State v. Schmidt, No. 2020AP616-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANNETTE KINGSLAND ZIEGLER, C.J.
Citation2021 WI 65,960 N.W.2d 888
Docket NumberNo. 2020AP616-CR
Decision Date18 June 2021
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Anthony M. SCHMIDT, Defendant-Appellant.

960 N.W.2d 888
2021 WI 65

STATE of Wisconsin, Plaintiff-Respondent,
v.
Anthony M. SCHMIDT, Defendant-Appellant.

No. 2020AP616-CR

Supreme Court of Wisconsin.

Oral Argument: April 8, 2021
Opinion Filed: June 18, 2021


For the defendant-appellant, there were briefs filed by Christopher P. August, assistant state public defender and Office of the State Public Defender, Milwaukee. There was an oral argument by Christopher P. August.

For the plaintiff-respondent, there was a brief filed by Eric M. Muellenbach, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Eric M. Muellenbach.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., joined, and in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined with respect to Parts I, II, and III.A. ROGGENSACK, J., filed a concurrence, in which REBECCA GRASSL BRADLEY, J., joined. HAGEDORN, J., filed an opinion concurring in part, and dissenting in part, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This case is before the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (2019-20).1 Anthony Schmidt brought this action challenging the Walworth County circuit court's2 judgment imposing a child pornography surcharge for 14 images of child pornography, pursuant to Wis. Stat. § 973.042(2), and order denying Schmidt's postconviction motion seeking to withdraw his guilty plea or, in the alternative, have the circuit court vacate the child pornography surcharges for the eight images of child pornography that formed the basis of Schmidt's read-in charges of possession of child pornography.

¶2 Schmidt was charged with 14 counts of possession of child pornography and one count of failing to register for the sex offender registry. As part of a plea agreement, Schmidt pled guilty to six counts of possession of child pornography, and the State dismissed and read in the remaining charges. The circuit court accepted this plea agreement and convicted Schmidt of the six counts of possession of child pornography. At sentencing, the circuit court sentenced Schmidt to 30 years, consisting of 15 years of initial confinement and 15 years of extended supervision. The circuit court also imposed a $500 child pornography surcharge, pursuant to Wis. Stat. § 973.042(2), for each of the 14 images of child pornography for which Schmidt was charged.

960 N.W.2d 892

¶3 After sentencing, Schmidt filed a postconviction motion seeking to have the circuit court (1) allow him to withdraw his guilty plea, (2) vacate the child pornography surcharges imposed for the eight images of child pornography that formed the basis of Schmidt's read-in charges of possession of child pornography, and (3) grant a hearing on both issues. Schmidt argued that he should be permitted to withdraw his plea because the circuit court failed to adequately inform him during the plea colloquy about the child pornography surcharge, which he alleged was a punishment attaching to his conviction. In the alternative, he argued that the circuit court could not impose a child pornography surcharge for images of child pornography that form the basis of read-in charges of possession of child pornography. The circuit court denied Schmidt's postconviction motion without a hearing, determining that it did not need to inform Schmidt of the child pornography surcharge during the plea colloquy, and that it could order the child pornography surcharge for the images of child pornography that formed the basis of read-in charges of possession of child pornography. We agree.

¶4 We conclude that the child pornography surcharge is not punitive, so the circuit court did not need to inform Schmidt of the child pornography surcharge during the plea colloquy. Consequently, the circuit court did not err when it denied Schmidt's postconviction motion to withdraw his guilty plea. We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual's offense of sexual exploitation of a child or possession of child pornography. Accordingly, we affirm the circuit court's judgment imposing the child pornography surcharge for 14 images of child pornography, and the order that denied plea withdrawal.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 On December 13, 2018, the State filed a criminal complaint against Schmidt, alleging five counts—specifically, four counts of possession of child pornography and one count of failing to comply with requirements of the sex offender registry.3 The State later filed an information increasing the number of counts against Schmidt to 14 counts of possession of child pornography and retaining the one count of failing to comply with requirements of the sex offender registry.

¶6 On April 1, 2019, the circuit court held a plea hearing after the State and Schmidt reached a plea agreement. The plea agreement, which was filed with the circuit court, stated that "Schmidt will plead guilty to counts 1-6 [each a count of possession of child pornography], the State will move to dismiss and read-in the remaining charges, a [presentence investigation] will be requested by the parties, and both sides will be free to argue for the appropriate sentence." Schmidt also submitted a completed Plea Questionnaire/Waiver of Rights form. Included in the Plea Questionnaire/Waiver of Rights form, Schmidt acknowledged that he faced "a $500.00 surcharge for each image or each copy of an image [of child pornography]" upon the circuit court accepting his guilty plea.

