Justia.com Opinion Summary: After a jury trial, Defendant Carl Dowdy was found guilty of second degree sexual assault. The circuit court sentenced Defendant to fifteen years imprisonment and then stayed the sentence in favor of a ten-year period of probation. Seven years later, Defendant petitioned the circuit court to reduce the length of his probation from ten years to seven years. The court granted the petition and thereby discharged Defendant from probation, finding (1) Wis. Stat. 973.09(3)(a) authorized the court to reduce the length of probation, and (2) there was cause for reducing the length of Defendant's probation. The court of appeals reversed, concluding that the circuit court lacked authority to reduce the length of Defendant's probation. The Supreme Court affirmed, holding (1) Wis. Stat. 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation; and (2) accordingly, the circuit court in this case erred as a matter of law when it relied upon section 973.09(3)(a) to reduce the length of Defendant's probation.
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2012 WI 12
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2010AP772-CR
State of Wisconsin,
Plaintiff-Appellant,
v.
Carl L. Dowdy,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 330 Wis. 2d 444, 792 N.W.2d 230
(Ct. App. 2010-Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
February 14, 2012
September 7, 2011
CIRCUIT
MILWAUKEE
MARTIN J. DONALD
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ABRAHAMSON, C. J. dissents (Opinion filed).
BRADLEY, J. dissents (Opinion filed).
PROSSER, J. did not participate.
ATTORNEYS:
For the defendant-respondent-petitioner there were briefs
by Bryan J. Cahill and Godfrey & Kahn, S.C., Madison, and oral
argument by Bryan J. Cahill.
For the plaintiff-appellant the cause was argued by James
M. Freimuth, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
An
amicus
Association
Henak
Law
of
curiae
Criminal
Office,
S.C.,
brief
was
Defense
filed
Lawyers
Milwaukee,
and
on
by
the
behalf
Robert
of
the
Henak
and
Wisconsin
State
Public Defender by Dustin C. Haskell, Kelli S. Thompson, Colleen
D. Ball and the Office of the State Public Defender, Milwaukee.
2012 WI 12
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2010AP772-CR
(L.C. No.
2002CF1138)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Appellant,
FEB 14, 2012
v.
A. John Voelker
Acting Clerk of Supreme
Court
Carl L. Dowdy,
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals.
¶1
ANNETTE KINGSLAND ZIEGLER, J.
Affirmed.
This is a review of a
published decision of the court of appeals, State v. Dowdy, 2010
WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230, that reversed an
order
by
the
Milwaukee
County
Circuit
Court1
granting
the
defendant's petition to reduce the length of his probation from
ten
years
probation.
1
to
seven
years,
thereby
discharging
him
from
The defendant, Carl L. Dowdy (Dowdy), brought his
The Honorable M. Joseph Donald presided.
No.
2010AP772-CR
petition pursuant to Wis. Stat. § 973.09(3)(a) (2009-10).2
argued
that
§ 973.09(3)(a)
authorizes
the
circuit
Dowdy
court
to
"modify the terms" of probation and hence authorizes the circuit
court to reduce the term, or length, of probation.
The circuit
court agreed and found cause for reducing the length of Dowdy's
probation.
¶2
The State appealed, and the court of appeals reversed,
concluding
that
the
circuit
court
had
neither
statutory
nor
inherent authority to reduce the length of Dowdy's probation.
¶3
We granted Dowdy's petition for review.
He presents
the following four issues:
(1)
Does Wis. Stat. § 973.09(3)(a) grant a circuit court
authority to reduce the length of probation?
(2)
If a circuit court does not have statutory authority
to
reduce
the
length
of
probation,
does
a
circuit
court have inherent authority to do so?
2
Wisconsin Stat. § 973.09(3)(a) (2009-10) states that
"[p]rior to the expiration of any probation period, the court,
for cause and by order, may extend probation for a stated period
or modify the terms and conditions thereof."
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
On July 19, 2011, the legislature amended Wis. Stat.
§ 973.09(3) by recreating subsection (3)(d). See 2011 Wis. Act
38, §§ 93b, 93c.
The new subsection (3)(d), which went into
effect on August 3, 2011, expressly grants a circuit court
authority to discharge a probationer before the expiration of
his or her probation period, subject to six requirements.
See
id.; infra note 8.
2
No.
(3)
2010AP772-CR
If a circuit court has inherent authority to reduce
the length of probation, what standard applies when
exercising
that
authority:
the
"for
cause"
standard
under Wis. Stat. § 973.09(3)(a) or the standard that
applies to sentence modification?3
(4)
In
this
exercise
case,
its
did
the
discretion
circuit
to
court
reduce
appropriately
the
length
of
Dowdy's probation from ten years to seven years?
¶4
grant
We conclude that Wis. Stat. § 973.09(3)(a) does not
a
circuit
probation.
court
authority
to
reduce
the
length
of
Rather, the plain language of § 973.09(3)(a) grants
a circuit court authority only to "extend probation for a stated
period" or to "modify the terms and conditions" of probation.
When subsection (3)(a) is read in context, it is clear that the
authority to "modify the terms and conditions" of probation does
not include the authority to reduce the length of probation.
Accordingly, in this case, the circuit court erred as a matter
of law when it relied upon § 973.09(3)(a) to reduce the length
of Dowdy's probation.
On that basis, we affirm the decision of
the court of appeals.
¶5
We decline to decide today whether a circuit court has
inherent authority to reduce the length of probation, and if so,
what standard applies.
Neither Dowdy's petition to the circuit
3
The standard that applies to sentence modification was
most recently articulated in State v. Harbor, 2011 WI 28, ¶¶3552, 333 Wis. 2d 53, 797 N.W.2d 828.
See also State v. Ninham,
2011 WI 33, ¶¶88-90, 333 Wis. 2d 335, 797 N.W.2d 451.
3
No.
2010AP772-CR
court nor the circuit court's order was grounded in the court's
alleged
inherent
authority.
As
a
general
rule,
issues
not
raised in the circuit court will not be considered for the first
time
on
appeal.
Wirth
v.
Ehly,
93
Wis. 2d 433,
443,
287
N.W.2d 140 (1980).
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶6
On February 27, 2002, the State charged Dowdy with one
count of second degree sexual assault by use or threat of force
or violence in violation of Wis. Stat. § 940.225(2)(a) (200102).4
The complaint alleged that on February 22, 2002, Dowdy
forcibly engaged an acquaintance, Lawanda M., in nonconsensual
penis-to-vagina sexual intercourse by holding her arms over her
head and forcing her legs apart.
¶7
Dowdy pled not guilty, and the case proceeded to a
two-day jury trial.
On June 18, 2002, the jury found Dowdy
guilty of the charged offense.
¶8
15
years
On July 23, 2002, the circuit court sentenced Dowdy to
imprisonment,
comprised
of
seven
years
confinement and eight years on extended supervision.
then
stayed
probation,
the
sentence
identifying
as
in
favor
"an
likelihood of rehabilitation.
of
a
ten-year
overwhelming
of
initial
The court
period
factor"
of
Dowdy's
As conditions of probation, the
court imposed one year of confinement with work and treatment
4
Wisconsin Stat. § 940.225(2)(a) (2001-02) provides that
whoever "[h]as sexual contact or sexual intercourse with another
person without consent of that person by use or threat of force
or violence" is guilty of a Class BC felony.
4
No.
release
privileges
and
ordered
Dowdy
to:
pay
2010AP772-CR
all
costs,
surcharges, and special assessments; undergo alcohol and other
drug abuse (AODA) assessment; have no contact with the victim;
seek
and
maintain
full-time
employment;
participate
in
sex
offender evaluation and treatment; and comply with any other
conditions imposed by the Department of Corrections (DOC).
¶9
On October 19, 2007, five years into his probation,
Dowdy filed a pro se motion to modify his sentence.
The circuit
court summarily denied Dowdy's motion.
¶10
Two
years
later,
on
July
15,
2009,
Dowdy,
through
counsel, petitioned the circuit court to reduce the length of
his probation from ten years to seven years.
The petition was
brought pursuant to Wis. Stat. § 973.09(3)(a), which, according
to Dowdy, "allows the court to modify the term of probation for
cause."
As grounds for his petition, Dowdy maintained that he
had complied with the conditions of his probation and did not
pose a threat to the community.
Specifically, Dowdy alleged
that he had no contact with the victim; had completed anger
management counseling at the request of his probation agent; had
been
alternately
employed
full-time,
employed
part-time,
or
seeking employment; had participated in sex offender treatment
since 2003 and was twice terminated from treatment only because
he continued to deny his offense; had voluntarily attended a
weekly men's group through church; and lacked AODA or mental
health needs.
¶11
On September 29, 2009, the circuit court conducted an
evidentiary hearing on Dowdy's petition, at which the victim's
5
No.
2010AP772-CR
advocate and Dowdy's three probation agents testified.
opposed Dowdy's petition.
All four
The victim's advocate testified that
the victim was "very opposed" to a reduction in the length of
Dowdy's probation, in light of her belief that Dowdy's sentence
was too lenient from the start.
