State of Wisconsin v. Jamal L. Williams

In April 2013, victim R.W. died during an attempted

armed robbery of victim B.P. Williams was arrested and told

police the following: Williams arranged to buy marijuana from

B.P. and before meeting B.P. for the drug buy, Williams drove

his car to pick up his brother, Tousani Tatum. When Tatum

entered Williams' car, Tatum displayed a gun and disclosed his

plan to rob B.P. Williams then drove to the drug-buy location.

Williams claims he unsuccessfully attempted to change Tatum's

mind about robbing B.P. B.P. arrived at the drug-buy location

in a car driven by R.W., who remained in the car. Williams and

Tatum got out of their car, and Williams called B.P. over.

While B.P. began to weigh the correct amount of marijuana, Tatum

put his gun to B.P.'s head, demanding his money and drugs. B.P.

broke free and fled, after which Tatum fired into R.W.'s car.

Immediately after Tatum fired the shots, Williams and Tatum fled

in Williams' car.

¶3 R.W. died from a gunshot wound. R.W.'s three-year-old

daughter, who was in the car at the time, was not physically

hurt. Williams and his brother were initially charged as co

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defendants with one count of felony murder. The cases were

later severed, and in November 2013, the State filed an amended

information charging Williams with four counts: (1) first

degree reckless homicide; (2) attempted armed robbery; (3)

first-degree recklessly endangering safety——all three as party

to a crime; and (4) felon in possession of a firearm. At the

time of the incident, Williams was on extended supervision for a

prior conviction.

¶4 The State attempted to negotiate a plea with Williams,

hoping to get him to testify against his brother. Williams

repeatedly rejected all offered plea bargains and insisted on

going to trial. Tatum's case was tried first. The jury

convicted him of felony murder and felon in possession of a

firearm and the circuit court sentenced Tatum to 24 years of

initial confinement, followed by 10 years of extended

supervision. Shortly thereafter, Williams agreed to plead

guilty to the reduced charge of attempted armed robbery as party

to a crime. After accepting Williams' plea, the circuit court

ordered a presentence investigation report (PSI). The PSI agent

met with Williams on February 19, 2014. The report contains

four full pages listing Williams' prior record, consisting of 35

entries. The PSI report emphasizes two points: (1) Williams'

"atrocious lack of remorse"; and (2) Williams' "very savvy"

ability to outsmart the criminal justice system. The PSI writer

said Williams "minimized his behavior in every single arrest or

placed blame on another person" and cared only about himself.

When the agent asked if Williams had any remorse, he answered

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"most definitely" explaining he felt bad for his own brother,

mother, and son——without mentioning the victims at all, until

the PSI writer brought them up. Williams objected to discussing

the homicide because, according to Williams, R.W.'s death had

nothing to do with his conviction for attempted armed robbery.

¶5 The report reflects that Williams' arrests began when

he was 12 years old, and "the only significant periods he has

had without arrest are when he was incarcerated." The report

also discusses Williams' repeated incidents of absconding from

supervision, violating the rules, and dishonesty. The writer

noted that Williams "appeared to be proud and seemingly found it

humorous how many times, charges [against him] have been

dropped." The report also points out that even after Williams

pled guilty, he was blaming an unknown third person for the

shooting in an attempt to exonerate himself and his brother of

all responsibility.

¶6 On March 12, 2014, twenty-one days after his meeting

with the PSI writer, Williams was sentenced.2 The prosecutor's

remarks focused on: (1) Williams' lack of remorse (stating in

part: "There's no remorse for what happened here and he's

taking no responsibility for [R.W.'s] death."); (2) his

participation in a drug deal with a gun while on extended

2 The Honorable Timothy G. Dugan, Milwaukee County Circuit Court, presiding. The Honorable Ellen R. Brostrom, Milwaukee County Circuit Court, presided over the Machner hearing and signed the final postconviction order. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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supervision; (3) his criminal record; and (4) the fact that, as

the older brother, Williams could have acted to prevent the

homicide. The State asked the circuit court to make Williams

pay $794 restitution for R.W.'s burial costs, because even

though "he wasn't convicted of the homicide," "the homicide was

a direct extension of this armed robbery."

¶7 R.W.'s fiancée, the mother of the three-year-old who

witnessed R.W.'s death, asked the circuit court to impose the

maximum sentence. She explained the devastating and lasting

effects the incident had on her daughter and herself.

¶8 Williams' lawyer also focused on remorse, claiming

that Williams' remorse for his own family does not mean Williams

lacked remorse for the victims. When asked for his position on

restitution, Williams' lawyer responded that the shooting was

not a foreseeable consequence of the drug deal and should be

viewed as "a separate transaction and [Williams] should not be

held accountable for that -- that $794."

¶9 In addressing the court, Williams said he was taking

full responsibility for his actions, apologized to the victims,

and expressed the following:

I feel bad. I've been feelin' bad for this whole year. For something over a drug deal, somebody lost their life, somebody lost their father, somebody lost their son and somebody lost their grandson. I ain't tryin' to make myself sound better even though I'm -- going to prison, losing my son too, but she lost her father forever. So I just want to apologize to her and her family and the mother and father. I feel remor[s]e for everything I've done.

