argument: October 13, 2016
of a decision of the Court of Appeals. Affirmed.
court Racine county Allan B. Torhorst Judge
the defendant-appellant-petitioner, there was a brief and
oral argument by Dustin C. Haskell, assistant state public
the plaintiff-respondent the cause was argued by Jeffrey J.
Kassel, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
WALSH BRADLEY, J.
Petitioner, Tabitha Scruggs ("Scruggs") seeks
review of a published court of appeals decision denying her
motion for postconviction relief. The court of appeals
determined that Scruggs failed to demonstrate beyond a
reasonable doubt that imposing a now mandatory $250 DNA
surcharge for a single felony conviction constitutes a
punishment, violating the prohibition against ex post facto
laws set forth in the United States and Wisconsin
Specifically, Scruggs contends that the imposition of this
single $250 DNA surcharge is punitive for ex post facto
purposes because it was discretionary when she committed the
felony offense but mandatory when she was sentenced. She
asserts that the statutory amendment making mandatory the
imposition of the $250 DNA surcharge at sentencing
constitutes an unconstitutional ex post facto law because it
retroactively imposes punishment on those who committed a
crime before the amendment's January 1, 2014 effective
Like the court of appeals, we conclude that Scruggs has not
met her burden of establishing beyond a reasonable doubt that
the amended statute is unconstitutional. She has failed to
show that the mandatory imposition of this DNA surcharge,
which was discretionary at the time she committed the single
felony offense, is punitive in either intent or effect and
thus violative of the ex post facto prohibition.
Accordingly, we affirm the decision of the court of appeals,
denying Scruggs' postconviction motion to vacate the $250
DNA surcharge. I
The underlying facts in this case are not in dispute. On
December 30, 2013, Scruggs was charged with one count of
burglary as a party to a crime, contrary to Wis.Stat.
§§ 943.10(lm)(a) & 939.05(1)
(2011-12). She pleaded no contest to the charged
offense on April 1, 2014, and was sentenced on June 9, 2014.
The circuit court sentenced Scruggs to 18 months of initial
confinement and 18 months of extended supervision.
Scruggs' sentence was stayed and she was placed on
probation for three years. The judgment of conviction
provided that Scruggs submit to a DNA sample and pay a $250
DNA analysis surcharge.
At the time Scruggs committed the offense on December 30,
2013, Wis.Stat. § 973.046 (2011-12) was in effect. It
provided that the decision of whether to impose a DNA
surcharge was within the circuit court's discretion:
(1g) Except as provided in sub. (lr), if a court imposes a
sentence or places a person on probation for a felony
conviction, the court may impose a deoxyribonucleic acid
analysis surcharge of $250.
On January 1, 2014, Wis.Stat. § 973.046(lr)(a) (2013-14)
("2014 Amendment") took effect pursuant to 2013
Wis. Act 20. The Act specified that the mandatory DNA
surcharge would apply to sentences imposed on or after
January 1, 2014, regardless of when the underlying offense
occurred. 2013 Wis. Act 20, §§ 9326, 9426. Thus,
when Scruggs was sentenced on June 9, 2014, the amended
statute made the imposition of a DNA surcharge mandatory:
(1r) If a court imposes a sentence or places a person on
probation, the court shall impose a deoxyribonucleic acid
analysis surcharge, calculated as follows:
(a) For each conviction for a felony, $250.
(b) For each conviction for a misdemeanor, $200.
Wis. Stat. § 973.046(lr) (2013-14).
Scruggs filed a postconviction motion seeking to vacate the
$250 DNA surcharge. She argued that imposing this mandatory
DNA surcharge violated the Ex Post Facto Clauses of the
United States and Wisconsin Constitutions because imposition
of the DNA surcharge was discretionary at the time she
committed the felony offense. According to Scruggs, the
statutory change from a discretionary DNA surcharge to a
mandatory DNA surcharge makes the 2014 Amendment punitive for
a defendant sentenced for a single felony offense after the
effective date of the 2014 Amendment for an offense committed
Scruggs argued that the circuit court instead should have
applied Wis.Stat. § 973.046 (2011-12) as it existed at
the time she committed the offense and exercised its
discretion in determining whether to impose a $250 DNA
surcharge. The circuit court concluded that it was required
to impose the mandatory $250 DNA surcharge and denied
Scruggs' postconviction motion.
