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State v. Freiboth

Court of Appeals of Wisconsin, District I

July 19, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Arthur Allen Freiboth, Defendant-Appellant.

          APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2014CF3338 LINDSEY CANONIE GRADY and JEFFREY A. KREMERS, Judges. Affirmed.

          Before Sherman, Blanchard, and Kloppenburg, JJ.

          BLANCHARD, J.

         ¶1 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.

         BACKGROUND

         ¶2 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 jumping.[1]

         ¶3 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."[2] 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.

         ¶4 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).

         ¶5 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, 2018.

         ¶6 In the meantime, in May 2018, our supreme court issued both

         Muldrow 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.

         DISCUSSION

         Muldrow

         ¶7 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., ΒΆ1. Thus, the ...


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