2021 WI 65

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP616-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Anthony M. Schmidt,

 Defendant-Appellant.

ON PETITION TO BYPASS

OPINION FILED: June 18, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 8, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Walworth 

JUDGE: Phillip A. Koss 

JUSTICES:

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., 

joined, and in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, 

JJ., joined with respect to Parts I, II, and III.A. ROGGENSACK, 

J., filed a concurrence, in which REBECCA GRASSL BRADLEY, J., 

joined. HAGEDORN, J., filed an opinion concurring in part, and 

dissenting in part, in which ANN WALSH BRADLEY and DALLET, JJ., 

joined.

ATTORNEYS:

For the defendant-appellant, there were briefs filed by 

Christopher P. August, assistant state public defender and 

Office of the State Public Defender, Milwaukee. There was an 

oral argument by Christopher P. August.

For the plaintiff-respondent, there was a brief filed by 

Eric M. Muellenbach, assistant attorney general; with whom on 

the brief was Joshua L. Kaul, attorney general. There was an 

oral argument by Eric M. Muellenbach.
2021 WI 65

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP616-CR

(L.C. No. 2018CF636)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Anthony M. Schmidt,

 Defendant-Appellant.

FILED

JUN 18, 2021

Sheila T. Reiff

Clerk of Supreme Court

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ., 

joined, and in which ANN WALSH BRADLEY, DALLET, and HAGEDORN, 

JJ., joined with respect to Parts I, II, and III.A. ROGGENSACK, 

J., filed a concurrence, in which REBECCA GRASSL BRADLEY, J., 

joined. HAGEDORN, J., filed an opinion concurring in part, and 

dissenting in part, in which ANN WALSH BRADLEY and DALLET, JJ., 

joined.

APPEAL from a judgment and an order of the Circuit Court 

for Walworth County, Phillip A. Koss, Judge. Affirmed. 

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This case is before 

the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 

(2019-20).1 Anthony Schmidt brought this action challenging the 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.
No. 2020AP616-CR 

2

Walworth County circuit court's2 judgment imposing a child 

pornography surcharge for 14 images of child pornography, 

pursuant to Wis. Stat. § 973.042(2), and order denying Schmidt's 

postconviction motion seeking to withdraw his guilty plea or, in 

the alternative, have the circuit court vacate the child 

pornography surcharges for the eight images of child pornography 

that formed the basis of Schmidt's read-in charges of possession

of child pornography. 

¶2 Schmidt was charged with 14 counts of possession of 

child pornography and one count of failing to register for the 

sex offender registry. As part of a plea agreement, Schmidt 

pled guilty to six counts of possession of child pornography, 

and the State dismissed and read in the remaining charges. The 

circuit court accepted this plea agreement and convicted Schmidt 

of the six counts of possession of child pornography. At 

sentencing, the circuit court sentenced Schmidt to 30 years, 

consisting of 15 years of initial confinement and 15 years of 

extended supervision. The circuit court also imposed a $500

child pornography surcharge, pursuant to Wis. Stat. 

§ 973.042(2), for each of the 14 images of child pornography for 

which Schmidt was charged.

¶3 After sentencing, Schmidt filed a postconviction 

motion seeking to have the circuit court (1) allow him to 

withdraw his guilty plea, (2) vacate the child pornography 

 

2 The Honorable Phillip A. Koss presided.
No. 2020AP616-CR 

3

surcharges imposed for the eight images of child pornography 

that formed the basis of Schmidt's read-in charges of possession 

of child pornography, and (3) grant a hearing on both issues. 

Schmidt argued that he should be permitted to withdraw his plea 

because the circuit court failed to adequately inform him during 

the plea colloquy about the child pornography surcharge, which 

he alleged was a punishment attaching to his conviction. In the 

alternative, he argued that the circuit court could not impose a 

child pornography surcharge for images of child pornography that 

form the basis of read-in charges of possession of child 

pornography. The circuit court denied Schmidt's postconviction 

motion without a hearing, determining that it did not need to 

inform Schmidt of the child pornography surcharge during the 

plea colloquy, and that it could order the child pornography 

surcharge for the images of child pornography that formed the 

basis of read-in charges of possession of child pornography. We 

agree. 

¶4 We conclude that the child pornography surcharge is 

not punitive, so the circuit court did not need to inform 

Schmidt of the child pornography surcharge during the plea 

colloquy. Consequently, the circuit court did not err when it 

denied Schmidt's postconviction motion to withdraw his guilty 

plea. 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 
No. 2020AP616-CR 

4

convicted individual's offense of sexual exploitation of a child

or possession of child pornography. Accordingly, we affirm the 

circuit court's judgment imposing the child pornography 

surcharge for 14 images of child pornography, and the order that 

denied plea withdrawal. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶5 On December 13, 2018, the State filed a criminal 

complaint against Schmidt, alleging five counts——specifically, 

four counts of possession of child pornography and one count of 

failing to comply with requirements of the sex offender 

registry.3 The State later filed an information increasing the 

number of counts against Schmidt to 14 counts of possession of 

child pornography and retaining the one count of failing to 

comply with requirements of the sex offender registry. 

¶6 On April 1, 2019, the circuit court held a plea 

hearing after the State and Schmidt reached a plea agreement. 

The plea agreement, which was filed with the circuit court,

stated that "Schmidt will plead guilty to counts 1-6 [each a

count of possession of child pornography], the State will move 

to dismiss and read-in the remaining charges, a [presentence 

investigation] will be requested by the parties, and both sides 

will be free to argue for the appropriate sentence." Schmidt 

also submitted a completed Plea Questionnaire/Waiver of Rights

 

3 Schmidt was previously convicted of possession of child 

pornography and, as a part of that conviction, was required to 

register as a sex offender. 
No. 2020AP616-CR 

5

form. Included in the Plea Questionnaire/Waiver of Rights form, 

Schmidt acknowledged that he faced "a $500.00 surcharge for each 

image or each copy of an image [of child pornography]" upon the 

circuit court accepting his guilty plea. 

¶7 The circuit court engaged in a standard plea colloquy 

with Schmidt before accepting his guilty plea. At no time did 

the court inform Schmidt that he faced a surcharge for each 

image of child pornography associated with his crimes. The 

court accepted Schmidt's guilty plea, entered its judgment of 

conviction, and ordered a presentence investigation. 

¶8 On May 28, 2019, the circuit court held a sentencing

hearing. The court sentenced Schmidt to 30 years, consisting of 

15 years of initial confinement and 15 years of extended 

supervision. The circuit court also imposed a surcharge for 14 

images of child pornography; specifically, the six images of 

child pornography that formed the basis of the six convictions 

and the eight images of child pornography that formed the basis 

of Schmidt's read-in charges of possession of child pornography. 

¶9 On December 18, 2019, Schmidt filed a motion to 

withdraw his guilty plea or, in the alternative, to have the 

circuit court vacate the child pornography surcharges imposed 

for the eight images of child pornography that formed the basis 

of his read-in counts of possession of child pornography. He 

asserted that the child pornography surcharge is a punishment 

that the circuit court was required to inform him of during the 

plea colloquy. Because the circuit court did not do so, Schmidt 

claims that his plea was not knowing, intelligent, and 
No. 2020AP616-CR 

6

voluntary, and that therefore he was entitled to withdraw his 

plea. He also contended, in the alternative to plea withdrawal, 

that the circuit court could not impose the child pornography 

surcharge for the images of child pornography that formed the 

basis of his read-in counts of possession of child pornography 

because the court imposed a sentence for only six counts, not 14 

counts, of possession of child pornography. Accordingly, 

Schmidt argued, the circuit court should vacate the child 

pornography surcharge for the eight images of child pornography 

that formed the basis of his read-in charges of possession of 

child pornography. 

¶10 On March 31, 2020, the circuit court issued its order 

denying Schmidt's postconviction motion without a hearing. 