¶12
Christy
Mueller
(Mueller),
Dowdy's
first
probation
agent, testified that Dowdy often lied about his whereabouts,
was
uncooperative
argumentative.
with
sex
offender
treatment,
and
was
She offered, and Dowdy accepted, an alternative
to revocation (ATR) for violations of probation that included
"possession of cell phone, having contact with minors, failing
to comply with his electronic monitoring, and failing to pay his
fees
for
supervision."
Dowdy
asked
to
Mueller's supervision in November 2003.
be
transferred
from
In her opinion, they
did not get along because Dowdy "was constantly fighting [her]
against the rules."
¶13
Janelle Petryniec (Petryniec), Dowdy's probation agent
from December 2003 through January 2008, testified that Dowdy
was mostly compliant with probation but had two violations, the
first
for
"fighting"
relationships."
offender
While
treatment,
and
the
second
acknowledging
Petryniec
for
that
described
Dowdy
how
"his
attended
Dowdy
doctor into excusing him from a month of treatment.
Petryniec
noted,
Dowdy
never
tested
positive
sexual
for
sex
misled
a
Still,
drugs
or
alcohol, was self-employed, and had no contact with the victim.
¶14
Finally,
Shannon
Kloss
(Kloss),
Dowdy's
probation
agent at the time, testified that Dowdy was non-compliant with
6
No.
probation
and
treatment.
specifically
Reviewing
a
with
curfew
report
2010AP772-CR
sex
offender
Dowdy's
on
and
sex
offender
treatment, Kloss explained that Dowdy exhibited "high" treatment
needs in regard to criminal thinking and deceptiveness and had a
progress score of "zero out of four" in both areas.
At the same
time, Kloss, like Petryniec, testified that Dowdy never tested
positive for drugs or alcohol, never contacted the victim, and
never refused sex offender treatment.
¶15
At the close of the hearing, the circuit court felt
that it needed a better sense of Dowdy's risk and so ordered the
DOC
to
conduct
a
sex
offender
risk
assessment
of
Dowdy
and
provide a report to the court.
¶16
Two days after the hearing, on October 1, 2009, the
State moved the circuit court to deny Dowdy's petition on the
grounds that the court lacked the statutory authority to reduce
the length of Dowdy's probation.
The State explained that Wis.
Stat.
the
§ 973.09(3)(a)
authorizes
court
only
to
"extend
probation for a stated period or modify the terms and conditions
thereof" and does not mention reducing the length of probation.
¶17
In his response, Dowdy argued that since Wis. Stat.
§ 973.09(3)(a) authorizes a circuit court to "modify the terms"
of
probation,
it
necessarily
authorizes
a
circuit
court
to
reduce the term, or length, of probation.
¶18
court
On January 20, 2010, the DOC filed with the circuit
its
recidivism.
report
The
assessing
report,
Dowdy's
prepared
by
risk
of
licensed
sex
offender
psychologist
Christopher T. Tyre (Tyre), a supervisor in the DOC's Chapter
7
No.
2010AP772-CR
980 Forensic Evaluation Unit,5 concluded that Dowdy is a "'low
risk'
sexual
offender."
Tyre
antisocial
personality
disorder
significant
changes
his
in
diagnosed
but
Dowdy
as
having
that
he
has
noted
life,"
and
as
a
an
"made
result,
the
"manifestations of this diagnosis appear to be in remission or
waning."
his
Tyre noted that while Dowdy was initially in denial of
culpability
in
the
sexual
assault,
he
now
"clearly
understands that at the time he was only focused on himself,"
and
"despite
[the
victim's]
protestations,
he
forced
her
to
engage in an act of penis-to-vagina intercourse."
¶19
court
a
On February 15, 2010, Dowdy filed with the circuit
report
prepared
by
Michael
S.
licensed psychologist retained by Dowdy.
Kotkin
(Kotkin),
a
Different from Tyre,
Kotkin reported that Dowdy still believes that the victim did
not tell the truth.
According to Kotkin, Dowdy "indicate[d],
'My sexual offense occurred because I thought the victim, in my
case, needed sex.'"
Nevertheless, Kotkin concluded that Dowdy
presents a "low to low-moderate" risk of recidivism and that
"there is some basis" for the notion that an additional three
years
of
probation
would
serve
neither
Dowdy's
nor
the
hearing
and
community's best interests.
¶20
The
circuit
court
conducted
a
second
granted Dowdy's petition to reduce the length of his probation
from ten years to seven years.
5
The circuit court determined
Wisconsin Stat. ch. 980 governs "Sexually Violent Person
Commitments."
8
No.
2010AP772-CR
that it had clear authority under Wis. Stat. § 973.09(3)(a)6 to
"extend,
or
shorten,
or
lengthen
probation
defendant and the issues that are presented."
depending
on
the
In Dowdy's case,
the court found good cause to reduce the length of probation,
reasoning
that
Dowdy
had
"managed
to
meet
just
about
every
condition [of probation] except the completion of sex offender
treatment."
In
regard to
sex
offender
treatment,
the court
found Dowdy's "biggest problem" to be his denial, namely, his
refusal to believe that the victim did not consent.
However, as
the court explained, as long as Dowdy remains in denial, he will
never complete treatment; he will progress only to a certain
point and then have to start over.
¶21
On February 17, 2010, the circuit court entered its
order reducing the length of Dowdy's probation to seven years.
By that time, Dowdy had been on probation for nearly seven-anda-half years, and consequently, the order resulted in Dowdy's
discharge from probation.
¶22
The State appealed, and the court of appeals reversed.
Dowdy, 330 Wis. 2d 444.
The court of appeals concluded that the
circuit court "had neither statutory nor inherent authority to
order the reduction" of Dowdy's probation.
Id., ¶1.
In regard
to statutory authority, the court of appeals determined that
"the plain language of Wis. Stat. § 973.09(3)(a) does not grant
6
While the circuit court cited Wis. Stat. § 973.09(2), we,
like the court of appeals, assume that the circuit court meant
to reference § 973.09(3)(a).
See State v. Dowdy, 2010 WI App
158, ¶7 & n.2, 330 Wis. 2d 444, 792 N.W.2d 230.
9
No.
2010AP772-CR
a circuit court the authority to reduce a probation period."
Id.,
¶16.
Instead,
the
court
of
appeals
concluded,
§ 973.09(3)(a) authorizes a circuit court "to 'extend probation
for a stated period,' and, as a separate grant of authority, to
'modify'
an
identified
Id., ¶18.
probation."
set
of
terms
or
conditions
of
the
The court of appeals rejected Dowdy's
argument that the authority to "modify the terms" of probation
entails authority to modify, by extending or reducing, the term
of
probation,
explaining
that
such
an
interpretation
would
render the statute's use of the word "extend" surplusage.
¶17.
Id.,
In addition, examining § 973.09 as a whole, the court of
appeals noted that the legislature did not use the plural word
"terms" to denote length or duration.
¶23
The
court
of
appeals
Id., ¶19.
declined
to
decide
whether
a
circuit court has inherent authority to reduce the length of
probation.
Id., ¶¶22, 31.
However, even assuming that such
inherent authority existed, the court of appeals concluded that
it must be subject to the same parameters as the circuit court's
well-established inherent authority to modify sentences.
¶¶28,
31
(citing
Wis. 2d 57,
681
State
v.
N.W.2d 524).
Crochiere,
In
2004
Dowdy's
WI
case,
78,
the
¶12,
Id.,
273
relevant
parameter would be the circuit court's inherent authority to
modify a sentence based upon the showing of a "new factor."
id., ¶35.
See
However, the court of appeals determined that because
post-sentence conduct does not qualify as a "new factor" for
purposes of sentence modification, id., ¶35 (citing State v.
Kaster, 148 Wis. 2d 789, 804, 436 N.W.2d 891 (Ct. App. 1989)),
10
No.
Dowdy's
claimed
factor"
for
rehabilitation
purposes
of
would
not
2010AP772-CR
qualify
a
"new
modification,
probation
as
id.
Accordingly, the court of appeals concluded that even assuming
the circuit court had inherent authority to reduce the length of
Dowdy's probation, such authority could not have been invoked in
response to Dowdy's claimed rehabilitation.
¶24
Dowdy
petitioned
this
court
Id., ¶22.
for
review,
which
we
granted on March 16, 2011.
II. STANDARD OF REVIEW
¶25
In
this
case,
we
must
interpret
Wis.
Stat.
§ 973.09(3)(a) to determine whether it grants a circuit court
authority
to
reduce
the
length
of
probation.
Statutory
interpretation presents a question of law that we review de novo
while benefiting from the analyses of the court of appeals and
circuit court.
Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI
27, ¶5, 316 Wis. 2d 47, 762 N.W.2d 652.
¶26
Assuming
Wis.
Stat.
§ 973.09(3)(a)
does
grant
a
circuit court authority to reduce the length of probation, then
a court may exercise that authority only "for cause."
Whether
cause
circuit
exists
under
court's discretion.
N.W.2d 429
§ 973.09(3)(a)
subject
to
the
State v. Jackson, 128 Wis. 2d 356, 365, 382
(1986).
discretionary
is
We
determination
will
uphold
so
long
as
the
circuit
the
court
court's
reasonably
applied the facts of record to the appropriate legal standard.
See
State
v.
Ringer,
2010
WI
69,
¶24,
N.W.2d 448.
III. ANALYSIS
11
326
Wis. 2d 351,
785
No.
