State v. Anthony M. Schmidt

2021 WI 65

SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP616-CR

COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Anthony M. Schmidt,
Defendant-Appellant.

ON PETITION TO BYPASS

OPINION FILED: June 18, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 8, 2021

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Phillip A. Koss

JUSTICES:
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.

ATTORNEYS:
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.
 2021 WI 65

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP616-CR
(L.C. No. 2018CF636)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. JUN 18, 2021

Anthony M. Schmidt, Sheila T. Reiff
Clerk of Supreme Court

Defendant-Appellant.

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.

APPEAL from a judgment and an order of the Circuit Court

for Walworth County, Phillip A. Koss, Judge. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. 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

1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
 No. 2020AP616-CR

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.

¶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

2 The Honorable Phillip A. Koss presided.

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 No. 2020AP616-CR

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
3
 No. 2020AP616-CR

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

3 Schmidt was previously convicted of possession of child
pornography and, as a part of that conviction, was required to
register as a sex offender.

4
 No. 2020AP616-CR

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 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
5
 No. 2020AP616-CR

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.

6
 No. 2020AP616-CR

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 manifest injustice.'" Id. (quoting Nash,

394 Wis. 2d 238, ¶32). "A defendant can meet that burden by

showing that he or she did not knowingly, intelligently, and

voluntarily enter the plea." State v. Fugere, 2019 WI 33, ¶16,

386 Wis. 2d 76, 924 N.W.2d 469.

¶13 "Whether a guilty plea was entered knowingly,

intelligently, and voluntarily is a question of constitutional

fact." Id., ¶17 (citing State v. Muldrow, 2018 WI 52, ¶24, 381
Wis. 2d 492, 912 N.W.2d 74). "This court upholds a circuit

court's findings of fact unless clearly erroneous, and

'[d]etermines independently whether those facts demonstrate that

the defendant's plea was knowing, intelligent, and voluntary.'"

Id. (alteration in original) (quoting State v. Brown, 2006 WI

100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906).

¶14 Schmidt also asserts that there were deficiencies in

the plea colloquy conducted by the circuit court. "This court
determines the sufficiency of the plea colloquy and the
7
 No. 2020AP616-CR

necessity of an evidentiary hearing, questions of law,

independently of the circuit court and court of appeals but

benefiting from their analyses." State v. Hoppe, 2009 WI 41,

¶17, 317 Wis. 2d 161, 765 N.W.2d 794.

¶15 Furthermore, Schmidt argues that the child pornography

surcharge is punishment, and that the child pornography

surcharge cannot apply to images of child pornography that form

the basis of read-in charges of sexual exploitation of a child

or possession of child pornography. Both of these arguments

require us to interpret Wis. Stat. § 973.042, which we do de

novo. Muldrow, 381 Wis. 2d 492, ¶25.

III. ANALYSIS

¶16 We begin our analysis with Schmidt's claim that he is

entitled to withdraw his guilty plea. We then turn to his

alternative argument that we should vacate the circuit court's

imposition of the child pornography surcharge for the images of

child pornography that formed the basis of his read-in charges
of possession of child pornography.

A. Schmidt Is Not Entitled To Withdraw His Guilty Plea.

1. Principles of plea withdrawal, plea
colloquies, and punishment
¶17 To withdraw a plea after sentencing, as is the case

here, the defendant "bears the heavy burden to demonstrate by

'clear and convincing evidence' that withdrawal is necessary to

avoid 'manifest injustice.'" Fugere, 386 Wis. 2d 76, ¶24
(quoted source omitted). "A plea is 'manifestly unjust' in

8
 No. 2020AP616-CR

violation of the Due Process Clause of the United States

Constitution if it was not entered 'knowingly, intelligently,

and voluntarily.'" Id. (quoting Bradshaw v. Stumpf, 545 U.S.

175, 182-83 (2005)). "A plea not entered knowingly,

intelligently, and voluntarily violates fundamental due process,

and a defendant therefore may withdraw the plea as a matter of

right." State v. Taylor, 2013 WI 34, ¶25, 347 Wis. 2d 30, 829

N.W.2d 482.

¶18 For a defendant's plea to be knowing, intelligent, and

voluntary, "the circuit court must notify the defendant of any

direct consequence of his guilty plea." Muldrow, 381

Wis. 2d 492, ¶1. "A direct consequence of a guilty plea, is one

that 'has a definite, immediate, and largely automatic effect on

the range of a defendant's punishment.'" Id. (quoting State v.

Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199). While

a circuit court must inform a defendant of a direct consequence

of a guilty plea, the circuit court does not need to inform a

defendant of "collateral consequences" of a defendant's plea for
the plea to be knowing, intelligent, and voluntary. Fugere, 386

Wis. 2d 76, ¶20. "Collateral consequences are indirect and do

not flow from the conviction." Id. (quoting State v. Byrge,

2000 WI 101, ¶61, 237 Wis. 2d 197, 614 N.W.2d 477). "In

evaluating whether a consequence of a defendant's plea is direct

or collateral, courts look to whether the consequence is a

punishment." Id.

¶19 "The legislature has codified this prerequisite,
requiring circuit courts to '[a]ddress the defendant personally
9
 No. 2020AP616-CR

and determine that the plea is made voluntarily with

understanding of the nature of the charge and the potential

punishment if convicted' before the court accepts a guilty

plea." Muldrow, 381 Wis. 2d 492, ¶2 (alteration in original)

(quoting Wis. Stat. § 971.08(1)(a)). "A defendant who is not

accurately informed of the punishment that could result from his

guilty plea may be entitled to withdraw his plea." Id.

¶20 When a defendant has shown that he or she was not

accurately informed of a punishment, the circuit court does not

automatically grant the defendant's plea withdrawal request.

See Fugere, 386 Wis. 2d 76, ¶24. Instead, the circuit court may

hold an evidentiary hearing where the State may prove that,

despite the failure to inform him of the punishment, the

defendant's plea was indeed knowing, intelligent, and voluntary.

Id.

2. The child pornography surcharge is not punishment.

¶21 With these principles in mind, we turn to Schmidt's

challenge in this case. Schmidt alleges that he is entitled to
plea withdrawal, or an evidentiary hearing, because the child

pornography surcharge is punishment that he was not informed of

during his plea colloquy.

¶22 Despite the clear mandate that the circuit court must

inform the defendant of all punishments, it is not always clear

whether a particular sanction constitutes punishment. See,

e.g., Muldrow, 381 Wis. 2d 492 (determining whether lifetime GPS

tracking constitutes punishment); Bollig, 232 Wis. 2d 561
(determining whether a sex offender registration requirement
10
 No. 2020AP616-CR

constitutes punishment); State v. Williams, 2018 WI 59, 381

Wis. 2d 661, 912 N.W.2d 373 (determining whether a DNA surcharge

constitutes punishment). To determine whether a sanction is

punishment, we adopted the "intent-effects test" from Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-70 (1963). Muldrow, 381

Wis. 2d 492, ¶30.

