State v. Trepanier, 96-0601-CR

• Decision Date: 11 September 1996
• Docket Number: No. 96-0601-CR,96-0601-CR
• Citation: 204 Wis.2d 505,555 N.W.2d 394
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Terry Thomas TREPANIER, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 394

555 N.W.2d 394

204 Wis.2d 505

STATE of Wisconsin, Plaintiff-Respondent, v. Terry Thomas TREPANIER, Defendant-Appellant.

No. 96-0601-CR.

Court of Appeals of Wisconsin.

Oral Argument Sept. 11, 1996.

Opinion Released Sept. 24, 1996.

Opinion Filed Sept. 24, 1996.

For the defendant-appellant there were briefs and oral argument by Ruth S. Downs, Assistant State Public Defender.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General and Warren D. Weinstein, Assistant Attorney General. There was oral argument by Warren D. Weinstein.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Terry Thomas Trepanier appeals a portion of his judgment of conviction requiring payment of $250 to the State's DNA databank program and the order denying the subsequent motion for postconviction relief. Trepanier contends that § 973.046, STATS., requiring this payment, is unconstitutional as violating equal protection because convicted burglars are the only persons required to pay the DNA surcharge without regard to whether a DNA sample is given. Because there is no rational basis for designating burglars as a class to pay the surcharge regardless whether a sample is given, we hold that the statute violates equal protection and the judgment is modified to remove the $250 DNA surcharge.

Trepanier does not contest the validity of his conviction. His only issue on appeal is the constitutionality of § 973.046, STATS. The pertinent parts of the statute are as follows:

(1) Beginning on August 12, 1993, if a court imposes a sentence or places a person on probation under any of the following circumstances, the court shall impose a deoxyribonucleic acid analysis surcharge of $250:

(a) The person violated s. 940.225, 943.10 or 948.02(1) or (2).

(b) The court required the person to provide a biological specimen under s. 973.047(1).

Section 973.046, STATS. This section demonstrates the legislature's determination that having a DNA bank would be particularly useful in solving certain crimes. The legislature required those convicted of sex crimes to provide a DNA sample and gave the courts discretion in requiring a sample from persons convicted of burglary, among other crimes, such as homicide and kidnapping. Section 973.047(1)(a) and (b), STATS.

The statutes at issue here were passed together to establish the funding and the creation of the DNA bank. In fact, § 973.046, STATS., expressly refers to § 973.047(1). Statutes of such direct and immediate linkage must be construed together. State v. DILHR, 101 Wis.2d 396, 403, 304 N.W.2d 758, 762 (1981). These statutes, taken together, create a scheme where three groups are always required to pay the DNA surcharge: those convicted under § 940.225, STATS. (sexual assault), § 948.02(1) or (2), STATS. (sexual assault of a child), and § 943.10, STATS. (burglary).

Only those convicted in the first two groups, however, are required to submit DNA samples under the statute. Section 973.046(1), STATS. The other groups where, in the court's discretion, a sample could be taken are only required to pay the surcharge if the court in fact requires a DNA sample. Those convicted of burglary alone are required to pay the DNA surcharge regardless whether a sample is actually taken. As a result, some convicted burglars are required to pay the surcharge when no DNA sample is taken. Trepanier was convicted of burglary but not ordered to provide a DNA sample; however, he was assessed the DNA surcharge as required under the statute. Trepanier contends that this scheme violates the equal protection clauses under the state and federal constitutions.

The constitutionality of this statute is a question of law this court reviews without deference to the trial court. State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). Legislative enactments are presumed constitutional and will be upheld if "there is any reasonable basis for the exercise of the legislative power." Mack v. State, 93 Wis.2d 287, 297, 286 N.W.2d 563, 568 (1980). "Every presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to the legislative enactment's constitutionality, it must be resolved in favor of constitutionality." McManus, 152 Wis.2d at 129, 447 N.W.2d at 660 (quoting State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784, 792 (1973)). The legislation must be held constitutional if there are any facts upon which the legislation could reasonably be based. State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 506, 261 N.W.2d 434, 441 (1978). "The party bringing the challenge must show the statute to be unconstitutional beyond a reasonable doubt." McManus, 152 Wis.2d at 129, 447 N.W.2d at 660 (citing Mulder v. Acme-Cleveland Corp., 95 Wis.2d 173, 187, 290 N.W.2d 276, 283 (1980)).

"The equal protection clause of the fourteenth amendment is designed to assure that those who are similarly situated will be treated similarly." Treiber v. Knoll, 135 Wis.2d 58, 68, 398 N.W.2d 756, 760 (1987). Where the State is not discriminating based upon a suspect classification, the classification need only bear a rational relationship to a legitimate government interest. McManus, 152 Wis.2d at 130-31, 447 N.W.2d at 660-61. Simply because a statutory classification results in some inequity does not provide a basis for holding it to be unconstitutional. Id. at 130-31, 447 N.W.2d at 660. The legislative enactment must be upheld unless it is "patently arbitrary." Id. (citing Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768-69, 36 L.Ed.2d 583 (1973)).

Trepanier asserts there is no rational basis for convicted burglars to be the only class required to pay the DNA surcharge when not required to provide a DNA specimen. The State advances two arguments in its efforts to save the constitutionality of the statute. First, the State argues that it is erroneous to focus on the fact that burglars are required to pay even when not providing a sample when others only pay when giving a sample. The State maintains that § 973.046(1)(a), STATS., is purely a funding provision in that it merely mandates who is required to pay. In contrast, who is actually required to provide a sample is set out in § 973.047, STATS. The State reasons that such a focus would limit the class to those convicted of burglary and that all those in the class are treated equally. We are not persuaded. Statutes that reference each other and that were passed together must be read as a whole. DILHR, 101 Wis.2d at 403, 304 N.W.2d at 762. Separating these statutes and subsections would pervert the intent of the legislature and distort the entire meaning of the statute itself.

The State further contends that because burglars have high rates of recidivism, creating a higher probability of solving crimes with DNA analysis, it is rational for convicted burglars to pay the surcharge. The State misunderstands the issue. The recidivism rate of burglars may provide a rational basis to include burglars among those who may be ordered to participate in the DNA bank. The issue, however, is not that there is no rational basis for why burglars may be required to give a DNA sample. The issue is why convicted burglars, and only convicted burglars, are required to pay the surcharge when not providing a DNA sample.

Wisconsin has developed a five-part guide when examining the reasonableness of a statute's classifications. They are:

(1) All classification must be based upon substantial distinctions which make one class really different from another.

(2) The classification adopted must be germane to the purpose of the law.

(3) The classification must not be based upon existing circumstances only.... It must not be so constituted as to preclude addition to the...