge apply to conduct already a crime?
¶38 Both the State and Schmidt agree that the surcharge
applies to conduct that was already a crime: convictions for
sexual exploitation of a child and possession of child pornography.
This suggests that "the surcharge has the effect of punishing
criminal behavior." Scruggs, 373 Wis. 2d 312, ¶43. Accordingly,
this factor weighs in favor of characterizing the surcharge as
punishment. However, the factors are only guideposts and no one
factor is dispositive. Smith, 538 U.S. at 97.
vi. Is the surcharge rationally connected to an
alternative purpose?
¶39 "The existence of an alternative non-punitive purpose
for a sanction is considered 'the most significant factor' in
determining whether the effect of a sanction is punitive."
Muldrow, 381 Wis. 2d 492, ¶57. Both the State and Schmidt agree
that the child pornography surcharge serves two alternative non-
punitive purposes: (1) funding investigations of sexual
exploitation of children and possession of child pornography, and
(2) providing grants to eligible public agencies or nonprofit
organizations that provide counseling services to victims of
sexual assault. Wis. Stat. § 20.455(5)(gj). While Schmidt agrees
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No. 2020AP616-CR
that the child pornography surcharge has these alternative
purposes, he contends that assessing the child pornography
surcharge based on the number of images of child pornography is
not rationally related to the alternative purposes because "it
makes little sense that the costs of a child pornography
investigation will increase at a rate of $500 per individual
[image]."
¶40 Even if Schmidt's assertion were correct——for which he
provides no support or citation——"[a] statute is not deemed
punitive simply because it lacks a close or perfect fit with the
nonpunitive aims it seeks to advance." Smith, 538 U.S. at 103.
Schmidt's alleged imprecision "does not suggest that the [child
pornography surcharge's] nonpunitive purpose is a 'sham or mere
pretext.'" Id. (quoting Hendricks, 521 U.S. at 371 (Kennedy, J.,
concurring)). "[I]t is altogether rational to assess a fee aimed
at solving crimes against those who commit them . . . ." Williams,
381 Wis. 2d 661, ¶38 (quoted source omitted). Because the child
pornography surcharge is used to fund investigations of sexual
exploitation of children and possession of child pornography, the
child pornography surcharge is rationally related to its
alternative purpose of defraying investigation costs.
¶41 Moreover, Schmidt's assertion ignores the other purpose
for which the $500 is earmarked——providing grants for counseling
services to victims of sexual assault. As distribution of child
pornography "is intrinsically related to the sexual abuse of
children," United States v. Stevens, 559 U.S. 460, 471 (2010), the
counseling services that the child pornography surcharge funds
19
No. 2020AP616-CR
will assist the victims of child pornography. Thus, the child
pornography surcharge is also rationally related to this non-
punitive purpose.
¶42 Accordingly, the child pornography surcharge is
rationally connected to alternative non-punitive purposes; namely,
funding investigations of sexual exploitation of children and
possession of child pornography and providing grants to eligible
public agencies or nonprofit organizations that provide counseling
services to victims of sexual assault. As such, this factor weighs
against characterizing the child pornography surcharge as
punishment.
vii. Is the surcharge excessive in relation to the
alternative purpose?
¶43 "To determine whether the surcharge is excessive in
relation to its non-punitive purpose, we must compare the amount
of the surcharge with the overall expenses the State incurs because
of the charged population's conduct." Williams, 381 Wis. 2d 661,
¶39. "The surcharge must be 'grossly disproportionate to the
annual cost' to prove it is excessive." Id. (quoting Mueller v.
Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014)). "We examine not
'whether the legislature has made the best choice possible to
address the problem it seeks to remedy,' but 'whether the
regulatory means chosen are reasonable.'" Id. (quoting Smith, 538
U.S. at 105).
¶44 Under this standard, we are not convinced the surcharge
is excessive in relation to its non-punitive purposes. Schmidt
argues that because the impact on an individual defendant may
20
No. 2020AP616-CR
exceed millions of dollars of liability, the child pornography
surcharge is punitive in nature. However, the child pornography
surcharge imposes $500 of liability per image. Schmidt and the
State agree that the cost that child pornography imposes on society
and victims is high. The money generated from the child
pornography surcharge is specifically earmarked to alleviate those
costs to society (via investigations) and to the victims (via
grants for counseling services). See Wis. Stat. § 20.455(5)(gj).8
The high cost of counseling for an individual victim can easily
exceed the $500 amount of the child pornography surcharge. See,
e.g., Paroline v. United States, 572 U.S. 434, 441 (2014)
(addressing a child pornography victim's claim for $500,000 in
future treatment and counseling costs for the defendant possessing
two images depicting the victim). Similarly, the cost of
investigating sexual exploitation of a child and possession of
child pornography is expensive, especially as the technology for
8The child pornography surcharge generated an estimated
$215,500 in 2018-19, of which $181,300 went to grants for
counseling services for victims of sexual assault. See Legislative
Fiscal Bureau Informational Paper #59, Crime Victim and Witness
Services 10 (January 2019),
https://docs.legis.wisconsin.gov/misc/lfb/informational_papers/j
anuary_2019/0059_crime_victim_and_witness_services_informational
_paper_59.pdf.
