                                                         2018 WI 59

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP883-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Jamal L. Williams,
                                  Defendant-Appellant-Petitioner.

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

OPINION FILED:          May 30, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 16, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Timothy G. Dugan and Ellen R. Brostrom

JUSTICES:
   CONCURRED:           ABRAHAMSON, J., concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:   ROGGENSACK, C.J., and A.W. BRADLEY, J., did not
                        participate.

ATTORNEYS:


       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.
                                                             2018 WI 59
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2016AP883-CR
(L.C. No.    2013CF2025)

STATE OF WISCONSIN                         :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                  FILED
      v.
                                                             MAY 30, 2018
Jamal L. Williams,
                                                                Sheila T. Reiff
              Defendant-Appellant-Petitioner.                Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                Reversed in

part; affirmed in part.



      ¶1      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.1                The State and
      1
       State v. Williams, 2017 WI App 46, 377 Wis. 2d 247, 900
N.W.2d 310.
                                                                    No.     2016AP883-CR



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-
                                             2
                                                                        No.    2016AP883-CR



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
                                             3
                                                                   No.    2016AP883-CR



"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


    2
       The Honorable Timothy G. Dugan, Milwaukee County Circuit
Court, presiding.   The Honorable Ellen R. Brostrom, Milwaukee
County Circuit Court, presided over the Machner hearing and
signed the final postconviction order. See State v. Machner, 92
Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).


                                           4
                                                            No.   2016AP883-CR



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 fiancée, 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.



                                     5
                                                                      No.     2016AP883-CR



     ¶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

     3
       See McCleary          v.    State,      49    Wis. 2d 263,           274-76,     182
N.W.2d 512 (1971).


                                          6
                                                                  No.    2016AP883-CR



[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




    4
       COMPAS is the acronym for Correctional Offender Management
Profiling for Alternative Sanctions. See State v. Loomis, 2016
WI 68, ¶4 n.10, 371 Wis. 2d 235, 881 N.W.2d 749.


                                          7
                                                               No.   2016AP883-CR



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


     5
       We are not convinced that restitution could not be ordered
under these circumstances. See State v. Canady, 2000 WI App 87,
234 Wis. 2d 261, 610 N.W.2d 147 (requiring a "causal nexus"
between crime and damage). However, because the State forfeited
this issue, we do not address it.


                                        8
                                                                        No.    2016AP883-CR



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.                           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, and State v. Radaj, 2015 WI App 50,

363    Wis. 2d 633,      866   N.W.2d 758,         required      it    to     remand   this

       6
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                             9
                                                                No.    2016AP883-CR



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(1g)(2011-12),

rather than the mandatory DNA surcharge statute in effect when

Williams     was     sentenced,      Wis.      Stat.   § 973.046(1r)(2013-14).

Williams, 377 Wis. 2d 247, ¶26.                 The court of appeals agreed

with Williams that Wis. Stat. § 973.046(1r), 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 (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.          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.


                                          10
                                                                  No.   2016AP883-CR



      ¶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


      7
       Article I, Sections 9 and 10 of the United States
Constitution provide:   "No bill of attainder or ex post facto
Law shall be passed" and "No state shall . . . pass any . . . ex
post facto Law . . . ." Article 1, Section 12 of the Wisconsin
Constitution provides:   "No . . . ex post facto law . . . shall
ever be passed . . . ."


                                          11
                                                                         No.     2016AP883-CR



     ¶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(1r), 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(1r) 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

     8
       Both Scruggs and Williams committed crimes before——but
were sentenced after——the effective date of the mandatory DNA
surcharge statute. Unlike Scruggs, Williams already submitted a
DNA sample in 2009 for a prior conviction.


                                               12
                                                                 No.     2016AP883-CR



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.

§ 973.046(1r).          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 collection,                          analysis,

and maintenance of all samples.               Scruggs, 373 Wis. 2d 312, ¶27

(citing Legis. Fiscal Bureau, DNA Collection at Arrest and the

DNA Analysis Surcharge, Paper #410 to J. Comm. on Fin. 2-3, 8

(May 23, 2013)).

               3.    Misapplication of DNA surcharge's purpose
                              in Elward and Radaj
       ¶24     In considering early DNA surcharge challenges, courts

took a narrow view of the legislature's non-punitive intent.

Some courts wrongly assumed the imposed surcharge funded only
the collection, processing, and maintenance of the specific DNA

sample for which the defendant paid the surcharge.                     In doing so,


       9
       Wisconsin Stat. § 165.76(1) lists who is required to give
a DNA sample. Paragraph (gm) requires a person "arrested for a
violent crime, as defined in s. 165.84(7)(ab)" to give a sample.
Wisconsin Stat. § 165.84(7)(ab) defines "violent crime" as a
felony violation (listing each specific felony statute) as well
as the "solicitation, conspiracy, or attempt" to commit the
felony violations listed in subsection (7)(ab)1.


                                         13
                                                                    No.    2016AP883-CR



they failed to recognize the broader purpose of the expanded DNA

databank   funded     by     the   mandatory     surcharges     assessed       against

convicted defendants:

    The DNA databank is a broad criminal justice tool used
    to solve old crimes, exonerate the innocent, and rule
    in and rule out suspects in criminal investigations.
    Similarly, the funding mechanism for this is, on its
    face, not directly connected to the gathering and
    analysis of samples.     It does not charge all who
    submit samples, only those convicted. And it provides
    that repeat offenders who may have already submitted
    samples will need to pay anyway.        In short, the
    surcharge is plainly designed to function as a sort of
    tax on convicted criminals for use of the criminal
    justice system in support of broad public safety
    goals——goals far beyond any individual defendant and
    their DNA.
Williams, 377 Wis. 2d 247, ¶32 (Hagedorn, J., concurring).

