State v. Michael L. Cox

Appeal No. 2016AP1745-CR Cir. Ct. No. 2015CF1187
WISCONSIN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHAEL L. COX,
DEFENDANT-APPELLANT.
FILED
AUG 29, 2017
Diane M. Fremgen
Clerk of Supreme Court
CERTIFICATION BY WISCONSIN COURT OF APPEALS
Before Stark, P.J., Hruz and Seidl, JJ.
Pursuant to WIS. STAT. RULE 809.61, this appeal is certified to the
Wisconsin Supreme Court for its review and determination.
This case raises a single question: whether a sentencing court retains
any discretion under WIS. STAT. § 973.046 (2015-16), to waive DNA surcharges
for crimes committed after January 1, 2014.
BACKGROUND
Michael Cox pled guilty to one count of second-degree recklessly
endangering safety based on a March 14, 2015 incident in which Cox drove
intoxicated against oncoming freeway traffic for more than three miles. The
circuit court imposed a prison sentence but, because Cox had previously submitted

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a DNA sample, the court waived the $250 DNA surcharge. The judgment of
conviction, however, imposed the DNA surcharge. Cox filed a postconviction
motion requesting the circuit court to modify the judgment of conviction to
conform with the court’s oral pronouncement. The successor judge denied the
motion, concluding the sentencing court had no authority to waive or vacate the
surcharge.
DISCUSSION
For crimes committed before January 1, 2014, the effective date of
2013 Wis. Act 20, the sentencing court had discretion to impose a DNA surcharge
based on the language of WIS. STAT. § 973.046(1g) (2011-12): “The court may
impose a deoxyribonucleic acid analysis surcharge of $250.” An exception was
made for certain sex offenses for which the court “shall impose a deoxyribonucleic
acid surcharge of $250.” WIS. STAT. § 973.046(1r) (2011-12). Effective
January 1, 2014, the statutes were modified to provide:
If a court imposes a sentence or places a person on
probation, the court shall impose a deoxyribonucleic acid
analysis surcharge, calculated as follows:
(a) For each conviction for a felony, $250.
(b) For each conviction for a misdemeanor, $200.
WIS. STAT. § 973.046(1r) (2015-16).
The State contends the word “shall” is presumed mandatory and will
be construed as directory only if necessary to carry out the intent of the legislature.
See Bank of New York Mellon v. Carson, 2015 WI 15, ¶¶21-22, 361 Wis. 2d 23,
859 N.W.2d 422. By replacing the word “may” with “shall” the legislature
evinced intent to make imposition of the surcharge mandatory rather than

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directory. Allowing a sentencing court any discretion to waive the surcharge
would mean the change from “may” to “shall” would have no effect. The State
also argues that this court lacks authority to interpret the statute as allowing any
discretion to waive the surcharge because doing so would be inconsistent with
precedent. In State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786,
and in numerous decisions by the Wisconsin Court of Appeals, the revised version
of WIS. STAT. § 973.046 has been described as “mandatory,” although the specific
argument of statutory construction raised in this appeal was not considered in
those opinions.
Using well-established rules of statutory construction, Cox contends
the circuit court retains authority to waive the DNA surcharge. As part of the
same Act that amended the DNA surcharge provisions, the legislature modified
WIS. STAT. § 973.045(1) (2015-16), the crime victim and witness assistance
surcharge. The legislature used the same language: “the court shall impose” a
victim and witness assistance surcharge. However, unlike the provision for the
DNA surcharge, the legislature included a provision to the victim and witness
surcharge: “A surcharge imposed under this section may not be waived, reduced,
or forgiven for any reason.”
Statutory language is interpreted in the context in which it is used,
not in isolation but as part of a whole, in relation to the language of surrounding or
closely related statutes. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. When another statute contains a
similar provision, the omission of a portion of the similar statute concerning a
related subject is significant in showing that a different intention existed. State v.
Welkos, 14 Wis. 2d 186, 192, 109 N.W.2d 889 (1961). Because the legislature
chose to specify that the victim and witness surcharge cannot be waived, but it