¶23 This intent-effects test consists of two independent

inquiries to determine whether the sanction is punishment. The

first inquiry requires courts to "look to the 'statute's primary

function' to determine the statute's intent," as expressed in

the plain text of the statute. Fugere, 386 Wis. 2d 76, ¶38

(quoting Mendoza-Martinez, 372 U.S. at 169); State ex rel. Kalal

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,

681 N.W.2d 110. If the statute's primary function is to impose

punishment, we end the inquiry, and the sanction is deemed

punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). If the

statute's primary function is not punitive, we then turn to the

second inquiry, which requires the court to consider "whether
the effect of the statute was 'penal or regulatory in

character.'" Muldrow, 381 Wis. 2d 492, ¶31 (quoting Mendoza-

Martinez, 372 U.S. at 168). If the effect of the statute was

penal in character, the sanction is deemed punishment. Thus, if

either the statute's primary function is punitive or the

sanction is in effect punitive in character, we must deem the

sanction to be punishment.

¶24 Accordingly, we must determine whether the statute's
primary function is punitive or the effect of the child
11
 No. 2020AP616-CR

pornography surcharge is punishment. Such an inquiry is "a

matter of statutory construction." See Hudson v. United States,

522 U.S. 93, 99 (1997). The child pornography surcharge is

codified in Wis. Stat. § 973.042(2), which provides:

If a court imposes a sentence or places a person on
probation for a crime under [Wis. Stat. §§] 948.05[4]
or 948.12[5] and the person was at least 18 years of
age when the crime was committed, the court shall
impose a child pornography surcharge of $500 for each
image or each copy of an image associated with the
crime. The court shall determine the number of images
or copies of images associated with the crime by a
preponderance of the evidence and without a jury.[6]
¶25 Having set forth the specific statute at issue, we now

turn to an analysis of the intent-effects test to determine

whether the child pornography surcharge is punishment.

a. Intent of the child pornography surcharge

¶26 The first half of the intent-effects test requires us

to determine whether the primary function of the child

pornography surcharge statute, Wis. Stat. § 973.042(2), is

punitive. See Williams, 381 Wis. 2d 661, ¶22. Both parties

4 Wisconsin Stat. § 948.05 criminalizes sexual exploitation
of a child, including the recording and displaying of children
engaging in sexually explicit conduct and the sale,
distribution, and promotion of recordings of children engaging
in sexually explicit conduct.
5 Wisconsin Stat. § 948.12 criminalizes possession of child
pornography.
6 "In this section, 'image' includes a video recording, a
visual representation, a positive or negative image on exposed
film, and data representing a visual image." Wis. Stat.
§ 973.042(1).

12
 No. 2020AP616-CR

agree that the primary function of the child pornography

surcharge is not punitive. We agree. See State v. Scruggs,

2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786 (holding that the

primary function of the DNA surcharge statute was not punitive);

Williams, 381 Wis. 2d 661 (same).

¶27 In Scruggs, we determined that the primary function of

the DNA surcharge statute was not punitive. Scruggs, 373

Wis. 2d 312, ¶3. We reached this conclusion based on the plain

text of the statute because "[t]he legislature termed the

payment a 'surcharge' not a 'fine,' . . . and it linked the

surcharge to legislation that dramatically increased the number

of people required to provide DNA samples to be analyzed,

stored, and maintained in the DNA databank." Williams, 381

Wis. 2d 661, ¶22 (summarizing the Scruggs court's analysis).

¶28 The child pornography surcharge shares both of these

characteristics. Just as with the DNA surcharge, the

legislature termed the payment a surcharge rather than a fine.

See Wis. Stat. § 973.042(2), (5), (6). Moreover, the surcharge
is linked to funding of investigations of sexual exploitation of

children and possession of child pornography and grants to

eligible public agencies or nonprofit organizations that provide

counseling services to victims of sexual assault. Wis. Stat.

§ 20.455(5)(gj).7 Therefore, in light of the plain text of

Wisconsin Stat. § 20.455(5)(gj) provides that "[a]ll
7

moneys received from any child pornography surcharge imposed
under [§] 973.042 for investigating offenses under [§] 948.05 or
948.12 and for making grants under [§] 165.93(2)(a)."

(continued)
13
 No. 2020AP616-CR

§ 973.042, the primary function of the child pornography

surcharge is not punitive.

b. Effect of the child pornography surcharge

¶29 The second inquiry of the intent-effects test requires

us to independently consider the effect of the child pornography

surcharge. See Williams, 381 Wis. 2d 661, ¶30. Regardless of

the statute's non-punitive primary function for imposing the

child pornography surcharge, we must consider whether the child

pornography surcharge is "so punitive in form and effect as to

render [it] criminal despite" the statute's primary function to

the contrary. Scruggs, 373 Wis. 2d 312, ¶39 (quoting State v.

Rachel, 2002 WI 81, ¶42, 254 Wis. 2d 215, 647 N.W.2d 762).

"Only the 'clearest proof' will 'override [the statute's primary

function] and transform what has been denominated a civil remedy

into a criminal penalty.'" Williams, 381 Wis. 2d 661, ¶30

(quoting Hudson, 522 U.S. at 100).

¶30 Seven factors, referred to as the Mendoza-Martinez

factors, guide our analysis of whether a sanction is punitive in
effect. These factors are:

(1) does the statute involve an affirmative disability
or restraint; (2) has the sanction at issue
historically been regarded as punishment; (3) will the
sanction be imposed only after a finding of scienter;
(4) does the statute promote the traditional aims of
punishment——retribution and deterrence; (5) is the

Wisconsin Stat. § 165.93(2)(a) in turn provides that "[t]he
[Department of Justice] shall provide grants to eligible
organizations from the appropriations under [§] 20.455(5)(e) and
(gj) to provide services for sexual assault victims."

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 No. 2020AP616-CR

behavior to which it applies already a crime; (6) is
there an alternative purpose to which it may be
rationally connected; and (7) is the sanction
excessive in relation to the alternative purpose
assigned.
Williams, 381 Wis. 2d 661, ¶30 (citing Mendoza-Martinez, 372

U.S. at 168-69). The Mendoza-Martinez factors "are 'neither

exhaustive nor dispositive' but are 'useful guideposts'" in

ascertaining if the effect of a statute is punitive. Smith, 538

U.S. at 97 (citations omitted). And these factors must be

applied on the face of the statute, rather than to the facts and
circumstances of an individual defendant. Hudson, 522 U.S. at

100; contra Williams, 381 Wis. 2d 661, ¶67 (Abrahamson, J.,

concurring) (advocating to answer these questions "on a case-by-

case basis").