21
No. 2020AP616-CR
sharing and storing child pornography increases in complexity and
sophistication.9
¶45 When we consider the high cost of counseling for victims
and the high cost to investigate child pornography, we are not
convinced that the $500 child pornography surcharge per image of
child pornography is excessive in relation to its non-punitive
purposes. As such, this factor militates against characterizing
the child pornography surcharge as punishment.
3. Summary
¶46 In sum, we conclude that the child pornography surcharge
does not constitute punishment. Our application of the intent-
effects test demonstrates that the primary function of the child
pornography surcharge statute is not punitive nor is the child
pornography surcharge punitive in effect. The text of Wis. Stat.
§ 973.042 does not evidence that the child pornography surcharge
statute's primary function is punitive, and our review of the
Mendoza-Martinez factors demonstrates that all but one factor——
application to conduct already a crime——weigh in favor of our
determination that the child pornography surcharge is not punitive
in effect. Because of our conclusion that the child pornography
surcharge is not punitive, the circuit court did not need to inform
9 See Internet Crimes Against Children Task Force, Priority
Needs For Our Top Priority: Kids 14-16 (May 3, 2007),
https://www.doj.state.wi.us/sites/default/files/2007-news/icac-
report.pdf (approximating costs to investigate internet crimes
against children and estimating cost to investigate "all known IP
addresses offering to share child pornography in Wisconsin" to be
$82,888,395 in 2007).
22
No. 2020AP616-CR
Schmidt of the child pornography surcharge during the plea
colloquy. See Fugere, 386 Wis. 2d 76, ¶20. Consequently, the
circuit court did not err when it denied Schmidt's postconviction
motion to withdraw his guilty plea.
B. The Child Pornography Surcharge Applies to Images
of Child Pornography that Form the Basis of Read-in Charges.
¶47 Having determined that Schmidt was not entitled to
withdraw his guilty plea, we now turn to his alternative argument
that we should vacate part of the child pornography surcharge that
the circuit court imposed. Wisconsin Stat. § 973.042 sets forth
when a circuit court imposes a child pornography surcharge, which
we repeat for context:
If a court imposes a sentence or places a person on
probation for a crime under [§§] 948.05 or 948.12[,] the
court shall impose a child pornography surcharge of $500
for each image or each copy of an image associated with
the crime. The court shall determine the number of
images or copies of images associated with the crime by
a preponderance of the evidence and without a jury.
§ 973.042(2) (emphasis added).
¶48 Schmidt argues that the circuit court could impose the
child pornography surcharge only for the six images that formed
the basis of his convictions, not for the eight additional images
that formed the basis of the charges that were read-in at
sentencing. To address Schmidt's argument, we interpret the
language of the child pornography surcharge statute and conclude
that a circuit court must impose the child pornography surcharge
for images of child pornography that form the basis of read-in
23
No. 2020AP616-CR
charges of sexual exploitation of a child or possession of child
pornography.
¶49 While the statute imposes mandatory language on the
circuit court, the circuit court determined that only the 14 images
that formed the basis of the charges were associated with Schmidt's
possession of child pornography. Consequently, we do not need to
address, and we do not address in this case, whether the circuit
court must impose the child pornography surcharge for images of
child pornography that were not charged.
¶50 "[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its full,
proper, and intended effect." Kalal, 271 Wis. 2d 633, ¶44. To do
so, we begin with the plain language of the statute, stopping our
inquiry there if the meaning of the statute is clear. Id., ¶45.
When interpreting the language of a statute, the words are given
their "common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." Id. Determining the
common, ordinary, and accepted meaning of a word can be
"acertain[ed] by reference to the dictionary definition." Id.,
¶53.