¶27
2010AP772-CR
To determine a circuit court's authority with respect
to probation, we must look to the statutes.
See Grobarchik v.
State, 102 Wis. 2d 461, 467, 307 N.W.2d 170 (1981).
Under the
doctrine of separation of powers, it is for the legislature to
prescribe the penalty for a particular crime and the manner of
its enforcement, and it is the duty of the court to impose that
penalty.
State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772
(1999); Grobarchik, 102 Wis. 2d at 467.
Accordingly, "[i]f the
authority to fashion a particular criminal disposition exists,
it must derive from the statutes."
Grobarchik, 102 Wis. 2d at
467; see
119
also
State
N.W.2d 96 (1984).
¶28
has
v.
Sepulveda,
Wis. 2d 546,
553,
350
Probation is one such disposition.
Pursuant to Wis. Stat. § 973.09(1)(a), the legislature
granted
a
circuit
court
Horn, 226 Wis. 2d at 648.
authority
to
impose
probation.
Section 973.09(1)(a) provides, in
relevant part, that if a person is convicted of a crime, a court
may, by order, impose and stay a sentence and "place the person
on probation to the [DOC] for a stated period, stating in the
order
the
impose
reasons
any
conditions
appropriate."
¶29
to
therefor."
In
which
addition,
appear
to
"[t]he
be
court
reasonable
may
and
§ 973.09(1)(a).
Included within a circuit court's statutory authority
impose
probation
§ 973.09(3)(a)
to
is
"extend
the
authority
probation
for
modify the terms and conditions thereof."
is the focus of the case before us today.
12
under
a
stated
Wis.
Stat.
period
or
Section 973.09(3)(a)
We must interpret
No.
2010AP772-CR
§ 973.09(3)(a) to determine whether it grants a circuit court
authority to reduce the length of probation.
¶30
"[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."
State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110.
To that end, statutory interpretation begins
with the language of the statute.
plain, our inquiry ends.
¶31
accepted
words
Id., ¶45.
If the meaning is
Id.
We give statutory language "its common, ordinary, and
meaning,
or
except
that
are
given
phrases
definitional meaning."
Id.
technical
their
or
specially-defined
technical
or
special
In addition, statutory language is
not interpreted in isolation but rather in context, that is, in
relation
to
the
language
statutes.
Id., ¶46.
effect
every
word,
Id.
If
to
results.
of
surrounding
or
closely-related
Our interpretation should give reasonable
so
this
as
to
analysis
avoid
surplusage
yields
a
plain
or
absurd
statutory
meaning, then the language is unambiguous, and there is no need
to
consult
extrinsic
sources
of
legislative
intent.
Id.
Indeed, we must "'presume that a legislature says in a statute
what it means and means in a statute what it says . . . .'"
Id., ¶39 (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249,
253-54 (1992)).
¶32
If, however, a statute is "capable of being understood
by reasonably well-informed persons in two or more senses," then
the statute is ambiguous.
Id., ¶47.
13
Generally, only if a
No.
statute
is
ambiguous
extrinsic sources.
will
we
Id., ¶50.
aid
our
2010AP772-CR
interpretation
with
This general rule "prevents the
use of extrinsic sources of interpretation to vary or contradict
the plain meaning of a statute . . . ."
¶33
Applying
the
foregoing
Id., ¶51.
principles
to
Wis.
Stat.
§ 973.09(3)(a), we conclude that the statute does not grant a
circuit court authority to reduce the length of probation.
Our
conclusion is based upon the statute's plain language.
¶34
The plain language of Wis. Stat. § 973.09(3)(a) grants
a circuit court authority only to "extend probation for a stated
period" or to "modify the terms and conditions" of probation.
Section
extend
973.09(3)(a)
the
length
of
clearly
authorizes
probation.
a
circuit
Noticeably
absent
court
to
from
the
statute, however, is any authority to "reduce" probation for a
stated period.
¶35
Still, Dowdy argues that a circuit court's authority
to "modify the terms and conditions" of probation encompasses
the authority to reduce the length of probation.
Dowdy reasons
that the word "modify" commonly means to reduce or lessen in
severity.
terms"
of
By
authorizing
probation,
Dowdy
the
circuit
argues,
Wis.
court
Stat.
to
"modify
the
§ 973.09(3)(a)
necessarily authorizes the circuit court to reduce the term, or
length, of probation.
¶36
We disagree.
It is true that the word "modify" can mean to reduce
or make less severe, but it is also true that "modify" commonly
denotes change or alteration generally.
The American Heritage
Dictionary of the English Language 1161 (3d ed. 1992); see also
14
No.
2010AP772-CR
State v. Fisher, 2005 WI App 175, ¶10, 285 Wis. 2d 433, 702
N.W.2d 56.
In other words, while the word "modify" could mean
to change by reducing or lessening, it could also mean to change
by extending or increasing.
If, as Dowdy suggests, the phrase
"modify the terms" in Wis. Stat. § 973.09(3)(a) authorizes a
circuit court to change, by reducing or extending, the length of
probation, then the statute's specific grant of authority to
"extend
probation
cannot
interpret
entire
phrase
for
a
stated
period"
§ 973.09(3)(a)
of
the
in
statute
a
is
superfluous.
manner
that
See
needless.
renders
Kalal,
We
an
271
Wis. 2d 633, ¶46.
¶37
Furthermore,
Dowdy's
interpretation
of
the
phrase
"modify the terms" rests on the faulty premise that the plural
word "terms" is the same as the singular word "term," which is
synonymous with length.
construing
statutes,
Dowdy is correct that ordinarily, when
we
includes the singular."
follow
the
rule
that
"the
See Wis. Stat. § 990.001(1).
plural
However,
that general rule must yield to the "manifest intent of the
legislature."
§ 990.001.
§ 973.09(3)(a),
which
The plain
authorizes
a
language
circuit
of
Wis. Stat.
court
to
"extend
probation for a stated period," evinces the legislature's intent
for
the
word
probation.
"period"
to
mean
the
duration
or
length
of
To construe the word "terms" as "term" and hence
synonymous with length would be to deprive the word "period" of
independent
meaning.
interpretation
Wis. 2d 633,
preclude
¶46;
Again,
such
Graziano
our
a
v.
15
principles
of
statutory
result.
See
Kalal,
271
Town
Long
Lake,
191
of
No.
2010AP772-CR
Wis. 2d 812, 822, 530 N.W.2d 55 (Ct. App. 1995) ("[W]here the
legislature
uses
similar
but
different
terms
in
a
statute,
particularly within the same section, we may presume it intended
the
terms
to
have
different
meanings.").
Instead,
we
must
strive to give the plural word "terms" independent, reasonable
effect.
¶38
See Kalal, 271 Wis. 2d 633, ¶46.
The
plural
meaning in the law.
word
"terms"
has
a
special
definitional
Black's Law Dictionary defines the plural
word "terms" as "[p]rovisions that define an agreement's scope;
conditions or stipulations."
ed. 1999).
is
Black's Law Dictionary 1482 (7th
As that definition makes apparent, the word "terms"
synonymous
with
the
(defining "condition").
interchangeably
conditions."
and
word
"conditions."
See
id.
at
290
In fact, in the law, the words are used
often
appear
together
as
"terms
and
See, e.g., Town Bank v. City Real Estate Dev.,
LLC, 2010 WI 134, ¶8, 330 Wis. 2d 340, 793 N.W.2d 476; Ehlinger
v. Hauser, 2010 WI 54, ¶10 n.7, 325 Wis. 2d 287, 785 N.W.2d 328;
Johnson Controls, Inc. v. London Mkt., 2010 WI 52, ¶¶32, 44, 325
Wis. 2d 176,
784
N.W.2d 579;
Ash
Park,
LLC
v.
Alexander
&
Bishop, Ltd., 2010 WI 44, ¶10, 324 Wis. 2d 703, 783 N.W.2d 294.
Wisconsin Stat. § 973.09(3)(a) is no exception.
By providing
that a circuit court may "modify the terms and conditions" of
probation, the legislature authorized a circuit court to change
the
conditions
obligations
imposed
upon
which
upon
his
or
a
probationer,
her
probation
namely,
depends.
the
See
Edwards v. State, 74 Wis. 2d 79, 83-84, 246 N.W.2d 109 (1976)
(making
clear
that
the
circuit
16
court
had
authority
under
No.
2010AP772-CR
§ 973.09(3)(a) to modify for cause the probationer's condition
that she refrain from consorting with her co-defendants); State
v. Schell, 2003 WI App 78, ¶13, 261 Wis. 2d 841, 661 N.W.2d 503
(discussing
§ 973.09
interchangeably
with
and
using
the
the
plural
"conditions"
of
word
"terms"
probation).
By
interpreting § 973.09(3)(a) in this manner, we give independent,
reasonable
effect
to
both
the
phrase
"modify
the
terms
and
conditions" of probation and the phrase "extend probation for a
stated period."
¶39
The
statutory
context
confirms our interpretation.
from
which
a
circuit
of
Wis.
Stat.
§ 973.09(3)(a)
Section 973.09(1)(a), the statute
court's
authority
to
impose
probation
derives, provides that a court may place a person on probation
"for a stated period" and also may "impose any conditions" of
probation.
