State v. Michael L. Cox
State v. Michael L. Cox
Opinion
*781 *340 ¶ 1 Upon conviction of a felony, our statutes provide for imposition of a $250 deoxyribonucleic acid (DNA) analysis surcharge on the defendant. Before the legislature adopted 2013 Wis. Act 20 (Act 20), the relevant statute said the court "may" impose that surcharge. Now, however, the statute says the court "shall" impose the surcharge. The court of appeals certified Mr. Michael L. Cox's appeal to us so that we may determine whether the substitution of *341 "shall" for "may" means that circuit courts no longer have the discretion to waive the surcharge. We conclude that Act 20 eliminated that discretion, and therefore affirm the circuit court.
I. BACKGROUND
¶ 2 In the early hours of March 14, 2015, Mr. Cox drove approximately three miles on the wrong side of a Milwaukee-area highway, which also put him on the wrong side of the law. Mr. Cox evaded one squad car, but others eventually intercepted him and brought him to a halt. With bloodshot and glassy eyes, and smelling strongly of alcohol, Mr. Cox unsteadily emerged from his car and tried to hand one of the officers a large amount of cash. He was, of course, arrested. The ensuing search netted a plastic bag with a green leafy substance that tested positive for the presence of THC (tetrahydrocannabinols). 1
¶ 3 Mr. Cox pled guilty to one count of second-degree recklessly endangering safety contrary to
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¶ 4 At the sentencing hearing, the Milwaukee County Circuit Court
4
waived imposition of the $250 DNA surcharge set forth in
¶ 5 Notwithstanding the waiver, the judgment (as it was ultimately entered) required Mr. Cox to pay the DNA surcharge. So Mr. Cox filed a postconviction motion requesting vacation of the surcharge
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because it conflicted with what the circuit court said when imposing sentence. The circuit court
6
denied Mr. Cox's motion, explaining that
¶ 6 The court of appeals certified Mr. Cox's appeal so that we may determine whether circuit courts have discretion under
II. STANDARD OF REVIEW
¶ 7 Interpreting and applying
III. ANALYSIS
¶ 8 Our project is to assay the meaning of "shall" as used in
(1g) Except as provided in sub. (1r), if a court imposes a sentence or places a person on probation for a felony conviction, the court may impose a deoxyribonucleic acid analysis surcharge of $250.
(1r) If a court imposes a sentence or places a person on probation for a violation of s. 940.225, 948.02(1) or (2), *344 948.025, 948.085, the court shall impose a deoxyribonucleic acid analysis surcharge of $250. [ 8 ]
§§ 973.046(1g), (1r) (2011-12) (emphasis added). Effective January 1, 2014, Act 20 eliminated the "may impose" provision and instead instructed courts that they "shall impose" the DNA surcharge on both felony and misdemeanor convictions:
(1r) If a court imposes a sentence or places a person on probation, the court shall impose a deoxyribonucleic acid analysis surcharge, calculated as follows:
(a) For each conviction for a felony, $250.
(b) For each conviction for a misdemeanor, $200.
§ 973.046(1r) (emphasis added).
¶ 9 Our goal in considering the change from "may" to "shall" is to discover and apply the statute's plain meaning.
See
State ex rel. Kalal v. Circuit Court for Dane Cty
.,
¶ 10 Where, as here, the legislature has amended the part of the statute in which we are interested, we may have recourse to that history to assist us in discovering the statute's plain meaning.
See
Cty. of Dane v. LIRC
,
¶ 11 Whenever we encounter a dispute over the meaning of "shall," we presume it is introducing a mandate. "The general rule is that the word 'shall' is presumed mandatory when it appears in a statute."
Karow v. Milwaukee Cty. Civil Serv. Comm'n
,
*346 ¶ 12 Mr. Cox urges us to adopt the latter interpretation of "shall." He observes that circuit courts generally have broad sentencing discretion; he believes this must mean that the legislature's use of "shall" in this context reflects a policy of presumptively imposing the DNA surcharge while leaving courts discretion to waive it. The State, on the other hand, says that when the legislature changed "may" to "shall," it meant "must." We agree with the State.
¶ 13 The recent history of
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¶ 14 "Shall" must certainly have meant "must" in the pre-Act 20 statute because anything less would have been absurd.
9
If that term had borne the merely directive sense of the word, we would have to conclude
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that one subsection of the pre-Act 20 statute gave courts discretion to impose the DNA surcharge (with respect to all felons,
see
¶ 15 Act 20 eliminated the distinction between convictions in which the court "may impose" the DNA surcharge and those in which it "shall impose" the surcharge. 2013 Wis. Act 20, §§ 2353-2355. In abandoning the distinction, it swept all convictions into the "shall impose" category (and expanded it to include misdemeanors). If we presume the legislature understood the distinction between "may" and "shall" when it created
¶ 16 The remainder of the statute's language confirms this reading. The word "shall" appears five additional times in
¶ 17 Everyone agrees that, in each of these instances, "shall" means "must." And "[w]hen the legislature uses a particular word more than once in an act, we understand it to carry the same meaning each time, absent textual or structural clues to the contrary."
State ex rel. DNR v. Wis. Court of Appeals, Dist. IV
,
¶ 19 Mr. Cox's argument is a worthy one, but it does not account for a third possibility, a possibility that conclusively resolves the apparent paradox. The waiver abatement language in the Crime Victim/Witness Surcharge statute comes from Act 20, the same act that amended the DNA Surcharge statute.
