from a judgment and an order of the circuit court for
Milwaukee County No. 2014CF3338 LINDSEY CANONIE GRADY and
JEFFREY A. KREMERS, Judges. Affirmed.
Sherman, Blanchard, and Kloppenburg, JJ.
Arthur Freiboth appeals a judgment of conviction and a
circuit court order denying, without an evidentiary hearing,
his motion for post-sentencing plea withdrawal. Freiboth
contends that the courthad a duty to advise him as part of
the plea colloquy about the DNA surcharges that he would be
required to pay as a result of his pleas, and the court
failed to so advise him, entitling him to withdraw his pleas.
We conclude that this argument is foreclosed by the combined
holdings of State v. Muldrow, 2018 WI 52, 381 Wis.2d
492, 912 N.W.2d 74, and State v. Williams, 2018 WI
59, 381 Wis.2d 661, 912 N.W.2d 373. Accordingly, we affirm.
The pertinent facts are not disputed. Freiboth was charged in
July 2014 with offenses that he allegedly committed that same
month. In September 2014, he entered pleas to one count of
strangulation and suffocation and three counts of bail
At the time of Freiboth's pleas, pursuant to Wis.Stat.
§ 973.046(1r)(a) (2013-14), the court was obligated to
impose a deoxyribonucleic acid analysis surcharge "for
each conviction for a felony, $250." Consistent with
that, at the plea hearing the court advised Freiboth that he
would have to "provide a DNA sample if you have not
already done so. You have to pay for it no matter what."
However, the court did not otherwise advise Freiboth that, as
a result of his pleas and conviction, he would be required to
pay a $250 DNA surcharge for each of the four felony counts
to which he pled. As part of the sentence, the court ordered
Freiboth to pay costs, fees, and surcharges, noting that this
included "four DNA" surcharges, as well as domestic
abuse surcharges. The judgment of conviction reflects that he
must pay a total of $1, 000 in DNA surcharges.
Freiboth filed a post-conviction motion seeking, in part,
withdrawal of his pleas on the ground that the court failed
to ensure that Freiboth understood the $1, 000
"punishment" he faced upon his pleas. The court
denied this aspect of the motion without an evidentiary
hearing. Relying substantially on State v. Scruggs,
2015 WI.App. 88, 365 Wis.2d 568, 872 N.W.2d 146, the circuit
court concluded that the plea hearing court did not have a
duty to inform Freiboth about the surcharges before accepting
his guilty pleas and therefore he is not entitled to withdraw
his pleas on this basis. See Scruggs, 365 Wis.2d
568, ¶14 (questioning whether the legislature had a
punitive intent in requiring imposition of the surcharge).
Briefing in this appeal was completed in June 2016. In
November 2016, this court certified State v. Odom,
No. 2015AP2525-CR, to the Wisconsin Supreme Court for
determination of whether a circuit court's failure to
advise a defendant about the mandatory imposition of multiple
DNA surcharges for multiple convictions "establishes a
prima facie showing that the defendant's plea was
unknowing, involuntary, and unintelligent," and the
certification was granted. However, the appellant in
Odom voluntarily dismissed that appeal, after which
this court certified the same issue in this case to our
supreme court. The court refused certification on July 10,
In the meantime, in May 2018, our supreme court issued both
and Williams, which we now explain resolve the
single issue raised on appeal: whether plea hearing courts
have a duty to inform defendants about the mandatory DNA
surcharge, because the surcharge is punishment and therefore
a direct consequence of a plea.
Muldrow moved to withdraw his guilty plea to second-degree
sexual assault on the ground that his plea was not knowing,
because the plea hearing court did not inform him that it
would subject him to lifetime GPS tracking, even though,
Muldrow contended, the tracking was a direct consequence of
the plea. Muldrow, 381 Wis.2d 492, ¶¶3-4.
His argument was based on the requirement that the circuit
court notify the defendant of direct consequences of a guilty
plea and the standard that a defendant who is not accurately
informed of the punishment that could result from a guilty
plea may be entitled to withdraw the plea. Id.,
¶¶1-2; see also Wis. Stat. §
971.08(1)(a). Our supreme court explained that "direct
consequences of a plea" are "those that impose
punishment." Id., ¶1. Thus, the ...