State v. Michael L. Cox , 382 Wis. 2d 338 ( 2018 )

2018 WI 67
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1745-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael L. Cox,
Defendant-Appellant.
ON CERTIFICATOIN FROM THE COURT OF APPEALS
OPINION FILED: June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 16, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William W. Brash and T. Christopher Dee
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: A.W. BRADLEY, J., did not participate.
ATTORNEYS:
For the defendant-appellant, there were briefs filed and an
oral argument by Hannah Schieber Jurss, assistant state public
defender.
For the plaintiff-respondent, there was a brief filed and
an oral argument by Kevin M. LeRoy, deputy solicitor general,
with whom on the brief were Brad D. Schimel, attorney general,
and Misha Tseytlin, solicitor general.
2018 WI 67
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1745-CR
(L.C. No. 2015CF1187)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUN 15, 2018
Michael L. Cox, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
APPEAL from a judgment and an order of the Circuit Court
for Milwaukee County, William W. Brash, III and T. Christopher
Dee, Judges. Affirmed.
¶1 DANIEL KELLY, J. Upon conviction of a felony, our
statutes provide for imposition of a $250 deoxyribonucleic acid
(DNA) analysis surcharge on the defendant. Before the
legislature adopted 2013 Wis. Act 20 (Act 20), the relevant
statute said the court "may" impose that surcharge. Now,
however, the statute says the court "shall" impose the
surcharge. The court of appeals certified Mr. Michael L. Cox's
appeal to us so that we may determine whether the substitution
of "shall" for "may" means that circuit courts no longer have
No. 2016AP1745-CR
the discretion to waive the surcharge. We conclude that Act 20
eliminated that discretion, and therefore affirm the circuit
court.
I. BACKGROUND
¶2 In the early hours of March 14, 2015, Mr. Cox drove
approximately three miles on the wrong side of a Milwaukee-area
highway, which also put him on the wrong side of the law. Mr.
Cox evaded one squad car, but others eventually intercepted him
and brought him to a halt. With bloodshot and glassy eyes, and
smelling strongly of alcohol, Mr. Cox unsteadily emerged from
his car and tried to hand one of the officers a large amount of
cash. He was, of course, arrested. The ensuing search netted a
plastic bag with a green leafy substance that tested positive
for the presence of THC (tetrahydrocannabinols).1
¶3 Mr. Cox pled guilty to one count of second-degree
recklessly endangering safety contrary to Wis. Stat. § 941.30(2)
(2015-16),2 a Class G felony. The State also charged Mr. Cox
with one count of possession of THC——second and subsequent
1
Tetrahydrocannabinol is a compound "that is the
physiologically active component in cannabis preparations
(marijuana, hashish, etc.) derived from the Indian hemp plant or
produced synthetically." Tetrahydrocannabinol, Random House
Unabridged Dictionary 1962 (2d ed. 1993).
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP1745-CR
offense contrary to Wis. Stat. § 961.41(3g)(e), which was later
dismissed and read in at sentencing.3
¶4 At the sentencing hearing, the Milwaukee County
Circuit Court4 waived imposition of the $250 DNA surcharge set
forth in Wis. Stat. § 973.046(1r)(a) (the "DNA Surcharge
statute"). It said: "All right. I'll order him to submit one
[a DNA sample] if he hasn't previously done so. He doesn't have
to repeat that process. And assuming for sake of argument
that's [sic] he's already done that, I'm going to waive the
imposition of a DNA surcharge with regards to this matter."5
¶5 Notwithstanding the waiver, the judgment (as it was
ultimately entered) required Mr. Cox to pay the DNA surcharge.
So Mr. Cox filed a postconviction motion requesting vacation of
the surcharge because it conflicted with what the circuit court
said when imposing sentence. The circuit court6 denied Mr. Cox's
3
Mr. Cox also received multiple traffic-related citations,
including one for OWI first. He pled guilty to the OWI citation
and the court imposed a $150 forfeiture plus costs, assessments,
and surcharges, as well as a six-month revocation of Mr. Cox's
driving privileges and 12 months of ignition lock on any vehicle
Mr. Cox owned or drove. The State moved to dismiss the
remaining traffic-related citations based on Mr. Cox's plea to
the OWI citation.
4
The Honorable William W. Brash, III, presiding.
