COURT OF APPEALS

DECISION

DATED AND FILED

October 14, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2020AP605-CR Cir. Ct. No. 2018CF55

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

WILLIAM C. MACDONALD,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Marquette County: BERNARD N. BULT and MARK T. SLATE, Judges. Order 

reversed and cause remanded with directions. 

Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

¶1 NASHOLD, J. The issue in this appeal is how many images are 

“associated with” William C. MacDonald’s crime of possession of child 

pornography for purposes of assessing the statutorily mandated surcharge of $500 
No. 2020AP605-CR

2

per image. See WIS. STAT. § 948.12 (2019-20)1(criminalizing possession of child 

pornography); WIS. STAT. § 973.042(2) (mandating surcharge on images or copies 

of images “associated with the crime[s]” of possession of child pornography or 

sexual exploitation of a child) (sometimes referred to in this decision as the 

surcharge statute).

2 The criminal information charged MacDonald with ten counts 

of possession of child pornography, each based on a single image, and MacDonald 

pled no contest to a single charge. Read in for sentencing purposes were the nine

dismissed charges and ninety additional uncharged images. The circuit court 

imposed a total surcharge of $50,000 ($500 for each of the 100 images) and 

denied MacDonald’s postconviction motion to reduce this total amount.3

¶2 MacDonald appealed, arguing that the sentencing court should have 

assessed only $500, the surcharge amount for the single image supporting the 

single count of conviction. At MacDonald’s request, this appeal was placed on 

hold pending our supreme court’s decision in State v. Schmidt, 2021 WI 65, ___ 

Wis. 2d ___, 960 N.W.2d 888, decided on June 18, 2021. The Schmidt court held 

that the surcharge statute applies not only to images forming the basis of the 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. 

2

 The child pornography surcharge applies to “each image or each copy of an image 

associated with the crime[s]” of possession of child pornography and sexual exploitation of a 

child. See WIS. STAT. § 973.042(2). Reflecting the facts of this case, and for ease of reading, we 

discuss the “image” or “images” without referring to copies of images, and we discuss the crime 

of possession of child pornography without referring to the crime of sexual exploitation of a 

child. Our discussion of the terms “image” or “images” encompasses all copies of an image, and 

our discussion of “the crime” at issue under § 973.042(2) encompasses both possession of child 

pornography and sexual exploitation of a child.

3

 The Honorable Bernard N. Bult (the sentencing court) presided over sentencing and 

entered the judgment of conviction. The Honorable Mark T. Slate (the postconviction court) 

entered the order that, as pertinent here, denied MacDonald’s postconviction motion for surcharge 

reduction. 
No. 2020AP605-CR

3

counts of conviction but also to images forming the basis of read-in charges. 

Although the court discussed “read-in charges” generally, it also explicitly stated 

that it “d[id] not address ... whether the circuit court must impose the child 

pornography surcharge for images of child pornography that were not charged.” 

Id., ¶49. Thus, the court did not address the applicability of the surcharge statute 

to uncharged read-ins.

¶3 Following the issuance of Schmidt, MacDonald conceded in this 

court that the circuit court properly imposed the statutory surcharge on ten images: 

the one image forming the basis of the count of conviction and the nine images 

forming the basis of counts that were charged, dismissed, and read in. MacDonald 

maintains, however, that Schmidt does not control the remaining question on 

appeal: whether the circuit court was required to assess the surcharge on the 

ninety uncharged read-in images. We conclude that Schmidt does not directly 

answer this question but that, consistent with its analysis, the surcharge applies to

read-in images regardless of whether there is an accompanying charge, so long as

those images are “associated with the crime.” See id., ¶4. On this record, 

however, it is not evident that the sentencing court determined which, if any, of 

the ninety uncharged read-in images were in fact associated with the count of 

conviction. We agree with the State that the circuit court should revisit its ruling 

in light of Schmidt’s guidance.

