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.

NOT PARTICIPATING:

 

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 Walworth 

 

1 All subsequent references to the Wisconsin Statutes are to 

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

2

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 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 

 

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

3

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 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 
No. 2020AP616-CR 

4

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 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 

 

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

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 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 
No. 2020AP616-CR 

6

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. 

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 
No. 2020AP616-CR 

7

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 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. 
No. 2020AP616-CR 

8

¶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 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 
No. 2020AP616-CR 

9

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 

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 
No. 2020AP616-CR 

10

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 

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. 
No. 2020AP616-CR 

11

¶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 Mendoza-Martinez, 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 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:
No. 2020AP616-CR 

12

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 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). 

 

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

¶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 

§ 973.042, the primary function of the child pornography surcharge 

is not punitive. 

 

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)." 

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 

14

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 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 
No. 2020AP616-CR 

15

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," 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, 
No. 2020AP616-CR 

16

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. 

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 
No. 2020AP616-CR 

17

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.

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.
No. 2020AP616-CR 

18

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. 

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 
No. 2020AP616-CR 

19

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 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 
No. 2020AP616-CR 

20

will assist the victims of child pornography. Thus, the child 

pornography surcharge is also rationally related to this nonpunitive 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.

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 
No. 2020AP616-CR 

21

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. 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 

 

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. 
No. 2020AP616-CR 

22

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 non-punitive 

purposes. As such, this factor militates against characterizing 

the child pornography surcharge as punishment.

3. Summary

¶46 In sum, we conclude that the child pornography surcharge 

does not constitute punishment. Our application of the intenteffects 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 

 

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

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:

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 
No. 2020AP616-CR 

24

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, 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 closelyrelated statutes; and reasonably, to avoid absurd or unreasonable 
No. 2020AP616-CR 

25

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 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 
No. 2020AP616-CR 

26

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 

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 

 

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

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 (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 
No. 2020AP616-CR 

28

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 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). 
No. 2020AP616-CR 

29

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 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 readin charges. The restitution statute, Wis. Stat. § 973.20,
No. 2020AP616-CR 

30

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 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 

 

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

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 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. 
No. 2020AP616-CR 

32

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 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 an ambiguous 

statute, we concluded our analysis with the plain meaning of the 
No. 2020AP616-CR.pdr

2

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 "intenteffects 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 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. 

 

1 Majority op., ¶22. 

2 Id., ¶23. 

3 Id.
No. 2020AP616-CR.pdr

2

¶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. 2008 

 

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

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 one-image, 

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 oneimage 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 

crimes itemized in § 948.05 can involve multiple images for a 

single conviction.
No. 2020AP616-CR.bh

4

¶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 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 
No. 2020AP616-CR.bh

5

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 

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 

 

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.").
No. 2020AP616-CR.bh

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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 sentencing 

the defendant for the crime for which the defendant was 

convicted.

§ 973.20(1g)(b).
No. 2020AP616-CR.bh

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¶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 readin 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 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 

 

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).
No. 2020AP616-CR.bh

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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 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, 
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, 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 

 

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 per-image 

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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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.
No. 2020AP616-CR.bh

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