¶31 Accordingly, when we apply the seven Mendoza-Martinez

factors here, we look to the statutory language that imposes the

$500 surcharge rather than a potential cumulative effect for a

particular defendant. See Mendoza-Martinez, 372 U.S. at 169.

We conclude, based on our application of the Mendoza-Martinez

factors, that the child pornography surcharge is not punitive in

effect.

i. Is the surcharge an affirmative disability or restraint?
¶32 Schmidt asserts that the child pornography surcharge

imposes an affirmative disability or restraint due to the

"extreme level of financial immiseration entailed by the

statute." Schmidt argues that the child pornography surcharge

statute imposes a disability on defendants because it "is
capable of imposing millions of dollars of financial liability,"

15
 No. 2020AP616-CR

which "harshly limit[s] the defendant's ability to reintegrate

into society upon release" and "creates a debt that can never be

repaid and . . . will in fact impact employment, housing, and

travel." However, as we discussed above, when analyzing the

child pornography surcharge statute under the Mendoza-Martinez

factors, we must look at the statutory language, which imposes a

$500 surcharge per image of child pornography. As such,

Schmidt's hypothetical argument that an individual defendant may

face millions of dollars of surcharges is irrelevant to our

analysis.

¶33 Furthermore, the child pornography surcharge statute

does not impose an affirmative disability or restraint.

"'[D]isability' and 'restraint' are normally understood to mean

imprisonment." Williams, 381 Wis. 2d 661, ¶32. The child

pornography surcharge "imposes no physical restraint, and so

does not resemble the punishment of imprisonment, which is the

paradigmatic affirmative disability or restraint." Smith, 538

U.S. at 100. Moreover, a $500 surcharge is "less harsh than the
sanctions of occupational debarment, which [the Court has] held

to be nonpunitive." Id. Such a surcharge "does not restrain

activities [defendants] may pursue but leaves them free to

change jobs or residences." Id.

¶34 As such, this factor weighs against characterizing the

child pornography surcharge as punishment.

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 No. 2020AP616-CR

ii. Is the surcharge historically viewed as punishment?
¶35 "[A] surcharge has not been viewed as punishment."

Williams, 381 Wis. 2d 661, ¶33. We have been unable to identify

"historical evidence supporting [the] characterization of a

surcharge as punishment. Although the surcharge might not align

exactly with the remedial sanction cases from the late 1800s and

early 1900s[,] a surcharge resembles a non-punitive remedial

sanction much more than punishment." Id., ¶34. Schmidt

requests that we depart from this conclusion because of his

assertion that the child pornography surcharge statute

authorizes the imposition of millions of dollars of financial

penalties "in conjunction with proof that the offender has

committed a morally blameworthy act." However, contrary to

Schmidt's assertion, the plain language of the child pornography

surcharge statute imposes a $500 surcharge as the sanction.

Accordingly, Schmidt has presented no new information that

suggests that we should depart from our previous determination

that "a surcharge has not been viewed as punishment." Id., ¶33.
As such, this factor undercuts characterizing the child

pornography surcharge as punishment.

iii. Is a finding of scienter required?

¶36 Schmidt concedes that no finding of scienter is

required to impose the surcharge. The absence of the scienter

requirements shows that the statute is not punitive in effect.

Id., ¶35 (quoting Kansas v. Hendricks, 521 U.S. 346, 362

(1997)). As such, this factor militates against characterizing
the child pornography surcharge as punishment.

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 No. 2020AP616-CR

iv. Does a surcharge promote retribution and deterrence?
¶37 The child pornography surcharge does not promote the

traditional aims of punishment——retribution and deterrence. The

child pornography surcharge statute imposes a $500 surcharge,

which is "relatively small and therefore [does] not promote the

traditional punitive aims of retribution and deterrence." Id.,

¶36 (citing Scruggs, 373 Wis. 2d 312, ¶45). The $500 surcharge

"is unlikely to deter anyone from engaging in illegal activity.

And the corrective impact of a [$500 surcharge] pales in

comparison to the penal power of a lengthy prison sentence."

Id. The maximum sentence for possession of child pornography is

25 years in prison and $100,000 fine, which is far more

retributive and deterring than the $500 surcharge. As such, this

factor undermines characterizing the child pornography surcharge

as punishment.

v. Does the surcharge apply to conduct already a crime?
¶38 Both the State and Schmidt agree that the surcharge

applies to conduct that was already a crime: convictions for

sexual exploitation of a child and possession of child

pornography. This suggests that "the surcharge has the effect

of punishing criminal behavior." Scruggs, 373 Wis. 2d 312, ¶43.

Accordingly, this factor weighs in favor of characterizing the

surcharge as punishment. However, the factors are only

guideposts and no one factor is dispositive. Smith, 538 U.S. at

97.

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 No. 2020AP616-CR

vi. Is the surcharge rationally connected to an
alternative purpose?
¶39 "The existence of an alternative non-punitive purpose

for a sanction is considered 'the most significant factor' in

determining whether the effect of a sanction is punitive."

Muldrow, 381 Wis. 2d 492, ¶57. Both the State and Schmidt agree

that the child pornography surcharge serves two alternative non-

punitive purposes: (1) funding investigations of sexual

exploitation of children and possession of child pornography,

and (2) providing grants to eligible public agencies or

nonprofit organizations that provide counseling services to

victims of sexual assault. Wis. Stat. § 20.455(5)(gj). While

Schmidt agrees that the child pornography surcharge has these

alternative purposes, he contends that assessing the child

pornography surcharge based on the number of images of child

pornography is not rationally related to the alternative

purposes because "it makes little sense that the costs of a

child pornography investigation will increase at a rate of $500

per individual [image]."
¶40 Even if Schmidt's assertion were correct——for which he

provides no support or citation——"[a] statute is not deemed

punitive simply because it lacks a close or perfect fit with the

nonpunitive aims it seeks to advance." Smith, 538 U.S. at 103.

Schmidt's alleged imprecision "does not suggest that the [child

pornography surcharge's] nonpunitive purpose is a 'sham or mere

pretext.'" Id. (quoting Hendricks, 521 U.S. at 371 (Kennedy,
J., concurring)). "[I]t is altogether rational to assess a fee

19
 No. 2020AP616-CR

aimed at solving crimes against those who commit them . . . ."