Specifically, the court determined that the child pornography 

surcharge was not punishment, so it did not need to inform 

Schmidt of the surcharge prior to accepting his guilty plea. 

The court also determined that it had the power to impose the 

child pornography surcharge for the eight images of child 

pornography that formed the basis of the eight read-in charges 

of possession of child pornography and correctly exercised its 

authority when it did so. 

¶11 Schmidt appealed. On October 16, 2020, while the case 

was still pending before the court of appeals, Schmidt 

petitioned this court to bypass the court of appeals, pursuant 

to Wis. Stat. § (Rule) 809.60. We granted Schmidt's petition to 

bypass the court of appeals and took jurisdiction of this case. 
No. 2020AP616-CR 

7

II. STANDARD OF REVIEW

¶12 Schmidt asks this court to review the circuit court's 

denial of his postconviction motion to withdraw his guilty plea

after he was sentenced. "We review a circuit court's decision 

to deny a plea withdrawal motion under an erroneous exercise of 

discretion standard." State v. Savage, 2020 WI 93, ¶24, 395 

Wis. 2d 1, 951 N.W.2d 838 (citing State v. Nash, 2020 WI 85, 

¶27, 394 Wis. 2d 238, 951 N.W.2d 404). "A defendant seeking to 

withdraw a plea after sentencing must show by clear and 

convincing evidence that 'allowing the withdrawal of the plea is 

necessary to correct a manifest injustice.'" Id. (quoting Nash, 

394 Wis. 2d 238, ¶32). "A defendant can meet that burden by 

showing that he or she did not knowingly, intelligently, and 

voluntarily enter the plea." State v. Fugere, 2019 WI 33, ¶16, 

386 Wis. 2d 76, 924 N.W.2d 469. 

¶13 "Whether a guilty plea was entered knowingly, 

intelligently, and voluntarily is a question of constitutional 

fact." Id., ¶17 (citing State v. Muldrow, 2018 WI 52, ¶24, 381 

Wis. 2d 492, 912 N.W.2d 74). "This court upholds a circuit 

court's findings of fact unless clearly erroneous, and 

'[d]etermines independently whether those facts demonstrate that 

the defendant's plea was knowing, intelligent, and voluntary.'"

Id. (alteration in original) (quoting State v. Brown, 2006 WI 

100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906). 

¶14 Schmidt also asserts that there were deficiencies in 

the plea colloquy conducted by the circuit court. "This court 

determines the sufficiency of the plea colloquy and the 
No. 2020AP616-CR 

8

necessity of an evidentiary hearing, questions of law, 

independently of the circuit court and court of appeals but 

benefiting from their analyses." State v. Hoppe, 2009 WI 41, 

¶17, 317 Wis. 2d 161, 765 N.W.2d 794. 

¶15 Furthermore, Schmidt argues that the child pornography 

surcharge is punishment, and that the child pornography 

surcharge cannot apply to images of child pornography that form 

the basis of read-in charges of sexual exploitation of a child 

or possession of child pornography. Both of these arguments 

require us to interpret Wis. Stat. § 973.042, which we do de 

novo. Muldrow, 381 Wis. 2d 492, ¶25. 

III. ANALYSIS

¶16 We begin our analysis with Schmidt's claim that he is 

entitled to withdraw his guilty plea. We then turn to his 

alternative argument that we should vacate the circuit court's 

imposition of the child pornography surcharge for the images of 

child pornography that formed the basis of his read-in charges 

of possession of child pornography. 

A. Schmidt Is Not Entitled To Withdraw His Guilty Plea. 

1. Principles of plea withdrawal, plea

colloquies, and punishment

¶17 To withdraw a plea after sentencing, as is the case 

here, the defendant "bears the heavy burden to demonstrate by 

'clear and convincing evidence' that withdrawal is necessary to 

avoid 'manifest injustice.'" Fugere, 386 Wis. 2d 76, ¶24 

(quoted source omitted). "A plea is 'manifestly unjust' in 
No. 2020AP616-CR 

9

violation of the Due Process Clause of the United States 

Constitution if it was not entered 'knowingly, intelligently, 

and voluntarily.'" Id. (quoting Bradshaw v. Stumpf, 545 U.S. 

175, 182-83 (2005)). "A plea not entered knowingly, 

intelligently, and voluntarily violates fundamental due process, 

and a defendant therefore may withdraw the plea as a matter of 

right." State v. Taylor, 2013 WI 34, ¶25, 347 Wis. 2d 30, 829 

N.W.2d 482. 

¶18 For a defendant's plea to be knowing, intelligent, and 

voluntary, "the circuit court must notify the defendant of any 

direct consequence of his guilty plea." Muldrow, 381 

Wis. 2d 492, ¶1. "A direct consequence of a guilty plea, is one 

that 'has a definite, immediate, and largely automatic effect on 

the range of a defendant's punishment.'" Id. (quoting State v. 

Bollig, 2000 WI 6, ¶16, 232 Wis. 2d 561, 605 N.W.2d 199). While 

a circuit court must inform a defendant of a direct consequence 

of a guilty plea, the circuit court does not need to inform a 

defendant of "collateral consequences" of a defendant's plea for 

the plea to be knowing, intelligent, and voluntary. Fugere, 386 

Wis. 2d 76, ¶20. "Collateral consequences are indirect and do 

not flow from the conviction." Id. (quoting State v. Byrge, 

2000 WI 101, ¶61, 237 Wis. 2d 197, 614 N.W.2d 477). "In 

evaluating whether a consequence of a defendant's plea is direct 

or collateral, courts look to whether the consequence is a 

punishment." Id. 

¶19 "The legislature has codified this prerequisite, 

requiring circuit courts to '[a]ddress the defendant personally 
No. 2020AP616-CR 

10

and determine that the plea is made voluntarily with 

understanding of the nature of the charge and the potential 

punishment if convicted' before the court accepts a guilty 

plea." Muldrow, 381 Wis. 2d 492, ¶2 (alteration in original) 

(quoting Wis. Stat. § 971.08(1)(a)). "A defendant who is not 

accurately informed of the punishment that could result from his 

guilty plea may be entitled to withdraw his plea." Id. 

¶20 When a defendant has shown that he or she was not 

accurately informed of a punishment, the circuit court does not 

automatically grant the defendant's plea withdrawal request. 

See Fugere, 386 Wis. 2d 76, ¶24. Instead, the circuit court may 

hold an evidentiary hearing where the State may prove that, 

despite the failure to inform him of the punishment, the 

defendant's plea was indeed knowing, intelligent, and voluntary. 

Id. 

2. The child pornography surcharge is not punishment.

¶21 With these principles in mind, we turn to Schmidt's 

challenge in this case. Schmidt alleges that he is entitled to 

plea withdrawal, or an evidentiary hearing, because the child 

pornography surcharge is punishment that he was not informed of 

during his plea colloquy. 

¶22 Despite the clear mandate that the circuit court must 

inform the defendant of all punishments, it is not always clear 

whether a particular sanction constitutes punishment. See, 

e.g., Muldrow, 381 Wis. 2d 492 (determining whether lifetime GPS 

tracking constitutes punishment); Bollig, 232 Wis. 2d 561 

(determining whether a sex offender registration requirement 
No. 2020AP616-CR 

11

constitutes punishment); State v. Williams, 2018 WI 59, 381 

Wis. 2d 661, 912 N.W.2d 373 (determining whether a DNA surcharge 

constitutes punishment). To determine whether a sanction is 

punishment, we adopted the "intent-effects test" from Kennedy v. 

Mendoza-Martinez, 372 U.S. 144, 168-70 (1963). Muldrow, 381 

Wis. 2d 492, ¶30. 