5
An amended judgment of conviction from a prior Milwaukee
County criminal matter was attached to the Complaint and
reflected that Mr. Cox had previously been ordered to provide a
DNA sample.
6
The Honorable T. Christopher Dee, presiding.
3
No. 2016AP1745-CR
motion, explaining that Wis. Stat. § 973.046 requires imposition
of the DNA surcharge and that "the court had no authority under
the statute to waive or vacate the surcharge on the basis that
the defendant previously provided a DNA sample in another case."
¶6 The court of appeals certified Mr. Cox's appeal so
that we may determine whether circuit courts have discretion
under Wis. Stat. § 973.046(1r)(a) to waive imposition of DNA
surcharges for crimes committed after January 1, 2014.7
II. STANDARD OF REVIEW
¶7 Interpreting and applying Wis. Stat. § 973.046
presents a question of law, which we review de novo. CED
Props., LLC v. City of Oshkosh, 2018 WI 24, ¶20, 380
Wis. 2d 399, 909 N.W.2d 136.
III. ANALYSIS
¶8 Our project is to assay the meaning of "shall" as used
in Wis. Stat. § 973.046(1r) to determine whether it admits of
any discretion in the imposition of the DNA surcharge. We start
our analysis with a brief survey of the changes Act 20 wrought
on that statute. Until the legislature adopted Act 20,
§ 973.046 said the court may impose the DNA surcharge upon any
felony conviction. See § 973.046(1g) (2011-12). But in certain
sexual assault cases, the statute said the court shall impose
7
2013 Wis. Act 20 was published on July 1, 2013, and the
newly-amended DNA Surcharge statute at issue here went into
effect six months after publication. See 2013 Wis. Act 20,
§§ 9326, 9426.
4
No. 2016AP1745-CR
the surcharge. See § 973.046(1r) (2011-12). This is how the
relevant parts of the statute read before Act 20:
(1g) Except as provided in sub. (1r), if a court
imposes a sentence or places a person on probation for
a felony conviction, the court may impose a
deoxyribonucleic acid analysis surcharge of $250.
(1r) If a court imposes a sentence or places a person
on probation for a violation of s. 940.225, 948.02(1)
or (2), 948.025, 948.085, the court shall impose a
deoxyribonucleic acid analysis surcharge of $250.[8]
§§ 973.046(1g), (1r) (2011-12) (emphasis added). Effective
January 1, 2014, Act 20 eliminated the "may impose" provision
and instead instructed courts that they "shall impose" the DNA
surcharge on both felony and misdemeanor convictions:
(1r) If a court imposes a sentence or places a person
on probation, the court shall impose a
deoxyribonucleic acid analysis surcharge, calculated
as follows:
(a) For each conviction for a felony, $250.
(b) For each conviction for a misdemeanor, $200.
§ 973.046(1r) (emphasis added).
¶9 Our goal in considering the change from "may" to
"shall" is to discover and apply the statute's plain meaning.
See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
8
The statutes referenced in Wis. Stat. § 973.046(1r) (2011-
12) relate to the following: (1) sexual assault (Wis. Stat.
§ 940.225 (2011-12)); first-degree and second-degree sexual
assault of a child (Wis. Stat. §§ 948.02(1) and (2) (2011-12),
respectively); (3) repeated sexual assault of the same child
(Wis. Stat. § 948.025 (2011-12)); and (4) sexual assault of a
child placed in substitute care (Wis. Stat. § 948.085 (2011-
12)).
5
No. 2016AP1745-CR
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 ("[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."). We determine a statute's meaning through examination
of its text, context, and structure. Id., ¶46 ("Context is
important to meaning. So, too, is the structure of the statute
in which the operative language appears. Therefore, statutory
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; . . . .").
¶10 Where, as here, the legislature has amended the part
of the statute in which we are interested, we may have recourse
to that history to assist us in discovering the statute's plain
meaning. See Cty. of Dane v. LIRC, 2009 WI 9, ¶27, 315
Wis. 2d 293, 759 N.W.2d 571 ("'A review of statutory history is
part of a plain meaning analysis' because it is part of the
context in which we interpret statutory terms." (citation
omitted)). This history "encompasses the previously enacted and
repealed provisions of a statute." Richards v. Badger Mut. Ins.
Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d 581. "By
analyzing the changes the legislature has made over the course
of several years, we may be assisted in arriving at the meaning
of a statute." Id., ¶22. If we determine the statute's plain
meaning through this methodology, we go no further. Kalal, 271
Wis. 2d 633, ¶45 ("If the meaning of the statute is plain, we
ordinarily stop the inquiry." (internal marks and citation
omitted)).