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¶10 The circuit court began its sentencing remarks by

discussing the three main sentencing factors: (1) nature of the

offense; (2) character of the defendant; and (3) community

protection.3 The circuit court:  explained the extremely serious nature of Williams' crime

and how Williams could have prevented R.W.'s death;  discussed Williams' character and how his decision to

leave the scene instead of calling for help reflected

poorly on his character;  observed that although Williams pled guilty, that

decision appeared "strategic" since it did not occur

until a jury convicted Williams' brother;  mentioned Williams' numerous contacts with the criminal

justice system and how Williams failed to avail himself

of its many attempts to help him; and  noted many of the PSI report's comments about Williams——

including his failure to accept responsibility, his

delight in frequently avoiding punishment for his

criminal acts, his repeated disregard for the rules while

on electronic monitoring in the past, and his failure to

take the opportunities he was afforded to turn his life

around.

¶11 The circuit court found Williams to be "a risk and a

danger to the community because of [his] continued conduct and 3 See McCleary v. State, 49 Wis. 2d 263, 274-76, 182 N.W.2d 512 (1971).

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[his] continued criminal violations." It noted positive aspects

of Williams' character such as his high school diploma, ability

to read, decision to take some college classes, and self-report

of drug avoidance except the "sporadic use of marijuana." The

circuit court discussed the COMPAS analysis, which put Williams

in "a high risk for general recidivism" and in need of "a high

level of supervision."4 It then commented on the PSI agent's

assessment that Williams had no remorse, observing that the

agent had been supervising Williams and trying to get him to

turn his life around. The circuit court noted:

You believe your brother was unfairly treated and that you suggest a fair sentence would include time served and probation as fair punishment, that although a family lost their son and a father, you don't know how sending you to prison is going to make that any better.

The crime is extremely serious. It's had a profound impact on the victims, their families, the community, and, as you noted yourself to the [PSI] writer, you could have stopped this at any time but you didn't.

Considering all of those factors, clearly this is a prison sentence. In the circumstance[,] probation would unduly depreciate the seriousness of the offense.

¶12 The circuit court next addressed Williams'

rehabilitative needs and the conditions of his extended

4 COMPAS is the acronym for Correctional Offender Management Profiling for Alternative Sanctions. See State v. Loomis, 2016 WI 68, ¶4 n.10, 371 Wis. 2d 235, 881 N.W.2d 749.

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supervision. Afterwards, for the first time, the circuit court

commented on restitution:

I don't think I have authority to order restitution. Had you been convicted of the felony murder, party to a crime, certainly yes, but the nature of itself, the nature of the attempt armed robbery doesn't justify the restitution or give me authority, and I think the fact that you're not willing to join in on that also reflects your lack of remorse under the circumstances, and I'm certainly considering that.[5]

¶13 The circuit court imposed the mandatory DNA surcharge,

and "all the other mandatory assessments, surcharges and costs"

and fees, ordering them "to be paid from 25 percent of any

prison funds, [and] upon release to extended supervision convert

to a civil judgment." It then advised Williams of the

consequences of being convicted of a felony before finally

pronouncing the sentence:

Considering all of those factors and circumstances, the Court is going to sentence you to the State Prison for a period of initial confinement of 10 years, extended supervision of 7.5 years for a total of 17.5 years consecutive to any other sentence.

¶14 In May 2014, Williams filed a motion seeking to vacate

the DNA surcharge. His motion was based on the former DNA

surcharge statute, which gave circuit courts discretion to

impose the surcharge except with respect to certain enumerated

5 We are not convinced that restitution could not be ordered under these circumstances. See State v. Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147 (requiring a "causal nexus" between crime and damage). However, because the State forfeited this issue, we do not address it.

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sex crimes. Williams claimed that because the circuit court

failed to exercise any discretion, the DNA surcharge should be

vacated. The circuit court denied the motion, ruling that the

surcharge was mandatory because Williams was sentenced after the

effective date of the new DNA surcharge statute. Wis. Stat.

§ 973.046 (2013-14).6

¶15 Williams then filed a postconviction motion seeking:

(1) plea withdrawal based on ineffective assistance of counsel;

(2) resentencing because the circuit court relied on Williams

declining to stipulate to restitution, a factor Williams

considers improper; and (3) removal of the DNA surcharge on the

basis that it violated the Ex Post Facto Clauses as applied to

him. Ultimately, the circuit court denied Williams' motion in

its entirety.

¶16 Williams appealed, raising only the sentencing and DNA

surcharge issues. The court of appeals upheld Williams'

sentence, concluding that the sentencing court relied on a

proper sentencing factor——lack of remorse——and not on Williams'

failure to stipulate to restitution. See State v. Williams,

2017 WI App 46, ¶19, 377 Wis. 2d 247, 900 N.W.2d 310. The court

of appeals reversed on the DNA surcharge issue, concluding two

of its prior decisions, State v. Elward, 2015 WI App 51, 363

Wis. 2d 628, 866 N.W.2d 756, and State v. Radaj, 2015 WI App 50,

363 Wis. 2d 633, 866 N.W.2d 758, required it to remand this 6 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.

No. 2016AP883-CR



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issue to the circuit court. Williams, 377 Wis. 2d 247, ¶¶23-26.

The court of appeals believed the circuit court should have

applied the discretionary DNA surcharge statute in effect when

Williams committed his crime, Wis. Stat. § 973.046(1g)(2011-12),

rather than the mandatory DNA surcharge statute in effect when

Williams was sentenced, Wis. Stat. § 973.046(1r)(2013-14).

