State v. Simonis
State v. Simonis
Opinion of the Court
¶ 1. The sole issue on appeal is whether the circuit court properly exercised its discretion in ordering Jaredt Simonis to pay the DNA analysis surcharge pursuant to Wis. Stat. § 973.046(lg) (2009-10).
BACKGROUND
¶ 2. The complaint filed against Simonis alleged as follows. When officers arrived at the home where Simonis was staying to take him into custody on a pending warrant, Simonis ran from the officers and locked himself in a room. One of the officers could see that he had a rifle, and another officer heard a rifle being loaded. Simonis pointed the rifle at the window in the direction of an officer who was outside. A short time later Simonis fired two rounds toward officers outside, one of which hit a squad car. The officers returned fire, wounding Simonis in the arm. Simonis then came out of the house and was taken into custody.
¶ 3. The State charged Simonis with two counts of first-degree recklessly endangering safety while armed with a dangerous weapon, one count of endangering safety by use of a dangerous weapon with a habitual criminality enhancer, and one count of failure to comply with an officer's attempt to take him into custody, habitual criminality.
¶ 4. Pursuant to a plea agreement, Simonis pled guilty to one count of the reckless endangerment charge and to the count of failure to comply with an officer's attempt to take him into custody, enhanced for habitual criminality. The circuit court accepted the plea and sentenced Simonis to five years of initial confinement and five years of extended supervision on the first count, and to a concurrent sentence of one year and six
Given the seriousness of the offense, I think it would be appropriate for the State to take a DNA sample in the event any such conduct occurs in the future. So he's to provide a DNA sample and pay the costs of that.
¶ 5. Simonis filed a postconviction motion, asking the court to amend the judgment of conviction to remove the $250 DNA analysis surcharge. He argued that the court had not properly exercised its discretion because the identified permissible factors in State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, did not apply and speculation about a future case was not otherwise a permissible factor.
¶ 6. The court denied the motion, concluding that Cherry does not list the exclusive factors for imposing a DNA analysis surcharge and explaining its decision to impose the surcharge. The court viewed Simonis' conduct in shooting out the window in the direction of the officers and hitting a squad car as "reprehensible" and "extreme." If he would do that, the court reasoned,
then I don't know what he's capable of doing [in the future] if he's either under the influence or if he's got some mental issues .... And if he engages in conduct like that in the future and then his identity is not known at the time but there's a DNA sample available and they can find some ... evidence at the scene, that would be certainly appropriate.
DISCUSSION
¶ 7. On appeal Simonis renews his argument that the circuit court erroneously exercised its discretion in imposing the surcharge based on the court's assessment
¶ 8. A circuit court's decision whether to impose a surcharge under Wis. Stat. § 973.046(lg) involves the exercise of the court's discretion. Cherry, 312 Wis. 2d 203, ¶ 5. We affirm a discretionary decision when the circuit court examines the relevant facts, applies a correct legal standard, and demonstrates a rational process leading to a reasonable conclusion. State v. Long, 2011 WI App 146, ¶ 4, 337 Wis. 2d 648, 807 N.W.2d 12 (citation omitted). In this case, determining whether the circuit court applied the correct legal standard requires that we construe § 973.046(lg) in the context of the case law. This presents a question of law, which we review de novo. See id. (citation omitted).
¶ 9. When we construe a statute we begin with the language of the statute and give it its common meaning. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context of surrounding or closely related statutes, and we interpret it reasonably to avoid unreasonable results. Id., ¶ 46. If, employing these principles, we conclude the
¶ 10. Placing Wis. Stat. § 973.046(lg) in its statutory context, we start with § 973.047, which addresses the requirements of providing a biological specimen. Section 973.047(lf) mandates that, when a court imposes a sentence for a felony and for certain sex crimes that are not felonies, "the court shall require the person to provide a biological specimen to the state crime laboratories for [DNA] analysis."
¶ 12. Wisconsin Stat. § 973.046(lr) requires the court to impose "a [DNA] analysis surcharge" of $250 if the court imposes a sentence or places a person on probation for certain sexual assault crimes, most of which are felonies.
¶ 13. In Cherry we addressed a circuit court's discretionary authority under Wis. Stat. § 973.046(lg), noting that this subsection does not set forth any factors for the circuit court to use in exercising its discretion. Cherry, 312 Wis. 2d 203, ¶ 8. In Cherry the defendant had previously provided a DNA specimen, id,., ¶ 2, although it is unclear from our opinion whether the defendant had previously paid a surcharge. The circuit court imposed a surcharge, and the stated reasons for this decision were that "the trial court's policy is to impose the surcharge whenever possible"
¶ 14. While Cherry provides the framework for our analysis, it does not resolve the issue before us. We agree with Simonis that the first two identified factors in Cherry relate to costs actually incurred. However, Simonis' argument does not persuasively explain why the fourth factor — "any other [pertinent] factors" — does not encompass the circuit court's rationale.
