State v. Scruggs, No. 2014AP2981–CR.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: NEUBAUER, C.J.
• Citation: 365 Wis.2d 568,872 N.W.2d 146
• Docket Number: No. 2014AP2981–CR.
• Decision Date: 21 October 2015
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Tabitha A. SCRUGGS, Defendant–Appellant.

365 Wis.2d 568
872 N.W.2d 146

STATE of Wisconsin, Plaintiff–Respondent,
v.
Tabitha A. SCRUGGS, Defendant–Appellant.^†

No. 2014AP2981–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 9, 2015.
Opinion Filed Oct. 21, 2015.

872 N.W.2d 147

On behalf of the defendant-appellant, the cause was submitted on the briefs of Dustin C. Haskell, assistant state public defender of Milwaukee.

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 NEUBAUER, C.J., REILLY, P.J., and GUNDRUM, J.

NEUBAUER, C.J.

365 Wis.2d 571

¶ 1 Tabitha A. Scruggs appeals from a judgment of conviction for burglary as a party to a crime, which imposed a $250 DNA surcharge pursuant to WIS. STAT. § 973.046(1r)(a) (2013–14),¹ and an order denying her motion for postconviction relief vacating the $250 DNA surcharge. At

872 N.W.2d 148

the time Scruggs committed the crime, the imposition of a $250 DNA surcharge for that offense was subject to the court's discretion; however, by the time she was convicted and sentenced, the legislature had made the $250 DNA surcharge mandatory for all felony convictions. Scruggs contends that, as applied to her, the mandatory

365 Wis.2d 572

imposition of the $250 DNA surcharge violates the ex post facto clauses of the United States and Wisconsin Constitutions. We disagree and, thus, affirm the judgment and order of the circuit court.

BACKGROUND

¶ 2 The criminal complaint charged that on December 30, 2013, Scruggs committed one count of burglary as a party to a crime in violation of WIS. STAT. §§ 939.05, 943.10(1m)(a). She pleaded no contest to that offense on April 1, 2014, and was subsequently sentenced. As part of the sentence, the judgment ordered Scruggs to provide a DNA sample and pay a $250 DNA analysis surcharge.

¶ 3 Thereafter, Scruggs filed a postconviction motion seeking to vacate the $250 DNA surcharge, arguing that since WIS. STAT. § 973.046(1r)(a) (hereinafter the 2014 Amendment) did not take effect until January 1, 2014, two days after she committed the crime, the change in the DNA surcharge from discretionary to mandatory could not be assessed against her without running afoul of the constitutional protections against ex post facto laws. U.S. CONST. art. I, § 10; WIS. CONST. art. I, § 12. Instead, Scruggs argued, the circuit court should have applied WIS. STAT. § 973.046 as it existed at the time she committed the offense, which left the imposition of a DNA surcharge to the discretion of the court. State v. Cherry, 2008 WI App 80, ¶ 5, 312 Wis.2d 203, 752 N.W.2d 393.

¶ 4 The circuit court concluded that it was required to impose the $250 DNA surcharge under the 2014 Amendment. The court reasoned that because the 2014 Amendment was enacted on June 30, 2013, and published on July 1, 2013, it was "in effect" when she

365 Wis.2d 573

committed the crime, even though the enabling legislation provided that it was effective on the first day of the sixth month following publication or January 1, 2014. 2013 WIS. ACT 20, § 9426(1)(am).

DISCUSSION

Standard of Review

¶ 5 The State concedes that the circuit court erred when it held that the 2014 Amendment was in effect when Scruggs committed the crime. The State maintains, however, that the 2014 Amendment as applied to Scruggs is not punitive and, thus, there is no violation of the ex post facto clauses of the U.S. and Wisconsin Constitutions.

¶ 6 Whether a statute violates the ex post facto clauses of the U.S. and Wisconsin Constitutions is a question of law that this court reviews de novo. State v. Elward, 2015 WI App 51, ¶ 5, 363 Wis.2d 628, 866 N.W.2d 756. It is the defendant's burden to establish a violation of the ex post facto clauses of the U.S. and Wisconsin Constitutions beyond a reasonable doubt. Appling v. Walker, 2014 WI 96, ¶ 17 n. 21, 358 Wis.2d 132, 853 N.W.2d 888 ; Elward, 363 Wis.2d 628, ¶ 5, 866 N.W.2d 756.

The Mandatory DNA Surcharge Is Not Unconstitutional As Applied to Scruggs

¶ 7 Wisconsin courts have generally taken guidance from the U.S. Supreme Court's interpretation of the Ex Post Facto Clause contained in the U.S. Constitution.

365 Wis.2d 574

872 N.W.2d 149

State v. Hull, 2015 WI App 46, ¶ 21 n. 5, 363 Wis.2d 603, 867 N.W.2d 419. One type of ex post facto law is one " ‘which makes more burdensome the punishment for a crime....’ " State v. Thiel, 188 Wis.2d 695, 700, 524 N.W.2d 641 (1994) (quoting Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ). As such, the "statute must be criminal rather than civil in nature." State v. Rachel, 2002 WI 81, ¶ 22, 254 Wis.2d 215, 647 N.W.2d 762. In order to make that determination, a court will use the "intent-effects" test. Id., ¶¶ 22, 31. First, the intent of the legislature in creating the law will be examined to determine whether it either expressly or impliedly indicated a preference that the statute in question be considered civil or criminal. City of S. Milwaukee v. Kester, 2013 WI App 50, ¶¶ 22–23, 347 Wis.2d 334, 830 N.W.2d 710 ; Rachel, 254 Wis.2d 215, ¶ 32, 647 N.W.2d 762. If a court concludes that the legislature's intent was to punish, the law is considered punitive and the inquiry ends there. City of S. Milwaukee, 347 Wis.2d 334, ¶ 22, 830 N.W.2d 710. If, however, the legislature's intent was to impose a civil and nonpunitive regulatory scheme, a court must next determine whether the sanctions imposed by the law are so punitive either in purpose or effect so as to transform what was clearly intended as a civil remedy into a criminal penalty. Id.; Rachel, 254 Wis.2d 215, ¶ 33, 647 N.W.2d 762. Only the "clearest proof" will convince a court "that what a legislative body has labeled a civil remedy is, in effect, a criminal penalty." City of S. Milwaukee, 347 Wis.2d 334, ¶ 22, 830 N.W.2d 710.

¶ 8 Since Scruggs has brought an "as-applied" challenge to the 2014 Amendment, we must "assess the merits of the challenge by considering the facts of the particular case in front of us, ‘not hypothetical facts in other situations' " and determine whether her "constitutional rights were actually violated." Society Ins. v.

365 Wis.2d 575

LIRC, 2010 WI 68, ¶ 27 n. 9, 326 Wis.2d 444, 786 N.W.2d 385 (citation omitted).

¶ 9 Preliminarily, we note that our court recently held, in an "as-applied" challenge, the 2014 Amendment was an ex post facto law violation when the $250 surcharge was imposed for each of multiple felony convictions. State v. Radaj, 2015 WI App 50, ¶¶ 21, 37, 363 Wis.2d 633, 866 N.W.2d 758. There, the defendant was convicted of four felonies and assessed a $1000 DNA surcharge or $250 for each conviction. Id., ¶ 1. The court assumed without deciding that the legislature's intent behind the 2014 Amendment was nonpunitive. Id., ¶ 16. However, it concluded that the effect of assessing a $250 DNA surcharge for each felony conviction was to punish a defendant, holding that there could be no reason why the costs associated with running the DNA data bank would generally increase in proportion to the number of convictions. Id., ¶¶ 32, 35. The court left...