State v. Freiboth
State v. Freiboth
Opinion of the Court
*644¶ 1 Arthur Freiboth appeals a judgment of conviction and a circuit court order denying, without an evidentiary hearing, his motion for post-sentencing plea withdrawal. Freiboth contends that the court had a duty to advise him as part of the plea colloquy about the DNA surcharges that he would be required to pay as a result of his pleas, and the court failed to so advise him, entitling him to withdraw his pleas. We conclude that this argument is foreclosed by the combined holdings of State v. Muldrow ,
BACKGROUND
¶ 2 The pertinent facts are not disputed. Freiboth was charged in July 2014 with offenses that he allegedly committed that same month. In September 2014, he entered pleas to one count of strangulation and suffocation and three counts of bail jumping.
¶ 3 At the time of Freiboth's pleas, pursuant to WIS. STAT. § 973.046(1r)(a) (2013-14), the court was obligated to impose a deoxyribonucleic acid analysis surcharge "for each conviction for a felony, $250."
¶ 4 Freiboth filed a post-conviction motion seeking, in part, withdrawal of his pleas on the ground that the court failed to ensure that Freiboth understood the $1,000 "punishment" he faced upon his pleas. The court denied this aspect of the motion without an evidentiary hearing. Relying substantially on State v. Scruggs ,
¶ 5 Briefing in this appeal was completed in June 2016. In November 2016, this court certified State v. Odom , No. 2015AP2525-CR, unpublished certification (WI App. Nov. 9, 2016) to the Wisconsin Supreme Court for determination of whether a circuit court's failure to advise a defendant about the mandatory imposition of multiple DNA surcharges for multiple convictions "establishes a prima facie showing that the defendant's plea was unknowing, involuntary, and unintelligent," and the certification was granted. However, *645the appellant in Odom voluntarily dismissed that appeal, after which this court certified the same issue in this case to our supreme court. The court refused certification on July 10, 2018.
¶ 6 In the meantime, in May 2018, our supreme court issued both Muldrow and Williams , which we now explain resolve the single issue raised on appeal: whether plea hearing courts have a duty to inform defendants about the mandatory DNA surcharge, because the surcharge is punishment and therefore a direct consequence of a plea.
DISCUSSION
¶ 7 Muldrow moved to withdraw his guilty plea to second-degree sexual assault on the ground that his plea was not knowing, because the plea hearing court did not inform him that it would subject him to lifetime GPS tracking, even though, Muldrow contended, the tracking was a direct consequence of the plea. Muldrow ,
¶ 8 As part of its analysis, the court in Muldrow determined that "the intent-effects test is the proper test used to determine whether a sanction is punishment such that due process requires a defendant be informed of it before entering a plea of guilty."
¶ 9 Our supreme court held in Williams that the mandatory DNA surcharge is not punishment, for purposes of analysis under the ex post facto clauses of the federal and state constitutions. Williams ,
¶ 10 The court of appeals had reversed the circuit court on the ex post facto issue, on the ground that two of our prior decisions required us to remand the issue to the circuit court for discretionary application of the prior version of the DNA surcharge statute.
¶ 11 Addressing the "intent" portion of the intent-effects test used in ex post facto analysis, the court overruled Elward and Radaj as "wrongly decided," and determined that the mandatory DNA surcharge statute has the non-punitive purpose of covering "costs associated with the DNA databank by charging those necessitating its existence-convicted criminals."
Muldrow And Williams Resolve This Appeal
¶ 12 To recap, Muldrow holds that the intent-effects test is used to determine whether a sanction is punishment, to which a defendant must be alerted before entering a plea,
By the Court .-Judgment and order affirmed.
The Hon. Lindsey Grady presided over the combined plea and sentencing hearing. The Hon. Jeffrey A. Kremers issued the decision and order partially denying the motion for post-conviction relief.
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted. The amendment to
Case-law data current through December 31, 2025. Source: CourtListener bulk data.