Williams, 377 Wis. 2d 247, ¶26. The court of appeals agreed

with Williams that Wis. Stat. § 973.046(1r), as applied to him,

violated the Ex Post Facto Clauses. Williams, 377 Wis. 2d 247,

¶26.

¶17 In a footnote, the court of appeals stated it believed

that Elward and Radaj were wrongly decided, but it lacked the

authority to overrule these cases. Williams, 377 Wis. 2d 247,

¶26 n.10 (quoting Cook v. Cook, 208 Wis. 2d 166, 189-90, 560

N.W.2d 246 (1997)).

¶18 Judge Brian K. Hagedorn concurred, supporting the

court of appeals' final footnote and urging us to overrule

Elward and Radaj because both cases "sit in uneasy, unsettled

tension" with State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891

N.W.2d 786. Williams, 377 Wis. 2d 247, ¶43 (Hagedorn, J.,

concurring). In Scruggs, we held that a DNA surcharge is not

punishment under the "intent-effects" test set forth in Hudson

v. United States, 522 U.S. 93 (1997), and therefore Scruggs

failed to prove that the new mandatory DNA surcharge statute

violated ex post facto laws. Scruggs, 373 Wis. 2d 312, ¶¶1, 16,

50.

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¶19 Both the State and Williams petitioned for review. We

granted both petitions. Because the State filed its petition

first, we treat Williams' petition as the cross-petition.

II. DISCUSSION

A. State's Petition for Review——DNA Surcharge

¶20 The State asks us to reverse the court of appeals'

decision on the DNA surcharge and overturn Elward and Radaj

because the mandatory DNA surcharge statute is not punitive in

intent or effect; therefore, the State argues, the statute is

not an ex post facto law.

1. Standard of Review

¶21 Whether a statute violates the Ex Post Facto Clauses

of the Wisconsin and United States Constitutions is a question

of law this court reviews de novo. Scruggs, 373 Wis. 2d 312,

¶12; U.S. Const. art. I, §§ 9-10, cl. 1; Wis. Const. art. I,

§ 12.7 The Ex Post Facto Clauses prohibit enforcement of a

statute "which makes more burdensome the punishment for a

crime[] after its commission." Scruggs, 373 Wis. 2d 312, ¶14.

To determine whether a statute is punitive, we apply the

"intent-effects" test. See Hudson, 522 U.S. at 99.

2. Intent

7 Article I, Sections 9 and 10 of the United States Constitution provide: "No bill of attainder or ex post facto Law shall be passed" and "No state shall . . . pass any . . . ex post facto Law . . . ." Article 1, Section 12 of the Wisconsin Constitution provides: "No . . . ex post facto law . . . shall ever be passed . . . ."

No. 2016AP883-CR



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¶22 The first part of the intent-effects test requires us

to examine whether the legislature intended the new mandatory

DNA surcharge, Wis. Stat. § 973.046(1r), to be punishment. If

the mandatory surcharge is intended to punish, it cannot be

applied to defendants who committed crimes prior to its

enactment. Just last term, we answered this question in

Scruggs. We engaged in a thorough statutory analysis and

concluded that the legislature did not intend § 973.046(1r) as

punishment. See Scruggs, 373 Wis. 2d 312, ¶¶3, 17-38. Although

the facts in Scruggs differ slightly from the facts in Williams'

case,8 our statutory analysis applies equally here. The

statutory text imposing the mandatory DNA surcharge evinces no

intent to punish. The legislature termed the payment a

"surcharge" not a "fine," it drew a distinction between "a fine

imposed in a criminal action and a surcharge imposed in that

action," 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. See id., ¶¶17, 21, 23-26.

¶23 The intent of the surcharge is not to punish, but to

fund costs associated with the expanded DNA databank. Id.,

¶¶24-26, 30. Significantly, the surcharge imposed is not meant

to cover the costs associated with collecting and analyzing the 8 Both Scruggs and Williams committed crimes before——but were sentenced after——the effective date of the mandatory DNA surcharge statute. Unlike Scruggs, Williams already submitted a DNA sample in 2009 for a prior conviction.

No. 2016AP883-CR



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particular DNA sample from the individual convicted defendant

standing before the sentencing court. Indeed, the new law

requires every person arrested for a felony to give a DNA

sample. See 2013 Wis. Act 20, § 2343; Wis. Stat. §§ 970.02(8),

165.76, 165.84(7)(ab).9 But, an arrestee is not ordered to pay

any DNA surcharge unless he is convicted. See Wis. Stat.

§ 973.046(1r). The collected surcharges cover costs associated

with taking, processing, analyzing, and storing all the DNA

samples of those arrested for felonies but not convicted. The

surcharges offset costs associated with collection, analysis,

and maintenance of all samples. Scruggs, 373 Wis. 2d 312, ¶27

(citing Legis. Fiscal Bureau, DNA Collection at Arrest and the

DNA Analysis Surcharge, Paper #410 to J. Comm. on Fin. 2-3, 8

(May 23, 2013)).



3. Misapplication of DNA surcharge's purpose in Elward and Radaj

¶24 In considering early DNA surcharge challenges, courts

took a narrow view of the legislature's non-punitive intent.

