State v. Radaj

• Citation: 363 Wis.2d 633,866 N.W.2d 758
• Decision Date: 21 May 2015
• Docket Number: No. 2014AP2496–CR.,2014AP2496–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Gregory Mark RADAJ, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

363 Wis.2d 633

866 N.W.2d 758

STATE of Wisconsin, Plaintiff–Respondent

v.Gregory Mark RADAJ, Defendant–Appellant.

No. 2014AP2496–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 10, 2015.

Opinion Filed May 21, 2015.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Len Kachinsky of Sisson and Kachinsky Law Offices, Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and Brad D. Schimel, attorney general.

Before LUNDSTEN, HIGGINBOTHAM and SHERMAN, JJ.

Opinion

LUNDSTEN, J.

¶ 1 The DNA surcharge topic that we address in this case applies to a defendant who committed crimes before the effective date of a relatively new DNA surcharge statute, but was sentenced after that date. Because this defendant, Gregory Radaj, was convicted of four felonies, his DNA surcharge was higher than it would have been under the law in effect at the time he committed his crimes. As most pertinent to our analysis, the revised statute provides for a mandatory surcharge in the amount of $250 per felony conviction. See Wis. Stat. § 973.046(1r)(a).¹ Consequently, Radaj's DNA surcharge was $1,000, rather than a discretionary $250 amount, the amount that it would have been under the prior law. Radaj argues that the new DNA surcharge statute as applied to him is an unconstitutional ex post facto law. We agree. We reverse on the DNA surcharge issue and remand for further proceedings, consistent with our decision.

Discussion

¶ 2 Radaj was charged with 21 misdemeanors and felonies relating to Radaj entering and taking items from motor homes on January 28, 2013. For purposes of the issue on appeal, the particulars of these crimes do not matter. What does matter is the number of crimes, when they were committed, and the timing of Radaj's sentencing.

¶ 3 As noted, Radaj committed his crimes on January 28, 2013. Pursuant to a plea agreement, Radaj was convicted of four felonies and was sentenced on March 26, 2014. The four convictions and those two dates set the scene for Radaj's ex post facto challenge to a new DNA surcharge statute that became effective between the time Radaj committed his crimes and the time he was sentenced.

¶ 4 The new DNA surcharge statute is more onerous, and applies to all defendants sentenced on or after the effective date of the new statute, January 1, 2014, even if they, like Radaj, committed their crimes before that date. See 2013 Wis. Act 20, §§ 2355, 9426(1)(am).

¶ 5 Under the prior law, Radaj would have been subject to a discretionary $250 DNA surcharge. See Wis. Stat. § 973.046(1g) (2011–12). Under the new law, given the number of Radaj's felony convictions, there was a mandatory $1,000 DNA surcharge (four felonies x $250). See Wis. Stat. § 973.046(1r)(a). According to Radaj, this means that the punishment for his crimes was increased after he committed those crimes, something that is prohibited by the ex post facto clauses in the federal and state constitutions.² As we shall see, this ex post facto question turns on whether the DNA surcharge statute, as applied to Radaj, was a punitive criminal statute or a non-punitive civil statute.

¶ 6 Our discussion proceeds in four parts below. First, we briefly describe the new DNA surcharge statute and related statutes. Second, we summarize relevant ex post facto standards. Third, we apply those standards to Radaj and conclude that he has shown an “as applied” constitutional violation. Fourth, we address remedy.

¶ 7 We pause here to stress two apparent limitations on the applicability of our discussion to other defendants. First, it is important to our analysis that Radaj was convicted of multiple crimes and, therefore, the surcharge increased with each conviction. We do not resolve whether there is an ex post facto problem if all of the facts were the same except that Radaj had been convicted of a single crime. Second, there obviously is no ex post facto problem in applying the DNA surcharge statute to criminal defendants on a going-forward basis. That is, had Radaj committed his crimes after the DNA surcharge statute's effective date, he obviously could not assert an ex post facto violation, regardless whether the surcharge is punitive.

A. The Statutory Scheme

¶ 8 Under the law in effect at the time Radaj committed his crimes, if a court imposed a felony sentence or placed a person on probation, the court could, in its discretion, impose a DNA surcharge in the amount of $250, unless an underlying conviction was for a specified sex crime, in which case the surcharge was mandatory. See Wis. Stat. § 973.046(1g) and (1r)(2011–12). The surcharge amount, if imposed, was $250, regardless of the number or nature of the convictions.³ See id.