¶23 This intent-effects test consists of two independent 

inquiries to determine whether the sanction is punishment. The 

first inquiry requires courts to "look to the 'statute's primary 

function' to determine the statute's intent," as expressed in 

the plain text of the statute. Fugere, 386 Wis. 2d 76, ¶38

(quoting Mendoza-Martinez, 372 U.S. at 169); State ex rel. Kalal 

v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 

681 N.W.2d 110. If the statute's primary function is to impose 

punishment, we end the inquiry, and the sanction is deemed 

punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). If the 

statute's primary function is not punitive, we then turn to the 

second inquiry, which requires the court to consider "whether 

the effect of the statute was 'penal or regulatory in 

character.'" Muldrow, 381 Wis. 2d 492, ¶31 (quoting MendozaMartinez, 372 U.S. at 168). If the effect of the statute was 

penal in character, the sanction is deemed punishment. Thus, if 

either the statute's primary function is punitive or the

sanction is in effect punitive in character, we must deem the 

sanction to be punishment.

¶24 Accordingly, we must determine whether the statute's 

primary function is punitive or the effect of the child 
No. 2020AP616-CR 

12

pornography surcharge is punishment. Such an inquiry is "a 

matter of statutory construction." See Hudson v. United States, 

522 U.S. 93, 99 (1997). The child pornography surcharge is 

codified in Wis. Stat. § 973.042(2), which provides:

If a court imposes a sentence or places a person on 

probation for a crime under [Wis. Stat. §§] 948.05[4]

or 948.12[5] 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]

¶25 Having set forth the specific statute at issue, we now 

turn to an analysis of the intent-effects test to determine 

whether the child pornography surcharge is punishment. 

a. Intent of the child pornography surcharge

¶26 The first half of the intent-effects test requires us 

to determine whether the primary function of the child 

pornography surcharge statute, Wis. Stat. § 973.042(2), is 

punitive. See Williams, 381 Wis. 2d 661, ¶22. Both parties 

 

4 Wisconsin Stat. § 948.05 criminalizes sexual exploitation 

of a child, including the recording and displaying of children 

engaging in sexually explicit conduct and the sale, 

distribution, and promotion of recordings of children engaging 

in sexually explicit conduct. 

5 Wisconsin Stat. § 948.12 criminalizes possession of child 

pornography. 

6 "In this section, 'image' includes a video recording, a 

visual representation, a positive or negative image on exposed 

film, and data representing a visual image." Wis. Stat. 

§ 973.042(1). 
No. 2020AP616-CR 

13

agree that the primary function of the child pornography 

surcharge is not punitive. We agree. See State v. Scruggs, 

2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786 (holding that the 

primary function of the DNA surcharge statute was not punitive); 

Williams, 381 Wis. 2d 661 (same). 

¶27 In Scruggs, we determined that the primary function of 

the DNA surcharge statute was not punitive. Scruggs, 373 

Wis. 2d 312, ¶3. We reached this conclusion based on the plain 

text of the statute because "[t]he legislature termed the 

payment a 'surcharge' not a 'fine,' . . . and it linked the 

surcharge to legislation that dramatically increased the number 

of people required to provide DNA samples to be analyzed, 

stored, and maintained in the DNA databank." Williams, 381 

Wis. 2d 661, ¶22 (summarizing the Scruggs court's analysis). 

¶28 The child pornography surcharge shares both of these 

characteristics. Just as with the DNA surcharge, the 

legislature termed the payment a surcharge rather than a fine. 

See Wis. Stat. § 973.042(2), (5), (6). Moreover, the surcharge 

is linked to funding of investigations of sexual exploitation of 

children and possession of child pornography and grants to 

eligible public agencies or nonprofit organizations that provide 

counseling services to victims of sexual assault. Wis. Stat. 

§ 20.455(5)(gj).7 Therefore, in light of the plain text of 

 

7 Wisconsin Stat. § 20.455(5)(gj) provides that "[a]ll 

moneys received from any child pornography surcharge imposed 

under [§] 973.042 for investigating offenses under [§] 948.05 or 

948.12 and for making grants under [§] 165.93(2)(a)." 

(continued)
No. 2020AP616-CR 

14

§ 973.042, the primary function of the child pornography 

surcharge is not punitive. 

b. Effect of the child pornography surcharge

¶29 The second inquiry of the intent-effects test requires 

us to independently consider the effect of the child pornography 

surcharge. See Williams, 381 Wis. 2d 661, ¶30. Regardless of 

the statute's non-punitive primary function for imposing the 

child pornography surcharge, we must consider whether the child 

pornography surcharge is "so punitive in form and effect as to 

render [it] criminal despite" the statute's primary function to 

the contrary. Scruggs, 373 Wis. 2d 312, ¶39 (quoting State v. 

Rachel, 2002 WI 81, ¶42, 254 Wis. 2d 215, 647 N.W.2d 762). 

"Only the 'clearest proof' will 'override [the statute's primary 

function] and transform what has been denominated a civil remedy 

into a criminal penalty.'" Williams, 381 Wis. 2d 661, ¶30 

(quoting Hudson, 522 U.S. at 100). 

¶30 Seven factors, referred to as the Mendoza-Martinez

factors, guide our analysis of whether a sanction is punitive in 

effect. These factors are: 

(1) does the statute involve an affirmative disability 

or restraint; (2) has the sanction at issue 

historically been regarded as punishment; (3) will the 

sanction be imposed only after a finding of scienter; 

(4) does the statute promote the traditional aims of 

punishment——retribution and deterrence; (5) is the 

 

Wisconsin Stat. § 165.93(2)(a) in turn provides that "[t]he 

[Department of Justice] shall provide grants to eligible 

organizations from the appropriations under [§] 20.455(5)(e) and 

(gj) to provide services for sexual assault victims." 
No. 2020AP616-CR 

15

behavior to which it applies already a crime; (6) is 

there an alternative purpose to which it may be 

rationally connected; and (7) is the sanction 

excessive in relation to the alternative purpose 

assigned.

Williams, 381 Wis. 2d 661, ¶30 (citing Mendoza-Martinez, 372 

U.S. at 168-69). The Mendoza-Martinez factors "are 'neither 

exhaustive nor dispositive' but are 'useful guideposts'" in 

ascertaining if the effect of a statute is punitive. Smith, 538 

U.S. at 97 (citations omitted). And these factors must be 

applied on the face of the statute, rather than to the facts and 

circumstances of an individual defendant. Hudson, 522 U.S. at 

100; contra Williams, 381 Wis. 2d 661, ¶67 (Abrahamson, J., 

concurring) (advocating to answer these questions "on a case-bycase basis"). 

¶31 Accordingly, when we apply the seven Mendoza-Martinez

factors here, we look to the statutory language that imposes the 

$500 surcharge rather than a potential cumulative effect for a 

particular defendant. See Mendoza-Martinez, 372 U.S. at 169. 

We conclude, based on our application of the Mendoza-Martinez

factors, that the child pornography surcharge is not punitive in 

effect. 

i. Is the surcharge an affirmative disability or restraint?

¶32 Schmidt asserts that the child pornography surcharge 

imposes an affirmative disability or restraint due to the 

"extreme level of financial immiseration entailed by the 

statute." Schmidt argues that the child pornography surcharge 

statute imposes a disability on defendants because it "is 

capable of imposing millions of dollars of financial liability," 
No. 2020AP616-CR 

16

which "harshly limit[s] the defendant's ability to reintegrate 

into society upon release" and "creates a debt that can never be 

repaid and . . . will in fact impact employment, housing, and 

travel." However, as we discussed above, when analyzing the 

child pornography surcharge statute under the Mendoza-Martinez

factors, we must look at the statutory language, which imposes a

$500 surcharge per image of child pornography. As such, 

Schmidt's hypothetical argument that an individual defendant may 

face millions of dollars of surcharges is irrelevant to our 

analysis. 

