COURT OF APPEALS DECISION DATED AND FILED June 1, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Romale R. Richardson, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Romale A. Richardson
appeals from a judgment of conviction, entered upon his guilty plea, and an
order denying his postconviction motion.
The sole issue on appeal is whether the circuit court erroneously
exercised its discretion when it ordered
¶2 On June 20, 2009, there was a disturbance outside of
¶3
¶4 The circuit court also ordered
¶5 Richardson filed a postconviction motion, alleging that the
circuit court had failed to properly exercise its discretion regarding the DNA
surcharge as contemplated by State v. Cherry, 2008 WI App 80, ¶9,
312 Wis. 2d 203, 752 N.W.2d 393.
The circuit court concluded it had considered appropriate factors when
imposing the surcharge and denied the motion.
¶6 A defendant convicted of a felony must provide a DNA
sample. See Wis. Stat. § 973.047
(2009-10).[1] In certain sexual assault cases, the court is
obligated to order the defendant to also pay a $250 surcharge. See
Wis. Stat. § 973.046(1r). In all other cases where the sample is
required, the decision whether to order the surcharge is a matter of the
circuit court’s sentencing discretion. See Cherry, 312
¶7 In Cherry, we noted that while Wis. Stat. § 973.046(1g) clearly contemplated the exercise of discretion, the statute did not set forth any factors that the circuit court should consider. Cherry, 312 Wis.2d 203, ¶8. Ultimately, we suggested that
some factors to be considered could include: (1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent.
¶8 Here, the circuit court imposed the surcharge on the basis of
the nature of the offense and
¶9 The DNA surcharge is part of a sentence. State v. Nickel, 2010 WI App 161,
¶6, 330
¶10 The circuit court may not have given the most artful
pronouncement of sentence when it imposed the DNA surcharge, but we conclude
discretion was properly exercised.
First,
¶11 Second, Richardson appears to be suggesting that a factor will not be “pertinent” to the imposition of the surcharge unless the factor has some other nexus to DNA, like when DNA evidence is collected and tested. However, we do not subscribe to this line of reasoning. It is perfectly logical for the court to conclude that, because Richardson’s particular crime involved a reckless, volitional act designed to intimidate others despite having been previously informed that he could not to possess a firearm, he—and not the citizens of Wisconsin—should subsidize collection of the mandatory DNA sample.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.