Subsection (1)(a) thus confirms that the legislature
drew a distinction between the "period" or length of probation
and
any
imposed
"conditions"
of
probation.
Interpreting
subsection (3)(a) in light of subsection (1)(a), it is even more
clear that a circuit court's authority to "modify the terms and
conditions"
of
probation
does
not
include
the
authority
to
reduce the length of probation.
¶40
As
Dowdy
points
out,
however,
Wis.
Stat.
§ 973.09(1)(a) uses the singular word "term," in addition to
"period," to
mean
a length
of
time.
Similarly,
§ 973.09(2)
outlines the minimum and maximum "original term of probation"
that
may
be
imposed
for
different
misdemeanor and felony offenses.
17
quantities
and
classes
of
There is no doubt that in the
No.
2010AP772-CR
context of § 973.09(2), "term" means a length of time.
Still,
the legislature's use of the singular word "term" in § 973.09(2)
does not change our interpretation of the plural word "terms" in
§ 973.09(3)(a).
Wis.
Stat.
plural
As evident by the succeeding subsections of
§ 973.09,
word
probation.
the
in
"terms"
legislature
relation
consistently
to
the
used
the
"conditions"
of
See, e.g., §§ 973.09(3)(a) ("terms and conditions");
973.09(3)(bm)2.
("terms
and
conditions");
973.09(3)(bm)3.
("terms and conditions").
¶41
Finally,
§ 973.09(3)
the
confirm
succeeding
that
a
subsections
circuit
of
Stat.
authority
court's
Wis.
under
subsection (3)(a) with respect to the length of probation is
limited to extension.
which
concern
First, subsections (3)(b) and (3)(bm),
a circuit court's
duty
to
conduct
a
probation
review hearing upon notice of a probationer's failure to pay
restitution or supervision fees, speak only to a circuit court's
authority to extend probation or to modify its conditions.
See
§§ 973.09(3)(b) ("If payment as ordered has not been made, the
court
shall
hold
a
probation
review
hearing
prior
to
the
expiration date, unless the hearing is voluntarily waived by the
probationer
extension
with
the knowledge that
of
the
probation
probation. If
the
court
does
period
not
waiver
or
extend
in
may
a
result
in an
revocation
probation,
of
it shall
issue a judgment for the unpaid restitution . . . ." (Emphasis
added.));
973.09(3)(bm)2.
("A
waiver
of
a
probation
review
hearing under this subdivision shall include an acknowledgement
by the probationer that waiver may result in an extension of the
18
No.
2010AP772-CR
probation period, a modification of the terms and conditions of
probation
or
a
revocation
of
probation."
(Emphasis
added.));
973.09(3)(bm)3. ("If the [DOC] proves by a preponderance of the
evidence that the probationer owes unpaid fees under s. 304.074,
the court may, by order, extend the period of probation for a
stated period or modify the terms and conditions of probation."
(Emphasis
added.)).7
Second,
subsection
(3)(c)
lists
three
7
In their amicus curiae brief, the Wisconsin State Public
Defender and the Wisconsin Association of Criminal Defense
Lawyers rely on Wis. Stat. § 973.09(3)(bm)4. to argue that the
plural word "terms" must mean the length of probation. Section
973.09(3)(bm)4. states, in relevant part, that "[i]f the court
does not extend or modify the terms of probation under subd. 3.,
it shall issue a judgment for the unpaid fees . . . ." (Emphasis
added.)
The amicus curiae maintain that § 973.09(3)(bm)4. can
be read only to mean that a circuit court may "extend . . . the
terms of probation," and consequently, the plural word "terms"
must refer to a length of time. We might agree with the amicus
curiae, were it not for the statute's qualifying language of
"under subd. 3."
Section 973.09(3)(bm)3., to which subsection
(3)(bm)4. refers, makes clear that the word "extend" modifies
only "the period of probation," not "the terms and conditions of
probation."
The amicus curiae make the same argument by relying on
language in State v. Sepulveda, 119 Wis. 2d 546, 350 N.W.2d 96
(1984).
The Sepulveda court stated: "This court recognized in
Huggett that inherent within the probation statute is the
court's continued power to effectuate the dual purposes of
probation, namely rehabilitating the defendant and protecting
society, through the court's authority to modify or extend
probationary terms."
Id. at 554 (emphasis added); see also
State v. Schell, 2003 WI App 78, ¶13, 261 Wis. 2d 841, 661
N.W.2d 503.
Again, however, we point out the significance of
the qualifying language.
The Sepulveda court was merely
paraphrasing our discussion of Wis. Stat. § 973.09(3)(a) in
Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978).
Huggett makes more than clear that a circuit court's authority
to extend probation relates to the "period" of probation.
See
id. at 794, 795, 799, 801, 803.
19
No.
2010AP772-CR
circumstances that "may constitute cause for the extension of
probation"
but
is
silent
as
to
any
circumstances
constitute cause for the reduction of probation.
(emphasis added).
that
may
§ 973.09(3)(c)
In fact, in all of § 973.09(3), the only
mention of a probation reduction in any form is in subsection
(3)(d), which authorizes the DOC to discharge a probationer "if
the person has completed 50 percent of his or her period of
probation."
§ 973.09(3)(d).
Notably, subsection (3)(d) grants
only the DOC, not a circuit court, the authority to discharge a
probationer
period.8
before
the
expiration
of
his
or
her
probation
Had the legislature intended for a circuit court to
have such statutory authority, it simply could have said so.
8
Notable still, when the legislature created Wis. Stat.
§ 973.09(3)(d), it proposed language that would have expressly
granted a circuit court authority to discharge a probationer
before the expiration of his or her probation period. See 2009
Wis. Act 28, § 3392d (proposing that § 973.09(3)(d) include
language permitting "[t]he court [to] modify the person's period
of probation and order the person discharged from probation if
the person has complied with the conditions of his or her
probation, has paid restitution ordered under s. 973.20, and has
paid all ordered court costs, fines or forfeitures, and
supervision fees").
However, the Governor successfully vetoed
that language.
See id.; State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110
(providing that legislative history may be consulted "to confirm
or verify a plain-meaning interpretation").
20
No.
2010AP772-CR
IV. CONCLUSION
¶42
grant
We conclude that Wis. Stat. § 973.09(3)(a) does not
a
circuit
probation.
court
authority
to
reduce
the
length
of
Rather, the plain language of § 973.09(3)(a) grants
a circuit court authority only to "extend probation for a stated
period" or to "modify the terms and conditions" of probation.
When subsection (3)(a) is read in context, it is clear that the
authority to "modify the terms and conditions" of probation does
not include the authority to reduce the length of probation.
Accordingly, in this case, the circuit court erred as a matter
of law when it relied upon § 973.09(3)(a) to reduce the length
of Dowdy's probation.
On that basis, we affirm the decision of
the court of appeals.
¶43
We decline to decide today whether a circuit court has
inherent authority to reduce the length of probation, and if so,
what standard applies.
Neither Dowdy's petition to the circuit
court nor the circuit court's order was grounded in the court's
In fact, on July 19, 2011, after we received the parties'
briefs in the instant case, the legislature recreated Wis. Stat.
§ 973.09(3)(d) and
this time successfully added
language
expressly granting a circuit court authority to discharge a
probationer before the expiration of his or her probation
period.
See 2011 Wis. Act 38, §§ 93b, 93c.
The new statute
went into effect on August 3, 2011, id., and lists six
requirements that must be met in order for a circuit court to
discharge a probationer, see id., § 93c.
Significant for our
purposes today, these six requirements, which function as
conditions precedent to a probationer's discharge, would be
meaningless if a circuit court had broad discretionary authority
under § 973.09(3)(a) to reduce the length of probation for
cause.
21
No.
alleged
inherent
authority.
As
a
general
rule,
2010AP772-CR
issues
not
raised in the circuit court will not be considered for the first
time on appeal.
By
the
Wirth, 93 Wis. 2d at 443.
Court.—The
decision
of
the
court
of
affirmed.
¶44
DAVID T. PROSSER, J., did not participate.
22
appeals
is
No.
¶45
SHIRLEY S. ABRAHAMSON, C.J.
2010AP772-CR.ssa
(dissenting).
I write
to make four points.
¶46
I.
The majority opinion errs in declaring that the
defendant, Carl L. Dowdy, forfeited the right to obtain review
in
this
court
of
the
question
whether
a
circuit
court
inherent authority to reduce the length of probation.
has
Under the
well understood rule of forfeiture, the case law applying the
rule, and rules of appellate practice, it is clear that the
defendant did not forfeit the right to have this court decide
the inherent authority issue.
the forfeiture issue.
Neither party argued or briefed
The court has taken its own detour and
its conclusion is contrary to accepted practice.
court
should
address
whether
circuit
courts
Thus, this
have
inherent
authority to reduce the length of probation.
¶47
II.
I would hold that circuit courts possess inherent
authority to reduce the length of probation.
¶48
circuit
III.
court's
probation.
This court should also delineate the scope of a
inherent
authority
to
reduce
the
length
of
I would hold that a circuit court may exercise its
inherent authority to reduce the length of probation only "for
cause."1
The "for cause" standard means that a circuit court
will exercise its inherent authority when doing so advances the
1
"For cause" is the standard set forth in Wis. Stat.