¶51 Also essential in a plain meaning analysis is the context
and structure of the statute in which the operative language
appears. Id., ¶46. "[S]tatutory language is interpreted in the
context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or unreasonable
24
No. 2020AP616-CR
results." Id. Moreover, "[s]tatutory language is read where
possible to give reasonable effect to every word, in order to avoid
surplusage." Id. "If this process of analysis yields a plain,
clear statutory meaning, then there is no ambiguity, and the
statute is applied according to this ascertainment of its meaning,"
and we do not need to consult extrinsic sources. Id. (quoted
source omitted)
¶52 Turning to the facts of this case, the circuit court
imposed the child pornography surcharge for the 14 images of child
pornography charged. Schmidt concedes that he is liable for the
surcharge for the six images of child pornography that formed the
bases for his six convictions of possession of child pornography.
With respect to the other eight images of child pornography that
formed the basis of the dismissed and read-in charges, Schmidt and
the State disagree solely about whether those images were
"associated with the crime" as that phrase is used in Wis. Stat.
§ 973.042(2). Thus, we must determine the plain meaning of the
phrase "associated with the crime" before determining whether the
circuit court must impose the child pornography surcharge for
images of child pornography that form the basis of read-in charges
25
No. 2020AP616-CR
of sexual exploitation of a child or possession of child
pornography.10
¶53 As the term is used in Wis. Stat. § 973.042(2), to
associate is "to connect or bring into relation, as thought,
feeling, memory, etc."11 Random House Unabridged Dictionary 126
(2d ed. 1983). Beyond the definition of associate, we must also
determine what "the crime" means as used in § 973.042(2). A
straightforward reading of § 973.042(2) indicates that "the crime"
refers to the offenses of conviction previously mentioned in the
sentence, namely, sexual exploitation of a child and possession of
child pornography. See § 973.042(2) (requiring that circuit court
impose the child pornography surcharge "[i]f a court imposes a
sentence or places a person on probation for a crime under
[§§] 948.05 or 948.12"); Paroline, 572 U.S. at 445 (explaining
10Before imposing a child pornography surcharge, the circuit
court must "determine the number of images or copies of images
associated with the crime by a preponderance of the evidence and
without a jury." Wis. Stat. § 973.042(2). After determining by
a preponderance of the evidence the number of images associated
with the crime, the circuit court must impose the child pornography
surcharge for those images of child pornography. Id. Here, the
parties do not dispute that the circuit court found by a
preponderance of the evidence that the 14 images of child
pornography charged were associated with the crime of possession
of child pornography.
This dictionary's definition is consistent with the
11
definition of "Associate" from other dictionaries. See, e.g.,
Webster's Third New International Dictionary 132 (1986) ("to join
or connect in any of various intangible or unspecified ways"); The
American Heritage Dictionary of the English Language 112 (3d ed.
1992) ("To connect in the mind or imagination"); Oxford English
Dictionary, https://www.oed.com/
view/Entry/11976?rskey=2n1wss&result=2&isAdvanced=false#eid
("Connected in thought, mentally related").
26
No. 2020AP616-CR
that the use of the term "a crime" refers to the "offense of
conviction"). So a child pornography surcharge must be imposed
for an image of child pornography if that image is connected or
brought into relation with the convicted individual's offense of
sexual exploitation of a child or possession of child pornography.
¶54 Applying this understanding of "associated with the
crime," it is clear that a circuit court must impose the child
pornography surcharge for images of child pornography that form
the basis of read-in charges of sexual exploitation of a child or
possession of child pornography. Those images of child pornography
are specifically connected to and brought into relation with the
convicted individual's offense of either sexual exploitation of a
child or possession of child pornography because those images of
child pornography that form the basis of read-in charges of sexual
exploitation of a child or possession of child pornography can be
considered for restitution or as a factor at sentencing for the
crime. See State v. Sulla, 2016 WI 46, ¶44, 369 Wis. 2d 225, 880
N.W.2d 659 (explaining effect of read-in charges). As such, images
of child pornography that form the basis of read-in charges of
sexual exploitation of a child or possession of child pornography
are sufficiently related to the offenses of sexual exploitation of
a child or possession of child pornography for a circuit court to
impose the child pornography surcharge for those images of child
pornography that form the basis of read-in charges of sexual
exploitation of a child or possession of child pornography.