¶7 The circuit court engaged in a standard plea colloquy with Schmidt before

960 N.W.2d 893

accepting his guilty plea. At no time did the court inform Schmidt that he faced a surcharge for each image of child pornography associated with his crimes. The court accepted Schmidt's guilty plea, entered its judgment of conviction, and ordered a presentence investigation.

¶8 On May 28, 2019, the circuit court held a sentencing hearing. The court sentenced Schmidt to 30 years, consisting of 15 years of initial confinement and 15 years of extended supervision. The circuit court also imposed a surcharge for 14 images of child pornography; specifically, the six images of child pornography that formed the basis of the six convictions and the eight images of child pornography that formed the basis of Schmidt's read-in charges of possession of child pornography.

¶9 On December 18, 2019, Schmidt filed a motion to withdraw his guilty plea or, in the alternative, to have the circuit court vacate the child pornography surcharges imposed for the eight images of child pornography that formed the basis of his read-in counts of possession of child pornography. He asserted that the child pornography surcharge is a punishment that the circuit court was required to inform him of during the plea colloquy. Because the circuit court did not do so, Schmidt claims that his plea was not knowing, intelligent, and voluntary, and that therefore he was entitled to withdraw his plea. He also contended, in the alternative to plea withdrawal, that the circuit court could not impose the child pornography surcharge for the images of child pornography that formed the basis of his read-in counts of possession of child pornography because the court imposed a sentence for only six counts, not 14 counts, of possession of child pornography. Accordingly, Schmidt argued, the circuit court should vacate the child pornography surcharge for the eight images of child pornography that formed the basis of his read-in charges of possession of child pornography.

¶10 On March 31, 2020, the circuit court issued its order denying Schmidt's postconviction motion without a hearing. Specifically, the court determined that the child pornography surcharge was not punishment, so it did not need to inform Schmidt of the surcharge prior to accepting his guilty plea. The court also determined that it had the power to impose the child pornography surcharge for the eight images of child pornography that formed the basis of the eight read-in charges of possession of child pornography and correctly exercised its authority when it did so.

¶11 Schmidt appealed. On October 16, 2020, while the case was still pending before the court of appeals, Schmidt petitioned this court to bypass the court of appeals, pursuant to Wis. Stat. § (Rule) 809.60. We granted Schmidt's petition to bypass the court of appeals and took jurisdiction of this case.

II. STANDARD OF REVIEW

¶12 Schmidt asks this court to review the circuit court's denial of his postconviction motion to withdraw his guilty plea after he was sentenced. "We review a circuit court's decision to deny a plea withdrawal motion under an erroneous exercise of discretion standard." State v. Savage, 2020 WI 93, ¶24, 395 Wis. 2d 1, 951 N.W.2d 838 (citing State v. Nash, 2020 WI 85, ¶27, 394 Wis. 2d 238, 951 N.W.2d 404 ). "A defendant seeking to withdraw a plea after sentencing must show by clear and convincing evidence that ‘allowing the withdrawal of the plea is necessary to correct a...

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4 practice notes
  • State v. C. G. (In re C. G.), 2018AP2205
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Julio 2022
    ...is punitive is determined in the abstract, without reference to "the facts and circumstances of an individual defendant." State v. Schmidt, 2021 WI 65, ¶30, 397 Wis.2d 758, 960 N.W.2d 888 (citing Hudson v. United States, 522 U.S. 93, 100 (1997)); see also Kennedy, 372 U.S. at 169 ("Absent c......
  • Weekly Case Digests November 29, 2021 - December 3, 2021
    • United States
    • Wisconsin Law Journal
    • Invalid date
    ...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 t......
  • State v. MacDonald, 2020AP605-CR
    • United States
    • Court of Appeals of Wisconsin
    • 14 Octubre 2021
    ...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 ......
  • Postconviction Motion Surcharge Reduction
    • United States
    • Wisconsin Law Journal
    • Invalid date
    ...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 t......
2 cases
  • State v. C. G. (In re C. G.), 2018AP2205
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Julio 2022
    ...is punitive is determined in the abstract, without reference to "the facts and circumstances of an individual defendant." State v. Schmidt, 2021 WI 65, ¶30, 397 Wis.2d 758, 960 N.W.2d 888 (citing Hudson v. United States, 522 U.S. 93, 100 (1997)); see also Kennedy, 372 U.S. at 169 ("Absent c......
  • State v. MacDonald, 2020AP605-CR
    • United States
    • Court of Appeals of Wisconsin
    • 14 Octubre 2021
    ...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 ......

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