    ¶25     Based       on    faulty      assumptions,        courts       mistakenly

attempted to correlate a particular surcharge with what they

thought    were   the    actual      costs     attributable    to    a    defendant's

individual DNA sample.             This led courts to declare that Wis.

Stat. § 973.046 (2013-14) violated the Ex Post Facto Clauses and

vacate DNA surcharges when:              (1) DNA samples were not actually

being   taken,    see      Elward,      363   Wis. 2d 628,     ¶7;     and     (2)   the

statute required a defendant convicted of four crimes to pay

four separate surcharges, even though he gave only a single DNA

sample, see Radaj, 363 Wis. 2d 633, ¶32.                 Elward and Radaj were

wrongly    decided,     based      on   erroneous    reasoning,          and   for   the

reasons explained below, must be overruled.

    ¶26     Under the mandatory DNA surcharge statute, enacted in
2013 Wis. Act 20, courts sentencing defendants after January 1,


                                          14
                                                                     No.    2016AP883-CR



2014, were required to impose the mandatory DNA surcharge:                          $250

for     each    felony    conviction        and     $200   for   each      misdemeanor

conviction.        See     Wis.     Stat.    §    973.046;   2013     Wis.    Act    20,

§ 9426(1)(am).         However, the Act did not permit the State to

collect DNA samples from convicted misdemeanants until April 1,

2014.    See 2013 Wis. Act 20, § 9426(1)(bm).

       ¶27     Elward involved a defendant who was sentenced between

January 1, 2014 and April 1, 2014.                  The sentencing court imposed

the mandatory DNA surcharge, but the court of appeals reversed.

363    Wis. 2d 628,       ¶1-2.      The    court     of   appeals    held    the    DNA

surcharge      statute     imposed     ex    post    facto   punishment       for    any

defendant sentenced for a misdemeanor conviction between January

1, 2014, and April 1, 2014, because these defendants would pay

surcharges "to maintain a database of which they could never be

a part because they could never be ordered to actually provide a

sample."       Id., ¶2.    The Elward court reasoned:

       As a result, the $200 surcharge bore no relation to
       the cost of the DNA test because he never had to
       submit to a test.      The State received money for
       nothing.   This served only to punish Elward without
       pursuing any type of regulatory goal.
Id.,    ¶7.      The   court   of    appeals      misunderstood      that    the    $200

surcharge imposed on Elward was not to pay for his own personal

DNA sample, but to offset the costs associated with the newly

expanded DNA databank and other DNA-related activities within

the State.

       ¶28     The court of appeals in Radaj made a similar error in
concluding that the surcharge-per-conviction part of Wisconsin's


                                            15
                                                                           No.     2016AP883-CR



statute violated the Ex Post Facto Clauses by causing Radaj to

pay   $250     for    each    of   his    four      convictions          without      any   link

between      the     surcharge      and   the       actual       costs    associated        with

either "analyzing Radaj's" DNA sample or with comparing Radaj's

DNA profile to "other biological specimens collected as part of

a future investigation."                363 Wis. 2d 633, ¶¶30-32.                    The Radaj

court based its decision in part on the fact that Radaj was not

being     ordered      to     provide     four       separate       DNA     specimens        for

testing.        Id., ¶32.          The Radaj court mistakenly believed the

amount of the DNA surcharge must have a rational connection to

the actual cost of Radaj's personal DNA sample in order for it

to    escape    classification           as    punitive.           Although      a    rational

connection between the surcharge and a non-punitive purpose is

one factor considered in examining whether the surcharge has the

effect of punishment (which we examine in the next section), the

Radaj     court      misguidedly        limited       its    discussion          to    Radaj's

specimen specifically instead of the regulatory activities of

the DNA database as a whole.
       ¶29     The    non-punitive            purpose       of     the     mandatory          DNA

surcharge statute is not to cover the DNA-analysis-related costs

incurred     for     the     specific     conviction         for    which     it      is    being

imposed.       Rather, the non-punitive purpose is to fund the costs

associated with the DNA databank by charging those necessitating

its existence——convicted criminals.                     That means a defendant pays

a surcharge for every conviction irrespective of whether his DNA

profile already exists in the databank and whether he submits
only one DNA sample.               This is what the law says.                    We overrule
                                               16
                                                                              No.    2016AP883-CR



Elward and Radaj.                The reasoning employed in those cases was

unsound and the cases were wrongly decided.                              Because the court

of appeals' majority opinion in this matter relied on Elward and

Radaj, its holding on the DNA surcharge is faulty and must be

reversed.          See    Johnson        Controls,         Inc.    v.   Employers       Ins.    of

Wausau, 2003 WI 108, ¶¶94-100, 264 Wis. 2d 60, 665 N.W.2d 257

(discussing        that        departure       from    stare      decisis      occurs    when    a

"prior    decision         is     unsound       in    principle"        and    "may     turn    on

whether      the    prior       case     was    correctly         decided"     (first       citing

State v. Outagamie Cty. Bd., 2001 WI 78, ¶30, 244 Wis. 2d 613,

628 N.W.2d 376; then citing Planned Parenthood of S.E. Pa v.

Casey, 505 U.S. 833, 999 (1992)(Scalia, J., concurring in part

and dissenting in part))).

