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State v. Williams

Supreme Court of Wisconsin

May 30, 2018

State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Jamal L. Williams, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: March 16, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d 247, 900 N.W.2d 310');">900 N.W.2d 310 PDC No: 2017 WI.App. 46 - Published

          Circuit Court: Milwaukee county: Timothy G. Dugan and Ellen R. Brostrom Judge

          For the plaintiff-respondent-petitioner, there were briefs filed and an oral argument by Sopen B. Shah, deputy solicitor general, with whom on the briefs were Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general.

          For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Christopher P. August, assistant state public defender.

          REBECCA GRASSL BRADLEY, J.

         ¶1 We review a petition by the State and a cross-petition by Jamal L. Williams challenging the court of appeals' decision, which held: (1) the mandatory $250 DNA surcharge the circuit court ordered Williams to pay violated the Ex Post Facto Clauses of the Wisconsin and United States Constitutions; and (2) the circuit court did not rely on an improper factor when it sentenced Williams.[1] The State and Williams each petitioned for review on the issues decided against them. The State claims the DNA surcharge statute does not violate the Ex Post Facto Clauses and Williams claims the sentencing court improperly increased his sentence because he exercised his right to object to restitution. We reverse the court of appeals on the DNA surcharge issue and affirm on the sentencing issue.

         I. BACKGROUND

         ¶2 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- 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 "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 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 fiancee, 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.

         ¶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 [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 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 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');">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');">866 N.W.2d 756, and State v. Radaj, 2015 WI.App. 50, 363 Wis.2d 633, 866 N.W.2d 758');">866 N.W.2d 758, required it to remand this 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(lg) (2011-12), rather than the mandatory DNA surcharge statute in effect when Williams was sentenced, Wis.Stat. § 973.046(lr) (2013-14) . Williams, 377 Wis.2d 247, ¶26. The court of appeals agreed with Williams that Wis.Stat. § 973.046 (lr), 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');">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');">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.

         ¶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

         ¶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 (lr), 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(lr) 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 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. ยง 973.046(lr). 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 ...


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