¶4 Thus, we accept MacDonald’s concession that the circuit court 

correctly imposed a $5,000 surcharge, corresponding to the ten images that the 

parties agree are the proper basis for assessment. We reverse, however, the court’s 

order denying MacDonald’s postconviction motion for surcharge reduction as to 

the remaining amount. We remand for a determination of whether any of the 
No. 2020AP605-CR

4

ninety uncharged and read-in images are associated with the crime of possession 

of child pornography (the single count of conviction in this case).

4

BACKGROUND

¶5 The following facts are undisputed for purposes of this appeal. In 

April 2018, MacDonald’s former roommate reported to the Marshfield Police 

Department that she possessed a computer tablet previously belonging to 

MacDonald and containing what she believed to be child pornography. Local and 

state law enforcement agencies, including the Digital Forensic Unit (DFU) of the 

Wisconsin Department of Justice, Division of Criminal Investigation, commenced 

an investigation and executed a search warrant at MacDonald’s residence. During 

the search, MacDonald voluntarily spoke with a detective. MacDonald said that 

he owned multiple electronic devices and that there might be child pornography on 

at least one of the devices. When “asked how many images of child pornography 

[law enforcement was] going to find on the electronics inside his residence,” 

MacDonald responded, “‘[L]et’s say 200 just to be safe.’” During the interview, 

law enforcement determined that one of the devices found in MacDonald’s 

residence contained suspected child pornography. MacDonald was then placed 

under arrest. Pursuant to the warrant, law enforcement seized nine cell phones, a 

compact disc, a tablet computer, and two computer hard drives.

¶6 According to the criminal complaint, “When DFU did a preview 

search of one of [the] defendant’s cellular telephone[s] ... they discovered 

 

4

 Although MacDonald appeals both the judgment of conviction and the postconviction 

order, we reverse only the postconviction order and do not disturb the surcharge ordered in the 

judgment. If, on remand, the circuit court orders a new surcharge amount, it should amend the 

judgment.
No. 2020AP605-CR

5

numerous pornographic images and selected a sample 15 images that show child 

pornography.” The complaint charged MacDonald with ten counts of possession 

of child pornography, each based on a single image. 

¶7 The parties negotiated a plea bargain, which the prosecutor

summarized at the plea hearing as follows:

MacDonald will be entering a plea of either guilty or no 

contest to Count 1 of th[e] information, and then the State 

would be moving to dismiss and read in the rest of the 

charges in that information, in addition to any uncharged 

image that was part of this investigation, so that the State 

will not be filing any additional charges for any other 

images, but we would be asking that they be read in as part 

of the sentencing in this matter. 

MacDonald entered a plea of no contest, and the court accepted the parties’ 

agreement on the read-ins, stating, “The charges in Counts 2 through 10 will be

dismissed at this time and will be available for read in, as well as any uncharged 

images that might be outstanding.” 

¶8 At the sentencing hearing, the prosecutor recommended that the 

child pornography surcharge be assessed for 100 images, stating,

[T]he statute that we’re dealing with here [WIS. STAT.

§ 973.042(2)] requires the Court to make a finding 

regarding the number of images. It requires a $500 

surcharge, essentially, for each image. While I think that 

the number could be much, much higher, the State would 

be asking for the Court to find 100 images [on the basis of] 

a supplemental report by Detective Jordan McCoy, [in 

which McCoy] went through an extraction of, I believe, 

two phones. [McCoy] laid out that[,] in one image report,

there [were] 85 images that were consistent with child 

pornography. Another [report reflected] 15 images. 