6
No. 2016AP1745-CR
¶11 Whenever we encounter a dispute over the meaning of
"shall," we presume it is introducing a mandate. "The general
rule is that the word 'shall' is presumed mandatory when it
appears in a statute." Karow v. Milwaukee Cty. Civil Serv.
Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978); see also
Bank of New York Mellon v. Carson, 2015 WI 15, ¶21, 361
Wis. 2d 23, 859 N.W.2d 422. This presumption, however, is
subject to rebuttal. Occasionally, we have construed "shall" as
a directive, rather than a mandate. Karow, 82 Wis. 2d at 571.
¶12 Mr. Cox urges us to adopt the latter interpretation of
"shall." He observes that circuit courts generally have broad
sentencing discretion; he believes this must mean that the
legislature's use of "shall" in this context reflects a policy
of presumptively imposing the DNA surcharge while leaving courts
discretion to waive it. The State, on the other hand, says that
when the legislature changed "may" to "shall," it meant "must."
We agree with the State.
¶13 The recent history of Wis. Stat. § 973.046 convinces
us that "shall" carries its presumptively mandatory meaning in
this context. Prior to Act 20, § 973.046 unquestionably
distinguished between discretionary and mandatory DNA
surcharges. The court had discretion to impose the surcharge on
any defendant convicted of a felony, as evidenced by the
statutory "may impose" language. § 973.046(1g) (2011-12). In
contrast, the statute said the court "shall impose" the
surcharge when the defendant stood convicted of at least one of
the enumerated offenses. § 973.046(1r) (2011-12). We have long
7
No. 2016AP1745-CR
said that "[w]hen the words 'shall' and 'may' are used in the
same section of a statute, one can infer that the legislature
was aware of the different denotations and intended the words to
have their precise meanings." Karow, 82 Wis. 2d at 571; State
ex rel. Marberry v. Macht, 2003 WI 79, ¶16, 262 Wis. 2d 720, 665
N.W.2d 155.
¶14 "Shall" must certainly have meant "must" in the pre-
Act 20 statute because anything less would have been absurd.9
If that term had borne the merely directive sense of the word,
we would have to conclude that one subsection of the pre-Act 20
statute gave courts discretion to impose the DNA surcharge (with
respect to all felons, see Wis. Stat. § 973.046(1g) (2011-12)),
while the other simply added a presumption of applicability to
the courts' discretion (with respect to those convicted of the
enumerated offenses, see Wis. Stat. § 973.046(1r) (2011-12)).
We see no textual or contextual clues that would support such a
mincing distinction, nor has Mr. Cox identified any. We have no
difficulty concluding that, prior to Act 20, the "shall impose"
language of § 973.046(1r) (2011-12) meant that the court must
apply the DNA surcharge in the identified circumstances.
¶15 Act 20 eliminated the distinction between convictions
in which the court "may impose" the DNA surcharge and those in
which it "shall impose" the surcharge. 2013 Wis. Act 20,
9
We interpret statutes "reasonably, to avoid absurd or
unreasonable results." State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
8
No. 2016AP1745-CR
§§ 2353-2355. In abandoning the distinction, it swept all
convictions into the "shall impose" category (and expanded it to
include misdemeanors). If we presume the legislature understood
the distinction between "may" and "shall" when it created Wis.
Stat. § 973.046 (2011-12), then we must afford it the same
courtesy when evaluating the work it accomplished with Act 20.
And if the point of the amendment had been to make the DNA
surcharge discretionary with respect to all convictions, the
statute already had a ready-made category for that purpose——the
"may impose" subsection. The legislature, however, pointedly
rejected that option by eliminating the discretionary category.
If "shall impose" meant "must" before Act 20 (and it did), there
is no reason to believe that it means less than "must" now.
Nothing in Act 20 or the resulting language of § 973.046
suggests the mandatory nature of the "shall" category changed
just because it is now comprehensive instead of selective.
Consequently, there is no reason for us to read "shall" as
anything other than "must" in the current version of
§ 973.046(1r).
¶16 The remainder of the statute's language confirms this
reading. The word "shall" appears five additional times in Wis.