¶55 Moreover, the facts of this case demonstrate that the
images of child pornography that formed the basis of Schmidt's
27
No. 2020AP616-CR
read-in charges of possession of child pornography were connected
to and brought into relation with Schmidt's offense of possession
of child pornography. The images that formed the basis of
Schmidt's read-in charges were collected at the same time and found
on the same devices as the images that formed the basis of
Schmidt's conviction of possession of child pornography. Such a
connection between the images of child pornography that formed the
basis of Schmidt's read-in charges of possession of child
pornography and Schmidt's offense of possession of child
pornography was sufficient for the circuit court to impose the
child pornography surcharge for those images of child pornography
that formed the basis of Schmidt's read-in charges of possession
of child pornography.
¶56 Schmidt argues that this reading is incorrect for two
reasons. First, he asserts that this reading renders superfluous
part of the statute——specifically, "if a court imposes a sentence
or places on probation for a crime under [§§] 948.05 or 948.12"——
so Schmidt contends that the child pornography surcharge must apply
only to images of child pornography that form the basis of actual
convictions for the crime (hereinafter "per conviction basis").
Second, he asserts that the child pornography surcharge statute
does not include a specific provision for read-in charges, as it
does in other statutes. We disagree with both arguments.
¶57 The plain language of the child pornography surcharge
statute reveals that it does not apply on a per conviction basis.
The circuit court must impose the surcharge for each image of child
pornography "associated with the crime." Wis. Stat. § 973.042(2).
28
No. 2020AP616-CR
As explained above, "associated with the crime" refers to a
connection or relation to the convicted individual's offense of
sexual exploitation of a child or possession of child pornography,
which is broader than the individual's conviction for either of
those crimes. Moreover, several other surcharge statutes use the
per conviction formulation. See, e.g., § 973.043(1) (imposing a
drug offender diversion surcharge "for each conviction");
§ 973.045(1) (imposing a crime victim and witness assistance
surcharge for each count "on which a conviction occurred");
§ 973.046(1r) (imposing a DNA analysis surcharge "for each
conviction"). Despite the common usage of "conviction" as the
basis for a surcharge, the child pornography surcharge does not
include that formulation. See Wis. Stat. § 973.042(2). Such
different language shows that the child pornography surcharge was
not meant to apply on a per conviction basis as Schmidt argues.
See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170 (2012) (explaining the
Presumption of Consistent Usage canon of construction, which in
part dictates that "a material variation in terms suggests a
variation in meaning"); Estate of Miller v. Storey, 2017 WI 99,
¶35 n.14, 378 Wis. 2d 358, 903 N.W.2d 759 (same).
¶58 Additionally, Schmidt asserts that the child pornography
statute cannot apply to images of child pornography that form the
basis of read-in charges of sexual exploitation of a child or
possession of child pornography because the child pornography
surcharge statute does not specifically include or refer to read-
in charges. The restitution statute, Wis. Stat. § 973.20,
29
No. 2020AP616-CR
specifically requires restitution be paid to victims of read-in
crimes.12 While the language in the restitution statute is similar
to the language of the child pornography surcharge statute, the
child pornography statute is not imposed for the crime itself or
for charges of the crime, as the restitution statute requires;
rather, the child pornography statute is imposed on a per image
basis instead of based on the crime itself. Compare § 973.20
(requiring restitution for any crime for which the defendant was
convicted and any read-in crime) and § 973.042(2) (requiring the
child pornography surcharge for "each image or each copy of an
image associated with the crime"). Multiple images of child
pornography may be part of a conviction for a singular count of
possession of child pornography. See Paroline, 572 U.S. at 441
(requiring restitution for a victim of child pornography despite
the images of child pornography depicting the victim not forming
the basis of the conviction).
¶59 Limiting the language of the child pornography surcharge
statute as strictly as Schmidt proposes would render the surcharge
12Pursuant to Wis. Stat. § 973.20(1r), the circuit court
"shall order [a] defendant to make full or partial restitution
under this section to any victim of a crime considered at
sentencing." A "[c]rime considered at sentencing" includes "any
read-in crime." § 973.20(1g)(a). A "read-in crime" is
any crime that is uncharged or that is dismissed as part
of a plea agreement, that the defendant agrees to be
considered by the court at the time of sentencing and
that the court considers at the time of sentencing the
defendant for the crime for which the defendant was
convicted.
§ 973.20(1g)(b).
30
No. 2020AP616-CR
effectively a per conviction surcharge, which, as we explained
above, is an improper reading of the child pornography surcharge
statute. Instead, the child pornography surcharge applies for
every image of child pornography associated with the convicted
individual's sexual exploitation of a child or possession of child
pornography regardless of whether those images form the basis of
either a convicted charge or a read-in charge.