Williams, 381 Wis. 2d 661, ¶38 (quoted source omitted). Because

the child pornography surcharge is used to fund investigations

of sexual exploitation of children and possession of child

pornography, the child pornography surcharge is rationally

related to its alternative purpose of defraying investigation

costs.

¶41 Moreover, Schmidt's assertion ignores the other

purpose for which the $500 is earmarked——providing grants for

counseling services to victims of sexual assault. As

distribution of child pornography "is intrinsically related to

the sexual abuse of children," United States v. Stevens, 559

U.S. 460, 471 (2010), the counseling services that the child

pornography surcharge funds will assist the victims of child

pornography. Thus, the child pornography surcharge is also

rationally related to this non-punitive purpose.

¶42 Accordingly, the child pornography surcharge is

rationally connected to alternative non-punitive purposes;
namely, funding investigations of sexual exploitation of

children and possession of child pornography and providing

grants to eligible public agencies or nonprofit organizations

that provide counseling services to victims of sexual assault.

As such, this factor weighs against characterizing the child

pornography surcharge as punishment.

20
 No. 2020AP616-CR

vii. Is the surcharge excessive in relation to the
alternative purpose?
¶43 "To determine whether the surcharge is excessive in

relation to its non-punitive purpose, we must compare the amount

of the surcharge with the overall expenses the State incurs

because of the charged population's conduct." Williams, 381

Wis. 2d 661, ¶39. "The surcharge must be 'grossly

disproportionate to the annual cost' to prove it is excessive."

Id. (quoting Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir.

2014)). "We examine not 'whether the legislature has made the

best choice possible to address the problem it seeks to remedy,'

but 'whether the regulatory means chosen are reasonable.'" Id.

(quoting Smith, 538 U.S. at 105).

¶44 Under this standard, we are not convinced the

surcharge is excessive in relation to its non-punitive purposes.

Schmidt argues that because the impact on an individual

defendant may exceed millions of dollars of liability, the child

pornography surcharge is punitive in nature. However, the child

pornography surcharge imposes $500 of liability per image.
Schmidt and the State agree that the cost that child pornography

imposes on society and victims is high. The money generated

from the child pornography surcharge is specifically earmarked

to alleviate those costs to society (via investigations) and to

the victims (via grants for counseling services). See Wis.

21
 No. 2020AP616-CR

Stat. § 20.455(5)(gj).8 The high cost of counseling for an

individual victim can easily exceed the $500 amount of the child

pornography surcharge. See, e.g., Paroline v. United States,

572 U.S. 434, 441 (2014) (addressing a child pornography

victim's claim for $500,000 in future treatment and counseling

costs for the defendant possessing two images depicting the

victim). Similarly, the cost of investigating sexual

exploitation of a child and possession of child pornography is

expensive, especially as the technology for sharing and storing

child pornography increases in complexity and sophistication.9

¶45 When we consider the high cost of counseling for

victims and the high cost to investigate child pornography, we

are not convinced that the $500 child pornography surcharge per

image of child pornography is excessive in relation to its non-

punitive purposes. As such, this factor militates against

characterizing the child pornography surcharge as punishment.

8The child pornography surcharge generated an estimated
$215,500 in 2018-19, of which $181,300 went to grants for
counseling services for victims of sexual assault. See
Legislative Fiscal Bureau Informational Paper #59, Crime Victim
and Witness Services 10 (January 2019),
https://docs.legis.wisconsin.gov/misc/lfb/informational_papers/j
anuary_2019/0059_crime_victim_and_witness_services_informational
_paper_59.pdf.
9See Internet Crimes Against Children Task Force, Priority
Needs For Our Top Priority: Kids 14-16 (May 3, 2007),
https://www.doj.state.wi.us/sites/default/files/2007-news/icac-
report.pdf (approximating costs to investigate internet crimes
against children and estimating cost to investigate "all known
IP addresses offering to share child pornography in Wisconsin"
to be $82,888,395 in 2007).

22
 No. 2020AP616-CR

3. Summary

¶46 In sum, we conclude that the child pornography

surcharge does not constitute punishment. Our application of

the intent-effects test demonstrates that the primary function

of the child pornography surcharge statute is not punitive nor

is the child pornography surcharge punitive in effect. The text

of Wis. Stat. § 973.042 does not evidence that the child

pornography surcharge statute's primary function is punitive,

and our review of the Mendoza-Martinez factors demonstrates that

all but one factor——application to conduct already a crime——

weigh in favor of our determination that the child pornography

surcharge is not punitive in effect. Because of our conclusion

that the child pornography surcharge is not punitive, the

circuit court did not need to inform Schmidt of the child

pornography surcharge during the plea colloquy. See Fugere, 386

Wis. 2d 76, ¶20. Consequently, the circuit court did not err

when it denied Schmidt's postconviction motion to withdraw his

guilty plea.

B. The Child Pornography Surcharge Applies to Images
of Child Pornography that Form the Basis of Read-in Charges.
¶47 Having determined that Schmidt was not entitled to

withdraw his guilty plea, we now turn to his alternative

argument that we should vacate part of the child pornography

surcharge that the circuit court imposed. Wisconsin Stat.

§ 973.042 sets forth when a circuit court imposes a child

pornography surcharge, which we repeat for context:

23
 No. 2020AP616-CR

If a court imposes a sentence or places a person on
probation for a crime under [§§] 948.05 or 948.12[,]
the court shall impose a child pornography surcharge
of $500 for each image or each copy of an image
associated with the crime. The court shall determine
the number of images or copies of images associated
with the crime by a preponderance of the evidence and
without a jury.
§ 973.042(2) (emphasis added).

¶48 Schmidt argues that the circuit court could impose the

child pornography surcharge only for the six images that formed

the basis of his convictions, not for the eight additional

images that formed the basis of the charges that were read-in at

sentencing. To address Schmidt's argument, we interpret the

language of the child pornography surcharge statute and conclude

that a circuit court must impose the child pornography surcharge

for images of child pornography that form the basis of read-in

charges of sexual exploitation of a child or possession of child

pornography.

¶49 While the statute imposes mandatory language on the

circuit court, the circuit court determined that only the 14

images that formed the basis of the charges were associated with

Schmidt's possession of child pornography. Consequently, we do

not need to address, and we do not address in this case, whether

the circuit court must impose the child pornography surcharge

for images of child pornography that were not charged.

¶50 "[T]he purpose of statutory interpretation is to

determine what the statute means so that it may be given its

full, proper, and intended effect." Kalal, 271 Wis. 2d 633,
¶44. To do so, we begin with the plain language of the statute,

24
 No. 2020AP616-CR

stopping our inquiry there if the meaning of the statute is

clear. Id., ¶45. When interpreting the language of a statute,

the words are given their "common, ordinary, and accepted

meaning, except that technical or specially-defined words or

phrases are given their technical or special definitional

meaning." Id. Determining the common, ordinary, and accepted

meaning of a word can be "acertain[ed] by reference to the

dictionary definition." Id., ¶53.

