from a judgment and an order of the circuit court for
Milwaukee County, Cir. Ct. No. 2013CF2025 TIMOTHY G. DUGAN
and ELLEN R. BROSTROM, Judges. Judgment affirmed in part,
reversed in part; order reversed and cause remanded for
Reilly, P.J., Gundrum and Hagedorn, JJ.
Jamal Williams raises two issues on appeal. He first claims
he is entitled to resentencing on the ground that the circuit
court sentenced him based on an "improper and irrelevant
sentencing factor, " "namely, the fact that
Williams refused to stipulate to restitution for which he was
not legally responsible." Second, he argues the court
erred on ex post facto grounds in requiring him to pay a
mandatory DNA surcharge. We affirm the court on Williams'
first claim, but reverse on the second.
On April 30, 2013, the State filed a complaint charging
Williams and his brother, Tousani Tatum, with felony murder,
as parties to a crime. The complaint alleged B.P. and R.W.
drove to a marijuana deal B.P. had set up with Williams.
Williams and Tatum exited their vehicle and met with B.P.,
who placed a scale on the sidewalk to measure out the
marijuana. Tatum placed a gun to B.P.'s head and demanded
money and marijuana, causing B.P. to run. Tatum then demanded
that R.W., who was in his parked car down the street, give
Tatum "his Cartier glasses." Tatum fired at the
car, and R.W. died from the gunshot wound. R.W.'s
three-year-old child was in the vehicle. According to what
Williams told police, when Tatum had earlier entered the
vehicle Williams was driving, he possessed a gun and told
Williams he was going to rob B.P. Williams also told police
he tried to talk Tatum out of robbing B.P., and that after
Tatum shot at R.W., he and Tatum ran back to their vehicle
and drove away.
The State and Williams reached a plea agreement, pursuant to
which Williams pled guilty to an amended charge of felony
attempted armed robbery as a party to a crime. At the plea
hearing, counsel for Williams expressed as a factual basis
for the plea that upon arriving at the location of the
planned drug deal, Tatum
produced a gun and said that he was going to rob the drug
dealer. [Williams] at that point knew that a robbery was
going to occur, he asked that it not occur, however, he did
leave the vehicle and approach [B.P.]
Within that transaction, the gun was used, and after that
incident, he ran with the second individual back to the car
where he drove the car away aiding ... [Tatum].
agreed that these facts were accurate, and the court accepted
his plea and found him guilty of the amended charge.
The circuit court ordered that a presentence investigation
(PSI) be completed. An agent who was already supervising
Williams, and thus was familiar with him, interviewed him and
prepared a report. Williams told the agent, "I'm the
big brother and what I say goes." Williams also
expressed that after Tatum fired at the car R.W. was in and
they then drove off, the first thing that came to
Williams' mind was how they likely had "messed
up" his parole. When the agent asked questions of
Williams related to R.W.'s death, Williams repeatedly
asked, "What does his death have to do with my case? I
was convicted of attempted armed robbery." The agent
wrote in the PSI that when she "explained the drug deal,
armed robbery, and the homicide were all inclusive of the
sequence of events of the day, Mr. Williams repeatedly
expressed concern about being made to 'look
When the agent asked Williams his feelings regarding the
offense, his first response was: "I fucked up. I fucked
my parole up. My son is out there without his father."
Although Williams claimed he was innocent, when queried by
the agent, he admitted going to the location to buy drugs and
being aware his brother had a gun and planned to rob B.P.
Williams said he pled guilty to the amended charge because it
was better than going to trial on felony murder, but added,
"My case has nothing to do with [R.W.] dying. Nothing
related to this case should [be] mixed in with that."
When the agent asked Williams if he had any remorse, Williams
indicated he had remorse for his brother Tatum, his mother,
and his son. After prompting by the agent, Williams indicated
he also had remorse for R.W.'s father and the three year
old who was present when R.W., her father, died. When asked
what an appropriate sentence would be, Williams responded
that he felt he should get "time served and
The report detailed Williams' extensive history of
criminal behavior beginning at twelve years old. As the agent
went through each item of Williams' criminal record with
him, Williams "minimized his behavior in every single
arrest, or placed blame on another person." Regarding a
2003 arrest for endangering safety by use of a weapon,
Williams "boast[ed] the charge was dropped in
court" and "appeared to be proud and seemingly
found it humorous how many times charges have been dropped in
court." Williams smiled and stated police "wanted
to get me on something, but they couldn't. Either they
couldn't prove it was me or they did an illegal search or
something." When asked if he felt he "just got away
with a lot of stuff, " Williams shrugged and responded,
"Rights are rights, right?" The agent further
detailed Williams' "boasting" about other
charges against him being dismissed.
Providing her "assessment and impression, " the
agent wrote that
[o]nly after being questioned, by this writer repeatedly, did
[Williams] even give a brief moment of thought to the victims
of this case. Mr. Williams went on and on about how he feels
he deserves a fair outcome in sentencing.... Mr.
Williams is stunned to find himself in the current situation,
repeatedly illustrating, to this writer, his only concern is
Mr. Williams comes off as being very savvy with the criminal
justice system.... Mr. Williams illustrated a sense of
self-centeredness when speaking about the current offense,
minimizing the offense, talking in circles, and blaming
others of twisting his words. Mr. Williams showed very little
remorse for the victims caused by his action....
agent described Williams as having an "atrocious lack of
remorse." The agent further observed that "[a]s the
'big brother' and driver, had Mr. Williams disengaged
at any point, [R.W.] likely would not have lost his life in
the presence of his young daughter."