¶ 15. The State, for its part, correctly points out that, unlike the circuit court in Cherry, the circuit court in this case did consider the facts of this particular case and did state its rationale. We agree the circuit court did that. However, the critical issue not addressed by the State is whether the circuit court's rationale — the potential need for analysis of evidence collected at the scene of a crime that may possibly be committed by Simonis in the future — is a permissible rationale under the statute.
¶ 17. Thus, if Simonis does commit a crime in the future that comes within Wis. Stat. § 973.046(lr), the court will be required to impose a surcharge. If, on the other hand, the future crime comes within § 973.046(lg) and, as the circuit court here postulated, DNA-related costs are incurred in the new case in analyzing DNA evidence collected at the crime scene and comparing it to the data from Simonis' specimen, then those costs will be an appropriate factor for the circuit court in that case to consider in deciding whether to impose a surcharge. See Cherry, 312 Wis. 2d
¶ 18. We recognize that, for various purposes during the course of a sentencing, a circuit court typically has the difficult obligation of attempting to predict whether a defendant appears likely to commit crimes in the future. See State v. Gallion, 2004 WI 42, ¶ 23, 270 Wis. 2d 535, 678 N.W.2d 197 (recognizing that the sentence imposed should be "consistent with the protection of the public"). Therefore, the problem here is not that the court made predictions of this general type, based on the record developed by the parties, to the extent this was appropriate for other sentencing purposes. Our narrow focus here is on the application of such a prediction in the specific context of assessing the DNA surcharge, given the statutory scheme at issue.
¶ 19. Accordingly, we conclude the circuit court employed an incorrect legal standard in exercising its discretion. We therefore reverse and remand for the circuit court to consider factors pertinent to this case other than the possibility of Simonis committing a future crime. Because we are remanding for this purpose, we address an issue that will likely arise on remand: What costs may the circuit court properly
¶ 20. It appears undisputed that, at the time the circuit court ordered that Simonis provide a DNA specimen and pay the surcharge, a DNA specimen had not been collected from Simonis during the course of this case and no evidence in this case required a DNA analysis.
¶ 21. In Long the circuit court ordered the defendant to "provide a DNA sample and to pay a DNA surcharge if he had not previously provided a sample or paid a surcharge pursuant to any other cases . . . ." Long, 337 Wis. 2d 648, ¶ 2. Long did not contend that he had already provided a specimen or paid a surcharge. Id., ¶ 8. The circuit court stated the rationale for its order as follows:
If this is the defendant's first felony case in which he is providing a sample, there is a cost involved in connec*675 tion with this case. There is a cost of drawing the sample, a cost for having it analyzed, and a cost for having it put into the [Sítate DNA database .... The court did not simply impose a DNA surcharge because the court could do so, but because the [S]tate incurred a cost for DNA in this case where there was no prior DNA taken or submitted.
Id. (alterations in original).
¶ 22. In Long we concluded this was a proper exercise of the circuit court's discretion. Id., ¶ 9. We explained that the court's reasoning was consistent with the rationale expressed in Jones and based on a consideration of "factors that we suggested in Cherry could be pertinent to the reasoned exercise of discretion." Id., ¶ 8.
¶ 23. Long was decided after the notice of appeal was filed in this case, so it is understandable that neither party referred to it in the circuit court. However, although Long was decided before the appellate briefing, neither party discusses how our conclusion in Long bears on this case.
CONCLUSION
¶ 24. We reverse the portions of the judgment and of the postconviction order relating to the DNA surcharge and remand for further proceedings consistent with this opinion.
By the Court. — Judgment and order reversed in part and cause remanded for further proceedings.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Wisconsin Stat. § 973.047(10 provides:
If a court imposes a sentence or places a person on probation for a felony conviction or for a conviction for a violation of s. 165.765(1) [failure to submit a biological specimen as required], 940.225(3m) [fourth-degree sexual assault], 944.20 [lewd and lascivious behavior], or 948.10 [exposing genitals to a child, under certain circumstances], the court shall require the person to provide a biological specimen to the state crime laboratories for [DNA] analysis.
Pursuant to Wis. Admin. Code § Jus 9.04(l)(a)4. and (2)(c) (Sept. 2001), when a person ordered to provide a DNA specimen under Wis. Stat. § 973.04(lf) is, like Simonis, sentenced to prison, he or she "shall provide the specimen while in prison as directed by the department of corrections."
Wisconsin Stat. § 973.046(lr) provides in full:
If a court imposes a sentence or places a person on probation for a violation of s. 940.225 [sexual assault], 948.02(1) or (2) [first- and second-degree sexual assault of a child], 948.025 [repeated sexual assault of the same child], 948.085 [sexual assault of a child placed in substitute care], the court shall impose a [DNA] analysis surcharge of $250.
Our statement that "it appears undisputed" does not preclude, on remand, evidence on this point if there is a dispute.
The State cites State v. Long, 2011 WI App 146, 337 Wis. 2d 648, 807 N.W.2d 12, only with reference to the standard of review for discretionary decisions, and Simonis does not mention Long at all.
In Long we did not specify whether the consideration we approved of there came within the first Cherry factor or the fourth, and it is unnecessary for us to decide that question in this case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.