MacDonald, in contrast, asked that the surcharge be applied for “each of the 

read[-]in counts and convictions and no more” (i.e., ten images total). 
No. 2020AP605-CR

6

¶9 The sentencing court sentenced MacDonald to four years’ initial 

confinement and three years’ extended supervision. Turning to the number of 

images supporting the mandatory surcharge, the court acknowledged that 

MacDonald “has argued that I should find a limited number based upon the ability 

of the defendant to pay any amount that the Court might impose.” The court 

correctly observed, however, that under WIS. STAT. § 973.042(2), the ability of the 

defendant to pay a surcharge “is not a consideration that the Court should be 

involved with.” Rather, the court viewed its task as determining “exactly how 

many images this particular defendant was involved with.” Noting that “it did 

come out in my review of the case, that at certain times, [MacDonald]

acknowledged that there may be up to 200 images,” the court imposed the 

surcharge on 100 images, stating that this was “the minimum number of images” 

to which the surcharge statute applied. 

¶10 MacDonald brought a postconviction motion to reduce the surcharge 

from $50,000 to $500, to correspond to the surcharge amount for the single image 

forming the basis of the count of conviction.

5 MacDonald further asserted that the 

imposition of a $50,000 surcharge constituted a constitutionally excessive fine. 

See Timbs v. Indiana, 139 S. Ct. 682, 686-87 (2019) (prohibition on excessive 

fines in Eighth Amendment to the United States Constitution is an “incorporated”

 

5

 Before Schmidt was released, MacDonald raised the same argument to this court; 

namely, that he should be assessed only for the single image supporting the count of conviction. 

When MacDonald was before the sentencing court, however, he argued that the surcharge applied 

to the ten images forming the bases of both the count of conviction and the read-in counts. It 

does not appear that either party—either in postconviction proceedings or on appeal—has 

addressed the potential legal consequences of this concession to the sentencing court. Given, 

however, that MacDonald no longer contests the imposition of the surcharge on those ten images, 

we need not address any potential issue of waiver, invited error, or forfeiture. See State v. 

Schmidt, 2021 WI 65, ___ Wis. 2d ___, 960 N.W.2d 888. 
No. 2020AP605-CR

7

protection applicable to the states by the Fourteenth Amendment’s Due Process 

Clause); see also State v. Boyd, 2000 WI App 208, ¶¶7, 11, 14, 238 Wis. 2d 693, 

618 N.W.2d 251. 

¶11 The postconviction court held a hearing on the motion. That court, 

like the sentencing court, viewed the surcharge inquiry as concerning “how many 

images there were” or “the total number of images that have occurred”—that is,

“the total number of images that were possessed by the defendant.” The 

postconviction court therefore determined that a surcharge for 100 images was 

warranted, given that the sentencing court “had already determined that there were 

100 images.” The postconviction court further determined that the amount was 

not unconstitutionally excessive, and upheld the $50,000 surcharge in full. 

¶12 MacDonald appealed, and the case was submitted on briefs. As 

stated, on MacDonald’s motion, we placed the appeal on hold pending our 

supreme court’s decision in Schmidt, concerning the application and scope of 

WIS. STAT. § 973.042(2). We directed the parties to submit letters addressing the 

effect of Schmidt on this appeal, which we discuss below. 

DISCUSSION

I. The Child Pornography Surcharge Statute and State v. Schmidt

¶13 Before the release of Schmidt, MacDonald’s position on appeal was

that the child pornography surcharge applies only to images forming the basis of

the count of conviction—here, a single image. Post-Schmidt, MacDonald

concedes that the surcharge was properly imposed for the nine images supporting 

the nine dismissed and read-in counts in the information. Thus, the remaining 

dispute is whether, consistent with WIS. STAT. § 973.042(2) and Schmidt, the 
No. 2020AP605-CR

8

surcharge was properly imposed for the ninety images that were uncharged and

read in at sentencing. Before addressing the parties’ positions in more detail, we 

discuss the child pornography surcharge statute and the Schmidt opinion.

¶14 As pertinent here, WIS. STAT. § 973.042(2) provides:

If a court imposes a sentence or places a person on 

probation for a crime under s. 948.05 [“Sexual exploitation 

of a child”] or 948.12 [“Possession of child pornography”] 

and the person was at least 18 years of age when the crime 

was committed, the court shall impose a child pornography 

surcharge of $500 for each image or each copy of an image 

associated with the crime. The court shall determine the 

number of images or copies of images associated with the 

crime by a preponderance of the evidence and without a 

jury.