§ 973.09(3)(a), which is applicable to a circuit court's
discretionary authority to extend the period of probation and
modify the terms and conditions of probation.
1
No.
2010AP772-CR.ssa
dual purposes of probation: "to rehabilitate the defendant and
to protect society without placing the defendant in prison."
¶49
Because the purposes of probation and sentencing are
not the same, I conclude that the scope of a circuit court's
inherent authority to reduce the length of probation is not the
same as the scope of a circuit court's inherent authority to
modify a sentence.
¶50
Had
authority
and
this
its
court
scope,
addressed
it
would
the
issue
have
been
of
inherent
appropriate
to
remand the matter to the court of appeals to determine whether
the circuit court's order is consistent with the circuit court's
inherent authority, as defined by this court.
¶51
circuit
IV.
Because
courts
possess
this
the
court
has
inherent
not
authority
decided
to
whether
reduce
the
length of probation and a probationer is not limited to bringing
only one motion to reduce the length of probation,2 the defendant
is free to petition the circuit court again to reduce the length
of
his
probation
and
argue
that
it
has
inherent,
but
not
statutory, authority to do so.
I
¶52
The majority refuses to address the issue of a circuit
court's inherent authority to reduce the length of probation.
The majority opinion avoids deciding the issue by mistakenly
relying on the well-recognized rule that "issues not raised in
2
See State v. Gray, 225 Wis. 2d 39, 69, 590 N.W.2d 918
(1999) (holding that Wis. Stat. § 073.09(3)(a) allows circuit
courts to modify conditions of probation and extend probation at
any time before the period of probation expires).
2
No.
2010AP772-CR.ssa
the circuit court will not be considered for the first time on
appeal."3
¶53
Neither
party
argued
(orally
or
in
writing)
that
either party forfeited the right to have this court decide the
issue of a circuit court's inherent authority in the present
case.
Once again, the court is on a detour of its own, without
briefs or argument.
Although the majority does not use the word
"forfeiture," it clearly invokes a forfeiture rule.
¶54
"[F]orfeiture
is
the
failure
to
make
the
timely
assertion of a right"4 and it applies to a losing party at trial
who wishes to raise an issue in an appellate court that he or
she failed to raise in the circuit court.
In the present case,
however, the majority opinion applies the forfeiture rule to the
party
who
won
in
the
circuit
court
(the
defendant)
and
is
furnishing this court with a new argument supporting the circuit
court's order.
¶55
This
court
explained
forfeiture
2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612,
in
State
v.
Ndina,
as follows:
[S]ome rights are forfeited when they are not claimed
at trial; a mere failure to object constitutes a
forfeiture of the right on appellate review.
The
purpose of the "forfeiture" rule is to enable the
circuit court to avoid or correct any error with
3
Majority op., ¶5 (citing Wirth v. Ehly, 93 Wis. 2d 433,
443, 287 N.W.2d 140 (1980)).
4
State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761
N.W.2d 612.
Ndina distinguished between forfeiture and waiver.
The latter applies to certain "fundamental" or "important"
rights that are not lost simply by the party's failure to
object; they must be "knowingly" and "expressly" relinquished.
Ndina, 315 Wis. 2d 653, ¶31.
3
No.
2010AP772-CR.ssa
minimal
disruption
of
the
judicial
process,
eliminating the need for appeal. The forfeiture rule
also gives both parties and the circuit court notice
of the issue and a fair opportunity to address the
objection; encourages attorneys to diligently prepare
for and conduct trials; and prevents attorneys from
"sandbagging" opposing counsel by failing to object to
an error for strategic reasons and later claiming that
the error is grounds for reversal.5
¶56
The defendant in the instant case proceeded correctly
and nevertheless has a forfeiture called on him.
Several rules
governing forfeiture come into play in the instant case, all
favorable to the defendant
so
that
forfeiture
should
not
be
declared.
¶57
the
First, a victorious party in the circuit court, here
defendant,
need
not
raise
alternative
arguments
in
the
circuit court to fortify the circuit court's ruling to preserve
these arguments for review in this court.
below.)
(See second rule
Furthermore, a circuit court need not give alternative
grounds for a ruling.
¶58
Second, the general rule is that a respondent in the
court of
appeals (here, the
court
appeals
of
can
defendant)
consider,
a
may
ground
advance,
for
and the
sustaining
the
circuit court's order or judgment, even if it was not raised in
the circuit court.
See, e.g., Glendenning's Limestone & Ready-
Mix Co. v. Reimer, 2006 WI App 161, ¶14, 295 Wis. 2d 556, 721
N.W.2d 704; Doe v. Gen. Motors Acceptance Corp., 2001 WI App
199, ¶7, 247 Wis. 2d 564, 635 N.W.2d 7.
¶59
In the present case, the State lost in the circuit
court and appealed to the court of appeals.
5
The State argued in
Ndina, 315 Wis. 2d 653, ¶30 (citations omitted).
4
No.
2010AP772-CR.ssa
the court of appeals that the circuit court lacked statutory
power.
The State further argued, for the first time, that even
though
the
circuit
reduce
the
length
court
of
probably
probation,
had
the
inherent
circuit
authority
court
did
to
not
exercise that authority properly.
¶60
In response to the State, the defendant argued in the
court of
appeals that
the
circuit
court
reached
the
correct
result not only on its stated ground of statutory power, but
also on the basis of a ground upon which the circuit court did
not rely, namely its inherent authority to reduce the length of
probation.
The defendant lost in the court of appeals on both
arguments and sought review in this court on the issue of the
power of a circuit court to reduce the length of probation.
¶61
Third, on review in this court, this court will affirm
a circuit court's judgment or order on a new ground, even if the
circuit court reached its result for the wrong reason, as long
as
the
record
is
adequate
and
opportunity to brief the issue here.
the
parties
have
had
an
Kolpin v. Pioneer Power &
Light Co., 162 Wis. 2d 1, 30, 469 N.W.2d 595 (1991); State v.
Alles, 106 Wis. 2d 368, 391-92, 316 N.W.2d 378 (1982).
¶62
Fourth, in his petition for review in this court the
defendant correctly preserved the issue of a circuit court's
inherent authority, stating the issue presented to this court as
follows:
"If the circuit court did not have statutory authority
to reduce the length of Dowdy's probation, did the court have
inherent authority to do so?"
This statement in the petition
5
No.
2010AP772-CR.ssa
for review protected the defendant's right to argue the issue of
inherent authority before this court.6
¶63
The State's response to the defendant's petition for
review did not assert that the defendant had forfeited his right
to review of the issue of a circuit court's inherent authority.7
Both parties thoroughly briefed the issue of a circuit court's
inherent authority in this court.
¶64
Thus, on the basis of these four rules of appellate
practice, the rule of forfeiture does not apply here.
The issue
of a circuit court's inherent authority to reduce the length of
probation is properly before this court, and this court should
address it.
¶65
Finally, even if the rule of forfeiture does apply
(and it does not), this case clearly falls into the class of
cases in which this court ignores the rule of forfeiture and
exercises its discretion to address an issue.8
not absolute and exceptions are made."9
6
Forfeiture "is
The rule of forfeiture
Wis. Stat. § (Rule) 809.62(6).
7
A response to the petition may contain "any perceived
defects that may prevent ruling on the merits of any issue in
the petition." Wis. Stat. (Rule) § 809.62(3)(c).
8
Wirth, 93 Wis. 2d at 444. For cases in which an appellate
court exercised its discretion to address an argument or issue
and ignore the forfeiture rule, see, e.g., Apex Electronics
Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998); Binder v.
Madison, 72 Wis. 2d 613, 241 N.W.2d 613 (1976); Dalka v. Am.
Family Mut. Ins. Co., 2011 WI App 90, ¶¶5-6, 334 Wis. 2d 686,
799 N.W.2d 923.
9
Wirth, 93 Wis. 2d at 443.
6
No.
2010AP772-CR.ssa
is "one of administration and does not involve the Court's power
to address the issues raised."10
¶66
In numerous cases, the court has declared that it is
appropriate to address an issue when "all new issues raised are
legal questions, the parties have thoroughly briefed the issues
and there are no disputed issues of fact."11
¶67
The
present
case
is
one
in
which
the
rule
forfeiture could appropriately be overlooked by this court.
of
The
issue of the circuit court's inherent authority to reduce the
length of probation is a question of law, and no disputed facts
exist.
The circuit court's inherent authority in this realm
"'is one of sufficient public interest to merit decision.'"12
¶68
The issue arises frequently, and deciding the issue
will assist the State, future defendants and probationers, and
circuit
courts.
Several
circuit
court
cases
in
which
the
circuit courts operated with the understanding that they had
authority
to
the
purpose
probation's
reduce
length
of
of
probation
rehabilitating
the
consistent
with
defendant
and
protecting the public are set forth in the Nonparty Brief and
Appendix
of
the
Wisconsin
State
Public
Defender
Wisconsin Association of Criminal Defense Lawyers.
survey
of
members
of
the
Wisconsin
Association
and
the
An informal
of
Criminal
Defense Lawyers reported that circuit courts in counties across
the state have reduced the length of probation.
10
Id. at 444.
11
Id.
12
Id. (quoting Binder, 72 Wis. 2d at 618).
