State v. Ziller
State v. Ziller
Opinion of the Court
¶ 1. Michael T. Ziller appeals from a judgment of conviction and an order denying his motion for postconviction relief. Ziller argues that the circuit court failed to exercise its sentencing discretion when it did not expressly assess Ziller's ability to pay a $250 DNA surcharge. According to Ziller, our decision in State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, requires circuit courts to explain their reasons for imposing a $250 DNA surcharge. Ziller does not object to his nine-year bifurcated sentence or the requirement that he pay his victims roughly $10,000 in restitution as a result of his slashing a tire and stabbing someone in the neck. Ziller instead argues that Cherry requires a circuit court to explicitly state whether the defendant has the ability to pay the $250 DNA surcharge.
¶ 2. Ziller is wrong. Cherry does not require a circuit court to use any "magic words." The decision to impose a DNA surcharge in this case fell within the circuit court's sentencing discretion and the court properly exercised its discretion in imposing the surcharge. We affirm Ziller's conviction and the order denying his motion for postconviction relief.
¶ 3. Ziller was thrown out of a bar for being drunk. Upon leaving the bar, Ziller slashed the tire of a car in the bar's parking lot. When the owner of the car came out to the parking lot, she told Ziller that he would have to pay her for a new tire. Ziller responded by pushing the owner of the car. Steven Fisher came to the aid of the owner and Ziller stabbed Fisher in the neck with a knife. When Ziller was ordered to the ground by a police officer, he lunged at the officer and was tased.
¶ 4. Ziller was charged with first-degree reckless endangerment, obstructing an officer, and criminal damage to property. Cash bail of $2500 was posted. Ziller reached a plea bargain and pled no contest to the reckless endangerment charge in return for dismissal of the remaining charges.
¶ 5. The sentencing transcript reflects that the circuit court was informed that Ziller's only prior criminal conviction was a misdemeanor second offense OWI, that he had never been on probation, that he has a high school diploma, and that he had previously held different jobs. Ziller addressed the court, stating "I take full responsibility for what happened .... I want to make things right with the victims as soon as I can."
¶ 6. The circuit court went through the primary sentencing factors (the gravity of the offense, character of the defendant, and the need to protect the public)
¶ 7. Ziller filed a motion for postconviction relief, arguing that the circuit court abused its discretion in imposing a $250 DNA surcharge without first determining whether he had the ability to pay it. The circuit court denied the postconviction motion and we affirm.
STANDARD OF REVIEW
¶ 8. Ziller's appeal requires us to review Wis. Stat. § 973.046(lg) and the circuit court's exercise of its
DISCUSSION
¶ 9. All defendants convicted of a felony are required to provide a DNA sample to the State Crime Laboratory. Wis. Stat. § 973.047(lf). As this was the first time Ziller was convicted of a felony, he was required to submit a DNA sample. When the defendant's felony is for certain classes of sexual assault, the circuit court must impose a $250 surcharge on the defendant. Wis. Stat. § 973.046(1r). For all other felonies, the circuit court has discretion in determining whether to impose the $250 surcharge. Section 973.046(lg). As Ziller was convicted of a nonsexual assault felony, the circuit court's decision to impose a surcharge upon him was discretionary.
¶ 10. In Cherry, we held that a circuit court "must do something more than stat[e] it is imposing the DNA surcharge simply because it can." Cherry, 312 Wis. 2d 203, ¶ 10. The circuit court in that case ordered the
¶ 11. On the basis of our review of the record in this case, we are satisfied that the circuit court properly exercised its discretion in sentencing Ziller. The circuit court considered the three primary sentencing factors and noted them on the record. See State v. Gallion, 2004 WI 42, ¶ 44, 270 Wis. 2d 535, 678 N.W.2d 197. The
¶ 12. If Ziller is asking this court to adopt a rule whereby a circuit court must explicitly describe its reasons for imposing a DNA surcharge, we decline to adopt such a rule. The circuit court is in the best position to examine the relevant sentencing factors in each case. State v. Spears, 227 Wis. 2d 495, 506, ¶ 596 N.W.2d 375 (1999). The burden is therefore on the defendant to show that the sentence is unreasonable, and Ziller has failed to point to any aspect of his sentence that is unreasonable. See State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912 (1998).
¶ 13. While a circuit court must articulate the basis for its sentence, it is not required to use magic words. See Gallion, 270 Wis. 2d 535, ¶ 49. Here, the circuit court considered the primary sentencing factors in reaching its sentencing decision. Given that the court found that Ziller had the ability to pay $10,000 in restitution based on his employability, there was no reason for the court to restate that Ziller had the ability
CONCLUSION
¶ 14. As Ziller points to nothing in the record to indicate that the circuit court's decision to impose the $250 DNA surcharge was unreasonable or unjustifiable, we affirm his conviction and the denial of his motion for postconviction relief.
Judgment and order affirmed.
See State v. Gallion, 2004 WI 42, ¶ 44, 270 Wis. 2d 535, 678 N.W.2d 197.
The circuit court denied the motion as untimely. Ziller contends, however, that he filed the motion within sixty days of receiving the transcripts from the court reporter, as required by Wis. Stat. § 809.30(2)(h) (2009-10). As there is nothing in the record to indicate that Ziller did not file on time, and as the State does not contest Ziller's statement, we assume that the motion was properly filed.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
It is unclear from the facts in Cherry whether the defendant paid for his first DNA sample. Additionally, we note that the State Crime Laboratory needs only one sample per subject. See State v. Jones, 2004 WI App 212, ¶ 2, 277 Wis. 2d 234, 689 N.W.2d 917.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Michael T. Ziller
- Cited By
- 7 cases
- Status
- Published