2021 WI 65
SUPREME 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.
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 65
NOTICE
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
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
No. 2020AP616-CR
Walworth 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
2 The Honorable Phillip A. Koss presided.
2
No. 2020AP616-CR
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 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
3
No. 2020AP616-CR
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.
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
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
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 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
5
No. 2020AP616-CR
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 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.
6
No. 2020AP616-CR
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
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
7
No. 2020AP616-CR
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.
¶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
8
No. 2020AP616-CR
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 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
9
No. 2020AP616-CR
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 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
10
No. 2020AP616-CR
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.
¶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
11
No. 2020AP616-CR
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:
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
4 Wisconsin 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.
5 Wisconsin 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
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).
¶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
Wisconsin Stat. § 20.455(5)(gj) provides that "[a]ll
7
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)."
(continued)
13
No. 2020AP616-CR
§ 973.042, the primary function of the child pornography
surcharge is not punitive.
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
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."
14
No. 2020AP616-CR
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
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,"
15
No. 2020AP616-CR
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, 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.
16
No. 2020AP616-CR
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 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.
17
No. 2020AP616-CR
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.
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.
18
No. 2020AP616-CR
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 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
19
No. 2020AP616-CR
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 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.
20
No. 2020AP616-CR
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 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.
21
No. 2020AP616-CR
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 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.
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.
9See 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/icacreport.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
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 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:
23
No. 2020AP616-CR
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
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,
24
No. 2020AP616-CR
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 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
25
No. 2020AP616-CR
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 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
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.
11This dictionary's definition is consistent with the
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
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 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
27
No. 2020AP616-CR
(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
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
28
No. 2020AP616-CR
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). 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
29
No. 2020AP616-CR
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, 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
Pursuant to Wis. Stat. § 973.20(1r), the circuit court
12
"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
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 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
31
No. 2020AP616-CR
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. 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
32
No. 2020AP616-CR
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.
33
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
1
No. 2020AP616-CR.pdr
an ambiguous statute, we concluded our analysis with the plain
meaning of the 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
1 Majority op., ¶22.
2 Id., ¶23.
3 Id.
2
No. 2020AP616-CR.pdr
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.
¶69 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
3
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.
All subsequent references to the Wisconsin Statutes are to
2
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.
3"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).
4See State v. Multaler, 2002 WI 35, ¶64,
252 Wis. 2d 54,
643 N.W.2d 437.
2
No. 2020AP616-CR.bh
2008 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
3
No. 2020AP616-CR.bh
crimes itemized in § 948.05 can involve multiple images for a
single conviction.
¶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
4
No. 2020AP616-CR.bh
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 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
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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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 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
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No. 2020AP616-CR.bh
sentencing the defendant for the crime for which the
defendant was convicted.
§ 973.20(1g)(b).
¶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
The same definition is also found in Wis. Stat. § 973.049,
6
which applies to restrictions on contact during sentencing. See
Wis. Stat. § 973.049(1)(b).
7
No. 2020AP616-CR.bh
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 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
While the text is sufficient to resolve the interpretive
7
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
(continued)
8
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,
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,
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
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 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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No. 2020AP616-CR.bh
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