State v. Cherry
| Decision Date | 08 April 2008 |
| Docket Number | No. 2007AP1808-CR.,2007AP1808-CR. |
| Citation | 2008 WI App 80,752 N.W.2d 393 |
| Parties | STATE of Wisconsin, Plaintiffs-Respondent, v. Ray Shawn CHERRY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. VanHollen, Attorney General and David J. Becker, Assistant Attorney General.
Before WEDEMEYER, FINE and KESSLER, JJ.
Ray Shawn Cherry appeals from a judgment entered after he pled guilty to delivery of a controlled substance (cocaine), contrary to WIS. STAT. §§ 961.16(2)(b)1 and 961.41(1)(cm)1g. (2005-06).1 He also appeals from an order denying his postconviction motion. Cherry raises only one issue in this appeal: whether the trial court erroneously exercised its discretion when it imposed the $250 DNA surcharge. Because the trial court failed to properly exercise its discretion before ordering the $250 DNA surcharge, we reverse and remand for further proceedings consistent with this opinion.
¶ 2 On December 7, 2006, Cherry was sentenced to five years in prison, consisting of two years of initial confinement, followed by three years of extended supervision. During the sentencing hearing, the following interchange occurred:
¶ 3 On July 5, 2007, Cherry filed a postconviction motion asserting that the trial court erroneously exercised its discretion by ruling he was not eligible to participate in the Challenge Incarceration Program and the Earned Release Program and for imposing the $250 DNA surcharge. The trial court denied the postconviction motion by written order. Cherry now appeals.
¶ 4 Cherry raises only the issue of the $250 DNA surcharge in this appeal. He contends that the trial court failed to properly exercise its discretion when it ordered him to pay the surcharge. We agree that the record does not reflect a sufficient exercise of discretion to support the surcharge. Accordingly, we reverse the trial court's ruling requiring Cherry to pay the surcharge and remand the matter to afford the trial court an opportunity to explain why the surcharge is appropriate in this case.
¶ 5 The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to WIS. STAT. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample. WIS. STAT. § 973.046(1r). When the felony does not involve a sex crime under one of those statutes, however, the trial court may order the defendant to pay the $250 DNA surcharge. Sec. 973.046(1g). Thus, in the latter situation, the trial court has the discretion to decide whether or not to impose the DNA surcharge.
¶ 6 In the instant case, the crime was not a sex crime, but a drug crime. Accordingly, the trial court was not required to impose the $250 DNA surcharge. The trial court, however, decided to order Cherry to pay the $250 DNA surcharge. The only reasons expressed in the record for the trial court's decision are that: (1) the trial court's policy is to impose the surcharge whenever possible; and (2) the court has the statutory authority to order the surcharge for the purpose of supporting the DNA database program.
¶ 7 Cherry argues that the reasons set forth by the trial court are insufficient to demonstrate that the trial court actually exercised its discretion. A trial court erroneously exercises its discretion when it does not properly set forth on the record the reasoning underlying its exercise of discretion. See State v. Meeks, 2002 WI App 65, ¶ 33 n. 12, 251 Wis.2d 361, 643 N.W.2d 526, rev'd on other grounds, 2003 WI 104, 263 Wis.2d 794, 666 N.W.2d 859.
¶ 8 The statute at issue here, WIS. STAT. § 973.046(1g), clearly contemplates the exercise of discretion by the trial court. The statute does not, however, set forth any factors for the trial court to utilize in exercising that discretion. Cherry, citing State v. Jones, 2004 WI App 212, 277 Wis.2d 234, 689 N.W.2d 917, asserts that one relevant factor should be whether the defendant had previously paid a DNA surcharge. Cherry also proffers that other pertinent factors should include: (1) whether the crime involves DNA evidence; (2) whether the DNA evidence was actually tested, thus generating a cost; and (3) the defendant's ability to pay.
¶ 9 We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all...
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State v. Starks
......The circuit court dismissed this motion for exceeding the local rule on page length limit. Two days later, Starks filed a motion with the circuit court to vacate his assessed DNA surcharge pursuant to State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393 (henceforth “ Cherry motion”). This motion was denied as untimely. Starks then refiled his original § 974.06 motion with the circuit court, this time within the page limit requirement. The circuit court rejected Starks's motion on ......
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...pro se, Nash moved in 2010 for postconviction relief on two grounds. Relying on State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393, he sought a refund of a DNA surcharge imposed at sentencing. Relying on the authority of Wis. Stat. § 974.06 (2009–10), he alleged that his trial ......
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