Some courts wrongly assumed the imposed surcharge funded only

the collection, processing, and maintenance of the specific DNA

sample for which the defendant paid the surcharge. In doing so,

9 Wisconsin Stat. § 165.76(1) lists who is required to give a DNA sample. Paragraph (gm) requires a person "arrested for a violent crime, as defined in s. 165.84(7)(ab)" to give a sample. Wisconsin Stat. § 165.84(7)(ab) defines "violent crime" as a felony violation (listing each specific felony statute) as well as the "solicitation, conspiracy, or attempt" to commit the felony violations listed in subsection (7)(ab)1.

No. 2016AP883-CR



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they failed to recognize the broader purpose of the expanded DNA

databank funded by the mandatory surcharges assessed against

convicted defendants:

The DNA databank is a broad criminal justice tool used to solve old crimes, exonerate the innocent, and rule in and rule out suspects in criminal investigations. Similarly, the funding mechanism for this is, on its face, not directly connected to the gathering and analysis of samples. It does not charge all who submit samples, only those convicted. And it provides that repeat offenders who may have already submitted samples will need to pay anyway. In short, the surcharge is plainly designed to function as a sort of tax on convicted criminals for use of the criminal justice system in support of broad public safety goals——goals far beyond any individual defendant and their DNA.

Williams, 377 Wis. 2d 247, ¶32 (Hagedorn, J., concurring).

¶25 Based on faulty assumptions, courts mistakenly

attempted to correlate a particular surcharge with what they

thought were the actual costs attributable to a defendant's

individual DNA sample. This led courts to declare that Wis.

Stat. § 973.046 (2013-14) violated the Ex Post Facto Clauses and

vacate DNA surcharges when: (1) DNA samples were not actually

being taken, see Elward, 363 Wis. 2d 628, ¶7; and (2) the

statute required a defendant convicted of four crimes to pay

four separate surcharges, even though he gave only a single DNA

sample, see Radaj, 363 Wis. 2d 633, ¶32. Elward and Radaj were

wrongly decided, based on erroneous reasoning, and for the

reasons explained below, must be overruled.

¶26 Under the mandatory DNA surcharge statute, enacted in

2013 Wis. Act 20, courts sentencing defendants after January 1,

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2014, were required to impose the mandatory DNA surcharge: $250

for each felony conviction and $200 for each misdemeanor

conviction. See Wis. Stat. § 973.046; 2013 Wis. Act 20,

§ 9426(1)(am). However, the Act did not permit the State to

collect DNA samples from convicted misdemeanants until April 1,

2014. See 2013 Wis. Act 20, § 9426(1)(bm).

¶27 Elward involved a defendant who was sentenced between

January 1, 2014 and April 1, 2014. The sentencing court imposed

the mandatory DNA surcharge, but the court of appeals reversed.

363 Wis. 2d 628, ¶1-2. The court of appeals held the DNA

surcharge statute imposed ex post facto punishment for any

defendant sentenced for a misdemeanor conviction between January

1, 2014, and April 1, 2014, because these defendants would pay

surcharges "to maintain a database of which they could never be

a part because they could never be ordered to actually provide a

sample." Id., ¶2. The Elward court reasoned:

As a result, the $200 surcharge bore no relation to the cost of the DNA test because he never had to submit to a test. The State received money for nothing. This served only to punish Elward without pursuing any type of regulatory goal.

Id., ¶7. The court of appeals misunderstood that the $200

surcharge imposed on Elward was not to pay for his own personal

DNA sample, but to offset the costs associated with the newly

expanded DNA databank and other DNA-related activities within

the State.

¶28 The court of appeals in Radaj made a similar error in

concluding that the surcharge-per-conviction part of Wisconsin's

No. 2016AP883-CR



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statute violated the Ex Post Facto Clauses by causing Radaj to

pay $250 for each of his four convictions without any link

between the surcharge and the actual costs associated with

either "analyzing Radaj's" DNA sample or with comparing Radaj's

DNA profile to "other biological specimens collected as part of

a future investigation." 363 Wis. 2d 633, ¶¶30-32. The Radaj

court based its decision in part on the fact that Radaj was not

being ordered to provide four separate DNA specimens for

testing. Id., ¶32. The Radaj court mistakenly believed the

amount of the DNA surcharge must have a rational connection to

the actual cost of Radaj's personal DNA sample in order for it

to escape classification as punitive. Although a rational

connection between the surcharge and a non-punitive purpose is

one factor considered in examining whether the surcharge has the

effect of punishment (which we examine in the next section), the

Radaj court misguidedly limited its discussion to Radaj's

specimen specifically instead of the regulatory activities of

the DNA database as a whole.

¶29 The non-punitive purpose of the mandatory DNA

surcharge statute is not to cover the DNA-analysis-related costs

incurred for the specific conviction for which it is being

imposed. Rather, the non-punitive purpose is to fund the costs

associated with the DNA databank by charging those necessitating

its existence——convicted criminals. That means a defendant pays

a surcharge for every conviction irrespective of whether his DNA

profile already exists in the databank and whether he submits

only one DNA sample. This is what the law says. We overrule

No. 2016AP883-CR



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Elward and Radaj. The reasoning employed in those cases was

unsound and the cases were wrongly decided. Because the court

of appeals' majority opinion in this matter relied on Elward and

Radaj, its holding on the DNA surcharge is faulty and must be

reversed. See Johnson Controls, Inc. v. Employers Ins. of

Wausau, 2003 WI 108, ¶¶94-100, 264 Wis. 2d 60, 665 N.W.2d 257

(discussing that departure from stare decisis occurs when a

"prior decision is unsound in principle" and "may turn on

whether the prior case was correctly decided" (first citing

State v. Outagamie Cty. Bd., 2001 WI 78, ¶30, 244 Wis. 2d 613,

628 N.W.2d 376; then citing Planned Parenthood of S.E. Pa v.

Casey, 505 U.S. 833, 999 (1992)(Scalia, J., concurring in part

and dissenting in part))).