                                           4.    Effect

       ¶30    The second part of the intent-effects test requires us

to    examine      the     effect       of     the    DNA       surcharge     statute.         See

Scruggs, 373 Wis. 2d 312, ¶39 (citing Hudson, 522 U.S. at 104).

Regardless of the legislature's non-punitive intent for imposing
the mandatory DNA surcharge, we consider whether it in effect

operates as punishment.                 See id.       Only the "clearest proof" will

"override       legislative            intent        and    transform         what    has    been

denominated a civil remedy into a criminal penalty."                                    Hudson,

522 U.S. at 100.                Seven factors guide our analysis of whether

the   mandatory          DNA    surcharge       actually         punishes     the    defendant:

(1)    does     the      statute        involve       an    affirmative        disability       or

restraint;         (2)    has     the    sanction          at   issue   historically         been
regarded as punishment; (3) will the sanction be imposed only
                                                 17
                                                                                     No.      2016AP883-CR



after a finding of scienter; (4) does the statute promote the

traditional aims of punishment——retribution and deterrence; (5)

is the behavior to which it applies already a crime; (6) is

there          an   alternative         purpose       to     which       it    may       be   rationally

connected; and (7) is the sanction excessive in relation to the

alternative purpose assigned.                         See Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168-69 (1963).

          ¶31       We    applied          these      seven        factors         in      Scruggs      and

concluded            only       the     fifth      factor      favors         characterizing            the

mandatory           surcharge         as    punitive.          Scruggs,            373     Wis. 2d 312,

¶¶42-49.            The same is true here.10

     a.        Is the surcharge an affirmative disability or restraint?

          ¶32       The    State      says      the    surcharge         does       not       disable   or

restrain a defendant because it is not a form of imprisonment.

Williams            argues        the       surcharge         imposes          a        disability       on

defendants,              who    are     often      indigent,        by    burdening            them   with

"severe financial sanctions" "over and over, for each and every

conviction."               There is certainly no evidence in this case that
the $250 surcharge disabled or restrained Williams in any way.

He    reported            to    the   PSI     writer        that    his       girlfriend        deposits

$200/month in his prison account and another friend deposits $50

into his prison account "from time to time."                                            In any event,

"disability"              and    "restraint"          are    normally         understood         to   mean

imprisonment, which the $250 surcharge cannot effectuate.                                               See


          10
               The fifth factor is discussed under sub-heading "e."


                                                      18
                                                                        No.     2016AP883-CR



LaCrosse v. Commodity Futures Trading Comm'n, 137 F.3d 925, 931

(7th Cir. 1998) (quoting Hudson, 522 U.S. at 104).

    b.     Is the surcharge historically viewed as punishment?

    ¶33     In       Scruggs,       we     determined         that     historically,      a

surcharge    has      not    been    viewed       as    punishment.         Scruggs,    373

Wis. 2d 312, ¶42.            Williams urges us to reconsider.                   He claims

our conclusion rested on a citation to Hudson, and Hudson relied

on a citation to Helvering v. Mitchell, 303 U.S. 391 (1938), and

Helvering    relied         on     cases    that        all   involved        non-punitive

remedial sanctions.              Williams distinguishes the surcharge from a

remedial     sanction        because       the     latter       involves       "regulatory

takings    designed         to    reimburse       the   State    for    some     perceived

'loss' owing to the 'defendant's' conduct" in contrast to the

surcharge, which Williams contends is really a fine designed to

punish the defendant.

    ¶34     We       identify        no     historical          evidence        supporting

Williams'     characterization             of     a     surcharge      as      punishment.

Although the surcharge might not align exactly with the remedial
sanction cases from the late 1800s and early 1900s referenced in

Helvering,       a    surcharge          resembles       a    non-punitive        remedial

sanction     much      more       than     punishment.           See     Williams,      377

Wis. 2d 247, ¶33 (Hagedorn, J., concurring) (listing examples of

many other surcharges in our statutes "not denominated criminal

fines, yet are assessed against convicted criminals or those

subject to civil forfeitures").                  The DNA surcharge is money paid

to the State to offset the costs the State incurs in maintaining


                                             19
                                                                       No.      2016AP883-CR



the DNA databank, which exists only because defendants commit

crimes.

                    c.   Is a finding of scienter required?

       ¶35    Williams      concedes     that     no       finding    of     scienter     is

required to impose the surcharge.                  The absence of the scienter

requirement         shows     "the     statute        is     not     intended       to    be

retributive."        Kansas v. Hendricks, 521 U.S. 346, 362 (1997).

       d.    Does a surcharge promote retribution and deterrence?

       ¶36    We held in Scruggs the $250 surcharge was relatively

small and therefore did not promote the traditional punitive

aims of retribution and deterrence.                    Scruggs, 373 Wis. 2d 312,

¶45.        The   Fourth    Circuit     Court    of    Appeals       reached     the     same

conclusion regarding South Carolina's $250 DNA surcharge.                                See

In re DNA Ex Post Facto Issues, 561 F.3d 294, 300 (4th Cir.

