Submitted on Briefs: Oral Argument: March 16, 2018
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
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.
the defendant-appellant-petitioner, there were briefs filed
and an oral argument by Christopher P. August, assistant
state public defender.
REBECCA GRASSL BRADLEY, J.
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. 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
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.
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.
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.
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
On March 12, 2014, twenty-one days after his meeting with the
PSI writer, Williams was sentenced. 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."
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.
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
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.
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. The circuit court:
• explained the extremely serious nature of
Williams' crime and how Williams could have prevented
• 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.
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." 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
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.
The circuit court next addressed Williams' rehabilitative
needs and the conditions of his extended supervision.
Afterwards, for the first time, the circuit court commented
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
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
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)
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.
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.
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
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.
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.
State's Petition for Review-DNA Surcharge
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.
Standard of Review
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. 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.
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,  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.
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)
But, an arrestee is not ordered to pay any DNA surcharge
unless he is convicted. See Wis.Stat. §
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 ...