4. Effect

¶30 The second part of the intent-effects test requires us

to examine the effect of the DNA surcharge statute. See

Scruggs, 373 Wis. 2d 312, ¶39 (citing Hudson, 522 U.S. at 104).

Regardless of the legislature's non-punitive intent for imposing

the mandatory DNA surcharge, we consider whether it in effect

operates as punishment. See id. Only the "clearest proof" will

"override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty." Hudson,

522 U.S. at 100. Seven factors guide our analysis of whether

the mandatory DNA surcharge actually punishes the defendant:

(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

No. 2016AP883-CR



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after a finding of scienter; (4) does the statute promote the

traditional aims of punishment——retribution and deterrence; (5)

is the behavior to which it applies already a crime; (6) is

there an alternative purpose to which it may be rationally

connected; and (7) is the sanction excessive in relation to the

alternative purpose assigned. See Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168-69 (1963).

¶31 We applied these seven factors in Scruggs and

concluded only the fifth factor favors characterizing the

mandatory surcharge as punitive. Scruggs, 373 Wis. 2d 312,

¶¶42-49. The same is true here.10

a. Is the surcharge an affirmative disability or restraint?

¶32 The State says the surcharge does not disable or

restrain a defendant because it is not a form of imprisonment.

Williams argues the surcharge imposes a disability on

defendants, who are often indigent, by burdening them with

"severe financial sanctions" "over and over, for each and every

conviction." There is certainly no evidence in this case that

the $250 surcharge disabled or restrained Williams in any way.

He reported to the PSI writer that his girlfriend deposits

$200/month in his prison account and another friend deposits $50

into his prison account "from time to time." In any event,

"disability" and "restraint" are normally understood to mean

imprisonment, which the $250 surcharge cannot effectuate. See

10 The fifth factor is discussed under sub-heading "e."

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LaCrosse v. Commodity Futures Trading Comm'n, 137 F.3d 925, 931

(7th Cir. 1998) (quoting Hudson, 522 U.S. at 104).

b. Is the surcharge historically viewed as punishment?

¶33 In Scruggs, we determined that historically, a

surcharge has not been viewed as punishment. Scruggs, 373

Wis. 2d 312, ¶42. Williams urges us to reconsider. He claims

our conclusion rested on a citation to Hudson, and Hudson relied

on a citation to Helvering v. Mitchell, 303 U.S. 391 (1938), and

Helvering relied on cases that all involved non-punitive

remedial sanctions. Williams distinguishes the surcharge from a

remedial sanction because the latter involves "regulatory

takings designed to reimburse the State for some perceived

'loss' owing to the 'defendant's' conduct" in contrast to the

surcharge, which Williams contends is really a fine designed to

punish the defendant.

¶34 We identify no historical evidence supporting

Williams' 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 referenced in

Helvering, a surcharge resembles a non-punitive remedial

sanction much more than punishment. See Williams, 377

Wis. 2d 247, ¶33 (Hagedorn, J., concurring) (listing examples of

many other surcharges in our statutes "not denominated criminal

fines, yet are assessed against convicted criminals or those

subject to civil forfeitures"). The DNA surcharge is money paid

to the State to offset the costs the State incurs in maintaining

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the DNA databank, which exists only because defendants commit

crimes.

c. Is a finding of scienter required?

¶35 Williams concedes that no finding of scienter is

required to impose the surcharge. The absence of the scienter

requirement shows "the statute is not intended to be

retributive." Kansas v. Hendricks, 521 U.S. 346, 362 (1997).

d. Does a surcharge promote retribution and deterrence?

¶36 We held in Scruggs the $250 surcharge was relatively

small and therefore did not promote the traditional punitive

aims of retribution and deterrence. Scruggs, 373 Wis. 2d 312,

¶45. The Fourth Circuit Court of Appeals reached the same

conclusion regarding South Carolina's $250 DNA surcharge. See

In re DNA Ex Post Facto Issues, 561 F.3d 294, 300 (4th Cir.

2009) ("[T]he relatively small size of the fee also indicates

that it was not intended to have significant retributive or

deterrent value."). Comparing the deterrent effect and

retributive value (if any) of a $250 surcharge to the 17.5 year

sentence Williams is serving buttresses this conclusion. A $250

payment is unlikely to deter anyone from engaging in illegal

activity. And the corrective impact of a $250 fee pales in

comparison to the penal power of a lengthy prison sentence.

e. Does the surcharge apply to conduct already a crime?

¶37 The State and Williams agree that the surcharge

applies to conduct that was already a crime——namely, felony and

misdemeanor convictions. This factor weighs in favor of

concluding that the surcharge operates as a punishment despite

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21



the legislature's non-punitive intent. The seven Mendoza

Martinez factors, however, are only "guideposts" and the list is

"not exhaustive nor is any one factor dispositive." Scruggs,

373 Wis. 2d 312, ¶41 (quoting Hudson, 522 U.S. at 99; citing

Smith v. Doe, 538 U.S. 84, 97 (2003)).

f. Is the surcharge rationally connected to alternative purpose?