2009) ("[T]he relatively small size of the fee also indicates

that it was not intended to have significant retributive or

deterrent         value.").          Comparing     the       deterrent       effect      and

retributive value (if any) of a $250 surcharge to the 17.5 year
sentence Williams is serving buttresses this conclusion.                            A $250

payment is unlikely to deter anyone from engaging in illegal

activity.         And the corrective impact of a $250 fee pales in

comparison to the penal power of a lengthy prison sentence.

       e.    Does the surcharge apply to conduct already a crime?

       ¶37    The     State    and     Williams       agree    that     the      surcharge

applies to conduct that was already a crime——namely, felony and

misdemeanor         convictions.         This     factor      weighs       in    favor    of
concluding that the surcharge operates as a punishment despite
                                           20
                                                                No.     2016AP883-CR



the   legislature's       non-punitive        intent.     The   seven     Mendoza-

Martinez factors, however, are only "guideposts" and the list is

"not exhaustive nor is any one factor dispositive."                       Scruggs,

373 Wis. 2d 312, ¶41 (quoting Hudson, 522 U.S. at 99; citing

Smith v. Doe, 538 U.S. 84, 97 (2003)).

             f.    Is the surcharge rationally connected to
                           alternative purpose?
      ¶38   The    text    of    Wis.    Stat.     §    973.046(3)    explicitly

broadcasts the non-punitive alternative purpose of the mandatory

DNA surcharge statute by directing the use of the collected

surcharges:       "All moneys collected" shall be "utilized under s.

165.77."     Wisconsin Stat. § 165.77 provides rules relating to

collecting, analyzing, and maintaining DNA biological specimens.

An alternative non-punitive purpose undoubtedly exists for the

DNA surcharges.       The only question is whether the surcharge is

rationally    connected     to   the    DNA    database   activities.        Judge

Hagedorn aptly answers this question and we adopt his reasoning:

      The DNA databank is a crime-solving, crime-fighting
      public safety tool.     It supports law enforcement
      investigatory efforts and, in so doing, saves time,
      money, and resources that might be otherwise devoted.
      It serves criminal defendants who might be wrongly
      accused, or even worse, wrongly convicted. In short,
      the DNA databank was expanded to further support,
      assist, and improve the administration of criminal
      justice in the state of Wisconsin.        The funding
      mechanism, then, must be seen in this light.      The
      legislature needed additional funds for this broader
      cause, and decided to place the burdens not on those
      necessarily required to give a sample, but on those
      convicted of crimes.     Policy merits aside, it is
      altogether rational to assess a fee aimed at solving
      crimes against those who commit them; at the very


                                        21
                                                                        No.    2016AP883-CR


      least, it is no less rational than the multitude of
      fees and surcharges that work exactly the same way.
Williams, 377 Wis. 2d 247, ¶41 (Hagedorn, J., concurring).                               The

legislature        created     a    "user        fee"    assessed       against        those

responsible for necessitating the databank.                            The more crimes

committed, the more times the user pays the fee.                           The law does

not require the legislature to set a surcharge with precision;

the surcharge imposed must bear only "an approximate relation to

the cost it is meant to offset."                  Scruggs, 373 Wis. 2d 312, ¶46

(quoting Mueller v. Raemisch, 740 F.3d                        1128, 1133 (7th Cir.

2014)).      The costs from the DNA surcharge are meant to offset

all   of    the     expenses       associated          with     DNA-database      related

activities.        The user fees are reasonably connected to that non-

punitive purpose.        It makes sense to have those who "use" the

criminal     justice    system      more       often——i.e.,       repeat      offenders——

contribute more to offset the costs their actions generate.

             g. Is the surcharge excessive in relation to
                         alternative purpose?
      ¶39    The     State     says      the     surcharge       is    not    excessive.

Williams     disagrees       and        points    to     what     he    alleges     is    a

substantial State surplus stemming from paid DNA surcharges.                              To

determine whether the surcharge is excessive in relation to its

non-punitive        purpose,       we    must     compare       the    amount     of     the

surcharge with the overall expenses the State incurs because of

the charged population's conduct.                       See   Mueller, 740 F.3d at

1134-35; Myrie v. Comm'r N.J. DOC, 267 F.3d 251, 258 (3d Cir.

2001).      The surcharge must be "grossly disproportionate to the
annual cost" to prove it is excessive.                        Mueller, 740 F.3d at

                                            22
                                                                                No.     2016AP883-CR



1134; see also Myrie, 267 F.3d at 261.                              We examine not "whether

the legislature has made the best choice possible to address the

problem it seeks to remedy," but "whether the regulatory means

chosen are reasonable."                Smith, 538 U.S. at 105.

       ¶40     Under         this    standard,           we    are        not    convinced       the

surcharge is excessive in relation to the non-punitive purpose.

As   the     State         points    out,     DNA-related            activities,         including

operating and maintaining a statewide database, are expensive.

The money generated from the surcharges pays for all the DNA

kits    used      to       take   samples     from       every      person      arrested     for   a

felony      and     every         person    convicted          of    a    misdemeanor.           The

surcharges          cover     the     salaries          of    the    analysts         employed     to

perform      the     DNA-related           work.        For    one    year      alone,    the    DNA

testing kits cost over $1 million dollars.11

       ¶41     Citing a Legislative Fiscal Bureau report dated May 9,

2017, Williams says the excessive nature of the surcharges has

resulted       in      a    substantial       surplus.              See   Legislative       Fiscal

Bureau Paper #408, Crime Laboratory and Drug Law Enforcement
Surcharge and DNA Surcharge Overview (May 9, 2017) (projecting a

2018-19 ending balance of $2,322,100).