[6]

(Emphasis added.) Prior to Schmidt, there was no binding authority discussing the 

scope or application of the surcharge statute. And although Schmidt does not fully 

answer the question before us, it provides our analytical framework.

¶15 The defendant in Schmidt pled guilty to six counts of possession of 

child pornography, each based on a single image. See Schmidt, 960 N.W.2d 888,

¶¶6, 8. Consistent with the plea agreement, the State moved to dismiss and read in 

eight additional charges, each also based on a single image. Id. The circuit court 

imposed the child pornography surcharge on all fourteen images, finding, by a 

preponderance of the evidence, that these fourteen images were associated with 

the defendant’s counts of conviction for possession of child pornography. Id., ¶52 

n.10. On appeal, the parties disputed whether images forming the basis of read-in 

 

6

 WISCONSIN STAT. § 973.042(1) defines “image” to “include[] a video recording, a 

visual representation, a positive or negative image on exposed film, and data representing a visual 

image.” MacDonald does not dispute that the images on his electronic devices meet this 

definition of “image.”
No. 2020AP605-CR

9

charges could ever be “associated with the crime,” as that phrase is used in the 

surcharge statute—or, alternatively, whether the surcharge applies only to those 

images forming the basis of the counts of conviction. Id., ¶¶48, 52.

¶16 Based on a plain-meaning interpretation of the phrase “associated 

with the crime,” the court held that the surcharge does not apply only to those 

images that form the basis of any count of conviction. Id., ¶¶48, 54. This 

conclusion was based in part on dictionary definitions of “to associate” (“to 

connect or bring into relation”) and “the crime” (simply, “the offenses of 

conviction”). Id., ¶53 (internal quotation marks and quoted source omitted). 

Thus, the court reasoned, the child pornography surcharge must be imposed on 

“images of child pornography that form the basis of read-in charges of ...

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 

... possession of child pornography.” Id., ¶¶54, 61.7 

 

7

 In places, Schmidt implies that the sole fact that an image was the basis of a charged 

and read-in count establishes, as a matter of law, that the image is “associated with the crime.” 

For example, Schmidt states, “[I]t is clear that a circuit court must impose the child pornography 

surcharge for images of child pornography that form the basis of read-in charges of sexual 

exploitation of a child or possession of child pornography.” Schmidt, 960 N.W.2d 888, ¶54

(emphasis added); see also id., ¶48. Elsewhere, however, Schmidt concludes that additional factfinding is necessary pursuant to the surcharge statute, stating, 

[T]he 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.” 

See id., ¶4 (emphasis added); see also id., ¶61. We note that the “so long as” qualifier appears in 

both of the “conclusion” paragraphs summarizing what we construe to be Schmidt’s holding. See 

id., ¶¶4, 61. This indicates that the court did not intend to conclude that the surcharge must apply 

(continued)
No. 2020AP605-CR

10

¶17 The Schmidt court also discussed factors that might aid in the 

sentencing court’s determination that a given image is “connected to and brought 

into relation with” the count of conviction. Id., ¶¶54-55. The court deemed

relevant the very fact that the image formed the basis of a count that was 

dismissed and read in, in that the image could “be considered for restitution or as a 

factor at sentencing.” See id., ¶54 (citing State v. Sulla, 2016 WI 46, ¶44, 369 

Wis. 2d 225, 880 N.W.2d 659 (explaining effect of read-in charges)). Also 

pertinent was whether the image was “collected at the same time and found on the 

same devices as the images that formed the basis of [the defendant’s] conviction 

of possession of child pornography.” Schmidt, 960 N.W.2d 888, ¶55.

¶18 As noted, the Schmidt court confined its analysis to the facts of that 

case, observing, 

[Because] the circuit court determined that only the 14 

images that formed the basis of the charges were associated 

with [the crime,] we do not need to address, and we do not 

address in this case, whether the circuit court must impose 

the child pornography surcharge for images of child 

pornography that were not charged. 