¶38 The text of Wis. Stat. § 973.046(3) explicitly

broadcasts the non-punitive alternative purpose of the mandatory

DNA surcharge statute by directing the use of the collected

surcharges: "All moneys collected" shall be "utilized under s.

165.77." Wisconsin Stat. § 165.77 provides rules relating to

collecting, analyzing, and maintaining DNA biological specimens.

An alternative non-punitive purpose undoubtedly exists for the

DNA surcharges. The only question is whether the surcharge is

rationally connected to the DNA database activities. Judge

Hagedorn aptly answers this question and we adopt his reasoning:

The DNA databank is a crime-solving, crime-fighting public safety tool. It supports law enforcement investigatory efforts and, in so doing, saves time, money, and resources that might be otherwise devoted. It serves criminal defendants who might be wrongly accused, or even worse, wrongly convicted. In short, the DNA databank was expanded to further support, assist, and improve the administration of criminal justice in the state of Wisconsin. The funding mechanism, then, must be seen in this light. The legislature needed additional funds for this broader cause, and decided to place the burdens not on those necessarily required to give a sample, but on those convicted of crimes. Policy merits aside, it is altogether rational to assess a fee aimed at solving crimes against those who commit them; at the very

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least, it is no less rational than the multitude of fees and surcharges that work exactly the same way.

Williams, 377 Wis. 2d 247, ¶41 (Hagedorn, J., concurring). The

legislature created a "user fee" assessed against those

responsible for necessitating the databank. The more crimes

committed, the more times the user pays the fee. The law does

not require the legislature to set a surcharge with precision;

the surcharge imposed must bear only "an approximate relation to

the cost it is meant to offset." Scruggs, 373 Wis. 2d 312, ¶46

(quoting Mueller v. Raemisch, 740 F.3d 1128, 1133 (7th Cir.

2014)). The costs from the DNA surcharge are meant to offset

all of the expenses associated with DNA-database related

activities. The user fees are reasonably connected to that non

punitive purpose. It makes sense to have those who "use" the

criminal justice system more often——i.e., repeat offenders——

contribute more to offset the costs their actions generate.

g. Is the surcharge excessive in relation to alternative purpose?

¶39 The State says the surcharge is not excessive.

Williams disagrees and points to what he alleges is a

substantial State surplus stemming from paid DNA surcharges. 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. See Mueller, 740 F.3d at

1134-35; Myrie v. Comm'r N.J. DOC, 267 F.3d 251, 258 (3d Cir.

2001). The surcharge must be "grossly disproportionate to the

annual cost" to prove it is excessive. Mueller, 740 F.3d at

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1134; see also Myrie, 267 F.3d at 261. 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." Smith, 538 U.S. at 105.

¶40 Under this standard, we are not convinced the

surcharge is excessive in relation to the non-punitive purpose.

As the State points out, DNA-related activities, including

operating and maintaining a statewide database, are expensive.

The money generated from the surcharges pays for all the DNA

kits used to take samples from every person arrested for a

felony and every person convicted of a misdemeanor. The

surcharges cover the salaries of the analysts employed to

perform the DNA-related work. For one year alone, the DNA

testing kits cost over $1 million dollars.11

¶41 Citing a Legislative Fiscal Bureau report dated May 9,

2017, Williams says the excessive nature of the surcharges has

resulted in a substantial surplus. See Legislative Fiscal

Bureau Paper #408, Crime Laboratory and Drug Law Enforcement

Surcharge and DNA Surcharge Overview (May 9, 2017) (projecting a

2018-19 ending balance of $2,322,100).

¶42 We do not view Williams' argument as the "clearest

proof" that the current surcharges are excessive in relation to

the non-punitive purpose. See Hudson, 522 U.S. at 100. First, 11 The State's attorney represented both in her brief and at oral argument that the DNA testing kits alone cost over $1 million annually. Williams' attorney did not contest the State's figures.

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the report Williams cites shows the DNA surcharge funds combined

with the funds received from a separate surcharge.12 It is

impossible to discern which surcharge created the surplus.

Second, the report reflects consistently declining revenue in

the fund holding the DNA surcharges each budget year.

Additionally, the law does not and cannot demand mathematical

precision in setting and collecting just the right amount of

surcharges necessary to fund the DNA databank. Multiple unknown

variables——including the number of arrests, the amount of

convictions, the volume of DNA related crimes, and the manpower

needed to analyze the unknown——render the exact cost of

operating the databank unpredictable year-to-year. Judicially

requiring the legislature to enact annual revisions to the

actual dollar amount of a DNA surcharge to adjust for less crime

in one year and more crime in the next would encroach on

legislative policy-making and create administrative havoc.

Accordingly, the legislature must be given broad leeway to

select a surcharge amount.

5. Summary

¶43 Applying the intent-effects test, we conclude the

intent of the mandatory DNA surcharge was not punitive. Rather,

12 The separate surcharge is identified as the "CLDLE" surcharge, which is the acronym for Crime Laboratory and Drug Law Enforcement. Joint Comm. On Fin., Legis. Fiscal Bureau, Paper #409, at 1 (Wis. 2017), https://docs.legis.wisconsin.gov/m isc/lfb/budget/2017_19_biennal_budget/050_budget_papers/409_just ice_crime_laboratory_dna_analysis_kits.pdf (last visited May 17, 2018).