¶60 Accordingly, we also conclude that the child pornography
surcharge applies to images of child pornography that 0 basis of
read-in charges of sexual exploitation of a child or possession of
child pornography, so long as those images of child pornography
are connected to and brought into relation with the convicted
individual's offense of sexual exploitation of a child or
possession of child pornography. Here, the circuit court applied
the child pornography surcharge to images of child pornography
that were connected to Schmidt's offense of possession of child
pornography by the nature of those images forming the basis of
Schmidt's read-in charges of possession of child pornography.
Accordingly, we affirm the circuit court's determination and
imposition of the child pornography surcharge for the images of
child pornography that formed the basis of Schmidt's read-in
charges of possession of child pornography.
IV. CONCLUSION
¶61 We conclude that the child pornography surcharge is not
punitive, so the circuit court did not need to inform Schmidt of
the child pornography surcharge during the plea colloquy.
31
No. 2020AP616-CR
Consequently, the circuit court did not err when it denied
Schmidt's postconviction motion to withdraw his guilty plea. We
also conclude that the child pornography surcharge applies to
images of child pornography that form the basis of read-in charges
of sexual exploitation of a child or possession of child
pornography, so long as those images of child pornography are
connected to and brought into relation with the convicted
individual's offense of sexual exploitation of a child or
possession of child pornography. Accordingly, we affirm the
circuit court's judgment imposing the child pornography surcharge
for 14 images of child pornography, and the order that denied plea
withdrawal.
By the Court.—The judgment and order of the circuit court are
affirmed.
32
No. 2020AP616-CR.pdr
¶62 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join the
majority opinion and write in concurrence to emphasize that the
majority opinion affirms and employs those principles of statutory
interpretation mandated in Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, throughout its
statutory analysis. That the majority opinion follows Kalal while
interpreting Wis. Stat. § 973.042(2) and applying a process known
as the "intent-effects test" to determine whether the statutory
surcharge is punitive, is important to the scholarship of our
jurisprudence.
¶63 For years, we interpreted statutes by attempting to
determine the intent of the legislature. Id., ¶38. At the same
time, we, and other courts, held that a court must presume that
statutory meaning is derived through the words that the legislature
chose. Id., ¶39. In Kalal, we settled that conflict by holding,
"It is the enacted law, not the unenacted intent, that is binding
on the public. Therefore, the purpose of statutory interpretation
is to determine what the statute means." Id., ¶44.
¶64 Given our agreed upon focus, we provided a general
structure for determining statutory meaning. We began with the
"language of the statute." Id., ¶45. We gave words chosen by the
legislature their common meaning unless they were technical or
specially-defined words. Id. "If the meaning of the statute [was]
plain, we ordinarily [stopped] the inquiry." Id. We explained
that "[c]ontext is important to meaning." Id., ¶46. Furthermore,
unless the words chosen by the legislature created an ambiguous
statute, we concluded our analysis with the plain meaning of the
1
No. 2020AP616-CR.pdr
words chosen. Id. However, statutory ambiguity moved us into
additional aids in determining statutory meaning. Id., ¶¶47–49.
¶65 Statutory interpretation in the matter before us creates
a special challenge that we not slide backwards into interpreting
Wis. Stat. § 973.042(2) by determining the intent of the
legislature. It is especially challenging here because we employ
a process, which the United States Supreme Court named the "intent-
effects test," to determine whether § 973.042(2) is punitive.1
¶66 The majority opinion meets this challenge by
interpreting the "intent" part of the test as requiring us to
determine the statute's "primary function," "as expressed in the
plain text of the statute."2 As the majority opinion explains,
"[i]f the statute's primary function is not punitive," we then
turn to the "effects" part of the test.3
¶67 This methodology is faithful to our mandate in Kalal. I
would have renamed the intent-effects test for use in Wisconsin as
the "primary function-effects test" so that future courts faced
with determining whether a statute is punitive would have immediate
direction on the manner in which that determination is made. A
majority of the court decided not to do so.
¶68 Therefore, I write in concurrence with the hope that
this writing will be of assistance in regard to future analyses
and applications of the intent-effects test. Accordingly, I
respectfully concur.