¶51 Also essential in a plain meaning analysis is the

context and structure of the statute in which the operative

language appears. Id., ¶46. "[S]tatutory language is

interpreted in the context in which it is used; not in isolation

but as part of a whole; in relation to the language of

surrounding or closely-related statutes; and reasonably, to

avoid absurd or unreasonable results." Id. Moreover,

"[s]tatutory language is read where possible to give reasonable

effect to every word, in order to avoid surplusage." Id. "If

this process of analysis yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied

according to this ascertainment of its meaning," and we do not

need to consult extrinsic sources. Id. (quoted source omitted)

¶52 Turning to the facts of this case, the circuit court

imposed the child pornography surcharge for the 14 images of

child pornography charged. Schmidt concedes that he is liable

for the surcharge for the six images of child pornography that

formed the bases for his six convictions of possession of child
pornography. With respect to the other eight images of child
25
 No. 2020AP616-CR

pornography that formed the basis of the dismissed and read-in

charges, Schmidt and the State disagree solely about whether

those images were "associated with the crime" as that phrase is

used in Wis. Stat. § 973.042(2). Thus, we must determine the

plain meaning of the phrase "associated with the crime" before

determining whether the circuit court must impose the child

pornography surcharge for images of child pornography that form

the basis of read-in charges of sexual exploitation of a child

or possession of child pornography.10

¶53 As the term is used in Wis. Stat. § 973.042(2), to

associate is "to connect or bring into relation, as thought,

feeling, memory, etc."11 Random House Unabridged Dictionary 126

(2d ed. 1983). Beyond the definition of associate, we must also

10Before imposing a child pornography surcharge, the
circuit court must "determine the number of images or copies of
images associated with the crime by a preponderance of the
evidence and without a jury." Wis. Stat. § 973.042(2). After
determining by a preponderance of the evidence the number of
images associated with the crime, the circuit court must impose
the child pornography surcharge for those images of child
pornography. Id. Here, the parties do not dispute that the
circuit court found by a preponderance of the evidence that the
14 images of child pornography charged were associated with the
crime of possession of child pornography.
11This dictionary's definition is consistent with the
definition of "Associate" from other dictionaries. See, e.g.,
Webster's Third New International Dictionary 132 (1986) ("to
join or connect in any of various intangible or unspecified
ways"); The American Heritage Dictionary of the English
Language 112 (3d ed. 1992) ("To connect in the mind or
imagination"); Oxford English Dictionary, https://www.oed.com/
view/Entry/11976?rskey=2n1wss&result=2&isAdvanced=false#eid
("Connected in thought, mentally related").

26
 No. 2020AP616-CR

determine what "the crime" means as used in § 973.042(2). A

straightforward reading of § 973.042(2) indicates that "the

crime" refers to the offenses of conviction previously mentioned

in the sentence, namely, sexual exploitation of a child and

possession of child pornography. See § 973.042(2) (requiring

that circuit court impose the child pornography surcharge "[i]f

a court imposes a sentence or places a person on probation for a

crime under [§§] 948.05 or 948.12"); Paroline, 572 U.S. at 445

(explaining that the use of the term "a crime" refers to the

"offense of conviction"). So a child pornography surcharge must

be imposed for an image of child pornography if that image is

connected or brought into relation with the convicted

individual's offense of sexual exploitation of a child or

possession of child pornography.

¶54 Applying this understanding of "associated with the

crime," it is clear that a circuit court must impose the child

pornography surcharge for images of child pornography that form

the basis of read-in charges of sexual exploitation of a child
or possession of child pornography. Those images of child

pornography are specifically connected to and brought into

relation with the convicted individual's offense of either

sexual exploitation of a child or possession of child

pornography because those images of child pornography that form

the basis of read-in charges of sexual exploitation of a child

or possession of child pornography can be considered for

restitution or as a factor at sentencing for the crime. See
State v. Sulla, 2016 WI 46, ¶44, 369 Wis. 2d 225, 880 N.W.2d 659
27
 No. 2020AP616-CR

(explaining effect of read-in charges). As such, images of

child pornography that form the basis of read-in charges of

sexual exploitation of a child or possession of child

pornography are sufficiently related to the offenses of sexual

exploitation of a child or possession of child pornography for a

circuit court to impose the child pornography surcharge for

those images of child pornography that form the basis of read-in

charges of sexual exploitation of a child or possession of child

pornography.

¶55 Moreover, the facts of this case demonstrate that the

images of child pornography that formed the basis of Schmidt's

read-in charges of possession of child pornography were

connected to and brought into relation with Schmidt's offense of

possession of child pornography. The images that formed the

basis of Schmidt's read-in charges were collected at the same

time and found on the same devices as the images that formed the

basis of Schmidt's conviction of possession of child

pornography. Such a connection between the images of child
pornography that formed the basis of Schmidt's read-in charges

of possession of child pornography and Schmidt's offense of

possession of child pornography was sufficient for the circuit

court to impose the child pornography surcharge for those images

of child pornography that formed the basis of Schmidt's read-in

charges of possession of child pornography.

¶56 Schmidt argues that this reading is incorrect for two

reasons. First, he asserts that this reading renders
superfluous part of the statute——specifically, "if a court
28
 No. 2020AP616-CR

imposes a sentence or places on probation for a crime under

[§§] 948.05 or 948.12"——so Schmidt contends that the child

pornography surcharge must apply only to images of child

pornography that form the basis of actual convictions for the

crime (hereinafter "per conviction basis"). Second, he asserts

that the child pornography surcharge statute does not include a

specific provision for read-in charges, as it does in other

statutes. We disagree with both arguments.

¶57 The plain language of the child pornography surcharge

statute reveals that it does not apply on a per conviction

basis. The circuit court must impose the surcharge for each

image of child pornography "associated with the crime." Wis.

Stat. § 973.042(2). As explained above, "associated with the

crime" refers to a connection or relation to the convicted

individual's offense of sexual exploitation of a child or

possession of child pornography, which is broader than the

individual's conviction for either of those crimes. Moreover,

several other surcharge statutes use the per conviction
formulation. See, e.g., § 973.043(1) (imposing a drug offender

diversion surcharge "for each conviction"); § 973.045(1)

(imposing a crime victim and witness assistance surcharge for

each count "on which a conviction occurred"); § 973.046(1r)

(imposing a DNA analysis surcharge "for each conviction").