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it was intended to fund the costs associated with the broad

expansion of the DNA databank and all the activities related to

it. Likewise, a review of the precedential factors guiding our

analysis shows that the mandatory DNA surcharge statute does not

have a punitive effect. Accordingly, the statute does not

violate the Ex Post Facto Clauses. Finally, we overrule Elward

and Radaj, and we reverse the decision of the court of appeals

in this matter as to the DNA surcharge.13 All three opinions

incorrectly14 held DNA surcharges to be unconstitutional ex post

facto violations on the basis that the actual costs incurred for

the individual convicted defendant had to be rationally

connected to the non-punitive purpose. This narrow approach

failed to recognize the non-punitive purpose underlying the

mandatory DNA surcharge: to generate funds to cover costs

incurred by the State in solving crimes utilizing a statewide

DNA databank.

B. Williams' Cross-Petition for Review——Sentencing

¶44 Williams contends the circuit court erroneously

exercised its sentencing discretion by relying on an improper

factor. More specifically, Williams claims the circuit court

imposed a harsher sentence because Williams refused to agree to

13 As noted in part B., we affirm the court of appeals' decision in this case on the sentencing issue.

14 We recognize the court of appeals in this case was bound to follow State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756, and State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

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pay restitution. Williams argues that he has a right to object

to paying restitution and successfully doing so should not cause

a sentencing court to increase his sentence. The State responds

that: (1) the circuit court did not actually rely on Williams'

unwillingness to pay restitution; (2) even if it did, this was

not an improper factor; and (3) any error was harmless. We hold

the circuit court may refer to a defendant's failure to

voluntarily pay restitution when the reference is directly

linked to a proper sentencing factor. Because the circuit

court's reference to restitution at Williams' sentencing was

directly linked to a proper sentencing consideration——Williams'

lack of remorse——the sentencing court did not erroneously

exercise its discretion.

1. Standard of Review & Applicable Law

¶45 We will not disturb a sentencing decision unless the

circuit court erroneously exercised its discretion. State v.

Alexander, 2015 WI 6, ¶16, 360 Wis. 2d 292, 858 N.W.2d 662. A

circuit court erroneously exercises its discretion in imposing a

sentence if it "actually relies on clearly irrelevant or

improper factors." Id., ¶17 (quoting State v. Harris, 2010 WI

79, ¶66, 326 Wis. 2d 685, 786 N.W.2d 409); see also McCleary v.

State, 49 Wis. 2d 263, 274-76, 182 N.W.2d 512 (1971). To

establish error, a defendant must prove by clear and convincing

evidence that a circuit court relied on improper factors.

Alexander, 360 Wis. 2d 292, ¶17. A defendant must prove both

that the factor was improper and that the circuit court actually

relied on it. Id., ¶¶18-27.

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¶46 There are three main factors circuit courts must

consider in determining a defendant's sentence: (1) the gravity

of the offense; (2) the character of the defendant; and (3) the

need to protect the public. Id., ¶22. The circuit court may

also consider secondary factors, including:

(1) Past record of criminal offense; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.

Id., ¶22 (quoted sources omitted). When imposing sentence, a

circuit court cannot rely on inaccurate information, race or

national origin, gender, alleged extra-jurisdictional offenses,

or the defendant's or victim's religion. Id., ¶¶18, 23. In

addition, a circuit court may not impose "a harsher sentence

solely because [a defendant] availed himself of one of his

constitutional rights," Buckner v. State, 56 Wis. 2d 539, 550,

202 N.W.2d 406 (1972) (emphasis added), or vindictively impose a

harsher sentence when a defendant has succeeded in getting his

first sentence vacated or overturned by exercising his appellate

rights, State v. Church, 2003 WI 74, ¶¶1, 28-39, 262

Wis. 2d 678, 665 N.W.2d 141.

¶47 Outside of these prohibitions, the circuit court has

"wide discretion in determining what factors are relevant" and

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what weight to give to each factor. State v. Gallion, 2004 WI

42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197.

2. Application

¶48 There is no dispute that the circuit court considered

the three primary sentencing factors. It noted the serious

nature of the crime, addressed both positive and negative

factors regarding Williams' character, and discussed the need to

protect the public. We therefore turn our attention to whether

Williams proved by clear and convincing evidence that the

circuit court actually relied on an improper factor when

imposing sentence.

a. Is a position on restitution an improper factor?

¶49 Williams insists that a sentencing court cannot

consider a defendant's successful objection to paying

restitution. He argues that because he has a statutory right to

challenge restitution, it is improper for the circuit court to

use his successful challenge as an aggravating factor against

him. He also contends that successful restitution challenges do

not reflect a lack of remorse. Although we agree with Williams

that a sentencing court should not vindictively increase a

defendant's sentence based solely on his decision to challenge

restitution, see Church, 262 Wis. 2d 678, ¶28; Buckner, 56

Wis. 2d at 550, Williams fails to demonstrate by clear and

convincing evidence that his position on restitution was an

improper sentencing factor.

¶50 The circuit court's discussion regarding restitution

did not stand alone as an independent factor in the sentencing

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transcript. Rather, the circuit court's sole reference to

restitution came toward the end of the circuit court's

sentencing remarks and was intertwined with its consideration of

Williams' character and lack of remorse, as evidenced only in

part by Williams' position that he was not responsible for

restitution. It is important to note the theme permeating both

the PSI report and the sentencing remarks——Williams was not

sorry that his actions caused the death of another human being.