See
2013 Wis. Act 20, § 2348. Prior to Act 20, the Crime Victim/Witness Surcharge statute said: "If a court imposes a sentence or places a person on probation, the court
shall impose
a crime victim and witness
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assistance surcharge calculated as follows[ ]...."
¶ 20 This new language, however, does not tell us what Mr. Cox wants us to hear. Whereas Mr. Cox says the waiver abatement language demonstrates the legislature's understanding that "shall" means "may" in the Crime Victim/Witness Surcharge statute (albeit with a presumption the surcharge would be imposed), we see only exasperation. The legislature had already used mandatory language and fortified it with Act 20's waiver abatement language because courts were not doing as they had already been told. Other than Act 20's waiver abatement language, Mr. Cox offers no rationale for reading "shall" in the Crime Victim/Witness Surcharge statute as a directive instead of a mandate. For many of the same reasons we discussed with respect to the DNA Surcharge statute, reading "shall" in this statute as anything other than mandatory would be anomalous. The Crime Victim/Witness Surcharge statute uses the term "shall"
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seven additional times, and in none of those instances could it credibly be argued the term was less than mandatory.
See
¶ 21 Even if the justification for the waiver abatement language in the Crime Victim/Witness statute were less than clear, still it would engender no doubt about the proper meaning of "shall" in the DNA Surcharge statute. The history of a related statute can provide useful interpretive information, but that information carries less weight than the history, text, and structure of the statute about which we are immediately concerned. In this case, the legislature's decision to eliminate a clearly discretionary category in the DNA Surcharge statute in favor of a comprehensive "shall impose" category is overwhelming evidence that the remaining category was not supposed to bear the distinguishing characteristic of the one that had just been deleted.
¶ 22 Finally, Mr. Cox's argument, were we to accept it, would disrupt yet another surcharge statute. The Domestic Abuse Surcharge statute (
¶ 23 Mr. Cox's argument has an unacceptable cascade effect. If we accept his analysis of the Crime Victim/Witness Surcharge statute, it would overwhelm the more trenchant lessons available to us from the DNA Surcharge statute's history, and it would turn the Domestic Abuse Surcharge statute's express grant of discretion into surplusage. Our reading brings cohesion and order across all the statutes. "Shall" means "must" in the DNA Surcharge statute because its history compels that conclusion. The waiver abatement language of the Crime Victim/Witness Surcharge statute exists because courts had not been honoring its mandatory "shall impose" language. And the surcharge in the Domestic Abuse Surcharge statute is discretionary because, notwithstanding its "shall impose" language, it also explicitly grants courts the discretion to waive it.
*
¶ 24 We presume that when the legislature uses "shall" it does so because it is describing a mandate, not a directive. Nothing in the text, context, or history of the DNA Surcharge statute indicates we should depart from that presumption here. Further, this reading makes the statute fit more comfortably with the Crime Victim/Witness Surcharge statute and the Domestic Abuse Surcharge statute than the alternative. Therefore, the plain meaning of
¶ 25 Because we conclude that "shall" as used in
By the Court. -The judgment and order of the circuit court are affirmed.
¶ 26 ANN WALSH BRADLEY, J., did not participate.
Tetrahydrocannabinol is a compound "that is the physiologically active component in cannabis preparations (marijuana, hashish, etc.) derived from the Indian hemp plant or produced synthetically." Tetrahydrocannabinol , Random House Unabridged Dictionary 1962 (2d ed. 1993).
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
Mr. Cox also received multiple traffic-related citations, including one for OWI first. He pled guilty to the OWI citation and the court imposed a $150 forfeiture plus costs, assessments, and surcharges, as well as a six-month revocation of Mr. Cox's driving privileges and 12 months of ignition lock on any vehicle Mr. Cox owned or drove. The State moved to dismiss the remaining traffic-related citations based on Mr. Cox's plea to the OWI citation.
The Honorable William W. Brash, III, presiding.
An amended judgment of conviction from a prior Milwaukee County criminal matter was attached to the Complaint and reflected that Mr. Cox had previously been ordered to provide a DNA sample.
The Honorable T. Christopher Dee, presiding.
2013 Wis. Act 20 was published on July 1, 2013, and the newly-amended DNA Surcharge statute at issue here went into effect six months after publication. See 2013 Wis. Act 20, §§ 9326, 9426.
The statutes referenced in
We interpret statutes "reasonably, to avoid absurd or unreasonable results."
State ex rel. Kalal v. Circuit Court for Dane Cty.
,
See
Legislative Audit Bureau,
Crime Victim and Witness Assistance Surcharge Revenue
, available at https://legis.wisconsin.gov/lab/reports/12-13full.pdf (last visited May 15, 2018). We may take judicial notice of Legislative Audit Bureau reports and do so here.
See
Wis. Med. Soc'y, Inc. v. Morgan
,
Wisconsin Stat. § 973.055(1) provides that "[i]f a court imposes a sentence on an adult person or places an adult person on probation ... the court shall impose a domestic abuse surcharge" when certain conditions exist.
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent, v. Michael L. COX, Defendant-Appellant.
- Cited By
- 10 cases
- Status
- Published