Despite the common usage of "conviction" as the basis for a

surcharge, the child pornography surcharge does not include that

formulation. See Wis. Stat. § 973.042(2). Such different
language shows that the child pornography surcharge was not
29
 No. 2020AP616-CR

meant to apply on a per conviction basis as Schmidt argues. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 170 (2012) (explaining the

Presumption of Consistent Usage canon of construction, which in

part dictates that "a material variation in terms suggests a

variation in meaning"); Estate of Miller v. Storey, 2017 WI 99,

¶35 n.14, 378 Wis. 2d 358, 903 N.W.2d 759 (same).

¶58 Additionally, Schmidt asserts that the child

pornography statute cannot apply to images of child pornography

that form the basis of read-in charges of sexual exploitation of

a child or possession of child pornography because the child

pornography surcharge statute does not specifically include or

refer to read-in charges. The restitution statute, Wis. Stat.

§ 973.20, specifically requires restitution be paid to victims

of read-in crimes.12 While the language in the restitution

statute is similar to the language of the child pornography

surcharge statute, the child pornography statute is not imposed

Pursuant to Wis. Stat. § 973.20(1r), the circuit court
12

"shall order [a] defendant to make full or partial restitution
under this section to any victim of a crime considered at
sentencing." A "[c]rime considered at sentencing" includes "any
read-in crime." § 973.20(1g)(a). A "read-in crime" is

any crime that is uncharged or that is dismissed as
part of a plea agreement, that the defendant agrees to
be considered by the court at the time of sentencing
and that the court considers at the time of sentencing
the defendant for the crime for which the defendant
was convicted.

§ 973.20(1g)(b).

30
 No. 2020AP616-CR

for the crime itself or for charges of the crime, as the

restitution statute requires; rather, the child pornography

statute is imposed on a per image basis instead of based on the

crime itself. Compare § 973.20 (requiring restitution for any

crime for which the defendant was convicted and any read-in

crime) and § 973.042(2) (requiring the child pornography

surcharge for "each image or each copy of an image associated

with the crime"). Multiple images of child pornography may be

part of a conviction for a singular count of possession of child

pornography. See Paroline, 572 U.S. at 441 (requiring

restitution for a victim of child pornography despite the images

of child pornography depicting the victim not forming the basis

of the conviction).

¶59 Limiting the language of the child pornography

surcharge statute as strictly as Schmidt proposes would render

the surcharge effectively a per conviction surcharge, which, as

we explained above, is an improper reading of the child

pornography surcharge statute. Instead, the child pornography
surcharge applies for every image of child pornography

associated with the convicted individual's sexual exploitation

of a child or possession of child pornography regardless of

whether those images form the basis of either a convicted charge

or a read-in charge.

¶60 Accordingly, we also conclude that the child

pornography surcharge applies to images of child pornography

that 0 basis of read-in charges of sexual exploitation of a
child or possession of child pornography, so long as those
31
 No. 2020AP616-CR

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.

Here, the circuit court applied the child pornography surcharge

to images of child pornography that were connected to Schmidt's

offense of possession of child pornography by the nature of

those images forming the basis of Schmidt's read-in charges of

possession of child pornography. Accordingly, we affirm the

circuit court's determination and imposition of the child

pornography surcharge for the images of child pornography that

formed the basis of Schmidt's read-in charges of possession of

child pornography.

IV. CONCLUSION

¶61 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

32
 No. 2020AP616-CR

surcharge for 14 images of child pornography, and the order that

denied plea withdrawal.

By the Court.—The judgment and order of the circuit court

are affirmed.

33
 No. 2020AP616-CR.pdr

¶62 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join

the majority opinion and write in concurrence to emphasize that

the majority opinion affirms and employs those principles of

statutory interpretation mandated in Kalal v. Circuit Court for

Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110,

throughout its statutory analysis. That the majority opinion

follows Kalal while interpreting Wis. Stat. § 973.042(2) and

applying a process known as the "intent-effects test" to

determine whether the statutory surcharge is punitive, is

important to the scholarship of our jurisprudence.

¶63 For years, we interpreted statutes by attempting to

determine the intent of the legislature. Id., ¶38. At the same

time, we, and other courts, held that a court must presume that

statutory meaning is derived through the words that the

legislature chose. Id., ¶39. In Kalal, we settled that

conflict by holding, "It is the enacted law, not the unenacted

intent, that is binding on the public. Therefore, the purpose

of statutory interpretation is to determine what the statute

means." Id., ¶44.

¶64 Given our agreed upon focus, we provided a general

structure for determining statutory meaning. We began with the

"language of the statute." Id., ¶45. We gave words chosen by

the legislature their common meaning unless they were technical

or specially-defined words. Id. "If the meaning of the statute

[was] plain, we ordinarily [stopped] the inquiry." Id. We

explained that "[c]ontext is important to meaning." Id., ¶46.
Furthermore, unless the words chosen by the legislature created

1
 No. 2020AP616-CR.pdr

an ambiguous statute, we concluded our analysis with the plain

meaning of the words chosen. Id. However, statutory ambiguity

moved us into additional aids in determining statutory meaning.

Id., ¶¶47–49.

¶65 Statutory interpretation in the matter before us

creates a special challenge that we not slide backwards into

interpreting Wis. Stat. § 973.042(2) by determining the intent

of the legislature. It is especially challenging here because

we employ a process, which the United States Supreme Court named

the "intent-effects test," to determine whether § 973.042(2) is

punitive.1

¶66 The majority opinion meets this challenge by

interpreting the "intent" part of the test as requiring us to

determine the statute's "primary function," "as expressed in the

plain text of the statute."2 As the majority opinion explains,

"[i]f the statute's primary function is not punitive," we then

turn to the "effects" part of the test.3

¶67 This methodology is faithful to our mandate in Kalal.

I would have renamed the intent-effects test for use in

Wisconsin as the "primary function-effects test" so that future

courts faced with determining whether a statute is punitive

would have immediate direction on the manner in which that

1 Majority op., ¶22.
2 Id., ¶23.
3 Id.

2
 No. 2020AP616-CR.pdr

determination is made. A majority of the court decided not to

do so.

¶68 Therefore, I write in concurrence with the hope that

this writing will be of assistance in regard to future analyses

and applications of the intent-effects test. Accordingly, I

respectfully concur.

¶69 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.

3
 No. 2020AP616-CR.bh

¶70 BRIAN HAGEDORN, J. (concurring in part, dissenting

in part). Anthony M. Schmidt pled guilty to six counts of

possession of child pornography, each conviction based on one

image. The circuit court correctly imposed a $500 child

pornography surcharge for each of these six images. However, it

also imposed child pornography surcharges for eight images

associated with eight separate counts of possession of child

pornography that were dismissed as part of the plea and read in

at sentencing. While I agree with the majority that the circuit

court did not err by failing to advise Schmidt of these

surcharges when he entered his plea,1 the majority erroneously

upholds surcharges for images beyond those "associated with the

crime" for which sentence was imposed, which is all that Wis.