¶33 Furthermore, the child pornography surcharge statute 

does not impose an affirmative disability or restraint. 

"'[D]isability' and 'restraint' are normally understood to mean 

imprisonment." Williams, 381 Wis. 2d 661, ¶32. The child 

pornography surcharge "imposes no physical restraint, and so 

does not resemble the punishment of imprisonment, which is the 

paradigmatic affirmative disability or restraint." Smith, 538 

U.S. at 100. Moreover, a $500 surcharge is "less harsh than the 

sanctions of occupational debarment, which [the Court has] held 

to be nonpunitive." Id. Such a surcharge "does not restrain 

activities [defendants] may pursue but leaves them free to 

change jobs or residences." Id. 

¶34 As such, this factor weighs against characterizing the 

child pornography surcharge as punishment. 
No. 2020AP616-CR 

17

ii. Is the surcharge historically viewed as punishment?

¶35 "[A] surcharge has not been viewed as punishment." 

Williams, 381 Wis. 2d 661, ¶33. We have been unable to identify 

"historical evidence supporting [the] characterization of a 

surcharge as punishment. Although the surcharge might not align 

exactly with the remedial sanction cases from the late 1800s and 

early 1900s[,] a surcharge resembles a non-punitive remedial 

sanction much more than punishment." Id., ¶34. Schmidt 

requests that we depart from this conclusion because of his 

assertion that the child pornography surcharge statute

authorizes the imposition of millions of dollars of financial 

penalties "in conjunction with proof that the offender has 

committed a morally blameworthy act." However, contrary to 

Schmidt's assertion, the plain language of the child pornography 

surcharge statute imposes a $500 surcharge as the sanction. 

Accordingly, Schmidt has presented no new information that 

suggests that we should depart from our previous determination 

that "a surcharge has not been viewed as punishment." Id., ¶33. 

As such, this factor undercuts characterizing the child 

pornography surcharge as punishment. 

iii. Is a finding of scienter required?

¶36 Schmidt concedes that no finding of scienter is 

required to impose the surcharge. The absence of the scienter 

requirements shows that the statute is not punitive in effect. 

Id., ¶35 (quoting Kansas v. Hendricks, 521 U.S. 346, 362 

(1997)). As such, this factor militates against characterizing 

the child pornography surcharge as punishment.
No. 2020AP616-CR 

18

iv. Does a surcharge promote retribution and deterrence?

¶37 The child pornography surcharge does not promote the 

traditional aims of punishment——retribution and deterrence. The 

child pornography surcharge statute imposes a $500 surcharge, 

which is "relatively small and therefore [does] not promote the 

traditional punitive aims of retribution and deterrence." Id., 

¶36 (citing Scruggs, 373 Wis. 2d 312, ¶45). The $500 surcharge 

"is unlikely to deter anyone from engaging in illegal activity.

And the corrective impact of a [$500 surcharge] pales in 

comparison to the penal power of a lengthy prison sentence." 

Id. The maximum sentence for possession of child pornography is 

25 years in prison and $100,000 fine, which is far more 

retributive and deterring than the $500 surcharge. As such, this 

factor undermines characterizing the child pornography surcharge 

as punishment. 

v. Does the surcharge apply to conduct already a crime?

¶38 Both the State and Schmidt agree that the surcharge 

applies to conduct that was already a crime: convictions for 

sexual exploitation of a child and possession of child 

pornography. This suggests that "the surcharge has the effect 

of punishing criminal behavior." Scruggs, 373 Wis. 2d 312, ¶43. 

Accordingly, this factor weighs in favor of characterizing the 

surcharge as punishment. However, the factors are only 

guideposts and no one factor is dispositive. Smith, 538 U.S. at

97. 
No. 2020AP616-CR 

19

vi. Is the surcharge rationally connected to an 

alternative purpose?

¶39 "The existence of an alternative non-punitive purpose 

for a sanction is considered 'the most significant factor' in 

determining whether the effect of a sanction is punitive." 

Muldrow, 381 Wis. 2d 492, ¶57. Both the State and Schmidt agree 

that the child pornography surcharge serves two alternative nonpunitive purposes: (1) funding investigations of sexual 

exploitation of children and possession of child pornography,

and (2) providing grants to eligible public agencies or 

nonprofit organizations that provide counseling services to 

victims of sexual assault. Wis. Stat. § 20.455(5)(gj). While 

Schmidt agrees that the child pornography surcharge has these 

alternative purposes, he contends that assessing the child 

pornography surcharge based on the number of images of child 

pornography is not rationally related to the alternative 

purposes because "it makes little sense that the costs of a 

child pornography investigation will increase at a rate of $500 

per individual [image]." 

¶40 Even if Schmidt's assertion were correct——for which he 

provides no support or citation——"[a] statute is not deemed 

punitive simply because it lacks a close or perfect fit with the 

nonpunitive aims it seeks to advance." Smith, 538 U.S. at 103. 

Schmidt's alleged imprecision "does not suggest that the [child 

pornography surcharge's] nonpunitive purpose is a 'sham or mere 

pretext.'" Id. (quoting Hendricks, 521 U.S. at 371 (Kennedy, 

J., concurring)). "[I]t is altogether rational to assess a fee 
No. 2020AP616-CR 

20

aimed at solving crimes against those who commit them . . . ." 

Williams, 381 Wis. 2d 661, ¶38 (quoted source omitted). Because 

the child pornography surcharge is used to fund investigations 

of sexual exploitation of children and possession of child 

pornography, the child pornography surcharge is rationally 

related to its alternative purpose of defraying investigation 

costs.

¶41 Moreover, Schmidt's assertion ignores the other 

purpose for which the $500 is earmarked——providing grants for 

counseling services to victims of sexual assault. As 

distribution of child pornography "is intrinsically related to 

the sexual abuse of children," United States v. Stevens, 559 

U.S. 460, 471 (2010), the counseling services that the child 

pornography surcharge funds will assist the victims of child 

pornography. Thus, the child pornography surcharge is also 

rationally related to this non-punitive purpose. 

¶42 Accordingly, the child pornography surcharge is 

rationally connected to alternative non-punitive purposes; 

namely, funding investigations of sexual exploitation of 

children and possession of child pornography and providing 

grants to eligible public agencies or nonprofit organizations

that provide counseling services to victims of sexual assault. 

As such, this factor weighs against characterizing the child 

pornography surcharge as punishment.
No. 2020AP616-CR 

21

vii. Is the surcharge excessive in relation to the 

alternative purpose?

¶43 "To determine whether the surcharge is excessive in 

relation to its non-punitive purpose, we must compare the amount 

of the surcharge with the overall expenses the State incurs 

because of the charged population's conduct." Williams, 381 

Wis. 2d 661, ¶39. "The surcharge must be 'grossly 

disproportionate to the annual cost' to prove it is excessive." 

Id. (quoting Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 

2014)). "We examine not 'whether the legislature has made the 

best choice possible to address the problem it seeks to remedy,' 

but 'whether the regulatory means chosen are reasonable.'" Id.

(quoting Smith, 538 U.S. at 105). 

¶44 Under this standard, we are not convinced the 

surcharge is excessive in relation to its non-punitive purposes. 

Schmidt argues that because the impact on an individual 

defendant may exceed millions of dollars of liability, the child 

pornography surcharge is punitive in nature. However, the child 

pornography surcharge imposes $500 of liability per image. 