¶ 9 After Radaj committed his crimes but before he was sentenced, the revised DNA surcharge statute took effect. Under the new statute, if a court imposes a sentence or places a person on probation, the court must impose a DNA surcharge. That surcharge is calculated by adding together $250 per felony conviction and $200 per misdemeanor conviction. See Wis. Stat. § 973.046(1r).⁴

¶ 10 Before and after the revision, related statutes shed light on how the DNA surcharge is to be used. Before, if a court imposed a sentence or placed a person on probation for a felony or other specified crime, the court had to require the person to provide a biological specimen to the state crime laboratories for analysis. Wis. Stat. § 973.047(1f) (2011–12). Now, a court imposing a sentence or placing a person on probation for any crime must require the person to provide a biological specimen to the state crime laboratories for analysis. See Wis. Stat. § 973.047(1f).⁵ All moneys collected from DNA surcharges must be “utilized under s. 165.77.” Wis. Stat. § 973.046(3) ; Wis. Stat. § 973.046(3) (2011–12). Wisconsin Stat. § 165.77 governs Wisconsin's DNA data bank, which is administered by the Wisconsin Department of Justice. See Wis. Stat. § 165.77(8) ; Wis. Stat. § 165.77(8) (2011–12). Permissible DNA-analysis-related activities under § 165.77 include analyzing DNA samples collected from convicted criminal defendants, analyzing DNA samples collected as part of law enforcement investigations, and comparing the DNA profiles from such samples as allowed by statute. See § 165.77(2)(a) 1.a. and 2. and (3); § 165.77(2)(a) 1.a. and 2. and (3) (2011–12). Thus, the legislature has directed that DNA surcharges be used for these DNA-analysis-related activities.

B. Standards For Ex Post Facto Challenge

¶ 11 Radaj does not argue that the DNA surcharge statute is unconstitutional in all of its applications; his is not a facial challenge. Rather, Radaj contends that the new surcharge statute as applied to him is an unconstitutional ex post facto law. Radaj argues that, under his particular circumstances, the legislature increased the punishment for his crimes after he committed them. The burden of showing unconstitutionality is on Radaj. See State v. Thiel, 188 Wis.2d 695, 706, 524 N.W.2d 641 (1994).

¶ 12 As pertinent here, an ex post facto violation occurs if a law “inflicts a greater punishment than the law annexed to the crime at the time it was committed.” Id. at 701, 524 N.W.2d 641 (quoted source and internal quotation marks omitted). The retroactive nature of the new DNA surcharge statute is not disputed. By its terms, that statute applies to all sentencings even when, as here, the underlying crimes were committed before the law's effective date. There is also no dispute that, as applied to Radaj, the DNA surcharge that he was required to pay increased. The only disputed issue is whether the new surcharge statute, as applied to Radaj, “is a nonpunitive civil statute or a punitive criminal statute.” See State v. Rachel, 2002 WI 81, ¶ 22, 254 Wis.2d 215, 647 N.W.2d 762. Whether a statute is punitive for ex post facto purposes presents a question of law that we review de novo. Id., ¶ 23; City of South Milwaukee v. Kester, 2013 WI App 50, ¶ 21, 347 Wis.2d 334, 830 N.W.2d 710, review denied, 2013 WI 87, 350 Wis.2d 729, 838 N.W.2d 636.

¶ 13 In deciding whether a statute is punitive, courts apply a two-part “intent-effects” test. See Rachel, 254 Wis.2d 215, ¶¶ 39–42, 647 N.W.2d 762; Kester, 347 Wis.2d 334, ¶ 22, 830 N.W.2d 710. First, we ask whether the legislature's “intent” was to punish or rather was to impose a non-punitive regulatory scheme. See Kester, 347 Wis.2d 334, ¶ 22, 830 N.W.2d 710. This intent inquiry is “primarily a matter of statutory construction that asks whether the legislative body[ ] ‘... indicated either expressly or impliedly a preference for one label or the other.’ ” Id., ¶ 23 (quoted source omitted). If the legislature intended the law to be punitive, our inquiry ends. Id., ¶ 22. If the legislature intended a non-punitive regulatory scheme, then we proceed to the second “effects” part of the test. Id.

¶ 14 The “effects” inquiry asks whether, despite the fact that the legislature intended a non-punitive regulatory scheme, “the effects of the sanctions imposed by the law are ‘so punitive ... as to render them criminal.’ ” Id. (quoted source omitted). “[O]nly the ‘clearest proof’ will convince us that what a legislative body has labeled a civil remedy is, in effect, a criminal penalty.” Id. (quoted source omitted). When determining whether a scheme is punitive in effect, we consider the following non-exhaustive list of factors:

(1) whether [the law in question] involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which [the law] applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the

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