The court of appeals affirmed the circuit court, albeit with
a different rationale. State v. Scruggs, 2015
WI.App. 88, ¶19, 365 Wis.2d 568, 872 N.W.2d 146');">872 N.W.2d 146. It
determined that Scruggs "has failed to demonstrate
beyond a reasonable doubt that the $250 DNA surcharge that
the circuit court imposed on her for a single felony
conviction constitutes a punishment and, thus, [did not]
violate  the prohibitions against ex post facto laws in the
U[nited] S[tates] and Wisconsin Constitutions."
Whether a statute violates the Ex Post Facto Clauses of the
Wisconsin and United States Constitutions is a question of
law that this court reviews independently of the
determinations rendered by the circuit court and the court of
appeals. State v. Haines, 2003 WI 39, ¶7, 261
Wis.2d 139, 661 N.W.2d 72. There is a strong presumption that
legislative enactments are constitutional. Bostco LLC v.
Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶76,
350 Wis.2d 554, 835 N.W.2d 160. Scruggs has the burden of
establishing beyond a reasonable doubt that the challenged
legislation is unconstitutional. Chappy v. Labor &
Indus. Review Comm'n, Pep' t of Indus., Labor &
Human Relations, 136 Wis.2d 172, 184-85, 401 N.W.2d 568
A party challenging the constitutionality of a statute
"bears a heavy burden." State v. Smith,
2010 WI 16, ¶8, 323 Wis.2d 377, 780 N.W.2d 90 (citing
State v. Cole, 2003 WI 112, ¶ll, 264 Wis.2d
520, 665 N.W.2d 328) . "It is insufficient for the party
challenging the statute to merely establish either that the
statute's constitutionality is doubtful or that the
statute is probably unconstitutional." Id.
"Instead, the party challenging a statute's
constitutionality must 'prove that the statute is
unconstitutional beyond a reasonable doubt.'"
Id. (quoting Cole, 264 Wis.2d 520,
At the outset we observe the basic premise that a statute
"which makes more burdensome the punishment for a
crime after its commission" is prohibited by the Ex
Post Facto Clauses of the United States and Wisconsin
Constitutions. State v. Thiel, 188
Wis.2d 695, 703, 524 N.W.2d 641');">524 N.W.2d 641 (citing Collins v.
Youngblood, 497 U.S. 37, 42 (1990) . Scruggs contends
that the imposition of a $250 DNA surcharge is punitive
because it was discretionary when she committed the crime but
mandatory when she was sentenced. She asserts that the
statutory amendment making mandatory the imposition of a $250
DNA surcharge at sentencing constitutes an unconstitutional
ex post facto law because it retroactively imposes punishment
to those who committed a crime before the amendment's
January 1, 2014 effective date.
The State does not dispute Scruggs' contention that if
the DNA surcharge is punitive, amending the statute to make
mandatory what previously was discretionary is an ex post
facto violation with respect to defendants who committed
their offense before the effective date of the amendment.
See Lindsey v. Washington, 301 U.S. 397, 400 (1937)
(concluding it is an ex post facto violation to apply a new
criminal penalty where "[t]he effect of the new statute
is to make mandatory what was before only the maximum
In determining whether a statute is punitive for ex post
facto purposes, we apply the "intent-effects" test
set forth in Hudson v. United States, 522 U.S. 93
(1997) . See In re Commitment of Rachel, 2002 WI 81,
¶38, 254 Wis.2d 215, 647 N.W.2d 762');">647 N.W.2d 762. If we determine
that the legislative intent of the 2014 Amendment was to
impose punishment, the law is considered punitive and our
inquiry ends there. See City of South Milwaukee v.
Kester, 2013 WI.App. 50, ¶22, 347 Wis.2d 334, 830
N.W.2d 710. However, if we determine that the
legislature's intent was to impose a civil and
nonpunitive regulatory scheme, we must determine next whether
the 2014 Amendment is so punitive in form and effect as to
"transfor[m] what was clearly intended as a civil remedy
into a criminal penalty." Rachel, 254 Wis.2d
215, ¶33 (citing Hudson, 522 U.S. at
Determining whether the legislature intended the statute to
be punitive "is primarily a matter of statutory
construction . . . ." Id., ¶40. Statutory
interpretation begins by examining the plain language of the
statute. State ex rel. Kalal v. Cir. Ct. for
Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681
N.W.2d 110 (citations omitted).
