State v. MacDonald, 2020AP605-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtNASHOLD, J.
PartiesState of Wisconsin, Plaintiff-Respondent, v. William C. MacDonald, Defendant-Appellant.
Decision Date14 October 2021
Docket Number2020AP605-CR

State of Wisconsin, Plaintiff-Respondent,

William C. MacDonald, Defendant-Appellant.

No. 2020AP605-CR

Court of Appeals of Wisconsin, District IV

October 14, 2021

APPEAL from a judgment and an order of the circuit court for Marquette County, No. 2018CF55 BERNARD N. BULT and MARK T. SLATE, Judges.

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.


¶1 The issue in this appeal is how many images are "associated with" William C. MacDonald's crime of possession of child pornography for purposes of assessing the statutorily mandated surcharge of $500 per image. See Wis. Stat. § 948.12 (2019-20)[1] (criminalizing possession of child pornography); Wis.Stat. § 973.042(2) (mandating surcharge on images or copies of images "associated with the crime[s]" of possession of child pornography or sexual exploitation of a child) (sometimes referred to in this decision as the surcharge statute).[2] The criminal information charged MacDonald with ten counts of possession of child pornography, each based on a single image, and MacDonald pled no contest to a single charge. Read in for sentencing purposes were the nine dismissed charges and ninety additional uncharged images. The circuit court imposed a total surcharge of $50, 000 ($500 for each of the 100 images) and denied MacDonald's postconviction motion to reduce this total amount.[3]

¶2 MacDonald appealed, arguing that the sentencing court should have assessed only $500, the surcharge amount for the single image supporting the single count of conviction. At MacDonald's request, this appeal was placed on hold pending our supreme court's decision in State v. Schmidt, 2021 WI 65, Wis.2d, 960 N.W.2d 888, decided on June 18, 2021. The Schmidt court held that the surcharge statute applies not only to images forming the basis of the counts of conviction but also to images forming the basis of read-in charges. Although the court discussed "read-in charges" generally, it also explicitly stated that it "d[id] not address … whether the circuit court must impose the child pornography surcharge for images of child pornography that were not charged." Id., ¶49. Thus, the court did not address the applicability of the surcharge statute to uncharged read-ins.

¶3 Following the issuance of Schmidt, MacDonald conceded in this court that the circuit court properly imposed the statutory surcharge on ten images: the one image forming the basis of the count of conviction and the nine images forming the basis of counts that were charged, dismissed, and read in. MacDonald maintains, however, that Schmidt does not control the remaining question on appeal: whether the circuit court was required to assess the surcharge on the ninety uncharged read-in images. We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are "associated with the crime." See id., ¶4. On this record, however, it is not evident that the sentencing court determined which, if any, of the ninety uncharged read-in images were in fact associated with the count of conviction. We agree with the State that the circuit court should revisit its ruling in light of Schmidt's guidance.

¶4 Thus, we accept MacDonald's concession that the circuit court correctly imposed a $5, 000 surcharge, corresponding to the ten images that the parties agree are the proper basis for assessment. We reverse, however, the court's order denying MacDonald's postconviction motion for surcharge reduction as to the remaining amount. We remand for a determination of whether any of the ninety uncharged and read-in images are associated with the crime of possession of child pornography (the single count of conviction in this case).[4]


¶5 The following facts are undisputed for purposes of this appeal. In April 2018, MacDonald's former roommate reported to the Marshfield Police Department that she possessed a computer tablet previously belonging to MacDonald and containing what she believed to be child pornography. Local and state law enforcement agencies, including the Digital Forensic Unit (DFU) of the Wisconsin Department of Justice, Division of Criminal Investigation, commenced an investigation and executed a search warrant at MacDonald's residence. During the search, MacDonald voluntarily spoke with a detective. MacDonald said that he owned multiple electronic devices and that there might be child pornography on at least one of the devices. When "asked how many images of child pornography [law enforcement was] going to find on the electronics inside his residence," MacDonald responded, "'[L]et's say 200 just to be safe.'" During the interview, law enforcement determined that one of the devices found in MacDonald's residence contained suspected child pornography. MacDonald was then placed under arrest. Pursuant to the warrant, law enforcement seized nine cell phones, a compact disc, a tablet computer, and two computer hard drives.

¶6 According to the criminal complaint, "When DFU did a preview search of one of [the] defendant's cellular telephone[s] … they discovered numerous pornographic images and selected a sample 15 images that show child pornography." The complaint charged MacDonald with ten counts of possession of child pornography, each based on a single image.

¶7 The parties negotiated a plea bargain, which the prosecutor summarized at the plea hearing as follows:

MacDonald will be entering a plea of either guilty or no contest to Count 1 of th[e] information, and then the State would be moving to dismiss and read in the rest of the charges in that information, in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter

MacDonald entered a plea of no contest, and the court accepted the parties' agreement on the read-ins, stating, "The charges in Counts 2 through 10 will be dismissed at this time and will be available for read in, as well as any uncharged images that might be outstanding."

¶8 At the sentencing hearing, the prosecutor recommended that the child pornography surcharge be assessed for 100 images, stating,

[T]he statute that we're dealing with here [Wis. Stat § 973.042(2)] requires the Court to make a finding regarding the number of images. It requires a $500 surcharge essentially, for each image. While I think that the number could be much, much higher, the State would be asking for the Court to find 100 images [on the basis of] a supplemental report by Detective Jordan McCoy, [in which McCoy] went through an extraction of, I believe, two phones. [McCoy] laid out that[, ] in one image report, there [were] 85 images that were consistent with child pornography. Another [report reflected] 15 images.

MacDonald, in contrast, asked that the surcharge be applied for "each of the read[-]in counts and convictions and no more" (i.e., ten images total).

¶9 The sentencing court sentenced MacDonald to four years' initial confinement and three years' extended supervision. Turning to the number of images supporting the mandatory surcharge, the court acknowledged that MacDonald "has argued that I should find a limited number based upon the ability of the defendant to pay any amount that the Court might impose." The court correctly observed, however, that under Wis.Stat. § 973.042(2), the ability of the defendant to pay a surcharge "is not a consideration that the Court should be involved with." Rather, the court viewed its task as determining "exactly how many images this particular defendant was involved with." Noting that "it did come out in my review of the case, that at certain times, [MacDonald] acknowledged that there may be up to 200 images," the court imposed the surcharge on 100 images, stating that this was "the minimum number of images" to which the surcharge statute applied.

¶10 MacDonald brought a postconviction motion to reduce the surcharge from $50, 000 to $500, to correspond to the surcharge amount for the single image forming the basis of the count of conviction.[5] MacDonald further asserted that the imposition of a $50, 000 surcharge constituted a constitutionally excessive fine. See Timbs v. Indiana, 139 S.Ct. 682, 686-87 (2019) (prohibition on excessive fines in Eighth Amendment to the United States Constitution is an "incorporated" protection applicable to the states by the Fourteenth Amendment's Due Process Clause); see also State v. Boyd, 2000 WI.App. 208, ¶¶7, 11, 14, 238 Wis.2d 693, 618 N.W.2d 251.

¶11 The postconviction court held a hearing on the motion. That court, like the sentencing court, viewed the surcharge inquiry as concerning "how many images there were" or "the total number of images that have occurred"-that is, "the total number of images that were possessed by the defendant." The postconviction court therefore determined that a surcharge for 100 images was warranted, given that the sentencing court "had already determined that there were 100 images." The postconviction court further determined that the amount was not unconstitutionally excessive, and upheld the $50, 000 surcharge in full.

¶12 MacDonald appealed, and the case was submitted on briefs. As...

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