7
No.
¶69
circuit
By
casting
courts
doubt
on
their
inherent
about
the
general
2010AP772-CR.ssa
understanding
authority
to
reduce
of
the
length of probation, the court of appeals decision eliminates a
critical tool currently used by circuit courts that provides
flexibility to ensure the terms and conditions of probation are
effective.
¶70
Deciding the issue in the present case will not work
an injustice on either the State or the defendant, both of whom
briefed the issue at length.
¶71
For these reasons, I conclude that the court has erred
in relying on a forfeiture and that the court should decide
whether
a
circuit
court
has
inherent
authority
to
reduce
a
defendant's length of probation.
II
¶72
I turn now to the question whether a circuit court has
inherent authority to reduce the length of probation.
¶73
Neither
inherent
authority
probation.
¶74
powers."13
party
to
disputes
reduce
the
that
circuit
length
of
courts
a
have
defendant's
I agree with the parties on this issue.
Circuit courts have "inherent, implied and incidental
These terms are used together, separately, and also
interchangeably
in
the
case
law14
"'to
describe
those
powers
13
State ex rel. Friedrich v. Circuit Court for Dane County,
192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995), quoted with approval in
State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544, 787
N.W.2d 350.
14
See, e.g., In re Kading, 70 Wis. 2d 508, 517-18, 238
N.W.2d 63 (1976); State v. Cannon, 199 Wis. 401, 402, 226 N.W.
385 (1929).
8
No.
which
must
necessarily
accomplish
its
functions."15
be
used'
to
constitutionally
Rather
than
enable
and
use
the
2010AP772-CR.ssa
judiciary
legislatively
these
three
to
mandated
terms——inherent,
implied, and incidental——to describe a circuit court's powers in
the present case, I use the term "inherent authority," as do the
parties and the court of appeals.
¶75
Case
law
teaches
that
"an
inherent
power
without which a court cannot properly function."16
is
one
The question
then is whether a circuit court needs authority to reduce the
length
of
probation
legislatively
court
needs
court
in
to
mandated
this
accomplish
functions,
authority
imposing
for
probation
its
that
its
and
constitutionally
is,
whether
orderly
a
or
circuit
functioning as a
governing
the
terms
and
conditions of probation as the legislature has provided.
¶76
It
is
well
established
mandates criminal penalties.
that
the
legislative
Discussing judicial powers, the
court has treated probation like sentencing as follows:
sentencing,
the
legislature
branch
has
specifically
"[L]ike
granted
the
judiciary the authority to impose probation as an alternative to
15
Friedrich, 192 Wis. 2d at 16 (quoting State v. Holmes,
106 Wis. 2d 31, 44, 315 N.W.2d 703 (1982)) (emphasis added).
"Wisconsin
courts
have
generally
exercised
inherent
authority in three areas: (1) to guard against actions that
would impair the powers or efficacy of the courts or judicial
system; (2) to regulate the bench and bar; and (3) to ensure the
efficient and effective functioning of the court, and to fairly
administer justice."
Henley, 328 Wis. 2d 544, ¶73 (citation
omitted).
16
State v. Braunsdorf, 98 Wis. 2d 569, 580, 297 N.W.2d 808
(1980).
9
No.
sentencing.
Wis. Stat. § 973.09(1)(a).
2010AP772-CR.ssa
Without such statutory
authority, a court could not place a defendant on probation."17
¶77
doctrine
In discussing the constitutional separation of powers
with
regard
to
sentencing——that
is,
the
respective
powers of the legislative, executive, and judicial branches over
sentencing——the court has treated probation like sentencing as
follows:
"Like sentencing, the legislature has constitutional
authority to offer probation as an alternative to sentencing,
the
judiciary
has
authority
to
impose
probation,
and
the
executive branch has the authority to administer probation."18
The court has explicitly declared that "probation and probation
revocation
are
within
shared
powers"
of
the
legislative,
executive and judicial branches of government.19
¶78
With regard to a circuit court's authority to modify a
sentence,
the
court
has
declared:
"The
power
to
modify
a
sentence is one of the judiciary's inherent powers."20
17
State
v.
Horn,
226
Wis. 2d 637,
648,
594
N.W.2d 772
(1999).
Although the similarities between probation and sentencing
noted by the Horn court influence my conclusion that circuit
courts have inherent authority to reduce the length of
probation, the Horn court noted that probation and sentencing
are not one and the same.
Probation itself is not generally a
sentence. Probation is an alternative to sentencing. See ¶52,
infra.
18
Horn, 226 Wis. 2d at 648.
19
Id.
20
State v. Crochiere, 2004 WI 78, ¶11, 273 Wis. 2d 57, 681
N.W.2d 524 (citing with approval Hayes v. State, 46 Wis. 2d 93,
101, 175 N.W.2d 625 (1970)).
10
No.
¶79
With
regard
to
a
circuit
court's
2010AP772-CR.ssa
authority
over
probation, the court has declared that "'inherent within the
probation statute is the court's continued power to effectuate
the
dual
purposes
of
probation,
namely,
rehabilitating
the
defendant and protecting society, through the court's authority
to modify or extend probationary terms.'"21
¶80
courts
The
court
possess
has
inherent
not
explicitly
authority
to
stated
reduce
that
the
circuit
length
of
probation, although existing case law leads to the conclusion
that reduction of the length of probation falls within a circuit
court's inherent authority over probation, just as modification
of a sentence falls within a circuit court's inherent authority
over sentencing.
¶81
The
State,
the
defendant,22
the
Department
of
Corrections,23 the American Bar Association,24 and circuit courts
21
Gray, 225 Wis. 2d at 68 (quoting State v. Sepulveda, 119
Wis. 2d 546, 554, 350 N.W.2d 96 (1984)). For discussions of the
goals of probation being rehabilitation and protection of
society and modification of the terms and condition of probation
to promote these goals, see Huggett v. State, 83 Wis. 2d 790,
798, 803, 266 N.W.2d 403; Edwards v. State, 74 Wis. 2d 79, 83,
246 N.W.2d 109 (1976); Prue v. State, 63 Wis. 2d 109, 114, 215
N.W.2d 43 (1974).
22
See Brief of Petitioner at 42-46; Brief of Respondent at
27-29.
23
A Department of Corrections (DOC) regulation acknowledges
the circuit court's inherent power to reduce the length of
probation:
"A [probationer] shall be discharged upon the
issuance of a discharge certificate by the secretary at the
expiration of the term noted on the court order . . . unless:
(a) The court has subsequently modified the term and extended or
reduced it . . . ."
Wis. Admin. Code § DOC 328.17(2) (Dec.
2006) (emphasis added).
11
No.
2010AP772-CR.ssa
across the state25 assume or affirmatively adopt the principle
that
a
circuit
probation.
court
has
authority
to
reduce
the
length
of
These sources view this authority as essential to
the judicial function of imposing probation.
Unless circuit
courts have inherent authority to reduce the length of probation
when necessary to effectuate the dual purposes of probation, a
circuit court's ability to impose and govern probation fairly
and effectively will be undermined.
¶82
That a circuit court has inherent authority to reduce
the length of probation does not conflict with former Wis. Stat.
§ 973.09(3)(d)
Corrections
to
(2009-10),
"modify
a
which
allowed
person's
period
the
of
Department
of
probation
and
discharge the person from probation if the person has completed
50% of his or her period of probation," or the recently modified
The Note to this DOC regulation makes the point even
clearer:
"[Probationers] are discharged at the expiration of
the term noted on the court's order . . . unless the term has
been extended by subsequent court action or unless a discharge
at an earlier time is merited because of an action by a court,
the governor, or department."
Wis. Admin. Code § DOC 328.17,
Appendix, Note: DOC 328.17 (Dec. 2006) (emphasis added).
The
DOC regulation reflects the settled notion that circuit courts
have the inherent authority to reduce a defendant's length of
probation.
24
ABA, Standards Relating to Probation § 4.2 (1970) ("The
sentencing court should have authority to terminate probation at
any time. Such authority should be exercised prior to the term
fixed in the original sentence if it appears that the offender
has made a good adjustment and that further supervision or
enforced
compliance
with
other
conditions
is
no
longer
necessary.").
25
See Nonparty Brief and Appendix of the Wisconsin State
Public Defender and the Wisconsin Association of Criminal
Defense Lawyers at 7.
12
No.
§ 973.09(3)(d),
which
probationer
when
including
allows
petition
a
a
specific
by
circuit
statutory
the
court
2010AP772-CR.ssa
to
discharge
conditions
Department
of
are
Corrections
a
met,
to
a
circuit court to reduce the length of probation.26
¶83
Because probation is a power that the judicial branch
shares with the legislative and executive branches, a circuit
court may not unduly burden or substantially interfere with the
power of the other branches with regard to probation, and the
legislative
and
substantially
regard
to
executive
interfere
probation.27
authority
to
interfere
with
branches
with
I
the
powers
of
of
the
not
unduly
judiciary's
conclude
reduce the length
the
may
that
a
probation
burden
function
circuit
does
legislative
or
not
or
with
court's
unduly
executive
branches regarding probation.