       ¶42     We do not view Williams' argument as the "clearest

proof" that the current surcharges are excessive in relation to

the non-punitive purpose.                   See Hudson, 522 U.S. at 100.                    First,

       11
       The State's attorney represented both in her brief and at
oral argument that the DNA testing kits alone cost over $1
million annually.     Williams' attorney did not contest the
State's figures.


                                                   23
                                                                                No.     2016AP883-CR



the report Williams cites shows the DNA surcharge funds combined

with the funds received from a                       separate surcharge.12                   It is

impossible         to    discern       which    surcharge          created        the     surplus.

Second, the report reflects consistently declining revenue in

the    fund        holding      the     DNA     surcharges             each      budget      year.

Additionally, the law does not and cannot demand mathematical

precision in setting and collecting just the right amount of

surcharges necessary to fund the DNA databank.                             Multiple unknown

variables——including             the     number       of        arrests,      the      amount     of

convictions, the volume of DNA related crimes, and the manpower

needed       to    analyze       the    unknown——render             the       exact       cost    of

operating the databank unpredictable year-to-year.                                      Judicially

requiring         the    legislature      to    enact        annual      revisions         to    the

actual dollar amount of a DNA surcharge to adjust for less crime

in    one    year       and   more     crime    in     the      next     would        encroach    on

legislative         policy-making         and        create        administrative           havoc.

Accordingly,         the      legislature       must       be    given     broad        leeway    to

select a surcharge amount.
                                           5.     Summary

       ¶43    Applying         the     intent-effects            test,     we     conclude       the

intent of the mandatory DNA surcharge was not punitive.                                    Rather,

       12
       The separate surcharge is identified as the "CLDLE"
surcharge, which is the acronym for Crime Laboratory and Drug
Law Enforcement. Joint Comm. On Fin., Legis. Fiscal Bureau,
Paper #409, at 1 (Wis. 2017), https://docs.legis.wisconsin.gov/m
isc/lfb/budget/2017_19_biennal_budget/050_budget_papers/409_just
ice_crime_laboratory_dna_analysis_kits.pdf (last visited May 17,
2018).


                                                24
                                                                      No.    2016AP883-CR



it was intended to fund the costs associated with the broad

expansion of the DNA databank and all the activities related to

it.    Likewise, a review of the precedential factors guiding our

analysis shows that the mandatory DNA surcharge statute does not

have    a    punitive       effect.      Accordingly,      the    statute      does   not

violate the Ex Post Facto Clauses.                  Finally, we overrule Elward

and Radaj, and we reverse the decision of the court of appeals

in this matter as to the DNA surcharge.13                        All three opinions

incorrectly14 held DNA surcharges to be unconstitutional ex post

facto violations on the basis that the actual costs incurred for

the    individual        convicted       defendant     had       to    be    rationally

connected to the non-punitive purpose.                       This narrow approach

failed      to    recognize     the   non-punitive        purpose     underlying      the

mandatory        DNA   surcharge:        to    generate    funds      to    cover   costs

incurred by the State in solving crimes utilizing a statewide

DNA databank.

            B.   Williams' Cross-Petition for Review——Sentencing

       ¶44       Williams     contends        the   circuit      court      erroneously
exercised its sentencing discretion by relying on an improper

factor.          More specifically, Williams claims the circuit court

imposed a harsher sentence because Williams refused to agree to

       13
       As noted in part B., we affirm the court of appeals'
decision in this case on the sentencing issue.
       14
       We recognize the court of appeals in this case was bound
to follow State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866
N.W.2d 756, and State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633,
866 N.W.2d 758. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997).


                                              25
                                                                               No.        2016AP883-CR



pay restitution.              Williams argues that he has a right to object

to paying restitution and successfully doing so should not cause

a sentencing court to increase his sentence.                               The State responds

that:     (1) the circuit court did not actually rely on Williams'

unwillingness to pay restitution; (2) even if it did, this was

not an improper factor; and (3) any error was harmless.                                      We hold

the     circuit       court      may     refer        to    a     defendant's        failure       to

voluntarily         pay      restitution     when           the    reference         is     directly

linked    to    a     proper        sentencing        factor.         Because        the     circuit

court's       reference        to    restitution           at   Williams'      sentencing         was

directly linked to a proper sentencing consideration——Williams'

lack     of    remorse——the            sentencing          court     did     not      erroneously

exercise its discretion.

                    1.       Standard of Review & Applicable Law

       ¶45     We will not disturb a sentencing decision unless the

circuit court erroneously exercised its discretion.                                        State v.

Alexander, 2015 WI 6, ¶16, 360 Wis. 2d 292, 858 N.W.2d 662.                                         A

circuit court erroneously exercises its discretion in imposing a
sentence       if     it      "actually     relies          on     clearly      irrelevant         or

improper factors."              Id., ¶17 (quoting State v. Harris, 2010 WI

79, ¶66, 326 Wis. 2d 685, 786 N.W.2d 409); see also McCleary v.

State,    49     Wis. 2d 263,           274-76,        182        N.W.2d 512       (1971).         To

establish error, a defendant must prove by clear and convincing

evidence       that      a    circuit     court        relied       on     improper         factors.

