On Point: D. Type of punishment

State v. Tydis Trinard Odom, 2015AP2525-CR; District 2, 6/28/17, certification granted 9/12/17, appeal voluntarily dismissed 2/22/18; case activity (including briefs)

Issue:

In determining whether the imposition of multiple DNA surcharges constitutes “potential punishment” under WIS. STAT. § 971.08(1)(a) so that a court must advise a defendant about the surcharges before a valid plea may be taken, is the “intent-effects” test, as applied in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, and State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, to ex post facto claims, the same analysis that was applied in State v. Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199, to a plea withdrawal claim?

If the analysis is the same, should Radaj be overruled in light of the supreme court’s recent decision in Scruggs?

We note that we previously certified the issue of whether multiple DNA surcharges constituted “potential punishment” under WIS. STAT. § 971.08(1)(a), such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent. The supreme court declined to accept certification.

We certify again because, as explained below, the supreme court’s recent decision in Scruggs now suggests that the ex post facto analysis of Radaj, holding that multiple DNR surcharges are “punishment,” was incorrect.

State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17, reversed in part and affirmed in part, 2018 WI 59; case activity (including briefs)

It’s looking like “DNA surcharge Day” in the District 2 court of appeals. Williams argued that because he had been ordered to provide a DNA sample and pay the $250 surcharge in a prior case, retroactive application of Wisconsin’s recent mandatory DNA surcharge statute in this case violated the ex post facto clauses of the state and federal constitutions. The court of appeals agreed.

Packingham v. North Carolina, USSC No. 15-1194, 2017 WL 2621313 (June 19, 2017); reversing State v. Packingham, 777 S.E.2d 738 (N.C. 2015); Scotusblog page (including links to briefs and commentary)

Lester Packingham was convicted for having sex with a 13 year old when he was 21, and was thus required to register as a sex offender for 30 years or more. Eight years later, having completed his sentence, Packingham posted on Facebook to celebrate the dismissal of a traffic ticket. He was charged with, and eventually pled to, a felony under a North Carolina law that prohibits those on the registry from accessing “a commercial social networking Web site” if they know the site allows children to sign up.

State v. Paul A. Adams, 2016AP1149, 5/31/17, District 2 (1-judge opinion, ineligible for publication); case activity

Adams, an inmate, objected to the garnishment of his prison wages to pay fines and forfeitures assessed in various traffic and OWI cases. The court of appeals rejected all of his claims because Adams, the moving party, bore the burden of proof but failed to offer any evidence that the amounts assessed were incorrect.  

State v. Shaun R. Ezrow, 2016AP1611-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The cost a business incurred in enhancing its security system after an employee stole money was a proper item of restitution under § 973.20.

State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.

State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)

Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.

State v. J.J.S., 2016AP1519, 4/25/17, District 3 (1-judge appeal; ineligible for publication); case activity

The case appears to be an issue of first impression: Whether §938.34(5)(c), which provides that juveniles under 14 can’t be required to pay more than $250 in restitution, refers to the juvenile’s age when the State filed the delinquency petition or the juvenile’s age at the time of disposition. The court of appeals, choosing the time of disposition, upholds the $1,600 restitution award against J.J.S., even though he was just 13 when the filed its petition.

Nelson v. Colorado, USSC No. 15-526, (April 20, 2017), reversing and remanding Colorado v. Nelson, 364 P.3d 866 (2015); SCOTUSblog page (inlcuding links to briefs and commentary).

This decision establishes that a State cannot force an exonerated defendant to file a civil suit and prove his innocence by clear and convincing evidence in order to recover costs, fees, and restitution he paid upon conviction.

Cle A. Gray, Jr. v. Robert Humphries, 2016AP584-CR, 4/6/17, District 4 (one-judge decision; ineligible for publication); case activity (including state’s brief)

Gray sought to prevent the Department of Corrections from taking certain money from his prison accounts to pay the costs and restitution Gray had been ordered to pay, but the court of appeals holds DOC’s collection actions were valid under the judgment of conviction and relevant statutes.