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included no such language regarding the DNA surcharge, Cox contends the
legislature intended to allow a sentencing court the discretion to waive the DNA
surcharge. If use of the word “shall” was meant to remove all discretion, the
portion of the additional sentence prohibiting waiver of the victim and witness
surcharge would be mere surplusage. Statutes should be construed to avoid
surplusage. Kalal, 271 Wis. 2d 633, ¶46. Cox contends Act 20 changed the DNA
surcharge from providing a default that the surcharge will not be imposed unless
the sentencing court decides otherwise, to a default that it will be imposed unless
the court exercises its discretion to waive the surcharge. Cox notes that generally,
sentencing courts are accorded substantial discretion. We recognize that in a
given case courts may choose to use that discretion to waive all or parts of DNA
surcharges to preserve a defendant’s ability to meet other financial obligations
such as restitution to the victim.
Although the principles of statutory construction seemingly favor
Cox’s construction of the statute, we hesitate to rule in his favor for two reasons.
First, as the State notes, that conclusion might run afoul of the precedent
describing the amended statute as “mandatory.” Because this court lacks authority
to overrule published precedent, Cook v. Cook, 208 Wis. 2d 166, 185, 189, 560
N.W.2d 246 (1997), and that precedent is based on the assumption that waiver of
the DNA surcharge is not permitted, we submit the issue to the supreme court as
suggested in Marks v. Houston Casualty Co., 2016 WI 53, ¶¶79-80, 369 Wis. 2d
547, 881 N.W.2d 309. Second, Cox’s construction of the statute would allow
waiver of the DNA surcharge for sex criminals, which we believe was not allowed
under the previous version of the statute and which we doubt the legislature
intended.

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There are two cases concerning DNA surcharges currently pending
before the Wisconsin Supreme Court. In State v. Odom, No. 2015AP2525-CR,
this court certified the issue of whether a court must advise a defendant about the
surcharges before taking a guilty or no-contest plea. Odom argues that the court
was required to advise him at the plea hearing that it would impose four DNA
surcharges, characterizing the surcharges as “potential punishment” under WIS.
STAT. § 971.08(1)(a) (2015-16). Odom, No. 2015AP2525-CR at 9 n.4. Whether a
surcharge constitutes punishment depends upon whether the direct consequence is
“definite, immediate and largely automatic.” State v. Bollig, 2000 WI 6, ¶16, 232
Wis. 2d 561, 605 N.W.2d 199. We submit that whether the circuit court retains
any discretion to waive the DNA surcharge impacts the question of whether the
surcharge constitutes punishment.
A petition for review is also pending in State v. Williams, 2017 WI
App 46, ___ Wis. 2d ___, ___ N.W.2d ___ (No. 2016AP883-CR), in which this
court reluctantly concluded requiring Williams to pay a DNA surcharge after he
had already provided a DNA sample and had been assessed a surcharge
constituted an ex post facto violation. Characterizing the current version of the
statute as “mandatory” and “required,” we concluded the current statute could not
be applied to crimes committed before January 1, 2014, because that would
constitute an ex post facto violation. Id., ¶23. We reached that conclusion based
on the holdings in State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d
758, and State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756. In
each of these cases, this court assumed the statutory change eliminated any
sentencing court discretion regarding the DNA surcharge. It is not clear whether
the same decisions would have been reached if the statute had been construed as
merely changing the default condition from no surcharge unless ordered by the

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sentencing court to imposition of the surcharge unless waived by the sentencing
court.
Because cases currently pending before the Wisconsin Supreme
Court and published decisions of this court may turn on the issue presented here,
and because this court lacks authority to make rulings inconsistent with the
supreme court’s ruling in Scruggs and this court’s decisions in Radaj, Elward, and
Williams, we respectfully request the supreme court to accept this certification to
clarify the sentencing court’s authority.