Schmidt and the State agree that the cost that child pornography 

imposes on society and victims is high. The money generated 

from the child pornography surcharge is specifically earmarked 

to alleviate those costs to society (via investigations) and to 

the victims (via grants for counseling services). See Wis. 
No. 2020AP616-CR 

22

Stat. § 20.455(5)(gj).8 The high cost of counseling for an 

individual victim can easily exceed the $500 amount of the child 

pornography surcharge. See, e.g., Paroline v. United States, 

572 U.S. 434, 441 (2014) (addressing a child pornography 

victim's claim for $500,000 in future treatment and counseling 

costs for the defendant possessing two images depicting the 

victim). Similarly, the cost of investigating sexual 

exploitation of a child and possession of child pornography is

expensive, especially as the technology for sharing and storing 

child pornography increases in complexity and sophistication.9

¶45 When we consider the high cost of counseling for 

victims and the high cost to investigate child pornography, we 

are not convinced that the $500 child pornography surcharge per 

image of child pornography is excessive in relation to its nonpunitive purposes. As such, this factor militates against 

characterizing the child pornography surcharge as punishment.

 

8 The child pornography surcharge generated an estimated 

$215,500 in 2018-19, of which $181,300 went to grants for 

counseling services for victims of sexual assault. See

Legislative Fiscal Bureau Informational Paper #59, Crime Victim 

and Witness Services 10 (January 2019), 

https://docs.legis.wisconsin.gov/misc/lfb/informational_papers/j

anuary_2019/0059_crime_victim_and_witness_services_informational

_paper_59.pdf. 

9 See Internet Crimes Against Children Task Force, Priority 

Needs For Our Top Priority: Kids 14-16 (May 3, 2007), 

https://www.doj.state.wi.us/sites/default/files/2007-news/icacreport.pdf (approximating costs to investigate internet crimes 

against children and estimating cost to investigate "all known 

IP addresses offering to share child pornography in Wisconsin" 

to be $82,888,395 in 2007). 
No. 2020AP616-CR 

23

3. Summary

¶46 In sum, we conclude that the child pornography 

surcharge does not constitute punishment. Our application of 

the intent-effects test demonstrates that the primary function

of the child pornography surcharge statute is not punitive nor 

is the child pornography surcharge punitive in effect. The text 

of Wis. Stat. § 973.042 does not evidence that the child 

pornography surcharge statute's primary function is punitive,

and our review of the Mendoza-Martinez factors demonstrates that 

all but one factor——application to conduct already a crime——

weigh in favor of our determination that the child pornography 

surcharge is not punitive in effect. Because of our conclusion 

that the child pornography surcharge is not punitive, the 

circuit court did not need to inform Schmidt of the child 

pornography surcharge during the plea colloquy. See Fugere, 386 

Wis. 2d 76, ¶20. Consequently, the circuit court did not err 

when it denied Schmidt's postconviction motion to withdraw his 

guilty plea.

B. The Child Pornography Surcharge Applies to Images 

of Child Pornography that Form the Basis of Read-in Charges.

¶47 Having determined that Schmidt was not entitled to 

withdraw his guilty plea, we now turn to his alternative 

argument that we should vacate part of the child pornography 

surcharge that the circuit court imposed. Wisconsin Stat. 

§ 973.042 sets forth when a circuit court imposes a child 

pornography surcharge, which we repeat for context:
No. 2020AP616-CR 

24

If a court imposes a sentence or places a person on 

probation for a crime under [§§] 948.05 or 948.12[,]

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.

§ 973.042(2) (emphasis added). 

¶48 Schmidt argues that the circuit court could impose the 

child pornography surcharge only for the six images that formed 

the basis of his convictions, not for the eight additional 

images that formed the basis of the charges that were read-in at 

sentencing. To address Schmidt's argument, we interpret the 

language of the child pornography surcharge statute and conclude 

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. 

¶49 While the statute imposes mandatory language on the 

circuit court, the circuit court determined that only the 14 

images that formed the basis of the charges were associated with 

Schmidt's possession of child pornography. Consequently, 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. 

¶50 "[T]he purpose of statutory interpretation is to 

determine what the statute means so that it may be given its 

full, proper, and intended effect." Kalal, 271 Wis. 2d 633,

¶44. To do so, we begin with the plain language of the statute, 
No. 2020AP616-CR 

25

stopping our inquiry there if the meaning of the statute is 

clear. Id., ¶45. When interpreting the language of a statute, 

the words are given their "common, ordinary, and accepted 

meaning, except that technical or specially-defined words or 

phrases are given their technical or special definitional 

meaning." Id. Determining the common, ordinary, and accepted 

meaning of a word can be "acertain[ed] by reference to the 

dictionary definition." Id., ¶53. 

¶51 Also essential in a plain meaning analysis is the 

context and structure of the statute in which the operative 

language appears. Id., ¶46. "[S]tatutory language is 

interpreted in the context in which it is used; not in isolation 

but as part of a whole; in relation to the language of 

surrounding or closely-related statutes; and reasonably, to 

avoid absurd or unreasonable results." Id. Moreover, 

"[s]tatutory language is read where possible to give reasonable 

effect to every word, in order to avoid surplusage." Id. "If 

this process of analysis yields a plain, clear statutory 

meaning, then there is no ambiguity, and the statute is applied 

according to this ascertainment of its meaning," and we do not 

need to consult extrinsic sources. Id. (quoted source omitted)

¶52 Turning to the facts of this case, the circuit court 

imposed the child pornography surcharge for the 14 images of 

child pornography charged. Schmidt concedes that he is liable 

for the surcharge for the six images of child pornography that 

formed the bases for his six convictions of possession of child 

pornography. With respect to the other eight images of child 
No. 2020AP616-CR 

26

pornography that formed the basis of the dismissed and read-in 

charges, Schmidt and the State disagree solely about whether 

those images were "associated with the crime" as that phrase is 

used in Wis. Stat. § 973.042(2). Thus, we must determine the 

plain meaning of the phrase "associated with the crime" before 

determining whether the 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.10

¶53 As the term is used in Wis. Stat. § 973.042(2), to 

associate is "to connect or bring into relation, as thought, 

feeling, memory, etc."11 Random House Unabridged Dictionary 126 

(2d ed. 1983). Beyond the definition of associate, we must also 

 

10 Before imposing a child pornography surcharge, the 

circuit court must "determine the number of images or copies of 

images associated with the crime by a preponderance of the 

evidence and without a jury." Wis. Stat. § 973.042(2). After 

determining by a preponderance of the evidence the number of 

images associated with the crime, the circuit court must impose 

the child pornography surcharge for those images of child 

pornography. Id. Here, the parties do not dispute that the 

circuit court found by a preponderance of the evidence that the 

14 images of child pornography charged were associated with the 

crime of possession of child pornography. 

11 This dictionary's definition is consistent with the 

definition of "Associate" from other dictionaries. See, e.g., 

Webster's Third New International Dictionary 132 (1986) ("to 

join or connect in any of various intangible or unspecified 

ways"); The American Heritage Dictionary of the English 

Language 112 (3d ed. 1992) ("To connect in the mind or 

imagination"); Oxford English Dictionary, https://www.oed.com/

view/Entry/11976?rskey=2n1wss&result=2&isAdvanced=false#eid

("Connected in thought, mentally related"). 
No. 2020AP616-CR 

27

determine what "the crime" means as used in § 973.042(2). A 

straightforward reading of § 973.042(2) indicates that "the 

crime" refers to the offenses of conviction previously mentioned 

in the sentence, namely, sexual exploitation of a child and 

possession of child pornography. See § 973.042(2) (requiring 

that circuit court impose the child pornography surcharge "[i]f 

a court imposes a sentence or places a person on probation for a 

crime under [§§] 948.05 or 948.12"); Paroline, 572 U.S. at 445 

(explaining that the use of the term "a crime" refers to the 

"offense of conviction"). So a child pornography surcharge must

be imposed for an image of child pornography if that image is 

connected or brought into relation with the convicted 

individual's offense of sexual exploitation of a child or 

possession of child pornography. 

