State v. Robert V. Horn

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SUPREME COURT OF WISCONSIN Case No.: 97-2751-CR Complete Title of Case: State of Wisconsin, Plaintiff-Appellant, v. Robert V. Horn, Defendant-Respondent. ON CERTIFICATION FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 11, 1999 March 4, 1999 Circuit Kenosha Bruce E. Schroeder JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the plaintiff-appellant the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief (in the Court of Appeals) was Pamela Magee, assistant attorney general, and James E. Doyle, attorney general. For the defendant-respondent there was a brief (in the Court of Appeals) and oral argument by Martha K. Askins, assistant state public defender. No. 97-2751-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-2751-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, JUN 11, 1999 Plaintiff-Appellant, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Robert V. Horn, Defendant-Respondent. APPEAL from an order of the County, Bruce E. Schroeder, Judge. ¶1 (Horn) WILLIAM A. challenged § 973.10(2) BABLITCH, the requiring the statute Court for Kenosha Reversed. J. Defendant, constitutionality administrative, revocation of probation. declared Circuit Robert of rather V. Wis. than Horn Stat. judicial, The circuit court agreed with Horn and unconstitutional separation of powers doctrine. as a violation of the The issue presented by this case is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. We conclude that disposition of a criminal case, including imposing and revoking probation, is within powers shared among the branches of government. Because the legislative delegation of probation revocation to the executive branch does not unduly burden or substantially 1 No. 97-2751-CR interfere with the judiciary s constitutional function to impose criminal penalties, constitutional. we determine Accordingly, we that reverse § 973.10(2) the order is of the circuit court. ¶2 The facts for purposes of this appeal are limited and not in dispute. Horn pleaded guilty to two felony counts of delivery of cocaine, contrary to Wis. Stat. §§ 161.16(2)(b)1 and 161.41(1)(cm) (1992-93).1 The Kenosha County Circuit Court, the Honorable Bruce E. Schroeder presiding, adjudged Horn guilty and ordered a presentence investigation report. the circuit court withheld Horn s On March 9, 1995, sentence, placed him on probation for four years, and ordered him to pay restitution. ¶3 initiated In July 1997, the Wisconsin Department of Corrections probation revocation proceedings pursuant to Wis. Stat. § 973.10(2) (1995-96).2 against Horn, The Department of Corrections asserted that Horn violated several conditions of his probation. He also faced new charges of obstructing as a repeater and stalking as a repeater. On August 14, 1997, Horn filed a motion with the circuit court, requesting that the court determine § 973.10(2) unconstitutional separation of powers doctrine. as violating the Horn served this motion on the Attorney General, pursuant to Wis. Stat. § 806.04(11), who filed a response in opposition to the motion. 1 Wisconsin Stat. §§ 161.16(2)(b)1 and 161.41(1)(cm) (199293) were renumbered as Wis. Stat. §§ 961.16(2)(b)1 and 961.41(1)(cm) (1995-96). 1995 Wis. Act 448, §§ 168-171, 173. 2 All references to the Wisconsin Statutes are to the 199596 version unless otherwise indicated. 2 No. ¶4 97-2751-CR The circuit court granted Horn s motion and declared Wis. Stat. § 973.10(2) unconstitutional concluding it violates the separation of powers doctrine. that the statute impermissibly The circuit court determined infringes exclusive sentencing function. on the judiciary s Accordingly, the circuit court enjoined the Department of Corrections from further proceedings with the probation revocation process and set a date for a probation revocation hearing before the circuit court. ¶5 The circuit court based its decision on its conclusion that probation is a stay in an ongoing criminal proceeding. circuit court determined that not only does probation The stay execution of a sentence, see Wis. Stat. § 973.09(1)(a), but the circuit court continues to have power to modify the terms of probation, see § 973.09(3)(a). Wis. Stat. § 973.10(2), The circuit court concluded that requiring administrative probation revocation, allows the executive branch to administratively lift the judicially-imposed stay, and violates the separation of powers doctrine in that only a court should be able to lift a judicially-imposed stay. ¶6 The State of Wisconsin (State) petitioned the court of appeals for leave to appeal a nonfinal order. The court of appeals hearing granted the State s petition. After oral arguments, the court of appeals certified the case to this court pursuant to Wis. Stat. § (Rule) 809.61, which we accepted. ¶7 The issue presented by this case and as certified by the court of appeals is whether it is within the exclusive power of the judiciary to determine whether a defendant has violated 3 No. 97-2751-CR the court-imposed conditions of probation and whether probation should be revoked and the defendant sent to prison. words, we must determine whether Wis. Stat. In other § 973.10(2) (reprinted below),3 which provides for administrative revocation of probation, powers unconstitutionally doctrine. Whether a violates statute is the separation constitutional question of law which this court reviews de novo. is of a State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883 (1992). ¶8 statute, When we a party begin constitutional. with challenges the the presumption that the of statute a is St. ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). 