Alexander, 360 Wis. 2d 292, ¶17.                           A defendant must prove both

that the factor was improper and that the circuit court actually
relied on it.            Id., ¶¶18-27.
                                                 26
                                                               No.     2016AP883-CR



    ¶46     There   are    three     main     factors   circuit      courts     must

consider in determining a defendant's sentence:                (1) the gravity

of the offense; (2) the character of the defendant; and (3) the

need to protect the public.            Id., ¶22.        The circuit court may

also consider secondary factors, including:

            (1) Past record of criminal offense; (2) history
            of   undesirable   behavior   pattern;    (3)   the
            defendant's personality, character and social
            traits; (4) result of presentence investigation;
            (5) vicious or aggravated nature of the crime;
            (6) degree of the defendant's culpability; (7)
            defendant's demeanor at trial; (8) defendant's
            age,   educational   background   and    employment
            record; (9) defendant's remorse, repentance and
            cooperativeness; (10) defendant's need for close
            rehabilitative control; (11) the rights of the
            public;   and   (12)  the   length    of   pretrial
            detention.
Id., ¶22 (quoted sources omitted).               When imposing sentence, a

circuit court cannot rely on inaccurate information, race or

national origin, gender, alleged extra-jurisdictional offenses,

or the defendant's or victim's religion.                   Id., ¶¶18, 23.         In

addition, a circuit court may not impose "a harsher sentence
solely    because   [a    defendant]    availed      himself   of    one   of   his

constitutional rights," Buckner v. State, 56 Wis. 2d 539, 550,

202 N.W.2d 406 (1972) (emphasis added), or vindictively impose a

harsher sentence when a defendant has succeeded in getting his

first sentence vacated or overturned by exercising his appellate

rights,    State    v.     Church,     2003     WI   74,    ¶¶1,     28-39,      262

Wis. 2d 678, 665 N.W.2d 141.

    ¶47     Outside of these prohibitions, the circuit court has
"wide discretion in determining what factors are relevant" and

                                       27
                                                                           No.     2016AP883-CR



what weight to give to each factor.                        State v. Gallion, 2004 WI

42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197.

                                   2.     Application

       ¶48      There is no dispute that the circuit court considered

the three primary sentencing factors.                            It noted the serious

nature     of    the    crime,     addressed          both      positive     and       negative

factors regarding Williams' character, and discussed the need to

protect the public.             We therefore turn our attention to whether

Williams      proved      by    clear     and       convincing       evidence       that      the

circuit      court      actually       relied       on     an   improper         factor    when

imposing sentence.

           a. Is a position on restitution an improper factor?

       ¶49      Williams       insists     that       a    sentencing        court        cannot

consider        a      defendant's        successful            objection         to      paying

restitution.         He argues that because he has a statutory right to

challenge restitution, it is improper for the circuit court to

use his successful challenge as an aggravating factor against

him.     He also contends that successful restitution challenges do
not reflect a lack of remorse.                   Although we agree with Williams

that   a     sentencing        court     should      not     vindictively         increase     a

defendant's sentence based solely on his decision to challenge

restitution,        see    Church,       262     Wis. 2d 678,         ¶28;       Buckner,      56

Wis. 2d at       550,     Williams       fails      to     demonstrate       by    clear      and

convincing       evidence       that    his    position         on   restitution        was    an

improper sentencing factor.

       ¶50      The circuit court's discussion regarding restitution
did not stand alone as an independent factor in the sentencing
                                               28
                                                                        No.    2016AP883-CR



transcript.       Rather,       the     circuit     court's          sole   reference     to

restitution     came     toward        the    end        of    the     circuit     court's

sentencing remarks and was intertwined with its consideration of

Williams' character and lack of remorse, as evidenced only in

part    by   Williams'       position     that     he    was     not   responsible        for

restitution.     It is important to note the theme permeating both

the    PSI   report    and    the     sentencing        remarks——Williams         was     not

sorry that his actions caused the death of another human being.

The    PSI    writer     described        Williams'            lack    of     remorse      as

"atrocious" and emphasized Williams' attitude that his crime had

nothing to do with R.W.'s death.                  The prosecutor and the defense

lawyer both focused on remorse.                     Williams' remorse, or lack

thereof, dominated the sentencing hearing.                        While a defendant's

position on paying restitution is not listed among the primary

or secondary sentencing factors, his lack of remorse, evidenced

by his attitude regarding restitution, certainly can be relevant

to sentencing considerations.

       ¶51   Sentencing        courts     may      not        vindictively       punish     a
defendant     solely     for        exercising       a        constitutional      right.15

Alabama v. Smith, 490 U.S. 794, 798-801 (1989);                               Church, 262

Wis. 2d 678,     ¶¶28-39.           But   when      the       restitution      factor      is

       15
       To be clear, Williams' right to challenge restitution
arises from our statutes, not the constitution. See Wis. Stat.
§ 973.20(13)(c); Canady, 234 Wis. 2d 261, ¶9.    Defendants do,
however, have a constitutional due process right not to be
sentenced based on improper factors upon which a court actually
relies. See State v. Harris, 2010 WI 79, ¶33, 326 Wis. 2d 685,
786 N.W.2d 409.