¶54 Applying this understanding of "associated with the 

crime," it 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. Those images of child 

pornography are specifically connected to and brought into 

relation with the convicted individual's offense of either 

sexual exploitation of a child or possession of child 

pornography because those images of child pornography that form 

the basis of read-in charges of sexual exploitation of a child 

or possession of child pornography can be considered for 

restitution or as a factor at sentencing for the crime. See

State v. Sulla, 2016 WI 46, ¶44, 369 Wis. 2d 225, 880 N.W.2d 659 
No. 2020AP616-CR 

28

(explaining effect of read-in charges). As such, images of 

child pornography that form the basis of read-in charges of 

sexual exploitation of a child or possession of child 

pornography are sufficiently related to the offenses of sexual 

exploitation of a child or possession of child pornography for a 

circuit court to impose the child pornography surcharge for 

those images of child pornography that form the basis of read-in 

charges of sexual exploitation of a child or possession of child 

pornography. 

¶55 Moreover, the facts of this case demonstrate that the 

images of child pornography that formed the basis of Schmidt's 

read-in charges of possession of child pornography were 

connected to and brought into relation with Schmidt's offense of 

possession of child pornography. The images that formed the 

basis of Schmidt's read-in charges were collected at the same 

time and found on the same devices as the images that formed the 

basis of Schmidt's conviction of possession of child 

pornography. Such a connection between the images of child 

pornography that formed the basis of Schmidt's read-in charges 

of possession of child pornography and Schmidt's offense of 

possession of child pornography was sufficient for the circuit 

court to impose the child pornography surcharge for those images 

of child pornography that formed the basis of Schmidt's read-in 

charges of possession of child pornography. 

¶56 Schmidt argues that this reading is incorrect for two 

reasons. First, he asserts that this reading renders 

superfluous part of the statute——specifically, "if a court 
No. 2020AP616-CR 

29

imposes a sentence or places on probation for a crime under 

[§§] 948.05 or 948.12"——so Schmidt contends that the child 

pornography surcharge must apply only to images of child 

pornography that form the basis of actual convictions for the 

crime (hereinafter "per conviction basis"). Second, he asserts 

that the child pornography surcharge statute does not include a 

specific provision for read-in charges, as it does in other 

statutes. We disagree with both arguments. 

¶57 The plain language of the child pornography surcharge

statute reveals that it does not apply on a per conviction 

basis. The circuit court must impose the surcharge for each 

image of child pornography "associated with the crime." Wis. 

Stat. § 973.042(2). As explained above, "associated with the 

crime" refers to a connection or relation to the convicted 

individual's offense of sexual exploitation of a child or 

possession of child pornography, which is broader than the 

individual's conviction for either of those crimes. Moreover, 

several other surcharge statutes use the per conviction

formulation. See, e.g., § 973.043(1) (imposing a drug offender 

diversion surcharge "for each conviction"); § 973.045(1) 

(imposing a crime victim and witness assistance surcharge for 

each count "on which a conviction occurred"); § 973.046(1r)

(imposing a DNA analysis surcharge "for each conviction"). 

Despite the common usage of "conviction" as the basis for a 

surcharge, the child pornography surcharge does not include that 

formulation. See Wis. Stat. § 973.042(2). Such different 

language shows that the child pornography surcharge was not 
No. 2020AP616-CR 

30

meant to apply on a per conviction basis as Schmidt argues. See

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 170 (2012) (explaining the 

Presumption of Consistent Usage canon of construction, which in 

part dictates that "a material variation in terms suggests a 

variation in meaning"); Estate of Miller v. Storey, 2017 WI 99, 

¶35 n.14, 378 Wis. 2d 358, 903 N.W.2d 759 (same). 

¶58 Additionally, Schmidt asserts that the child 

pornography statute cannot apply to images of child pornography 

that form the basis of read-in charges of sexual exploitation of 

a child or possession of child pornography because the child 

pornography surcharge statute does not specifically include or 

refer to read-in charges. The restitution statute, Wis. Stat. 

§ 973.20, specifically requires restitution be paid to victims 

of read-in crimes.12 While the language in the restitution 

statute is similar to the language of the child pornography 

surcharge statute, the child pornography statute is not imposed 

 

12 Pursuant to Wis. Stat. § 973.20(1r), the circuit court 

"shall order [a] defendant to make full or partial restitution 

under this section to any victim of a crime considered at 

sentencing." A "[c]rime considered at sentencing" includes "any 

read-in crime." § 973.20(1g)(a). A "read-in crime" is

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 sentencing 

the defendant for the crime for which the defendant 

was convicted.

§ 973.20(1g)(b). 
No. 2020AP616-CR 

31

for the crime itself or for charges of the crime, as the 

restitution statute requires; rather, the child pornography 

statute is imposed on a per image basis instead of based on the 

crime itself. Compare § 973.20 (requiring restitution for any 

crime for which the defendant was convicted and any read-in 

crime) and § 973.042(2) (requiring the child pornography 

surcharge for "each image or each copy of an image associated 

with the crime"). Multiple images of child pornography may be 

part of a conviction for a singular count of possession of child 

pornography. See Paroline, 572 U.S. at 441 (requiring 

restitution for a victim of child pornography despite the images 

of child pornography depicting the victim not forming the basis 

of the conviction). 

¶59 Limiting the language of the child pornography 

surcharge statute as strictly as Schmidt proposes would render 

the surcharge effectively a per conviction surcharge, which, as 

we explained above, is an improper reading of the child 

pornography surcharge statute. Instead, the child pornography 

surcharge applies for every image of child pornography 

associated with the convicted individual's sexual exploitation 

of a child or possession of child pornography regardless of 

whether those images form the basis of either a convicted charge 

or a read-in charge. 

¶60 Accordingly, we also conclude that the child 

pornography surcharge applies to images of child pornography 

that 0 basis of read-in charges of sexual exploitation of a 

child or possession of child pornography, so long as those 
No. 2020AP616-CR 

32

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. 

Here, the circuit court applied the child pornography surcharge 

to images of child pornography that were connected to Schmidt's 

offense of possession of child pornography by the nature of 

those images forming the basis of Schmidt's read-in charges of 

possession of child pornography. Accordingly, we affirm the 

circuit court's determination and imposition of the child 

pornography surcharge for the images of child pornography that 

formed the basis of Schmidt's read-in charges of possession of 

child pornography. 

IV. CONCLUSION

¶61 We conclude that the child pornography surcharge is 

not punitive, so the circuit court did not need to inform 

Schmidt of the child pornography surcharge during the plea 

colloquy. Consequently, the circuit court did not err when it 

denied Schmidt's postconviction motion to withdraw his guilty 

plea. 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. Accordingly, we affirm the 

circuit court's judgment imposing the child pornography 
No. 2020AP616-CR 

33

surcharge for 14 images of child pornography, and the order that 

denied plea withdrawal. 

By the Court.—The judgment and order of the circuit court 

are affirmed.
No. 2020AP616-CR.pdr

1

¶62 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join 

the majority opinion and write in concurrence to emphasize that 

the majority opinion affirms and employs those principles of 

statutory interpretation mandated in Kalal v. Circuit Court for 

Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 

throughout its statutory analysis. That the majority opinion 

follows Kalal while interpreting Wis. Stat. § 973.042(2) and 

applying a process known as the "intent-effects test" to 

determine whether the statutory surcharge is punitive, is 

important to the scholarship of our jurisprudence. 

¶63 For years, we interpreted statutes by attempting to 

determine the intent of the legislature. Id., ¶38. At the same 

time, we, and other courts, held that a court must presume that 

statutory meaning is derived through the words that the 

legislature chose. Id., ¶39. In Kalal, we settled that 

conflict by holding, "It is the enacted law, not the unenacted 

intent, that is binding on the public. Therefore, the purpose 

of statutory interpretation is to determine what the statute 

means." Id., ¶44. 