1 Majority op., ¶22.
2 Id., ¶23.
3 Id.
2
No. 2020AP616-CR.pdr
¶69 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
2
No. 2020AP616-CR.bh
¶70 BRIAN HAGEDORN, J. (concurring in part, dissenting in
part). Anthony M. Schmidt pled guilty to six counts of possession
of child pornography, each conviction based on one image. The
circuit court correctly imposed a $500 child pornography surcharge
for each of these six images. However, it also imposed child
pornography surcharges for eight images associated with eight
separate counts of possession of child pornography that were
dismissed as part of the plea and read in at sentencing. While I
agree with the majority that the circuit court did not err by
failing to advise Schmidt of these surcharges when he entered his
plea,1 the majority erroneously upholds surcharges for images
beyond those "associated with the crime" for which sentence was
imposed, which is all that Wis. Stat. § 973.042(2) (2019-20)2
authorizes. Because the majority misreads the law, I respectfully
dissent to this conclusion.
¶71 We begin, as we should, with the statute's text:
If a court imposes a sentence or places a person on
probation for a crime under [Wis. Stat. §§] 948.05 or
948.12 and the person was at least 18 years of age when
the crime was committed, the court shall impose a child
pornography surcharge of $500 for each image or each
copy of an image associated with the crime. The court
shall determine the number of images or copies of images
associated with the crime by a preponderance of the
evidence and without a jury.
1 I join Parts I, II, and III.A. of the majority opinion.
2 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version.
1
No. 2020AP616-CR.bh
Wis. Stat. § 973.042(2).3 This statutory language contains a
statement establishing two conditions, followed by mandatory
duties arising from the satisfaction of the conditions.
¶72 The two conditions triggering a child pornography
surcharge are: (1) the court must impose a sentence or place a
person on probation for committing certain crimes; and (2) the
person must have been at least 18 years old when the crime was
committed. The second condition is not at issue here, but the
first is. The crimes for which a surcharge must be assessed
(provided a sentence or probation is imposed) are those under Wis.
Stat. §§ 948.05 and 948.12. Both are located in a chapter that
defines various crimes against children.
¶73 Wisconsin Stat. § 948.12 criminalizes possession of
child pornography. This can include possessing, accessing,
exhibiting, or playing recordings of a child engaged in sexually
explicit conduct. § 948.12(1m), (2m). Although each individual
photograph may be charged as a separate crime,4 nothing in this
statute requires that each image must be separately charged. We
see this in State v. Van Buren, where the defendant was convicted
of a single charge of possession of child pornography even though
over 51,000 images were found on his computer and multiple
photographs were introduced to support the lone charge. 2008
"In this section, 'image' includes a video recording, a
3
visual representation, a positive or negative image on exposed
film, and data representing a visual image." Wis. Stat.
§ 973.042(1).
See State v. Multaler, 2002 WI 35, ¶64, 252 Wis. 2d 54, 643
4
N.W.2d 437.
2
No. 2020AP616-CR.bh
WI App 26, ¶¶1, 4, 14, 307 Wis. 2d 447, 746 N.W.2d 545. So while
possession of child pornography may be charged on a one-image,
one-crime basis as it was here, the law does not require it.
¶74 The second statute defining crimes that can trigger the
child pornography surcharge is Wis. Stat. § 948.05, which
criminalizes sexual exploitation of a child. This can take the
form of employing, using, persuading, inducing, enticing, or
coercing a "child to engage in sexually explicit conduct for the
purpose of recording or displaying" the conduct. § 948.05(1)(a).
It can also be violated by recording or displaying a child engaging
in such conduct. § 948.05(1)(b). And one can commit a crime under
this section by producing, performing in, profiting from,
promoting, importing, reproducing, advertising, selling,
distributing, or possessing with intent to sell or distribute "any
recording of a child engaging in sexually explicit conduct."
§ 948.05(1m). Further, if someone responsible for the child's
welfare "knowingly permits, allows, or encourages" a child to
engage in recorded sexual conduct, they too can be charged under
this section. § 948.05(2). This scope of behavior is broad, and
importantly for our purposes, the crimes are not necessarily one-
image offenses. For example, a person could be charged and
convicted of one count of sexual exploitation of a child under
Wis. Stat. § 948.05(1m) for selling a hard drive containing various
pictures and videos depicting a child engaging in sexual acts.
The important takeaway is that one conviction under the various
crimes itemized in § 948.05 can involve multiple images for a
single conviction.
3
No. 2020AP616-CR.bh
¶75 When a defendant is over 18 and receives a sentence or
probation following conviction under Wis. Stat. §§ 948.05 or
948.12, the conditions are satisfied and "the court shall impose
a child pornography surcharge of $500 for each image or each copy
of an image associated with the crime." Wis. Stat. § 973.042(2).
This phrase reveals three key principles.