The PSI writer described Williams' lack of remorse as

"atrocious" and emphasized Williams' attitude that his crime had

nothing to do with R.W.'s death. The prosecutor and the defense

lawyer both focused on remorse. Williams' remorse, or lack

thereof, dominated the sentencing hearing. While a defendant's

position on paying restitution is not listed among the primary

or secondary sentencing factors, his lack of remorse, evidenced

by his attitude regarding restitution, certainly can be relevant

to sentencing considerations.

¶51 Sentencing courts may not vindictively punish a

defendant solely for exercising a constitutional right.15

Alabama v. Smith, 490 U.S. 794, 798-801 (1989); Church, 262

Wis. 2d 678, ¶¶28-39. But when the restitution factor is

15 To be clear, Williams' right to challenge restitution arises from our statutes, not the constitution. See Wis. Stat. § 973.20(13)(c); Canady, 234 Wis. 2d 261, ¶9. Defendants do, however, have a constitutional due process right not to be sentenced based on improper factors upon which a court actually relies. See State v. Harris, 2010 WI 79, ¶33, 326 Wis. 2d 685, 786 N.W.2d 409.

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inextricably intertwined with a defendant's character and lack

of remorse, its consideration is proper. The restitution factor

at issue here was not Williams' decision to challenge

restitution, or the fact that his challenge was successful, but

rather Williams' disavowal of responsibility for R.W.'s death

and unwillingness to contribute to funeral costs. Williams

showed no insight that his choice to drive to the drug buy,

despite his brother's possession of a gun and his brother's

armed robbery plan, resulted in R.W.'s death. Under these

circumstances, Williams failed to convince us that the

sentencing court's single reference to restitution constituted

an improper factor.

b. Actual reliance

¶52 Our conclusion that the circuit court's restitution

remark did not constitute an improper sentencing factor disposes

of Williams' cross-petition. For the sake of completeness, we

briefly address the actual reliance issue. In determining

whether a circuit court actually relied on an improper

sentencing factor, we review the sentencing transcript as a

whole and consider the allegedly improper comments in context.

Harris, 326 Wis. 2d 685, ¶45. Actual reliance occurs only when

the circuit court paid "explicit attention" to an improper

factor, and when the improper factor formed the "basis for the

sentence." Alexander, 360 Wis. 2d 292, ¶25.

¶53 The circuit court's remarks as a whole did not

concentrate explicit attention on Williams' decision to

challenge restitution. Rather, the sentencing remarks

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demonstrate the circuit court focused on the three primary

sentencing factors, as well as Williams' clear lack of remorse.16

The basis of this sentence was not Williams' decision to

challenge restitution but rather the seriousness of the offense,

Williams' poor character as evidenced by his lack of remorse,

and the need to protect the public. The sole reference to

restitution bore a reasonable nexus to the relevant factor of

Williams' lack of remorse. In context, the circuit court in no

way tied the length of the sentence to Williams' exercise of his

statutory right to challenge restitution. See Harris, 326

Wis. 2d 685, ¶¶4, 59, 67 (ruling actual reliance not proven when

improper factors "bear a reasonable nexus to proper sentencing

factors"). Nothing in the transcript suggests the circuit court

increased Williams' sentence solely because he challenged

restitution. Accordingly, Williams failed to establish actual

reliance.

We hold the mandatory DNA surcharge statute is not an

ex post facto law because the surcharge is not punishment under

the intent-effects test. The legislature intended the

surcharges to offset the costs associated with its broad

expansion of the statewide DNA databank, and the effect of the

surcharges do not override the legislature's non-punitive

intent.

¶55 In addressing ex post facto challenges, our court of

appeals in this case was bound to apply Elward and Radaj, which

erroneously required the DNA surcharge to represent the

particular costs associated solely with a single defendant in

order to be declared non-punitive. We overrule these cases

because each is wrongly decided and based on faulty reasoning.

The legislature's non-punitive purpose for the mandatory DNA

surcharge was much broader; in essence it serves as the funding

mechanism for a DNA databank that operates as a crime-solving

and crime-fighting public safety tool. The surcharge covers

DNA-related expenses, including the costs of all the kits and

tests not only for those convicted, but also for those who are

only arrested for committing (or attempting to commit) a

felony.17 The surcharges are also used to pay salaries of DNA

analysts who maintain the databank as well as those who gather,

process, and analyze DNA samples and DNA evidence.

¶56 We also hold the circuit court did not erroneously

exercise its discretion when it referenced restitution during

its sentencing remarks. The single restitution reference was

intertwined with remarks about Williams' lack of remorse, a

proper sentencing factor. The restitution remark focused on

Williams' failure to accept responsibility for causing one

ictim's death rather than Williams' right to challenge

restitution. Williams failed to prove by clear and convincing

evidence that the sentencing court relied on an improper

sentencing factor.

¶57 Accordingly, we reverse that part of the court of

appeals decision concluding the mandatory DNA surcharge statute

operated as an ex post facto violation, and we reinstate the

$250 surcharge as part of Williams' judgment. We affirm that

part of the court of appeals decision holding the circuit court

properly exercised its sentencing discretion when it sentenced

Williams.

By the Court.—The decision of the court of appeals is

reversed in part and affirmed in part.