SCOW upholds child porn surcharge for read-ins in nigh-incomprehensible opinion

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought. Schmidt pleaded to 6 counts of possession of child pornography; 8 more counts were dismissed and read in. The court never informed Schmidt that it might impose the  $500 per-image surcharge as to the read-ins, but when sentencing came, it did. Schmidt sought to withdraw his plea because he hadn’t known about the possibility of the surcharges the court imposed; in the alternative he sought to have the surcharges for the read-ins dropped.

All seven justices agree that the surcharge is not punitive in intent or effect, so the circuit court wasn’t required to inform Schmidt about it to take a valid plea. (¶¶21-46; ¶70). But does the statute–Wis. Stat. § 973.042(2)–even authorize the surcharge for counts that are dismissed and read in?

Curiously, the majority gives two different answers, “yes” and “maybe,” in succeeding paragraphs. (¶¶54-55). The opinion depends heavily on a dictionary definition of “associate” (the statute calls for the surcharge on images “associated with the crime”); this is the source of the bizarre language quoted above.

For a plain and convincing case that the statute does not apply to read-ins, you can’t do better than Justice Hagedorn’s partial dissent here. It points to various features of the surcharge law and its close relatives in the statutes to argue that the drafters recognized that one conviction might involve multiple images, and that it might be difficult in some cases to decide just how many images were involved in a particular conviction. So, they tied the surcharge to a (relatively) simple factual question: how many images did a given count cover? There’s no suggestion in the statute that the legislature intended circuit courts to broaden the surcharge to cover images a person was not convicted of possessing.

One thing to note: there are different sorts of “read-ins.” Charges that have already been filed can be dismissed and read in as part of a plea agreement (as here), but plea deals also sometimes involve things that have never been charged: that is, the state sometimes agrees not to charge things that it could charge. The majority specifies that it is not addressing this latter sort of “read-in” in this decision. (¶49).