State v. Scruggs

• Decision Date: 23 February 2017
• Docket Number: No. 2014AP2981-CR,2014AP2981-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tabitha A. SCRUGGS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

373 Wis.2d 312

891 N.W.2d 786

STATE of Wisconsin, Plaintiff-Respondent,

v.Tabitha A. SCRUGGS, Defendant-Appellant-Petitioner.

No. 2014AP2981-CR

Supreme Court of Wisconsin.

Oral Argument: October 13, 2016

Opinion Filed: February 23, 2017

For the defendant-appellant-petitioner, there was a brief and oral argument by Dustin C. Haskell, assistant state public defender.

For the plaintiff-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

Ann Walsh Bradley, J.¶1 Petitioner, Tabitha Scruggs ("Scruggs"), seeks review of a published court of appeals decision denying her motion for postconviction relief.¹ The court of appeals determined that Scruggs failed to demonstrate beyond a reasonable doubt that imposing a now mandatory $250 DNA surcharge for a single felony conviction constitutes a punishment, violating the prohibition against ex post facto laws set forth in the United States and Wisconsin Constitutions.

¶2 Specifically, Scruggs contends that the imposition of this single $250 DNA surcharge is punitive for ex post facto purposes because it was discretionary when she committed the felony offense but mandatory when she was sentenced. She asserts that the statutory amendment making mandatory the imposition of the $250 DNA surcharge at sentencing constitutes an unconstitutional ex post facto law because it retroactively imposes punishment on those who committed a crime before the amendment's January 1, 2014 effective date.

¶3 Like the court of appeals, we conclude that Scruggs has not met her burden of establishing beyond a reasonable doubt that the amended statute is unconstitutional. She has failed to show that the mandatory imposition of this DNA surcharge, which was discretionary at the time she committed the single felony offense, is punitive in either intent or effect and thus violative of the ex post facto prohibition.

¶4 Accordingly, we affirm the decision of the court of appeals, denying Scruggs' postconviction motion to vacate the $250 DNA surcharge.

I

¶5 The underlying facts in this case are not in dispute. On December 30, 2013, Scruggs was charged with one count of burglary as a party to a crime, contrary to Wis. Stat. §§ 943.10(1m)(a) & 939.05(1) (2011-12).² She pleaded no contest to the charged offense on April 1, 2014, and was sentenced on June 9, 2014.

¶6 The circuit court sentenced Scruggs to 18 months of initial confinement and 18 months of extended supervision. Scruggs' sentence was stayed and she was placed on probation for three years. The judgment of conviction provided that Scruggs submit to a DNA sample and pay a $250 DNA analysis surcharge.

¶7 At the time Scruggs committed the offense on December 30, 2013, Wis. Stat. § 973.046 (2011-12) was in effect. It provided that the decision of whether to impose a DNA surcharge was within the circuit court's discretion:

(1g) Except as provided in sub. (1r), if a court imposes a sentence or places a person on probation for a felony conviction, the court may impose a deoxyribonucleic acid analysis surcharge of $250.

¶8 On January 1, 2014, Wis. Stat. § 973.046(1r)(a) (2013-14) ("2014 Amendment") took effect pursuant to 2013 Wis. Act 20. The Act specified that the mandatory DNA surcharge would apply to sentences imposed on or after January 1, 2014, regardless of when the underlying offense occurred. 2013 Wis. Act 20, §§ 9326, 9426. Thus, when Scruggs was sentenced on June 9, 2014, the amended statute made the imposition of a DNA surcharge mandatory:

(1r) If a court imposes a sentence or places a person on probation, the court shall impose a deoxyribonucleic acid analysis surcharge, calculated as follows:

(a) For each conviction for a felony, $250.

(b) For each conviction for a misdemeanor, $200.

Wis. Stat. § 973.046(1r) (2013-14).

¶9 Scruggs filed a postconviction motion seeking to vacate the $250 DNA surcharge. She argued that imposing this mandatory DNA surcharge violated the Ex Post Facto Clauses of the United States and Wisconsin Constitutions because imposition of the DNA surcharge was discretionary at the time she committed the felony offense. According to Scruggs, the statutory change from a discretionary DNA surcharge to a mandatory DNA surcharge makes the 2014 Amendment punitive for a defendant sentenced for a single felony offense after the effective date of the 2014 Amendment for an offense committed before it.