Stat. § 973.046. In each instance, the word unmistakably
expresses its mandatory nature. Thus, § 973.046(2) provides
that "the clerk shall collect and transmit" the amount collected
from the surcharge to the county treasurer, and the county
treasurer "shall then make payment to the secretary of
administration . . . ." (Emphasis added.) Section 973.046(3),
9
No. 2016AP1745-CR
in turn, provides that all funds collected under this statute
"shall be deposited by the secretary of administration . . . ."
(Emphasis added.) Finally, § 973.046(4) identifies
circumstances under which the "department shall assess and
collect the amount owed from the inmate's wages or other
moneys[,]" and that amount "shall be transmitted to the
secretary of administration." (Emphasis added.)
¶17 Everyone agrees that, in each of these instances,
"shall" means "must." And "[w]hen the legislature uses a
particular word more than once in an act, we understand it to
carry the same meaning each time, absent textual or structural
clues to the contrary." State ex rel. DNR v. Wis. Court of
Appeals, Dist. IV, 2018 WI 25, ¶30, 380 Wis. 2d 354, 909
N.W.2d 114; see also Phelps v. Physicians Ins. Co. of Wis.,
Inc., 2005 WI 85, ¶58, 282 Wis. 2d 69, 698 N.W.2d 643
("Typically, a term used in multiple subsections within a
statute is given the same meaning."). Mr. Cox has identified no
textual or structural hint that the sixth iteration of the word
should carry a different meaning, and we have seen none.
¶18 Finally, Mr. Cox argues that the mandate we see in the
word "shall" will create surplusage in a different surcharge
statute. The Crime Victim/Witness Surcharge statute says, in
relevant part: "If a court imposes a sentence or places a
person on probation, the court shall impose a crime victim and
witness assistance surcharge. A surcharge imposed under this
subsection may not be waived, reduced, or forgiven for any
reason." Wis. Stat. § 973.045(1) (emphasis added). If "shall"
10
No. 2016AP1745-CR
means "must," Mr. Cox asks, why does this statute contain
explicit waiver abatement language? There are only two possible
conclusions, he says. First, "shall" evidences a directive, not
a mandate, so the legislature had to include the waiver
abatement language to eliminate the discretion the courts would
otherwise exercise. Or second, he says, the waiver abatement
language is surplusage, a conclusion we are supposed to avoid
whenever possible. Donaldson v. State, 93 Wis. 2d 306, 315, 286
N.W.2d 817 (1980) ("A statute should be construed so that no
word or clause shall be rendered surplusage and every word if
possible should be given effect."); see also State v. Hemp, 2014
WI 129, ¶13, 359 Wis. 2d 320, 856 N.W.2d 811 ("[S]tatutes are
interpreted to avoid surplusage, giving effect to each word.").
¶19 Mr. Cox's argument is a worthy one, but it does not
account for a third possibility, a possibility that conclusively
resolves the apparent paradox. The waiver abatement language in
the Crime Victim/Witness Surcharge statute comes from Act 20,
the same act that amended the DNA Surcharge statute. See 2013
Wis. Act 20, § 2348. Prior to Act 20, the Crime Victim/Witness
Surcharge statute said: "If a court imposes a sentence or
places a person on probation, the court shall impose a crime
victim and witness assistance surcharge calculated as
follows[] . . . ." Wis. Stat. § 973.045(1) (2011-12) (emphasis
added). However, courts were treating this "shall impose"
language as Mr. Cox asks us to treat the same language in the
11
No. 2016AP1745-CR
DNA Surcharge statute——as a directive, not a mandate.10 Act 20
added the waiver abatement language for the obvious purpose of
ending that practice.
¶20 This new language, however, does not tell us what Mr.
Cox wants us to hear. Whereas Mr. Cox says the waiver abatement
language demonstrates the legislature's understanding that
"shall" means "may" in the Crime Victim/Witness Surcharge
statute (albeit with a presumption the surcharge would be
imposed), we see only exasperation. The legislature had already
used mandatory language and fortified it with Act 20's waiver
abatement language because courts were not doing as they had
already been told. Other than Act 20's waiver abatement
language, Mr. Cox offers no rationale for reading "shall" in the
Crime Victim/Witness Surcharge statute as a directive instead of
a mandate. For many of the same reasons we discussed with
respect to the DNA Surcharge statute, reading "shall" in this
statute as anything other than mandatory would be anomalous.