¶84
Although the legislature has granted the Department of
Corrections (an executive branch agency) powers relating to the
26
The
conditions
are:
"(1)
The
[D]epartment
[of
Corrections] petitions the court to discharge the person from
probation. (2) The probationer has completed 50 percent of his
or her period of probation. (3) The probationer has satisfied
all conditions of probation that were set by the sentencing
court. (4) The probationer has satisfied all rules and
conditions of probation that were set by the [DOC]. (5) The
probationer has fulfilled all financial obligations . . . . (6)
The probationer is not required to register [as a sex
offender]." See 2011 Wis. Act 38.
27
"The focus of this evaluation [of the powers of the
legislative and judicial branches] is whether one branch's
exercise
of
power
has
impermissibly
intruded
on
the
constitutional power of the other branch."
Friedrich, 192
Wis. 2d at 15. See also Horn, 226 Wis. 2d at 648-50; State v.
Holmes, 106 Wis. 2d 31, 38, 68-69, 315 N.W.2d 703 (1981); State
v. Fearing, 2000 WI App 229, ¶20-21, 239 Wis. 2d 105, 619
N.W.2d 115.
13
No.
reduction
of
the
length
of
probation,
a
2010AP772-CR.ssa
circuit
court's
exercising judicial power to reduce the length of probation does
not unduly interfere with the powers the legislature has granted
the executive branch.
¶85
The Department of Corrections and the circuit courts
are separate entities in separate, coordinate branches of the
government.
courts
are
probation.
the
The
Department
charged
with
of
Corrections
different
and
the
responsibilities
circuit
regarding
Wisconsin Stat. § 973.09(3)(d), as revised, allows
Department
of
Corrections
to
exercise
its
legislatively
mandated powers and petition circuit courts to reduce the length
of probation for stated reasons in certain situations.
not
follow
that
circuit
courts
are
powerless
to
It does
reduce
the
length of probation when the Department of Corrections does not
file a petition.28
The Department of Corrections' powers to
reduce the length of probation or to petition courts to reduce
the length of probation are reasonable regulations of probation
that do not conflict with a circuit court's inherent authority
28
See Horn, 226 Wis. 2d at 651-2 ("[B]y vesting the
administration of probation, including probation revocation, in
the executive branch, the legislature has not withdrawn the
judiciary's power . . . .").
Cf. State v. Stenklyft, 2005 WI 71, ¶¶97-105, 281
Wis. 2d 484, 697 N.W.2d 769 (Abrahamson, C.J., concurring in
part and dissenting in part in an opinion that, along with an
opinion by Crooks, J., represents the majority of the court)
(holding that although sentencing is an area of shared
constitutional powers, it violates separation of powers for the
legislature to remove a circuit court's inherent authority to
modify a sentence by granting the power to decide when to modify
a sentence to an executive actor).
14
No.
2010AP772-CR.ssa
to reduce the length of probation in exercising its discretion
regarding probation.
¶86
On
the
basis
of
the
constitution,
statutes,
and
precedent, I would recognize the existence of a circuit court's
authority to reduce the length of probation.
III
¶87
A
crucial
question
remains
about
the
inherent
authority of circuit courts to reduce the length of probation:
"What
limitation
should
be
placed
upon
such
power
in
the
interest of promoting justice in the administration of criminal
law[?]"29
A
discretionary
circuit
power
court's
that
must
inherent
be
authority
exercised
within
is
a
defined
parameters.30
¶88
The parties dispute the scope of a circuit court's
authority to reduce the length of probation.
¶89
The
State
urges
that
the
circuit
court's
inherent
authority should be exercised in the same narrow circumstances
in which a circuit court may modify a sentence: (1) to correct
formal
or
clerical
errors
or
an
illegal
or
void
term
of
29
Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970)
(relating to a circuit court's inherent authority to modify a
sentence).
Hayes was overruled in part by State v. Taylor, 60
Wis. 2d 506, 210 N.W.2d 873 (1973), regarding an issue not
relevant to a circuit court's inherent authority to modify
sentences.
30
Crochiere,
sentences).
273
Wis. 2d 57,
15
¶12
(relating
to
modifying
No.
2010AP772-CR.ssa
probation; (2) if a "new factor" is presented;31 or (3) if the
probation is unduly harsh or unconscionable.32
¶90
The defendant argues that circuit courts may exercise
their inherent authority to reduce the length of probation "for
cause."
"For cause" is the standard set forth in Wis. Stat.
§ 973.09(3)(a),
governing
probation . . . or
modify
when
the
a
court
terms
and
"may
extend
conditions"
of
probation.
¶91
The
possessed
court
this
of
inherent
appeals
held
that
authority,
its
if
circuit
exercise
courts
should
be
governed by the standards applied to modification of sentences.33
The
court
of
appeals
determined
that
the
"preference
for
finality logically applies to sentencing in the general sense,
including its probationary component."34
¶92
I conclude that a circuit court has inherent authority
to reduce the length of probation "for cause."
A circuit court
should apply the same standard for deciding a motion to reduce
the length of probation as it applies to a motion to modify the
terms and conditions of probation.35
31
In other words, a circuit
See id., ¶¶13-25 (discussing what constitutes
factor" for purposes of sentence modification).
32
a
"new
See id., ¶12.
33
State v. Dowdy, 2010 WI App 158, ¶31, 330 Wis.2d 444, 792
N.W.2d 230.
The court of appeals concluded that none of those
narrow standards were met by the defendant in the present case.
Dowdy, 330 Wis. 2d 444, ¶¶34-36.
34
Id., ¶32.
35
Wis. Stat. § 973.09(3)(a).
16
No.
2010AP772-CR.ssa
court may exercise its inherent authority to reduce the length
of
probation
when
doing
so
advances
the
dual
purposes
of
probation: "to rehabilitate the defendant and to protect society
without placing the defendant in prison."36
¶93
The court of appeals' adoption of the "modification of
sentence" standard is erroneous for several reasons.
¶94
As a result of the court of appeals' decision, which
applies a different standard to a motion to modify the terms and
conditions of probation motion than is applied to a motion to
reduce the length of probation, a circuit court may remove every
term and condition of probation but be unable to reduce the
length of probation.
in
name
only
because
technically over.
¶95
cause"
Thus, the probationer will be on probation
the
duration
of
probation
is
not
This is an absurd result.
In addition to avoiding this absurd result, the "for
standard
is
appropriate
because
it
does
not
equate
probation with sentencing, as the court of appeals did.
¶96
I
sentencing;
recognize
it
is
one
that
probation
possible
is
closely
disposition
upon
related
to
conviction.
Nonetheless, probation is not generally considered a sentence.37
36
See Edwards v. State, 74 Wis. 2d 79, 83, 246 N.W.2d 109
(1976)(probation "is granted with the goals of rehabilitation
and protection of society in mind.").
See also Gray, 225
Wis. 2d at 68; Sepulveda, 119 Wis. 2d at 554; State v. Hays, 173
Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992).
37
Horn, 226 Wis. 2d at 647 (citing Prue v. State, 63
Wis. 2d 109, 114, 216 N.W.2d 43 (1974)); Hays, 173 Wis. 2d at
444; State v. Meddaugh, 148 Wis. 2d 204, 211, 435 N.W.2d 269
(Ct. App. 1988). See also Fearing, 239 Wis. 2d 105,¶6.
17
No.
Probation
is
a
legal
term
with
a
meaning
2010AP772-CR.ssa
different
from
sentencing;38 probation is an alternative to sentencing.39
¶97
Crucially,
sentencing.
probation
has
different
purposes
than
It is commonly understood that there are four main
purposes of sentencing: (1) deterrence; (2) rehabilitation; (3)
retribution;
hand,
has
(4)
segregation.40
primary
purposes:
and
two
Probation,
(1)
on
the
rehabilitation;
other
and
(2)
protecting society without imprisoning the defendant.
¶98
The
narrow
constraints
on
circuit
courts'
inherent
authority to modify sentences are motivated by the importance of
finality
sentencing.41
in
Finality
is
crucial
to
achieve
effective deterrence and to send a clear retributive message.
¶99
Without a strong emphasis on finality in sentencing,
defendants and potential offenders would come to believe that
sentences
are
freely
serve their full
modifiable
sentences.
and
For
that
this
offenders
reason,
the
need
not
deterrent
effect of criminal sentences would be reduced.
¶100 Retribution
retributive
would
perspective,
be
similarly
sentencing
undermined.
courts
attempt
From
to
a
give
defendants their "just deserts" based on the severity of the
38
Prue v. State, 63 Wis. 2d 109, 116, 216 N.W.2d 43 (1974).
39
State v. Horn, 226
(1999) (citing Garski v.
N.W.2d 425 (1977)). See also
113, 338 N.W.2d 118 (Ct. App.
40
See State v.
N.W.2d 660 (1998).
41
Wis. 2d 637, 647, 594 N.W.2d 772
State, 75 Wis. 2d 62, 69, 248
State v. Gereaux, 114 Wis. 2d 110,
1983).
Szulczewski,
216
Wis. 2d 495,
See Crochiere, 273 Wis. 2d 57, ¶12.
18
504,
574
No.
offense and the harm to society.
2010AP772-CR.ssa
Retribution is a backward-
looking exercise——examining the harm done and determining what
sentence
is
society.
required
for
the
defendant
to
repay
a
debt
to
Future developments should not change this backward-
looking analysis.