¶10 Scruggs argued that the circuit court instead should have applied Wis. Stat. § 973.046 (2011-12) as it existed at the time she committed the offense and exercised its discretion in determining whether to impose a $250 DNA surcharge. The circuit court concluded that it was required to impose the mandatory $250 DNA surcharge and denied Scruggs' postconviction motion.³

¶11 The court of appeals affirmed the circuit court, albeit with a different rationale. State v. Scruggs , 2015 WI App 88, ¶19, 365 Wis.2d 568, 872 N.W.2d 146. It determined that Scruggs "has failed to demonstrate beyond a reasonable doubt that the $250 DNA surcharge that the circuit court imposed on her for a single felony conviction constitutes a punishment and, thus, [did not] violate [ ] the prohibitions against ex post facto laws in the U[nited] S[tates] and Wisconsin Constitutions." Id.

II

¶12 Whether a statute violates the Ex Post Facto Clauses of the Wisconsin and United States Constitutions is a question of law that this court reviews independently of the determinations rendered by the circuit court and the court of appeals. State v. Haines , 2003 WI 39, ¶7, 261 Wis.2d 139, 661 N.W.2d 72. There is a strong presumption that legislative enactments are constitutional. Bostco LLC v. Milwaukee Metro. Sewerage Dist. , 2013 WI 78, ¶76, 350 Wis.2d 554, 835 N.W.2d 160. Scruggs has the burden of establishing beyond a reasonable doubt that the challenged legislation is unconstitutional. Chappy v. Labor & Indus. Review Comm'n, Dep't of Indus., Labor & Human Relations , 136 Wis.2d 172, 184-85, 401 N.W.2d 568 (1987).

¶13 A party challenging the constitutionality of a statute "bears a heavy burden." State v. Smith , 2010 WI 16, ¶8, 323 Wis.2d 377, 780 N.W.2d 90 (citing State v. Cole , 2003 WI 112, ¶11, 264 Wis.2d 520, 665 N.W.2d 328 ). "It is insufficient for the party challenging the statute to merely establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional." Id. "Instead, the party challenging a statute's constitutionality must ‘prove that the statute is unconstitutional beyond a reasonable doubt.’ " Id. (quoting Cole , 264 Wis.2d 520, ¶11, 665 N.W.2d 328 ).

III

¶14 At the outset we observe the basic premise that a statute "which makes more burdensome the punishment for a crime[ ] after its commission" is prohibited by the Ex Post Facto Clauses of the United States and Wisconsin Constitutions.⁴

State v. Thiel , 188 Wis.2d 695, 703, 524 N.W.2d 641 (citing Collins v. Youngblood , 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ). Scruggs contends that the imposition of a $250 DNA surcharge is punitive because it was discretionary when she committed the crime but mandatory when she was sentenced. She asserts that the statutory amendment making mandatory the imposition of a $250 DNA surcharge at sentencing constitutes an unconstitutional ex post facto law because it retroactively imposes punishment to those who committed a crime before the amendment's January 1, 2014 effective date.

¶15 The State does not dispute Scruggs' contention that if the DNA surcharge is punitive, amending the statute to make mandatory what previously was discretionary is an ex post facto violation with respect to defendants who committed their offense before the effective date of the amendment. See Lindsey v. Washington , 301 U.S. 397, 400, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (concluding it is an ex post facto violation to apply a new criminal penalty where "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence.").

¶16 In determining whether a statute is punitive for ex post facto purposes, we apply the "intent-effects" test set forth in Hudson v. United States , 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). See In re Commitment of Rachel , 2002 WI 81, ¶38, 254 Wis.2d 215, 647 N.W.2d 762. If we determine that the legislative intent of the 2014 Amendment was to impose punishment, the law is considered punitive and our inquiry ends there. See City of South Milwaukee v. Kester , 2013 WI App 50, ¶22, 347 Wis.2d 334, 830 N.W.2d 710. However, if we determine that the legislature's intent was to impose a civil and nonpunitive regulatory scheme, we must determine next whether the 2014 Amendment is so punitive in form and effect as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Rachel , 254 Wis.2d 215, ¶33, 647 N.W.2d 762 (citing Hudson , 522 U.S. at 99, 118 S.Ct. 488 ).⁵

¶17 Determining whether the legislature intended the statute to be punitive "is primarily a matter of statutory construction...." Id. , ¶40. Statutory interpretation begins by examining the plain language of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cty. , 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (citations omitted).

¶18 Accordingly, we begin our analysis of Scruggs' claim by considering whether the legislature either expressly or impliedly indicated a preference that the 2014 Amendment be considered a civil remedy or a criminal penalty. See Rachel , 254 Wis.2d 215, ¶32, 647 N.W.2d 762 (citing Hudson , 522 U.S. at 99, 118 S.Ct. 488 ). "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Kalal , 271 Wis.2d 633, ¶45, 681 N.W.2d 110 (citations omitted).

¶19 Sections 973.046(1r)(c)-(d) (2013-14) provide:

If a court imposes a sentence or places a person on probation, the court

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