See id., ¶49 (emphasis added). We now turn to the parties’ positions regarding

this language and Schmidt’s broader effect on this appeal.

II. Application to MacDonald’s Appeal

¶19 As noted, the parties agree that, in light of Schmidt, the circuit court 

correctly imposed a surcharge for the one image forming the basis of the count of

 

to every image forming the basis of read-in charges. We therefore construe Schmidt to treat as 

pertinent, but not dispositive, the fact that a given image formed the basis of a dismissed and 

read-in charge. 
No. 2020AP605-CR

11

conviction and the nine images that were charged but dismissed and read in. 

Because there is no dispute regarding these ten images, we do not disturb that 

$5,000 portion of the surcharge ($500 for each of the ten images). See State v. 

Tillman, 2005 WI App 71, ¶18, 281 Wis. 2d 157, 696 N.W.2d 574 (our role is 

generally limited to addressing the issues briefed by the parties). The remaining 

issue is whether, under Schmidt, the surcharge must be imposed for the ninety 

images that were read in but not charged. 

¶20 MacDonald argues that Schmidt does not control, pointing to the

explicit statement in Schmidt that the court “d[id] not address in this case” the 

application of the surcharge to images that were not charged. See Schmidt, 960 

N.W.2d 888, ¶49. We construe MacDonald to further argue that the surcharge 

may not be imposed on uncharged read-in images as a matter of law. We 

acknowledge that Schmidt does not explicitly discuss uncharged images but, for 

the reasons we now explain, we conclude that Schmidt supports the application of 

the surcharge to uncharged read-in images, provided that the circuit court finds 

that those images are “associated with the crime” for which the defendant was 

convicted.

¶21 Read-in charges are not discussed in the surcharge statute itself. In 

fact, the only statutory definition of read-in appears in the criminal restitution 

statute, WIS. STAT. § 973.20, and was inserted “after the read-in procedure 

developed in the Wisconsin courts.” State v. Straszkowski, 2008 WI 65, ¶81, 310 

Wis. 2d 259, 750 N.W.2d 835. Section 973.20(1g)(b) defines “[r]ead-in crime” to 

mean either charged or uncharged conduct:

“Read-in crime” means any crime that is uncharged or that 

is dismissed as part of a plea agreement, that the defendant 

agrees to be considered by the court at the time of 

sentencing and that the court considers at the time of 
No. 2020AP605-CR

12

sentencing the defendant for the crime for which the 

defendant was convicted.

(Emphasis added.) And although § 973.20(1g)(b) defines “read-in crime,” as the 

Straszkowski court notes, the phrases “read-in crime,” “read-in offense,” and 

“read-in charge” are interchangeable, with the case law making no distinctions 

among them. See Straszkowski, 310 Wis. 2d 259, ¶58 n.33.

¶22 Thus, “read-in charge” means both uncharged conduct, offenses, or 

crimes as well as charged (and later dismissed) conduct, offenses, or crimes. A 

read-in charge is, simply, an offense that the parties agree to “read in”—as 

Straszkowski notes, to the following effects: (1) “a circuit court may consider the 

read-in charge when imposing sentence but the maximum penalty of the charged 

offense will not be increased”; (2) “a circuit court may require a defendant to pay 

restitution on the read-in charges”; and (3) “a read-in has a preclusive effect in that 

the State is prohibited from future prosecution of the read-in charge.” See id., ¶93; 

see also Sulla, 369 Wis. 2d 225, ¶44 (citing plea questionnaire/waiver of rights 

form setting forth these effects of a read-in charge). Schmidt adds to this list the 

following rule: the sentencing court must impose the child pornography surcharge 

on images associated with the crime and forming the basis of dismissed and readin charges of possession of child pornography. See Schmidt, 960 N.W.2d 888, 

¶54. 