¶64 Given our agreed upon focus, we provided a general 

structure for determining statutory meaning. We began with the 

"language of the statute." Id., ¶45. We gave words chosen by 

the legislature their common meaning unless they were technical 

or specially-defined words. Id. "If the meaning of the statute 

[was] plain, we ordinarily [stopped] the inquiry." Id. We 

explained that "[c]ontext is important to meaning." Id., ¶46. 

Furthermore, unless the words chosen by the legislature created 
No. 2020AP616-CR.pdr

2

an ambiguous statute, we concluded our analysis with the plain 

meaning of the words chosen. Id. However, statutory ambiguity 

moved us into additional aids in determining statutory meaning. 

Id., ¶¶47–49. 

¶65 Statutory interpretation in the matter before us 

creates a special challenge that we not slide backwards into 

interpreting Wis. Stat. § 973.042(2) by determining the intent 

of the legislature. It is especially challenging here because 

we employ a process, which the United States Supreme Court named 

the "intent-effects test," to determine whether § 973.042(2) is 

punitive.1 

¶66 The majority opinion meets this challenge by 

interpreting the "intent" part of the test as requiring us to 

determine the statute's "primary function," "as expressed in the 

plain text of the statute."2 As the majority opinion explains, 

"[i]f the statute's primary function is not punitive," we then 

turn to the "effects" part of the test.3 

¶67 This methodology is faithful to our mandate in Kalal. 

I would have renamed the intent-effects test for use in 

Wisconsin as the "primary function-effects test" so that future 

courts faced with determining whether a statute is punitive 

would have immediate direction on the manner in which that 

 

1 Majority op., ¶22. 

2 Id., ¶23. 

3 Id.
No. 2020AP616-CR.pdr

3

determination is made. A majority of the court decided not to 

do so. 

¶68 Therefore, I write in concurrence with the hope that 

this writing will be of assistance in regard to future analyses 

and applications of the intent-effects test. Accordingly, I 

respectfully concur. 

¶69 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this concurrence.
No. 2020AP616-CR.bh

1

¶70 BRIAN HAGEDORN, J. (concurring in part, dissenting 

in part). Anthony M. Schmidt pled guilty to six counts of 

possession of child pornography, each conviction based on one 

image. The circuit court correctly imposed a $500 child 

pornography surcharge for each of these six images. However, it 

also imposed child pornography surcharges for eight images 

associated with eight separate counts of possession of child 

pornography that were dismissed as part of the plea and read in 

at sentencing. While I agree with the majority that the circuit 

court did not err by failing to advise Schmidt of these 

surcharges when he entered his plea,1 the majority erroneously 

upholds surcharges for images beyond those "associated with the 

crime" for which sentence was imposed, which is all that Wis. 

Stat. § 973.042(2) (2019-20)2 authorizes. Because the majority 

misreads the law, I respectfully dissent to this conclusion.

¶71 We begin, as we should, with the statute's text:

If a court imposes a sentence or places a person on 

probation for a crime under [Wis. Stat. §§] 948.05 or 

948.12 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.

 

1 I join Parts I, II, and III.A. of the majority opinion.

2 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.
No. 2020AP616-CR.bh

2

Wis. Stat. § 973.042(2).3 This statutory language contains a 

statement establishing two conditions, followed by mandatory 

duties arising from the satisfaction of the conditions.

¶72 The two conditions triggering a child pornography 

surcharge are: (1) the court must impose a sentence or place a 

person on probation for committing certain crimes; and (2) the 

person must have been at least 18 years old when the crime was 

committed. The second condition is not at issue here, but the 

first is. The crimes for which a surcharge must be assessed 

(provided a sentence or probation is imposed) are those under 

Wis. Stat. §§ 948.05 and 948.12. Both are located in a chapter 

that defines various crimes against children.

¶73 Wisconsin Stat. § 948.12 criminalizes possession of 

child pornography. This can include possessing, accessing, 

exhibiting, or playing recordings of a child engaged in sexually 

explicit conduct. § 948.12(1m), (2m). Although each individual 

photograph may be charged as a separate crime,4 nothing in this 

statute requires that each image must be separately charged. We 

see this in State v. Van Buren, where the defendant was 

convicted of a single charge of possession of child pornography 

even though over 51,000 images were found on his computer and 

multiple photographs were introduced to support the lone charge. 

 

3 "In this section, 'image' includes a video recording, a 

visual representation, a positive or negative image on exposed 

film, and data representing a visual image." Wis. Stat. 

§ 973.042(1).

4 See State v. Multaler, 2002 WI 35, ¶64, 252 Wis. 2d 54, 

643 N.W.2d 437.
No. 2020AP616-CR.bh

3

2008 WI App 26, ¶¶1, 4, 14, 307 Wis. 2d 447, 746 N.W.2d 545. So 

while possession of child pornography may be charged on a oneimage, one-crime basis as it was here, the law does not require 

it.

¶74 The second statute defining crimes that can trigger 

the child pornography surcharge is Wis. Stat. § 948.05, which 

criminalizes sexual exploitation of a child. This can take the 

form of employing, using, persuading, inducing, enticing, or 

coercing a "child to engage in sexually explicit conduct for the 

purpose of recording or displaying" the conduct. 

§ 948.05(1)(a). It can also be violated by recording or 

displaying a child engaging in such conduct. § 948.05(1)(b). 

And one can commit a crime under this section by producing, 

performing in, profiting from, promoting, importing, 

reproducing, advertising, selling, distributing, or possessing 

with intent to sell or distribute "any recording of a child 

engaging in sexually explicit conduct." § 948.05(1m). Further, 

if someone responsible for the child's welfare "knowingly 

permits, allows, or encourages" a child to engage in recorded 

sexual conduct, they too can be charged under this section. 

§ 948.05(2). This scope of behavior is broad, and importantly 

for our purposes, the crimes are not necessarily one-image 

offenses. For example, a person could be charged and convicted 

of one count of sexual exploitation of a child under Wis. Stat. 

§ 948.05(1m) for selling a hard drive containing various 

pictures and videos depicting a child engaging in sexual acts. 

The important takeaway is that one conviction under the various 
No. 2020AP616-CR.bh

4

crimes itemized in § 948.05 can involve multiple images for a 

single conviction.

¶75 When a defendant is over 18 and receives a sentence or 

probation following conviction under Wis. Stat. §§ 948.05 or 

948.12, the conditions are satisfied and "the court shall impose 

a child pornography surcharge of $500 for each image or each 

copy of an image associated with the crime." Wis. Stat. 

§ 973.042(2). This phrase reveals three key principles.

¶76 First, the surcharge "shall" be imposed; it is 

mandatory. State v. Cox, 2018 WI 67, ¶11, 382 Wis. 2d 338, 913 

N.W.2d 780 ("The general rule is that the word 'shall' is 

presumed mandatory when it appears in a statute." (quoting 

another source)). The statute leaves the court no room to 

refuse to impose surcharges, or to impose a smaller surcharge if 

the fine becomes onerous. Each image associated with the crime 

must result in a $500 surcharge without exception.

¶77 Second, the surcharge is assessed per image, not per 

conviction. This reflects that a single conviction under the 

relevant sections can involve multiple images of child 

pornography. Since the surcharge must be assessed for every 

image associated with the conviction, the statute provides a 

mechanism to count the number of images. The final sentence of 

Wis. Stat. § 973.042(2) provides: "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." 

Consider again a one-count conviction under Wis. Stat. 

§ 948.05(1m) for selling a hard drive containing various 
No. 2020AP616-CR.bh

5

pictures and videos depicting a child engaging in sexual acts. 

Under the law, the court's job is to determine how many 

individual images were on the hard drive and impose the 

surcharge for each image. If the hard drive contained ten 

images, the surcharge for the lone conviction would be $5,000 

($500 per image). The court's inquiry is a factual one.

