Sentencing Discretion, DNA Surcharge: Ability to Pay

State v. Michael T. Ziller, 2011 WI App 164 (recommended for publication); for Ziller: Michael S. Holzman; case activity

¶11 On the basis of our review of the record in this case, we are satisfied that the circuit court properly exercised its discretion in sentencing Ziller. The circuit court considered the three primary sentencing factors and noted them on the record. See State v. Gallion, 2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197. The court adhered to the Cherry standards. It noted that Ziller had previously been employed, which indicates that he had the ability to compensate his victims. Furthermore, Ziller stated, “I take full responsibility for what happened…. I want to make things right with the victims as soon as I can.” The court ordered that Ziller pay roughly $10,000 in restitution to fully compensate his victims. As the court determined that Ziller was employable such that he could pay $10,000 in restitution, and as Ziller stated that he wanted “to make things right with the victims,” the court was well within its discretion to order Ziller to pay the $250 surcharge rather than force the cost upon the public.

¶12 If Ziller is asking this court to adopt a rule whereby a circuit court must explicitly describe its reasons for imposing a DNA surcharge, we decline to adopt such a rule. The circuit court is in the best position to examine the relevant sentencing factors in each case. State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). The burden is therefore on the defendant to show that the sentence is unreasonable, and Ziller has failed to point to any aspect of his sentence that is unreasonable. State v. Lechner, 217 Wis. 2d392, 418, 576 N.W.2d 912 (1998).