¶23 Neither the case law concerning read-ins nor the statute defining 

read-ins limits the definition of read-in to conduct that was charged and dismissed. 

Moreover, a central rationale underlying Schmidt’s conclusion that the surcharge 

applies to charged read-in images was that these images “can be considered for 

restitution or as a factor at sentencing.” See id., ¶54. Consistent with WIS. STAT.

§ 973.20(1g)(b), read-ins may be considered for restitution and sentencing 
No. 2020AP605-CR

13

purposes regardless of whether they are uncharged or charged and dismissed. 

Thus, we discern no basis in the statutes or case law for a sentencing court to treat 

uncharged and read-in images differently from charged and read-in images for 

purposes of applying the surcharge. Following the Schmidt court’s rationale, we

conclude that the surcharge applies to images forming the basis of both charged 

and uncharged read-ins, “so long as” the sentencing court finds that those images 

are actually associated with “the convicted individual’s offense of ... possession of 

child pornography.” Id., ¶4.

¶24 Although we reject MacDonald’s position that the surcharge cannot

apply to uncharged read-in images, we agree with both parties that the surcharge 

does not apply in a self-executing fashion. Rather, the sentencing court must find, 

by a preponderance of the evidence, that a given image is associated with the 

count of conviction. WIS. STAT. § 973.042(2); Schmidt, 960 N.W.2d 888, ¶61. 

For example, as stated above, it is relevant when and from which device the readin image was collected, in relation to the image or images forming the basis for the 

count of conviction. Schmidt, 960 N.W.2d 888, ¶55.

¶25 Here, it does not appear that the sentencing court engaged in any 

fact-finding to determine the association, if any, between the ninety uncharged 

images and the image forming the basis of the count of conviction. At sentencing, 

the prosecutor implied—and the circuit court appeared to agree—that the factual 

inquiry was complete once the court determined how many total images law 

enforcement obtained from MacDonald, which the court concluded was 100. As 

Schmidt instructs, however, the inquiry must center on whether those images were 

actually associated with the count of conviction. The State now acknowledges 

that we lack a sufficient record to uphold the surcharge and that we must remand

for a circuit court determination, consistent with Schmidt, as to which, if any, of 
No. 2020AP605-CR

14

the ninety uncharged and read-in images are associated with MacDonald’s 

conviction for possession of child pornography.8 Given the analysis of Schmidt, 

we agree that this is the proper course.

¶26 In concluding that remand is appropriate, we have considered 

MacDonald’s position that the State should not get “a second opportunity to 

introduce evidence related to uncharged read-ins.” But MacDonald’s sentencing

and the postconviction hearings were conducted prior to Schmidt’s interpretation 

and discussion of the surcharge statute. With the benefit of Schmidt, the parties 

and the circuit court may now rely on that case’s discussion of the relevant 

considerations for determining whether the ninety images at issue are “associated 

with the crime” for which MacDonald was convicted.9 

CONCLUSION

¶27 For the reasons stated, we reverse the order of the postconviction 

court and remand for the circuit court to determine, consistent with WIS. STAT.

§ 973.042(2) and Schmidt, which, if any, of the ninety remaining uncharged and 

read-in images are associated with MacDonald’s offense of possession of child 

pornography.

10

 

8

 For example, the State notes that eighty-five images were recovered from one phone 

and fifteen images from another but that it was not made clear at sentencing which images were 

recovered from which phone. The State further notes that it was unclear when MacDonald 

downloaded, and law enforcement recovered, each of the images.

9

 Given that we are remanding for a potential redetermination of the surcharge, we do not 

decide MacDonald’s Eighth Amendment excessive fines claim.

10

 We emphasize that the inquiry on remand concerns only the ninety images that the 

State has already argued are associated with the offense of conviction. The State represents that it 

does not seek a total surcharge above $50,000 but, to be clear, given the State’s position 

(continued)
No. 2020AP605-CR

15

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

 

throughout this litigation, the State may not argue on remand that the surcharge applies to any 

images other than the ninety at issue.