¶76 First, the surcharge "shall" be imposed; it is
mandatory. State v. Cox, 2018 WI 67, ¶11, 382 Wis. 2d 338, 913
N.W.2d 780 ("The general rule is that the word 'shall' is presumed
mandatory when it appears in a statute." (quoting another source)).
The statute leaves the court no room to refuse to impose
surcharges, or to impose a smaller surcharge if the fine becomes
onerous. Each image associated with the crime must result in a
$500 surcharge without exception.
¶77 Second, the surcharge is assessed per image, not per
conviction. This reflects that a single conviction under the
relevant sections can involve multiple images of child
pornography. Since the surcharge must be assessed for every image
associated with the conviction, the statute provides a mechanism
to count the number of images. The final sentence of Wis. Stat.
§ 973.042(2) provides: "The court shall determine the number of
images or copies of images associated with the crime by a
preponderance of the evidence and without a jury." Consider again
a one-count conviction under Wis. Stat. § 948.05(1m) for selling
a hard drive containing various pictures and videos depicting a
child engaging in sexual acts. Under the law, the court's job is
to determine how many individual images were on the hard drive and
4
No. 2020AP616-CR.bh
impose the surcharge for each image. If the hard drive contained
ten images, the surcharge for the lone conviction would be $5,000
($500 per image). The court's inquiry is a factual one.
¶78 Third, the surcharge must be assessed only for images
"associated with the crime." Critically, the statute ties the
images to "the crime"——not a crime that could have been charged
but wasn't, or a related crime, or a charged but dismissed crime,
but the crime. Which one? The crime mentioned in the beginning
of the section——the crime for which the court "imposes a sentence
or places a person on probation." Wis. Stat. § 973.042(2). The
phrase "associated with" is not an invitation to the court to sweep
in images unrelated to the specific crime for which a sentence or
probation is imposed under either Wis. Stat. §§ 948.05 or 948.12.
The legislature, understanding that the crimes triggering a
surcharge can involve multiple images, used the phrase "associated
with" to clarify that the surcharge must be assessed per image,
not per conviction.
¶79 Related statutes reinforce this plain reading.5 Four
other surcharge statutes immediately following the child
pornography surcharge in Chapter 973 begin the same way: "If a
court imposes a sentence or places a person on probation." See
Wis. Stat. §§ 973.042(2); 973.043(1); 973.045(1); 973.0455(1);
973.046(1r). The drug offender diversion surcharge assesses "$10
5State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58,
¶49, 271 Wis. 2d 633, 681 N.W.2d 110 ("A statute's purpose or scope
may be readily apparent from its plain language or its relationship
to surrounding or closely-related statutes——that is, from its
context or the structure of the statute as a coherent whole.").
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for each conviction." § 973.043(1). Similarly, the crime
prevention funding board surcharge is "calculated by adding up,
for each misdemeanor or felony count on which a conviction
occurred, $20." § 973.0455(1). The crime victim and witness
assistance surcharge imposes a total surcharge based on adding the
number of felony counts ($92 per felony) and misdemeanor counts
($67 per misdemeanor) "on which a conviction occurred."
§ 973.045(1). Finally, the deoxyribonucleic acid analysis
surcharge is calculated as $250 for "each conviction" of a felony
and $200 for "each conviction" of a misdemeanor. § 973.046(1r).
Unlike the per-conviction surcharges in these neighboring
statutes, the child pornography surcharge focuses on images
"associated with the crime."
¶80 But that's not all. The restitution statute, also
located in Chapter 973, provides a vital contextual clue. When
ordering restitution, the circuit court does not look merely at
the crime a defendant was convicted of. Rather, the statute
creates a broader technical phrase called the "Crime considered at
sentencing." Wis. Stat. § 973.20(1g)(a). This phrase is defined
to mean "any crime for which the defendant was convicted and any
read-in crime." Id. And read-in crime
means any crime that is uncharged or that is dismissed
as part of a plea agreement, that the defendant agrees
to be considered by the court at the time of sentencing
and that the court considers at the time of sentencing
the defendant for the crime for which the defendant was
convicted.
§ 973.20(1g)(b).
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¶81 The legislature expressly incorporated read-in counts
for restitution, but it made no reference to read-in charges in
Wis. Stat. § 973.042(2). If the legislature had meant to include
images associated with read-in charges here, it surely could have,
and likely would have, used language similar to the restitution
statute.6 The restitution statute's direct reference to read-in
crimes buttresses the conclusion that images associated with read-
in crimes should not be subject to the $500 child pornography
surcharge.