Stat. § 973.042(2) (2019-20)2 authorizes. Because the majority

misreads the law, I respectfully dissent to this conclusion.

¶71 We begin, as we should, with the statute's text:

If a court imposes a sentence or places a person on
probation for a crime under [Wis. Stat. §§] 948.05 or
948.12 and the person was at least 18 years of age
when the crime was committed, the court shall impose a
child pornography surcharge of $500 for each image or
each copy of an image associated with the crime. The
court shall determine the number of images or copies
of images associated with the crime by a preponderance
of the evidence and without a jury.

1 I join Parts I, II, and III.A. of the majority opinion.

All subsequent references to the Wisconsin Statutes are to
2

the 2019-20 version.

1
 No. 2020AP616-CR.bh

Wis. Stat. § 973.042(2).3 This statutory language contains a

statement establishing two conditions, followed by mandatory

duties arising from the satisfaction of the conditions.

¶72 The two conditions triggering a child pornography

surcharge are: (1) the court must impose a sentence or place a

person on probation for committing certain crimes; and (2) the

person must have been at least 18 years old when the crime was

committed. The second condition is not at issue here, but the

first is. The crimes for which a surcharge must be assessed

(provided a sentence or probation is imposed) are those under

Wis. Stat. §§ 948.05 and 948.12. Both are located in a chapter

that defines various crimes against children.

¶73 Wisconsin Stat. § 948.12 criminalizes possession of

child pornography. This can include possessing, accessing,

exhibiting, or playing recordings of a child engaged in sexually

explicit conduct. § 948.12(1m), (2m). Although each individual

photograph may be charged as a separate crime,4 nothing in this

statute requires that each image must be separately charged. We

see this in State v. Van Buren, where the defendant was

convicted of a single charge of possession of child pornography

even though over 51,000 images were found on his computer and

multiple photographs were introduced to support the lone charge.

3"In this section, 'image' includes a video recording, a
visual representation, a positive or negative image on exposed
film, and data representing a visual image." Wis. Stat.
§ 973.042(1).
4See State v. Multaler, 2002 WI 35, ¶64, 252 Wis. 2d 54,
643 N.W.2d 437.

2
 No. 2020AP616-CR.bh

2008 WI App 26, ¶¶1, 4, 14, 307 Wis. 2d 447, 746 N.W.2d 545. So

while possession of child pornography may be charged on a one-

image, one-crime basis as it was here, the law does not require

it.

¶74 The second statute defining crimes that can trigger

the child pornography surcharge is Wis. Stat. § 948.05, which

criminalizes sexual exploitation of a child. This can take the

form of employing, using, persuading, inducing, enticing, or

coercing a "child to engage in sexually explicit conduct for the

purpose of recording or displaying" the conduct.

§ 948.05(1)(a). It can also be violated by recording or

displaying a child engaging in such conduct. § 948.05(1)(b).

And one can commit a crime under this section by producing,

performing in, profiting from, promoting, importing,

reproducing, advertising, selling, distributing, or possessing

with intent to sell or distribute "any recording of a child

engaging in sexually explicit conduct." § 948.05(1m). Further,

if someone responsible for the child's welfare "knowingly

permits, allows, or encourages" a child to engage in recorded

sexual conduct, they too can be charged under this section.

§ 948.05(2). This scope of behavior is broad, and importantly

for our purposes, the crimes are not necessarily one-image

offenses. For example, a person could be charged and convicted

of one count of sexual exploitation of a child under Wis. Stat.

§ 948.05(1m) for selling a hard drive containing various

pictures and videos depicting a child engaging in sexual acts.
The important takeaway is that one conviction under the various

3
 No. 2020AP616-CR.bh

crimes itemized in § 948.05 can involve multiple images for a

single conviction.

¶75 When a defendant is over 18 and receives a sentence or

probation following conviction under Wis. Stat. §§ 948.05 or

948.12, the conditions are satisfied and "the court shall impose

a child pornography surcharge of $500 for each image or each

copy of an image associated with the crime." Wis. Stat.

§ 973.042(2). This phrase reveals three key principles.

¶76 First, the surcharge "shall" be imposed; it is

mandatory. State v. Cox, 2018 WI 67, ¶11, 382 Wis. 2d 338, 913

N.W.2d 780 ("The general rule is that the word 'shall' is

presumed mandatory when it appears in a statute." (quoting

another source)). The statute leaves the court no room to

refuse to impose surcharges, or to impose a smaller surcharge if

the fine becomes onerous. Each image associated with the crime

must result in a $500 surcharge without exception.

¶77 Second, the surcharge is assessed per image, not per

conviction. This reflects that a single conviction under the

relevant sections can involve multiple images of child

pornography. Since the surcharge must be assessed for every

image associated with the conviction, the statute provides a

mechanism to count the number of images. The final sentence of

Wis. Stat. § 973.042(2) provides: "The court shall determine

the number of images or copies of images associated with the

crime by a preponderance of the evidence and without a jury."

Consider again a one-count conviction under Wis. Stat.
§ 948.05(1m) for selling a hard drive containing various

4
 No. 2020AP616-CR.bh

pictures and videos depicting a child engaging in sexual acts.

Under the law, the court's job is to determine how many

individual images were on the hard drive and impose the

surcharge for each image. If the hard drive contained ten

images, the surcharge for the lone conviction would be $5,000

($500 per image). The court's inquiry is a factual one.

¶78 Third, the surcharge must be assessed only for images

"associated with the crime." Critically, the statute ties the

images to "the crime"——not a crime that could have been charged

but wasn't, or a related crime, or a charged but dismissed

crime, but the crime. Which one? The crime mentioned in the

beginning of the section——the crime for which the court "imposes

a sentence or places a person on probation." Wis. Stat.

§ 973.042(2). The phrase "associated with" is not an invitation

to the court to sweep in images unrelated to the specific crime

for which a sentence or probation is imposed under either Wis.

Stat. §§ 948.05 or 948.12. The legislature, understanding that

the crimes triggering a surcharge can involve multiple images,

used the phrase "associated with" to clarify that the surcharge

must be assessed per image, not per conviction.

¶79 Related statutes reinforce this plain reading.5 Four

other surcharge statutes immediately following the child

5State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110 ("A statute's
purpose or scope may be readily apparent from its plain language
or its relationship to surrounding or closely-related statutes——
that is, from its context or the structure of the statute as a
coherent whole.").

