Postconviction Motion – Surcharge Reduction

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. William C. MacDonald

Case No.: 2020AP605-CR

Officials: Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Focus: Postconviction Motion – Surcharge Reduction

The issue in this appeal is how many images are “associated with” William C. MacDonald’s crime of possession of child pornography for purposes of assessing the statutorily mandated surcharge of $500 per image. See WIS. STAT. § 948.12 (2019-20) (criminalizing possession of child pornography); WIS. STAT. § 973.042(2) (mandating surcharge on images or copies of images “associated with the crime[s]” of possession of child pornography or sexual exploitation of a child) (sometimes referred to in this decision as the surcharge statute). The criminal information charged MacDonald with ten counts of possession of child pornography, each based on a single image, and MacDonald pled no contest to a single charge. Read in for sentencing purposes were the nine dismissed charges and ninety additional uncharged images. The circuit court imposed a total surcharge of $50,000 ($500 for each of the 100 images) and denied MacDonald’s postconviction motion to reduce this total amount.

MacDonald appealed, arguing that the sentencing court should have assessed only $500, the surcharge amount for the single image supporting the single count of conviction. At MacDonald’s request, this appeal was placed on hold pending our supreme court’s decision in State v. Schmidt, 2021 WI 65, ___ Wis. 2d ___, 960 N.W.2d 888, decided on June 18, 2021. The Schmidt court held that the surcharge statute applies not only to images forming the basis of the counts of conviction but also to images forming the basis of read-in charges. Although the court discussed “read-in charges” generally, it also explicitly stated that it “d[id] not address … whether the circuit court must impose the child pornography surcharge for images of child pornography that were not charged.” Id., ¶49. Thus, the court did not address the applicability of the surcharge statute to uncharged read-ins.

Following the issuance of Schmidt, MacDonald conceded in this court that the circuit court properly imposed the statutory surcharge on ten images: the one image forming the basis of the count of conviction and the nine images forming the basis of counts that were charged, dismissed, and read in. MacDonald maintains, however, that Schmidt does not control the remaining question on appeal: whether the circuit court was required to assess the surcharge on the ninety uncharged read-in images. We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are “associated with the crime.” See id., ¶4. On this record, however, it is not evident that the sentencing court determined which, if any, of the ninety uncharged read-in images were in fact associated with the count of conviction. We agree with the State that the circuit court should revisit its ruling in light of Schmidt’s guidance.

Thus, we accept MacDonald’s concession that the circuit court correctly imposed a $5,000 surcharge, corresponding to the ten images that the parties agree are the proper basis for assessment. We reverse, however, the court’s order denying MacDonald’s postconviction motion for surcharge reduction as to the remaining amount. We remand for a determination of whether any of the ninety uncharged and read-in images are associated with the crime of possession of child pornography (the single count of conviction in this case).

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Derek A Hawkins is Corporate Counsel, at Salesforce.