Plea & Sentencing – Plea Withdrawal

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WI Supreme Court

Case Name: State of Wisconsin v. Anthony M. Schmidt

Case No.: 2021 WI 65

Focus: Plea & Sentencing – Plea Withdrawal

This case is before the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (2019-20). Anthony Schmidt brought this action challenging the Walworth County circuit court’s 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.

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.

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 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.

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 surcharge for 14 images of child pornography, and the order that denied plea withdrawal.

Affirmed

Concur: 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.

Dissent: HAGEDORN, J., filed an opinion concurring in part, and dissenting in part, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

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Derek A Hawkins is Corporate Counsel, at Salesforce.