                                             29
                                                                          No.        2016AP883-CR



inextricably intertwined with a defendant's character and lack

of remorse, its consideration is proper.                       The restitution factor

at    issue     here    was       not      Williams'        decision           to       challenge

restitution, or the fact that his challenge was successful, but

rather Williams' disavowal of responsibility for R.W.'s death

and   unwillingness         to    contribute       to    funeral      costs.             Williams

showed no insight that his choice to drive to the drug buy,

despite his brother's possession of a gun and his brother's

armed   robbery      plan,       resulted    in     R.W.'s      death.             Under       these

circumstances,         Williams          failed     to    convince            us        that    the

sentencing court's single reference to restitution constituted

an improper factor.

                                 b.     Actual reliance

      ¶52     Our conclusion that the circuit court's restitution

remark did not constitute an improper sentencing factor disposes

of Williams' cross-petition.                 For the sake of completeness, we

briefly     address     the      actual     reliance        issue.        In        determining

whether     a   circuit          court     actually       relied         on     an       improper
sentencing      factor,     we     review    the     sentencing          transcript            as   a

whole and consider the allegedly improper comments in context.

Harris, 326 Wis. 2d 685, ¶45.                Actual reliance occurs only when

the   circuit       court    paid     "explicit         attention"        to       an    improper

factor, and when the improper factor formed the "basis for the

sentence."      Alexander, 360 Wis. 2d 292, ¶25.

      ¶53     The    circuit       court's        remarks      as    a    whole          did    not

concentrate         explicit       attention        on      Williams'          decision             to
challenge       restitution.               Rather,       the        sentencing            remarks
                                             30
                                                                  No.     2016AP883-CR



demonstrate     the    circuit    court    focused     on   the    three       primary

sentencing factors, as well as Williams' clear lack of remorse.16

The   basis    of     this   sentence     was   not   Williams'         decision    to

challenge restitution but rather the seriousness of the offense,

Williams' poor character as evidenced by his lack of remorse,

and the need to protect the public.                   The sole reference to

restitution bore a reasonable nexus to the relevant factor of

Williams' lack of remorse.             In context, the circuit court in no

way tied the length of the sentence to Williams' exercise of his

statutory     right    to    challenge     restitution.       See       Harris,    326

Wis. 2d 685, ¶¶4, 59, 67 (ruling actual reliance not proven when

improper factors "bear a reasonable nexus to proper sentencing

factors").      Nothing in the transcript suggests the circuit court

increased      Williams'       sentence    solely     because     he      challenged

restitution.         Accordingly, Williams failed to establish actual

reliance.

                                III.    CONCLUSION

      ¶54     We hold the mandatory DNA surcharge statute is not an
ex post facto law because the surcharge is not punishment under

the   intent-effects         test.        The    legislature        intended       the

surcharges      to    offset    the    costs    associated      with     its    broad

expansion of the statewide DNA databank, and the effect of the



      16
       The circuit court's decision suggests it saw Williams'
last minute expression of remorse as gamesmanship and did not
believe him.   Even in his attempt to be remorseful, Williams
focused on himself and losing his son by going to prison.


                                          31
                                                                     No.     2016AP883-CR



surcharges      do   not     override         the    legislature's         non-punitive

intent.

       ¶55    In addressing ex post facto challenges, our court of

appeals in this case was bound to apply Elward and Radaj, which

erroneously       required      the     DNA     surcharge      to    represent        the

particular costs associated solely with a single defendant in

order to be declared non-punitive.                     We overrule these cases

because each is wrongly decided and based on faulty reasoning.

The    legislature's       non-punitive       purpose    for   the    mandatory       DNA

surcharge was much broader; in essence it serves as the funding

mechanism for a DNA databank that operates as a crime-solving

and crime-fighting public safety tool.                      The surcharge covers

DNA-related expenses, including the costs of all the kits and

tests not only for those convicted, but also for those who are

only    arrested     for     committing        (or   attempting      to     commit)    a

felony.17      The surcharges are also used to pay salaries of DNA

analysts who maintain the databank as well as those who gather,

process, and analyze DNA samples and DNA evidence.
       ¶56    We also hold the circuit court did not erroneously

exercise its discretion when it referenced restitution during

its sentencing remarks.               The single restitution reference was

intertwined      with    remarks      about    Williams'    lack     of     remorse,    a

proper sentencing factor.               The restitution remark focused on

Williams'      failure     to   accept    responsibility        for        causing    one


       17
            See supra n.9.


                                          32
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victim's    death     rather       than    Williams'        right       to        challenge

restitution.       Williams failed to prove by clear and convincing

evidence    that    the   sentencing       court       relied      on       an     improper

sentencing factor.

    ¶57     Accordingly,      we    reverse     that      part   of     the       court   of

appeals decision concluding the mandatory DNA surcharge statute

operated as an ex post facto violation, and we reinstate the

$250 surcharge as part of Williams' judgment.                         We affirm that

part of the court of appeals decision holding the circuit court

properly exercised its sentencing discretion when it sentenced

Williams.

    By     the   Court.—The    decision        of   the    court      of     appeals      is

reversed in part and affirmed in part.

    ¶58     PATIENCE      DRAKE     ROGGENSACK,        C.J.,       and        ANN     WALSH

BRADLEY, J., did not participate.




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                                                                      No.   2016AP883-CR.ssa


     ¶59       SHIRLEY S. ABRAHAMSON, J.                 (concurring).            I largely

agree with the analysis of the majority opinion, and I concur in

the mandate.