¶82 This statutory context demonstrates that the surcharge
does not apply to images associated only with read-in crimes, nor
is it assessed on a per-conviction basis. Faced with this
evidence, the majority chooses to read "associated with the crime"
as a vague phrase that could encompass just about any image a judge
might wish to include, so long as the images have some ill-defined
connection to a conviction for possession of child pornography or
sexual exploitation of a child. It frames its rule as follows:
"So a child pornography surcharge must be imposed for an image of
child pornography if that image is connected or brought into
relation with the convicted individual's offense of sexual
exploitation of a child or possession of child pornography."
Majority op., ¶53. What does this include? I'm not sure. The
majority isn't quite sure either and limits its analysis to the
facts of this case. Id., ¶49. But the majority expands the child
pornography surcharge's reach to images beyond those connected to
6The same definition is also found in Wis. Stat. § 973.049,
which applies to restrictions on contact during sentencing. See
Wis. Stat. § 973.049(1)(b).
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the crime itself, and nothing in its rule offers discernable
boundaries separating images that must be included from those that
must be excluded. The majority reframes the statute to reach an
open-ended group of images for which the circuit court must——
again, the surcharge is not optional——count and assess the
surcharge. This is not what the law requires.
¶83 The far more reasonable reading of the law is that the
legislature chose to assess a surcharge only for those images
connected with the specific crime under Wis. Stat. §§ 948.05 or
948.12 for which a sentence or probation is imposed. That is the
language the statute uses, and it makes sense. This does not
include images related to crimes for which a defendant has not
been found guilty, whether read-in charges or images discovered
during the investigation but not associated with the crime of
conviction itself. This limits the images to a known and
discernable set——namely, those associated with the specific crime
of conviction, evidence a court can readily examine to determine
how many images were associated with each conviction.7
7 While the text is sufficient to resolve the interpretive
inquiry on its own, legislative history confirms this reading.
See Kalal, 271 Wis. 2d 633, ¶51. The drafting file for the
legislation that created Wis. Stat. § 973.042(2) contains an email
exchange between a Legislative Reference Bureau (LRB) drafter and
a legislative aide preparing the bill. The correspondence contains
a discussion about how to count the number of images assessed under
§ 973.042(2)'s per-image surcharge. The LRB drafter explained his
understanding as follows:
I assume that the surcharge should also apply to crimes
under [Wis. Stat. §] 948.05 (which covers the creation
of child pornography——as well as parents who allow
children to participate in the making of child
pornography). In those cases, should I link the
surcharge to the number of copies that are produced,
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No. 2020AP616-CR.bh
¶84 In sum, the text and statutory context reveal that the
surcharge applies to images associated with the crime for which
sentence or probation is imposed. The surcharge does not apply to
images associated only with charges dropped and read in as part of
a plea, or to images collected in the investigation, or to images
that might be captured by the majority's nebulous, open-ended
approach. Applying these principles here means that the circuit
court should have assessed the child pornography surcharge for
only the six images tied to the six counts Schmidt pled guilty to
and for which the circuit court imposed a sentence. Schmidt should
not have been assessed a $500 child pornography surcharge for each
of the eight images tied to the eight counts read in at sentencing
distributed...? Obviously a producer or distributor has
control over the number of copies that are produced and
distributed. Counting becomes difficult for cases under
[§] 948.05(3) (allowing a child to participate) or for
cases in which the person is charged is an employee of
a distributor. One option is to just specify that the
surcharge is imposed for each copy of the image
associated with the offense and let the court determine
whether a particular copy is "associated with" the
offense in question.
Drafting File, 2005 A.B. 942, Legislative Reference Bureau,
Madison, Wis. The aide replied that this was what the legislator
wanted. Id.
This drafting confirms the most straightforward reading of
the text. The drafters chose their words to assess the per-image
surcharge solely for the images that form the basis for the crime
the defendant is convicted of ("the offense in question"), not
images related to the investigation or to dismissed charges. And
the drafting difficulty was in crafting language that would
encompass some crimes where the number of images connected to a
specific count would be difficult to determine——particularly those
under Wis. Stat. § 948.05. The resolution? A surcharge for each
image "associated with the crime," with the court determining this
factual question.
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No. 2020AP616-CR.bh
because these images were not "associated with the crime[s]" for
which Schmidt was sentenced.
¶85 While I join the majority's conclusion that the circuit
court did not err by failing to advise Schmidt of these surcharges
when he entered his plea, I respectfully dissent from its flawed
interpretation and application of Wis. Stat. § 973.042.
¶86 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join this concurrence/dissent.
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