Ability to Pay Case Analysis

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The decision in this case is untenable, and attorneys whose clients receive such a condition of extended supervision should object to the condition, and preserve it for potential review in the Wisconsin Supreme Court.

The most logical interpretation of the statutes is that a sentencing court may not impose a contribution surcharge as a condition of extended supervision period, but may only do so pursuant to sec. 973.06, which requires an ability-to-pay finding.

Section 973.06(1)(a)-(d) and (g) and (h) list numerous costs, fees, and surcharges that a court must impose, regardless of ability to pay.

Subsection (e) provides for fees payable to the public defender, but allows for adjustment based on the defendant’s financial circumstances.

Finally, subsec. (f), at issue in this case, permits a contribution surcharge to nonprofit organizations or law enforcement agencies, but only if the court finds ability to pay it.

As noted, the costs in subsecs. (a)-(d), (g), and (h), are mandatory. A court could not order them to be paid as a condition of extended supervision pursuant to sec. 973.01, because it would be redundant.

It is reasonable to conclude that the Legislature likewise did not intend for surcharges imposed pursuant to subsecs. (e) and (f) to be subject to extended supervision either, but be exclusively imposed pursuant to sec. 973.06.

To hold otherwise — allowing such surcharges as conditions of extended supervision — effectively guts the requirement of subsec. (f) that a defendant must be able to pay before such a surcharge be imposed.

If a court can impose a surcharge in this manner, then imposing a surcharge in the statutorily prescribed manner — first making a finding of ability to pay — is nothing but a waste of judicial resources, when it was intended to be a safeguard.

Other statements in the opinion are simply incorrect statements of the law. The court wrote, “a contribution surcharge … is not itself a sentence or a component of a sentence.”

This is contrary to the holding in State v. Grant, 168 Wis.2d 682, 484 N.W.2d 370, 371 (Ct.App.1992) that “costs are taxable against a defendant as part of the sentence (emphasis added).”

In addition, the court’s endorsement of the circuit court’s speculations regarding future ability to pay is unreasonable.

The circuit court noted that a prisoner can increase his earning capacity by learning job skills and enhancing his education while in prison, or by inheriting some large sum of money.

That may be true for burglars, but defendants sentenced to prison for homicide while driving intoxicated are far more likely to find their job opportunities diminished from what they were before their convictions entering prison. And it is unlikely that many prisoners inherit much money while in prison.

Finally, the safeguard noted by the court — that a defendant may seek to change the conditions of extended supervision pursuant to sec. 302.113, in the event that he is actually, rather than hypothetically unable to pay — is not allowed by the statutes.

The court wrote, “The [circuit] court stated that if unforeseen problems preventing compliance arise after Galvan completes his confinement and is placed on extended supervision, he then could petition for relief … The trial court was correct. Wis. Stat. sec. 302.113(7m)(a) and (e)1. expressly permit an inmate to petition the sentence court to modify any conditions it set within a year of the scheduled date of release to extended supervision.”

However, subsec. (7m)(e)1 does not allow what the court says it does. The defendant in this case received 11 years of initial confinement. Under subsec. (7m)(e)1, he may seek to change the condition during the final year of that confinement, not after he is released and discovers he can’t make payments.

If he could seek a change within the first year after his release, then this would be a meaningful safeguard. A defendant could go to court, show that he found work, is working hard every day, but still can’t afford the surcharge.

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But in the year before release, unless the defendant has become disabled, a defendant will have nothing to present to the court to show that it would be unreasonable to require payment of the surcharge. Inability to pay will be purely hypothetical, rather than actual, just as at the time sentence is imposed.

In fact, the statute expressly prohibits what the court claims it expressly permits. Subsection (7m)(e)2. provides, “A person subject to this section may not petition the court to modify the conditions of extended supervision within one year after the inmate’s release to extended supervision (emphasis added).”

By the time that first year of extended supervision passes, after which Galvan could finally seek modification, he will already be in violation of the condition, if he actually can’t afford to pay (the first payment is due 6 months after release, and thus 6 months before he may petition for modification based on actual financial conditions).

For all these reasons, defense attorneys must vociferously object to contrib
ution surcharges being imposed as conditions of extended supervision, and preserve objections until the Supreme Court has the opportunity to reverse or overrule this decision.

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David Ziemer can be reached by email.