01STOCK_GAVEL

MADISON

The state Supreme Court on Friday agreed with a Walworth County judge’s decision on a child porn case, ruling that the judge did not need to warn the defendant about the $500-per-count surcharge.

The $500-per-count surcharge associated with child porn possession charges is not legally considered a “punishment” that Judge Phillip Koss needed to warn Anthony M. Schmidt about during his 2019 plea hearing, the state’s high court ruled Friday.

After reaching an agreement, Schmidt, 32, of Lake Geneva, pleaded guilty to six counts of possessing child porn, and he had eight other charges dismissed and read into the record, according to online court records from the April 1, 2019, hearing.

But Schmidt later tried to withdraw his plea, a move that Koss denied March 31, 2020.

The court’s Friday decision also agreed that the surcharges apply to the charges he pleaded to and those dismissed but still read into the record.

The decision states, “The primary function of the child pornography surcharge is not punitive,” pointing out that the cost is called a “surcharge” and not a “fine,” and the money helps fund investigations into the sexual exploitation of children.

The case comes from Walworth County, where court fines and fees were higher than any other county in the state between 2011 and 2015, according to data released in August.

A lawyer representing Schmidt wrote that the effect of the surcharge statute was indeed punitive.

“The statute has the potential of imposing crippling, potentially inescapable, financial hardship on a convicted offender,” a court filing from last summer states.

But the state Supreme Court decided the effect was not legally punitive.

Justice Brian Hagedorn agreed Koss did not need to advise Schmidt of the surcharges. He did disagree with another part of the ruling, however, saying Schmidt should not have been charged $500 for the dismissed charges.

Two other justices signed on to Hagedorn’s dissent. No justices sided with Schmidt entirely.

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