At sentencing, the State told the circuit court, "I
really don't think there's any remorse here.... As
the presentence writer indicated, it's mostly about him
and what's gonna happen to him." "There's
no remorse for what happened here and he's taking no
responsibility for [R.W.'s] death." The State
requested Williams be ordered to pay $794 in restitution,
joint and several with Tatum, related to the funeral costs of
R.W., asserting "the homicide was a direct extension of
this armed robbery."
Though invited to do so at the sentencing hearing, neither
Williams nor his counsel made any relevant corrections to the
PSI. Williams' counsel then told the circuit court that
Williams had taken responsibility for his actions by
pleading. He "disagree[d] strongly" with the State
and PSI writer's representations that Williams lacked
remorse, stating Williams "expressed to me remorse for
everyone involved." Counsel added:
I guess I take issue that because he is thinking about his
brother has thrown away his adult life, his mother and his
son that somehow that does not reflect his remorse also for
[R.W.'s fiance], [R.W.'s] father and for [R.W.'s]
daughter, and in fact, on page four of the PSI the writer
states, "He did have remorse thinking about the little
girl who saw her father die [and R.W.'s] father who no
longer has a son."
admitted that Williams, even knowing what Tatum's
intentions were, "went along to complete the transaction
and this horrible, horrible thing resulted, " adding
that Williams "is completely aware of the effect that
this transaction has had on all the families involved."
On the issue of restitution, however, counsel argued that the
shooting was not foreseeable and was "a separate
transaction" and Williams "should not be held
accountable for ... that $794."
Sentencing Williams, the circuit court stated in relevant
[The] attempt[ed] armed robbery ... [is] really serious
because of the nature of the crime, the outcome in this
particular instance and your involvement.
Here you set up a drug deal and your brother came along. You
knew your brother had a gun. You knew your brother was going
to rob the individual, but instead of stopping, saying no,
I'm not going to go along with this, get out of my car,
I'm not taking you anywhere, you took him to the scene to
commit the robbery, and then you assisted.
You called over to [B.P.] [B.P.] knew of you, and so you
didn't just tell him to go away, get away because
you're going to get robbed, you participated in the
entire robbery, and then your brother shoots and kills
[R.W.], and instead of saying what did you do, we can't
leave here, we've got to call the police, we've got
to address this issue-You didn't know he had died at this
point. You didn't call for help for him. As he was
driving away he shot him, and there was a little girl in the
car and he did nothing. You drove away. That reflects upon
your character. It reflects upon your participation in this
entire proceeding. You've accepted responsibility in
accepting a plea in this case. It was certainly strategic.
court then discussed Williams' substantial criminal
history beginning at age twelve, including the failure of
prior efforts to help reform Williams. The court stated,
"The only significant periods that you've been
without arrest were when you've been incarcerated."
The court then discussed the PSI report and comments by
Williams' agent therein. The court noted that the crime
Williams committed "is extremely serious. It's had a
profound impact on the victims, their families, the
community, and, as you noted yourself to the presentence
writer, you could have stopped this at any time but you
didn't." Turning to restitution, the court stated in
I don't think I have authority to order the 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[ed] 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.
court sentenced Williams to ten years in prison and seven and
one-half years of extended supervision and ordered him to
"submit the mandatory DNA sample" and pay "the
Williams filed a postconviction motion raising numerous
claims of error. As relevant to this appeal, the
postconviction court determined Williams was not entitled to
resentencing on the basis of any comments the sentencing
court made related to restitution. The court also denied a
request by Williams to vacate the DNA surcharge on the basis
that he had already provided a DNA sample and been assessed a
$250 surcharge in relation to a 2009 felony conviction.
Williams asserts he is entitled to resentencing because the
circuit court sentenced him more harshly on the basis that he
did not stipulate to restitution related to the funeral costs
of R.W. Williams' appeal of this issue does not get out
of the gate because he has not convinced us the court
sentenced him more harshly on this basis.
"A circuit court erroneously exercises its sentencing
discretion when it 'actually relies on clearly irrelevant
or improper factors.'" State v. Alexander,
2015 WI 6, ¶17, 360 Wis.2d 292, 858 N.W.2d 662 (quoting
State v. Harris, 2010 WI 79, ¶66, 326 Wis.2d
685, 786 N.W.2d 409). As Williams acknowledges, "[a]
defendant bears the burden of proving, by clear and
convincing evidence, that the sentencing court actually
relied on irrelevant or improper factors." Id.
Despite "the difficulty [a defendant may have] in
proving that a sentencing court actually relied on improper
factors, ... requiring a defendant to prove his case
'promotes the policy of finality of judgments and
satisfies the purpose of sentence modification, which is the
correction of unjust sentences.'" See id.,
¶20 (quoting Harris, 326 Wis.2d 685, ¶34).
Williams fails to satisfy his burden.
In Alexander, our supreme court stated:
When a sentencing challenge is grounded in the use of
allegedly erroneous information, we look to the circuit
court's articulation of its basis for imposing the
sentence. In the context of the whole sentencing transcript,
we examine first whether the court gave explicit attention to
the allegedly improper factor and second, whether the
improper factor "formed part of the basis for the
sentence, " which could show actual reliance.
Id., ¶29 (citation omitted). In the case now
before us, the circuit court did give "explicit
attention" and recognition to the fact Williams was not
stipulating to restitution. Considering "the context of
the whole sentencing transcript, " id.,
however, we agree with the postconviction court that this
factor did not ...