Accordingly, we begin our analysis of Scruggs' claim by
considering whether the legislature either expressly or
impliedly indicated a preference that the 2014 Amendment be
considered a civil remedy or a criminal penalty. See
Rachel, 254 Wis.2d 215, ¶32 (citing
Hudson, 522 U.S. at 99) . "Statutory language
is given its common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are
given their technical or special definitional meaning."
Kalal, 271 Wis.2d 633, ¶45 (citations omitted).
Sections 973.046(lr)(c)-(d) (2013-14) provide:
If a court imposes a sentence or places a person on
probation, the court shall impose a deoxyribonucleic acid
analysis surcharge, calculated as follows:
(c) For each conviction for a felony, $250.
(d) For each conviction for a misdemeanor, $200.
We give "great deference" when the legislature
labels a statute as a civil remedy. Rachel, 254
Wis.2d 215, ¶42. Only the "clearest proof"
will convince this court that a statute the legislature
labeled as a civil remedy is in effect a criminal penalty.
Kester, 347 Wis.2d 334, ¶22 (citation omitted).
The language of the 2014 Amendment, which uses the term
"surcharge" rather than "fine, " reveals
that the legislature intended the statute to be a civil
remedy, rather than a criminal penalty. As the Seventh
Circuit explained in Mueller v. Raemisch, a fine is
a punishment for an unlawful act that is a "substitute
deterrent for prison time" and "a signal of social
disapproval of unlawful behavior." 740 F.3d 1128, 1133
(7th Cir. 2014) . In contrast, a fee (or in this case a
"surcharge") is compensation for a service provided
to, or alternatively compensation for a cost incurred by, the
person charged the fee. See id.
Scruggs contends that placement of the DNA surcharge within
the criminal sentencing statutes reflects a legislative
intent to punish. According to Scruggs, the surcharge is
situated squarely within the criminal sentencing statutes,
which address imposition of criminal penalties. In contrast,
Scruggs argues, court costs and other non-punitive charges
are addressed in Chapter 814.
Scruggs overlooks that the DNA surcharge is explicitly set
forth in Wis.Stat. § 814.76(5) (2013-14), which makes a
distinction between a fine imposed in a criminal action and a
surcharge imposed in that action. It provides:
Surcharges in criminal actions. In addition to any fine
imposed in a criminal action, a defendant shall pay the
following surcharges if applicable:
(5) The deoxyribonucleic acid analysis surcharge under s.
Wis. Stat. § 814.76(5) (2013-14). Additionally, the
United States Supreme Court has determined that a forfeiture
provision may be a civil remedy even though the authorizing
statute is located in the criminal code. Smith v.
Doe, 538 U.S. 84, 94-95 (2003) (citing United States
v. One Assortment of 89 Firearms, 465 U.S. 354, 364-65
Although Scruggs is correct that statutory language is
interpreted in the context of the statutory scheme,
considering closely-related statutes, the placement of the
DNA surcharge within the criminal sentencing statutes is not
the only statutory context we consider. See Kalal,
271 Wis.2d 633, ¶46. As the court of appeals explained,
the 2014 Amendment is part of a larger statutory initiative
to expand the state's DNA databank and "to offset
the increased burden on the Department of Justice (DOJ) in
collecting, analyzing, and maintaining the additional DNA
samples . . . ." Scruggs, 365 Wis.2d 568,
Thus, we also interpret the language used in the 2014
Amendment of 973.046(lr) (a) in relation to Wis.Stat.
§§ 973.046(3) . In order to offset the increased
burden on the DOJ in collecting, analyzing, and maintaining
the additional DNA samples, the legislature imposed the
mandatory surcharge on felony convictions to be deposited
initially with the secretary of administration but to be used
by the DOJ to offset the increased costs.
Wisconsin Stat. § 973.046(3) (2013-14) states: "All
moneys collected from deoxyribonucleic acid analysis
surcharges shall be deposited by the secretary of
administration . . . and utilized under s. 165.77."
Section 165.77 sets forth the requirements that the DOJ
provide for the analysis of the collected samples and
maintain a state DNA databank. See Wis.Stat. §
165.77 (2) (a) (1)& (3) (2013-14). When viewed in
context, the imposition of a now mandatory surcharge that
"is specifically dedicated to fund the collection and
analysis of DNA samples and ...