¶78 Third, the surcharge must be assessed only for images 

"associated with the crime." Critically, the statute ties the 

images to "the crime"——not a crime that could have been charged 

but wasn't, or a related crime, or a charged but dismissed 

crime, but the crime. Which one? The crime mentioned in the 

beginning of the section——the crime for which the court "imposes 

a sentence or places a person on probation." Wis. Stat. 

§ 973.042(2). The phrase "associated with" is not an invitation 

to the court to sweep in images unrelated to the specific crime 

for which a sentence or probation is imposed under either Wis. 

Stat. §§ 948.05 or 948.12. The legislature, understanding that 

the crimes triggering a surcharge can involve multiple images, 

used the phrase "associated with" to clarify that the surcharge 

must be assessed per image, not per conviction.

¶79 Related statutes reinforce this plain reading.5 Four 

other surcharge statutes immediately following the child 

 

5 State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 

WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110 ("A statute's 

purpose or scope may be readily apparent from its plain language 

or its relationship to surrounding or closely-related statutes——

that is, from its context or the structure of the statute as a 

coherent whole.").
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pornography surcharge in Chapter 973 begin the same way: "If a 

court imposes a sentence or places a person on probation." See

Wis. Stat. §§ 973.042(2); 973.043(1); 973.045(1); 973.0455(1); 

973.046(1r). The drug offender diversion surcharge assesses 

"$10 for each conviction." § 973.043(1). Similarly, the crime 

prevention funding board surcharge is "calculated by adding up, 

for each misdemeanor or felony count on which a conviction 

occurred, $20." § 973.0455(1). The crime victim and witness 

assistance surcharge imposes a total surcharge based on adding 

the number of felony counts ($92 per felony) and misdemeanor 

counts ($67 per misdemeanor) "on which a conviction occurred." 

§ 973.045(1). Finally, the deoxyribonucleic acid analysis 

surcharge is calculated as $250 for "each conviction" of a 

felony and $200 for "each conviction" of a misdemeanor. 

§ 973.046(1r). Unlike the per-conviction surcharges in these 

neighboring statutes, the child pornography surcharge focuses on 

images "associated with the crime."

¶80 But that's not all. The restitution statute, also 

located in Chapter 973, provides a vital contextual clue. When 

ordering restitution, the circuit court does not look merely at 

the crime a defendant was convicted of. Rather, the statute 

creates a broader technical phrase called the "Crime considered 

at sentencing." Wis. Stat. § 973.20(1g)(a). This phrase is 

defined to mean "any crime for which the defendant was convicted 

and any read-in crime." Id. And 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. 2020AP616-CR.bh

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sentencing the defendant for the crime for which the 

defendant was convicted.

§ 973.20(1g)(b).

¶81 The legislature expressly incorporated read-in counts 

for restitution, but it made no reference to read-in charges in 

Wis. Stat. § 973.042(2). If the legislature had meant to 

include images associated with read-in charges here, it surely 

could have, and likely would have, used language similar to the 

restitution statute.6 The restitution statute's direct reference 

to read-in crimes buttresses the conclusion that images 

associated with read-in crimes should not be subject to the $500 

child pornography surcharge.

¶82 This statutory context demonstrates that the surcharge 

does not apply to images associated only with read-in crimes, 

nor is it assessed on a per-conviction basis. Faced with this 

evidence, the majority chooses to read "associated with the 

crime" as a vague phrase that could encompass just about any 

image a judge might wish to include, so long as the images have 

some ill-defined connection to a conviction for possession of 

child pornography or sexual exploitation of a child. It frames 

its rule as follows: "So a child pornography surcharge must be 

imposed for an image of child pornography if that image is 

connected or brought into relation with the convicted 

individual's offense of sexual exploitation of a child or 

possession of child pornography." Majority op., ¶53. What does 

 

6 The same definition is also found in Wis. Stat. § 973.049, 

which applies to restrictions on contact during sentencing. See

Wis. Stat. § 973.049(1)(b).
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this include? I'm not sure. The majority isn't quite sure 

either and limits its analysis to the facts of this case. Id., 

¶49. But the majority expands the child pornography surcharge's 

reach to images beyond those connected to the crime itself, and 

nothing in its rule offers discernable boundaries separating 

images that must be included from those that must be excluded. 

The majority reframes the statute to reach an open-ended group 

of images for which the circuit court must——again, the surcharge 

is not optional——count and assess the surcharge. This is not 

what the law requires.

¶83 The far more reasonable reading of the law is that the 

legislature chose to assess a surcharge only for those images 

connected with the specific crime under Wis. Stat. §§ 948.05 or 

948.12 for which a sentence or probation is imposed. That is 

the language the statute uses, and it makes sense. This does 

not include images related to crimes for which a defendant has 

not been found guilty, whether read-in charges or images 

discovered during the investigation but not associated with the 

crime of conviction itself. This limits the images to a known 

and discernable set——namely, those associated with the specific 

crime of conviction, evidence a court can readily examine to 

determine how many images were associated with each conviction.7

 

7 While the text is sufficient to resolve the interpretive 

inquiry on its own, legislative history confirms this reading. 

See Kalal, 271 Wis. 2d 633, ¶51. The drafting file for the 

legislation that created Wis. Stat. § 973.042(2) contains an 

email exchange between a Legislative Reference Bureau (LRB) 

drafter and a legislative aide preparing the bill. The 

correspondence contains a discussion about how to count the 

number of images assessed under § 973.042(2)'s per-image 

(continued)
No. 2020AP616-CR.bh

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¶84 In sum, the text and statutory context reveal that the 

surcharge applies to images associated with the crime for which 

sentence or probation is imposed. The surcharge does not apply 

to images associated only with charges dropped and read in as 

part of a plea, or to images collected in the investigation, or 

to images that might be captured by the majority's nebulous, 

 

surcharge. The LRB drafter explained his understanding as 

follows:

I assume that the surcharge should also apply to 

crimes under [Wis. Stat. §] 948.05 (which covers the 

creation of child pornography——as well as parents who 

allow children to participate in the making of child 

pornography). In those cases, should I link the 

surcharge to the number of copies that are produced, 

distributed...? Obviously a producer or distributor 

has control over the number of copies that are 

produced and distributed. Counting becomes difficult 

for cases under [§] 948.05(3) (allowing a child to 

participate) or for cases in which the person is 

charged is an employee of a distributor. One option 

is to just specify that the surcharge is imposed for 

each copy of the image associated with the offense and 

let the court determine whether a particular copy is 

"associated with" the offense in question.

Drafting File, 2005 A.B. 942, Legislative Reference Bureau, 

Madison, Wis. The aide replied that this was what the 

legislator wanted. Id.

This drafting confirms the most straightforward reading of 

the text. The drafters chose their words to assess the perimage surcharge solely for the images that form the basis for 

the crime the defendant is convicted of ("the offense in 

question"), not images related to the investigation or to 

dismissed charges. And the drafting difficulty was in crafting 

language that would encompass some crimes where the number of 

images connected to a specific count would be difficult to 

determine——particularly those under Wis. Stat. § 948.05. The 

resolution? A surcharge for each image "associated with the 

crime," with the court determining this factual question.
No. 2020AP616-CR.bh

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open-ended approach. Applying these principles here means that 

the circuit court should have assessed the child pornography 

surcharge for only the six images tied to the six counts Schmidt 

pled guilty to and for which the circuit court imposed a 

sentence. Schmidt should not have been assessed a $500 child 

pornography surcharge for each of the eight images tied to the 

eight counts read in at sentencing because these images were not 

"associated with the crime[s]" for which Schmidt was sentenced.

¶85 While I join the majority's conclusion that the 

circuit court did not err by failing to advise Schmidt of these 

surcharges when he entered his plea, I respectfully dissent from 

its flawed interpretation and application of Wis. Stat. 

§ 973.042.

¶86 I am authorized to state that Justices ANN WALSH 

BRADLEY and REBECCA FRANK DALLET join this concurrence/dissent.
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