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pornography surcharge in Chapter 973 begin the same way: "If a

court imposes a sentence or places a person on probation." See

Wis. Stat. §§ 973.042(2); 973.043(1); 973.045(1); 973.0455(1);

973.046(1r). The drug offender diversion surcharge assesses

"$10 for each conviction." § 973.043(1). Similarly, the crime

prevention funding board surcharge is "calculated by adding up,

for each misdemeanor or felony count on which a conviction

occurred, $20." § 973.0455(1). The crime victim and witness

assistance surcharge imposes a total surcharge based on adding

the number of felony counts ($92 per felony) and misdemeanor

counts ($67 per misdemeanor) "on which a conviction occurred."

§ 973.045(1). Finally, the deoxyribonucleic acid analysis

surcharge is calculated as $250 for "each conviction" of a

felony and $200 for "each conviction" of a misdemeanor.

§ 973.046(1r). Unlike the per-conviction surcharges in these

neighboring statutes, the child pornography surcharge focuses on

images "associated with the crime."

¶80 But that's not all. The restitution statute, also

located in Chapter 973, provides a vital contextual clue. When

ordering restitution, the circuit court does not look merely at

the crime a defendant was convicted of. Rather, the statute

creates a broader technical phrase called the "Crime considered

at sentencing." Wis. Stat. § 973.20(1g)(a). This phrase is

defined to mean "any crime for which the defendant was convicted

and any read-in crime." Id. And read-in crime

means any crime that is uncharged or that is dismissed
as part of a plea agreement, that the defendant agrees
to be considered by the court at the time of
sentencing and that the court considers at the time of
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sentencing the defendant for the crime for which the
defendant was convicted.
§ 973.20(1g)(b).

¶81 The legislature expressly incorporated read-in counts

for restitution, but it made no reference to read-in charges in

Wis. Stat. § 973.042(2). If the legislature had meant to

include images associated with read-in charges here, it surely

could have, and likely would have, used language similar to the

restitution statute.6 The restitution statute's direct reference

to read-in crimes buttresses the conclusion that images

associated with read-in crimes should not be subject to the $500

child pornography surcharge.

¶82 This statutory context demonstrates that the surcharge

does not apply to images associated only with read-in crimes,

nor is it assessed on a per-conviction basis. Faced with this

evidence, the majority chooses to read "associated with the

crime" as a vague phrase that could encompass just about any

image a judge might wish to include, so long as the images have

some ill-defined connection to a conviction for possession of
child pornography or sexual exploitation of a child. It frames

its rule as follows: "So a child pornography surcharge must be

imposed for an image of child pornography if that image is

connected or brought into relation with the convicted

individual's offense of sexual exploitation of a child or

possession of child pornography." Majority op., ¶53. What does

The same definition is also found in Wis. Stat. § 973.049,
6

which applies to restrictions on contact during sentencing. See
Wis. Stat. § 973.049(1)(b).

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this include? I'm not sure. The majority isn't quite sure

either and limits its analysis to the facts of this case. Id.,

¶49. But the majority expands the child pornography surcharge's

reach to images beyond those connected to the crime itself, and

nothing in its rule offers discernable boundaries separating

images that must be included from those that must be excluded.

The majority reframes the statute to reach an open-ended group

of images for which the circuit court must——again, the surcharge

is not optional——count and assess the surcharge. This is not

what the law requires.

¶83 The far more reasonable reading of the law is that the

legislature chose to assess a surcharge only for those images

connected with the specific crime under Wis. Stat. §§ 948.05 or

948.12 for which a sentence or probation is imposed. That is

the language the statute uses, and it makes sense. This does

not include images related to crimes for which a defendant has

not been found guilty, whether read-in charges or images

discovered during the investigation but not associated with the

crime of conviction itself. This limits the images to a known

and discernable set——namely, those associated with the specific

crime of conviction, evidence a court can readily examine to

determine how many images were associated with each conviction.7

While the text is sufficient to resolve the interpretive
7

inquiry on its own, legislative history confirms this reading.
See Kalal, 271 Wis. 2d 633, ¶51. The drafting file for the
legislation that created Wis. Stat. § 973.042(2) contains an
email exchange between a Legislative Reference Bureau (LRB)
drafter and a legislative aide preparing the bill. The
correspondence contains a discussion about how to count the
number of images assessed under § 973.042(2)'s per-image
(continued)
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¶84 In sum, the text and statutory context reveal that the

surcharge applies to images associated with the crime for which

sentence or probation is imposed. The surcharge does not apply

to images associated only with charges dropped and read in as

part of a plea, or to images collected in the investigation, or

to images that might be captured by the majority's nebulous,

surcharge. The LRB drafter explained his understanding as
follows:

I assume that the surcharge should also apply to
crimes under [Wis. Stat. §] 948.05 (which covers the
creation of child pornography——as well as parents who
allow children to participate in the making of child
pornography). In those cases, should I link the
surcharge to the number of copies that are produced,
distributed...? Obviously a producer or distributor
has control over the number of copies that are
produced and distributed. Counting becomes difficult
for cases under [§] 948.05(3) (allowing a child to
participate) or for cases in which the person is
charged is an employee of a distributor. One option
is to just specify that the surcharge is imposed for
each copy of the image associated with the offense and
let the court determine whether a particular copy is
"associated with" the offense in question.

Drafting File, 2005 A.B. 942, Legislative Reference Bureau,
Madison, Wis. The aide replied that this was what the
legislator wanted. Id.

This drafting confirms the most straightforward reading of
the text. The drafters chose their words to assess the per-
image surcharge solely for the images that form the basis for
the crime the defendant is convicted of ("the offense in
question"), not images related to the investigation or to
dismissed charges. And the drafting difficulty was in crafting
language that would encompass some crimes where the number of
images connected to a specific count would be difficult to
determine——particularly those under Wis. Stat. § 948.05. The
resolution? A surcharge for each image "associated with the
crime," with the court determining this factual question.

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open-ended approach. Applying these principles here means that

the circuit court should have assessed the child pornography

surcharge for only the six images tied to the six counts Schmidt

pled guilty to and for which the circuit court imposed a

sentence. Schmidt should not have been assessed a $500 child

pornography surcharge for each of the eight images tied to the

eight counts read in at sentencing because these images were not

"associated with the crime[s]" for which Schmidt was sentenced.

¶85 While I join the majority's conclusion that the

circuit court did not err by failing to advise Schmidt of these

surcharges when he entered his plea, I respectfully dissent from

its flawed interpretation and application of Wis. Stat.

§ 973.042.

¶86 I am authorized to state that Justices ANN WALSH

BRADLEY and REBECCA FRANK DALLET join this concurrence/dissent.

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