The Crime Victim/Witness Surcharge statute uses the term "shall"
seven additional times, and in none of those instances could it
credibly be argued the term was less than mandatory. See Wis.
Stat. § 973.045. Consistently using the term "shall" in the
10
See Legislative Audit Bureau, Crime Victim and Witness
Assistance Surcharge Revenue, available at
https://legis.wisconsin.gov/lab/reports/12-13full.pdf (last
visited May 15, 2018). We may take judicial notice of
Legislative Audit Bureau reports and do so here. See Wis. Med.
Soc'y, Inc. v. Morgan, 2010 WI 94, ¶¶18-28, 18 n.7, 328
Wis. 2d 469, 787 N.W.2d 22.
12
No. 2016AP1745-CR
mandatory sense indicates the legislature meant it to carry the
same meaning the eighth time as well. See DNR, 380 Wis. 2d 354,
¶30 ("When the legislature uses a particular word more than once
in an act, we understand it to carry the same meaning each time,
absent textual or structural clues to the contrary.").
¶21 Even if the justification for the waiver abatement
language in the Crime Victim/Witness statute were less than
clear, still it would engender no doubt about the proper meaning
of "shall" in the DNA Surcharge statute. The history of a
related statute can provide useful interpretive information, but
that information carries less weight than the history, text, and
structure of the statute about which we are immediately
concerned. In this case, the legislature's decision to
eliminate a clearly discretionary category in the DNA Surcharge
statute in favor of a comprehensive "shall impose" category is
overwhelming evidence that the remaining category was not
supposed to bear the distinguishing characteristic of the one
that had just been deleted.
¶22 Finally, Mr. Cox's argument, were we to accept it,
would disrupt yet another surcharge statute. The Domestic Abuse
Surcharge statute (Wis. Stat. § 973.055) says the court "shall
impose" a surcharge on adults sentenced or placed on probation
after conviction for any of several offenses listed therein.11
11
Wisconsin Stat. § 973.055(1) provides that "[i]f a court
imposes a sentence on an adult person or places an adult person
on probation . . . the court shall impose a domestic abuse
surcharge" when certain conditions exist.
13
No. 2016AP1745-CR
But it also provides that: "A court may waive part or all of
the domestic abuse surcharge under this section if it determines
that the imposition of the full surcharge would have a negative
impact on the offender's family." § 973.055(4). If the lesson
we are supposed to learn from the Crime Victim/Witness Surcharge
statute is that "shall" means "may," then subsection (4) of the
Domestic Abuse Surcharge statute is entirely unnecessary.
¶23 Mr. Cox's argument has an unacceptable cascade effect.
If we accept his analysis of the Crime Victim/Witness Surcharge
statute, it would overwhelm the more trenchant lessons available
to us from the DNA Surcharge statute's history, and it would
turn the Domestic Abuse Surcharge statute's express grant of
discretion into surplusage. Our reading brings cohesion and
order across all the statutes. "Shall" means "must" in the DNA
Surcharge statute because its history compels that conclusion.
The waiver abatement language of the Crime Victim/Witness
Surcharge statute exists because courts had not been honoring
its mandatory "shall impose" language. And the surcharge in the
Domestic Abuse Surcharge statute is discretionary because,
notwithstanding its "shall impose" language, it also explicitly
grants courts the discretion to waive it.
*
¶24 We presume that when the legislature uses "shall" it
does so because it is describing a mandate, not a directive.
Nothing in the text, context, or history of the DNA Surcharge
statute indicates we should depart from that presumption here.
Further, this reading makes the statute fit more comfortably
14
No. 2016AP1745-CR
with the Crime Victim/Witness Surcharge statute and the Domestic
Abuse Surcharge statute than the alternative. Therefore, the
plain meaning of Wis. Stat. § 973.046(1r) is that, with respect
to crimes committed after January 1, 2014, courts must impose
the indicated surcharge; there is no discretion to waive it.
IV. CONCLUSION
¶25 Because we conclude that "shall" as used in Wis. Stat.
§ 973.046(1r) is mandatory, the circuit court correctly denied
Mr. Cox's postconviction motion to remove the DNA surcharge from
his judgment of conviction. We affirm the circuit court's order
denying Mr. Cox's postconviction motion.
By the Court.—The judgment and order of the circuit court are
affirmed.
¶26 ANN WALSH BRADLEY, J., did not participate.
15
No. 2016AP1745-CR
1