     ¶60       Nonetheless,       I    am     concerned        with     the       majority's

discussion of the court of appeals' decision in State v. Radaj.1

Specifically,      I   disagree        with      the    majority's      suggestion       that

there is       never   a circumstance under which the mandatory DNA

surcharge would be considered punishment.2

                                              I

     ¶61       Under the second part of the "intent-effects" test,

the court determines whether the mandatory DNA surcharge has a

punitive effect despite its non-punitive intent.3                           Seven factors

guide    the    analysis     of       whether      the    mandatory         DNA   surcharge

actually    punishes     a    particular          defendant.          Among       the   seven

factors are (1) whether the surcharge promotes the traditional

aims of punishment——retribution and deterrence; and (2) whether

the sanction is excessive in relation to the alternative, non-

punitive purpose assigned to the sanction.4
     ¶62       Under the mandatory DNA surcharge statute in effect

when Williams was sentenced (and still in effect today), circuit

courts are required to impose upon defendants a surcharge of

     1
       State      v.   Radaj,     2015      WI    App    50,   363    Wis. 2d 633,        866
N.W.2d 758.
     2
         See majority op., ¶38.
     3
       State v. Scruggs, 2017 WI 15, ¶39, 373 Wis. 2d 312, 891
N.W.2d 786.
     4
         Id., ¶41.


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                                                                          No.   2016AP883-CR.ssa


$200 per misdemeanor conviction and $250 per felony conviction.5

There is no maximum DNA surcharge, and because the surcharge is

calculated on a per-conviction basis, the DNA surcharge varies

from case to case.

      ¶63    In    Radaj,       the    defendant             pleaded       guilty     to    four

felonies.     As required by the mandatory DNA surcharge statute,

the circuit court imposed a $1,000 DNA surcharge (i.e., $250 per

felony conviction).6            The court of appeals held that the $1,000

DNA   surcharge         violated      the   Ex      Post          Facto    Clauses     of    the

Wisconsin and United States Constitutions because the surcharge

was "not rationally connected and [was] excessive in relation to

the surcharge's intended purpose, and that its effect [was] to

serve traditionally punitive aims."7

      ¶64    The court of appeals in Radaj incorrectly assumed that

the   purpose      of    the    mandatory         DNA       surcharge       statute    was    to

reimburse the government for the cost of "DNA-analysis-related

activities"       incurred      in    relation         to    a    particular      defendant's

prosecution.8       In State v. Scruggs,9 this court explained that
      5
       Wis. Stat. §            973.046(1r)(a) (2013-14).    When Williams
committed the felony            in the instant case, the DNA surcharge was
discretionary, could            only be imposed for a felony conviction,
and could not exceed           $250. Wis. Stat. § 973.046(1g) (2011-12).
      6
       Like Williams, the defendant in Radaj committed his crimes
when the surcharge was discretionary but was sentenced when the
surcharge was mandatory.
      7
          Radaj, 363 Wis. 2d 633, ¶35 (emphasis added).
      8
          See id., ¶30.
      9
       State      v.     Scruggs,      2017       WI        15,    373    Wis. 2d 312,       891
N.W.2d 786.


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                                                                     No.      2016AP883-CR.ssa


the   mandatory        DNA    surcharge          statute     serves        as    a   funding

mechanism for broad expansions to the government's DNA database,

including      additional           costs        associated         with        collecting,

analyzing, and maintaining DNA samples of those convicted of

misdemeanors     and     those      arrested          for,   but   not     convicted       of,

felonies.10      Thus, the majority correctly overrules Radaj for

having mistakenly conducted its intent-effects analysis with a

misunderstanding of the broader funding purpose of the mandatory

DNA surcharge statute.

      ¶65    However, the majority goes too far by suggesting that

a DNA surcharge could never be considered punishment under any

set of circumstances.11

      ¶66    In the instant case, Williams was convicted of only

one felony.      The court does not have before it a defendant with

multiple     felony     convictions        as     the    court     of    appeals     did    in

Radaj.

      ¶67    The majority should reserve judgment on whether a DNA

surcharge      can     ever    be     so     expensive        that       it     constitutes
punishment     under     the   facts        of    a     particular      case.        Without

knowing what the DNA surcharge actually is in a particular case,

how can a court determine whether the surcharge promotes the




      10
           Id., ¶47.
      11
       See majority op., ¶38 (characterizing the per-conviction
method of calculating a DNA surcharge as a "user fee" in which
"[t]he more crimes committed, the more times the user pays the
fee").


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                                                           No.    2016AP883-CR.ssa


traditional aims of punishment?12                How can a court determine

whether    the    surcharge   is     excessive    in   relation   to    the   non-

punitive purpose assigned to the mandatory DNA surcharge statute

without knowing what the DNA surcharge actually is?13                  Because of

the variable nature of the DNA surcharge, these questions must

be answered on a case-by-case basis.

                                        II

     ¶68       The majority appears to have again reached beyond the

issues presented in order to answer a question not raised by the

facts     of   the   case   before    it.14      Due   process    and    judicial

restraint counsel against deciding an issue that was not briefed

or argued by the parties.

     ¶69       For the foregoing reasons, I do not join the opinion

but concur only in the mandate.




     12
       See majority op., ¶36 (relying on Williams' single $250
surcharge to conclude that the surcharge does not have a
retributive or deterrent effect).
     13
       See majority op., ¶¶39-42 (engaging in a fact-specific
analysis of whether Williams' single $250 surcharge is excessive
in relation to the broad funding purpose of the mandatory DNA
surcharge statute).
     14
       See Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ___
Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, J., dissenting).


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