If there were less finality in sentencing,
the message that the sentence chosen coincides with the debt a
defendant owes to society would be undermined.42
¶101 Thus,
purposes
finality
of
is
crucial
to
sentencing——deterrence
ensure
and
that
two
main
retribution——are
fulfilled.
¶102 As
noted
above,
probation,
in
contrast,
has
two
primary purposes: (1) rehabilitation, and (2) protecting society
without imprisoning the defendant.
Finality is not necessary to
achieve either purpose.
¶103 Rehabilitation
is
forward-looking.
may progress more quickly than others.
will
take
individual
probation
before
probation
defendant
for
a
is
defendant
is
no
no
defendants
Predicting how long it
longer
difficult.
who
Some
necessary
Requiring
longer
needs
for
an
continuing
probation
is
misguided; it is not necessary for public safety and is wasteful
of the state's limited resources.
justified
context
by
an
allows
interest
a
court
in
Continued probation is not
finality.
to
consider
"For
the
cause"
in
this
progress
and
rehabilitation of the probationer.
42
See Crochiere, 273 Wis. 2d 57, ¶23 ("Crochiere's early
release would undercut the seriousness of the offense . . . .").
19
No.
¶104 Accordingly,
should
not
be
the
limits
transplanted
onto
on
a
2010AP772-CR.ssa
sentence
circuit
modification
court's
authority to reduce the length of probation.
inherent
Rather, circuit
courts should be able to reduce the length of probation under
the same standard as they can modify the terms and conditions or
extend
the
length
of
probation——that
is,
when
doing
so
is
necessary to achieve probation's dual goals.
¶105 To
be
effective,
probation
must
be
flexible.43
A
circuit court must be cognizant of changing circumstances and
the changing needs of the individual probationer to determine
when modification of the terms and conditions and the length of
probation is warranted to achieve probation's dual goals.44
¶106 Even in the sentencing realm, where finality is of
great value, this court has noted that "[i]t is more important
to be able to settle a matter right with a little uncertainty
than
to
settle
it
wrong
irrevocably."45
In
the
context
of
probation, where flexibility rather than finality seems crucial,
courts
should
be
amenable
to
reductions
in
the
length
of
43
Prue, 63 Wis. 2d at 114 ("The trial court should have
leeway
if
probation
is
to
be
an
effective
tool
of
rehabilitation.").
44
Under Crochiere, successful rehabilitation explicitly
does
not
constitute
a
"new
factor"
warranting
sentence
modification.
See Crochiere, 273 Wis. 2d 57, ¶¶17-23.
In the
probation context, it would seem that complete, successful
rehabilitation should warrant a reduction of the length of
probation or discharge from probation, particularly when there
is a risk that the conditions of continuing probation could
undermine the probationer's progress.
45
Hayes
v.
State,
46
Wis. 2d 93,
(1970).
20
105,
175
N.W.2d 625
No.
2010AP772-CR.ssa
probation, rather than setting the length of probation wrong
irrevocably.
IV
¶107 Finally, because this court has not decided whether
circuit
courts
possess
the
inherent
authority
to
reduce
the
length of probation and a probationer is not limited to bringing
only one motion to reduce the length of probation, the defendant
is free to petition the circuit court again to reduce the length
of
his
probation
and
argue
that
it
has
inherent,
but
not
statutory, authority to do so.
¶108 For the reasons set forth, I dissent.
The defendant
did not forfeit the right to have this court decide the inherent
authority issue.
I conclude that a circuit court has inherent
authority to reduce the length of probation "for cause," that
is,
a
circuit
court
may
exercise
its
inherent
authority
to
reduce the length of probation when doing so advances the dual
purposes of probation:
"to rehabilitate the defendant and to
protect society without placing the defendant in prison."
21
No.
¶109 ANN WALSH BRADLEY, J.
(dissenting).
2010AP772-CR.awb
I agree with
the majority's conclusion that Wis. Stat. § 973.09(3)(a) does
not provide statutory authority for a circuit court to reduce
the
length
of
probation.
I
write
separately,
however,
to
address the issue of inherent authority because I conclude that
Dowdy did not forfeit his right to have this court address that
issue.
¶110 No
party
disputed
that
a
circuit
court
inherent authority to reduce the length of probation.
is not whether the court has such authority.
has
the
The issue
It does.
Rather,
the issue is what are the parameters of that authority.
¶111 A circuit court must exercise its inherent authority
within "defined parameters."
State v. Crochiere, 2004 WI 78,
¶12, 273 Wis. 2d 57, 681 N.W.2d 524.
Although the parties agree
that the court has inherent authority, they disagree about the
proper standard for the circuit court's inherent authority to
reduce the length of probation.
standard.
By
contrast,
the
Dowdy advocates for the "cause"
State
asserts
that
the
circuit
court's inherent authority to reduce the length of probation
should
be
inherent
limited
in
the
same
authority
to
reduce
a
1
way
that
sentence
a
is
circuit
court's
limited——in
this
No.
2010AP772-CR.awb
case, based on the presence of a "new factor."1
Upon close
examination, both of these standards are problematic.
¶112 I
am
not
persuaded
that
Dowdy's
"cause,"
sufficiently
circumscribes
inherent
authority.
Rather,
question.
for
the
the
proposed
court's
"cause"
standard,
exercise
standard
of
begs
the
If a circuit court can reduce the length of probation
cause,
what
constitutes
cause
to
reduce
the
length
of
probation?
¶113 According to the court of appeals, "the law places no
limitation on what the trial court may consider as cause" when
extending probation under Wis. Stat. § 973.09(3)(a).
State v.
Edwards, 2003 WI App 221, ¶14, 267 Wis. 2d 491, 671 N.W.2d 371.
I
fear
that
such
an
amorphous
standard
would
provide
insufficient guidance to circuit courts.
¶114 Likewise, I am not persuaded that the State's "new
factor"
standard,
which
is
transposed
wholesale
from
the
standards for sentence modification, is workable in the context
of
probation
modification.
The
purposes
of
sentencing
and
probation are distinct, and the distinction makes a difference.
¶115 There
are
several
purposes
of
imposing
a
criminal
sentence, only one of which is the defendant's rehabilitation.
See
C.J.
Abrahamson's
dissent,
¶97.
By
contrast,
the
dual
purposes of imposing probation are "to protect the public from
1
In addition to its inherent authority to modify a sentence
when a "new factor" is presented, a circuit court may exercise
its inherent authority to modify a sentence to correct formal or
clerical errors, to correct an illegal or void sentence, or to
modify an unduly harsh or unconscionable sentence.
State v.
Crochiere, 2004 WI 78, ¶12, 273 Wis. 2d 57, 681 N.W.2d 524.
2
No.
2010AP772-CR.awb
criminal conduct and to help the probationer become a useful
member of society."
N.W.2d 849 (1979).
Wagner v. State, 89 Wis. 2d 70, 77, 277
Both purposes of probation have been served
when a probationer has been rehabilitated.
When a probationer
becomes
or
a
useful
rehabilitated,
and
member
of
society,
the
public
is
he
she
protected
from
has
been
criminal
conduct.
¶116 Because rehabilitation is so essential to the court's
purpose for imposing probation in the first instance, a circuit
court should be able to consider whether a defendant has been
rehabilitated when deciding a motion to reduce the length of
probation.
Accordingly,
modification
provides
rewarding
we
the
post-sentencing
have
circuit
stated
court
that
with
rehabilitation . . . ."
"[p]robation
a
means
of
State
v.
Kluck, 210 Wis. 2d 1, 9, 563 N.W.2d 468 (1997).
¶117 However, our case law makes clear that, for purposes
of
sentence
modification,
a
defendant's
post-sentencing
rehabilitation cannot be considered a new factor.
Id. at 7-8.
Thus, if we were to accept the State's proposed standard and
adopt the sentence modification parameters wholesale, we would
significantly undermine the circuit court's inherent authority
by preventing the circuit court from considering rehabilitation,
the underlying purpose of probation.
¶118 Accordingly, I conclude that neither of the standards
offered by the parties is suited to define the parameters of the
circuit court's exercise of inherent authority.
One standard is
too broad, providing virtually no definition to guide the court,
3
No.
2010AP772-CR.awb
and the other is too narrow, appearing to render the court's
inherent authority illusory.
The parties' proposed standards
provide no middle ground.
¶119 I
conclude
that
a
third
alternative
is
necessary.
This is an important issue that affects the lives of a multitude
of people and the administration of justice.
craft
a
standard
that
is
sufficiently
This court should
defined
to
provide
parameters for the circuit court's inherent authority, but that
would
allow
defendant's
the
circuit
rehabilitative
court
to
progress
take
in
into
some
account
fashion
the
when
determining whether probation reduction is warranted.
¶120 For the reasons fully set forth by the Chief Justice,
I conclude that Dowdy did not forfeit the inherent authority
issue.
See C.J. Abrahamson's dissent, ¶¶52-71.
Because I think
it would be unwise for this court to craft, sua sponte, a new
standard without further input from the parties, I would request
supplemental briefing about the proper standard for the circuit
court's
exercise
of
inherent
respectfully dissent.
4
authority.
Accordingly,
I
No.
1
2010AP772-CR.awb
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