3 constitutionality The party challenging Wisconsin Stat. § 973.10(2) provides: (2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall: (a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under s. 973.15; or (b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison. 4 No. 97-2751-CR the constitutionality of a statute has the burden to show beyond a reasonable doubt that the statute is unconstitutional. Id. (citing State v. Holmes, 106 Wis. 2d 31, 41, 315 N.W.2d 703 (1982)). Any doubts about the constitutionality of a statue are resolved in favor of the statute. Chappy v. LIRC, 136 Wis. 2d 172, 185, 401 N.W.2d 568 (1987). ¶9 This court has frequently expounded the separation of powers doctrine. not explicitly implicit in The doctrine of separation of powers, while set the forth in division the of Wisconsin governmental constitution, powers judicial, legislative and executive branches. among is the Friedrich, 192 Wis. 2d at 13 (citing Holmes, 106 Wis. 2d at 42). Wisconsin Const. Art. VII, §§ 2, 3, and 4 govern the judicial branch; Article IV, § 1 governs the legislative branch; and Article V, § 1 governs the executive branch. Each branch, separate but co- equal, is not subordinate to another, no branch to arrogate to itself control the other. Friedrich, 192 Wis. 2d at 13 (citing Holmes, 106 Wis. 2d at 42). ¶10 The constitutional powers of each branch of government fall into two categories: exclusive powers and shared powers. Each branch has exclusive core constitutional powers into which other branches may not intrude. Friedrich, 192 Wis. 2d at 13 (citing State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990)). ¶11 Shared exclusive borderlands core powers lie at constitutional of power are the intersections powers. not exclusive 5 These to any of these [g]reat one branch. No. Friedrich, 192 Wis. 2d at 14 (citing In re Appointment Revisor, 141 Wis. 592, 597, 124 N.W. 670 (1910)). branch jealously guards its exclusive 97-2751-CR powers, our of While each system of government envisions the branches sharing the powers found in these great borderlands. of separateness reciprocity. (Citation omitted). but Flynn Ours is a system interdependence, v. Department of autonomy but Administration, 216 Wis. 2d 521, 546, 576 N.W.2d 245 (1998) (citing Friedrich, 192 Wis. 2d at 14 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)). The branches may exercise power within no branch these borderlands substantially interfere but with another may unduly branch. burden Friedrich, or 192 Wis. 2d at 14 (citing State v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989)). This subtle balancing of shared powers, coupled with the sparing demarcation of exclusive powers, has enabled a deliberately unwieldy system of government to endure successfully for nearly 150 years. Friedrich, 192 Wis. 2d at 14. ¶12 In the present case, Horn argues that Wis. Stat. § 973.10(2), requiring administrative revocation of probation, impermissibly intrudes upon the judiciary s constitutional power to sentence criminal defendants. To determine whether legislation unconstitutionally intrudes upon judicial power and therefore violates the separation of powers doctrine, this court developed a three-part test. Flynn, 216 Wis. 2d at 546-47. We must first determine whether the subject matter of the statute is within powers constitutionally granted to the legislature. 6 No. Id. at 546 (citing Friedrich, 192 Wis. 2d at 14). inquiry is whether the subject matter of the 97-2751-CR The second statute within powers constitutionally granted to the judiciary. falls Flynn, 216 Wis. 2d at 546 (citing Friedrich, 192 Wis. 2d at 14-15). the subject matter constitutional granted to of powers either the but the statute not is within the powers within legislature If constitutionally or executive judiciary s branch, the subject matter is within the judiciary s core zone of exclusive Flynn, 216 Wis. 2d at 546. power. legislature or executive branch Any exercise of power by the within such an area is an unconstitutional violation of the separation of powers doctrine. Id. (citing In Matter of Complaint Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559 (1984)). The judiciary may recognize such an exercise of power but only as a matter of comity and courtesy, not as an acknowledgment of power. Flynn, 216 Wis. 2d at 546 (citing Friedrich, 192 Wis. 2d at 15). ¶13 powers If the subject matter of the statute is within the constitutionally granted to the judiciary and the legislature, the statute is within an area of shared powers. Flynn, 216 Wis. 2d at 547. Such a statute is constitutional if it does not unduly burden or substantially interfere with either branch. Id. (citing Friedrich, 192 Wis. 2d at 15). The focus of this evaluation is on whether one branch s exercise of power has impermissibly intruded on the constitutional power of the other branch. ¶14 facts Friedrich, 192 Wis. 2d at 15. We now apply this separation of powers analysis to the presented by this case. 7 In regard to sentencing in No. general, we can inquiriesï£§whether constitutionally easily the dispense subject granted to with matter the the is 97-2751-CR first within legislature and the two powers powers constitutionally granted to the judiciary. ¶15 It is settled that sentencing in Wisconsin is an area of shared powers. Borrell, 167 Wis. 2d at 767. branches play a role in sentencing. legislature to prescribe the All three It is the function of the penalty and the manner of its enforcement; the function of the courts to impose the penalty; while it is the function of the executive to grant paroles and Id. (quoting Drewniak v. State ex rel. Jacquest, 239 pardons. Wis. 475, 488, 1 N.W.2d 899 (1942)). See also Mistretta v. United States, 488 U.S. 361, 390 (1989) (upholding the federal Sentencing Guidelines. [T]he sentencing function long has been a responsibility peculiarly Government shared and has never been among thought of the as Branches the of exclusive constitutional province of any one Branch. ); State v. Sittig, 75 Wis. 2d 497, 499, 249 N.W.2d 770 (1977). ¶16 The legislature has authority to determine the scope of the sentencing court s discretion. discretion, within that The sentencing court has legislatively-determined scope, to fashion a sentence based on the nature of the criminal offense, the need to protect the public and the need to rehabilitate the defendant. Borrell, 167 Wis. 2d at 768-69 (citing In re Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (per curiam 1984)). 8 No. 97-2751-CR The fashioning of a criminal disposition is not an exercise of broad, inherent court powers. It is for the legislature to prescribe the punishment for a particular crime and it is the duty of the court to impose that punishment; if the authority to fashion a particular criminal disposition exists, it must derive from the statutes. State v. Amato, 126 Wis. 2d 212, 216, 375 N.W.2d 75 (Ct. App. 1985 (citations omitted). ¶17 Although case law makes clear that sentencing is within shared powers, we must determine whether probation and probation revocation are also within shared powers. The first inquiry is whether probation and probation revocation are within powers constitutionally granted to the legislature. ¶18 Probation itself is generally not a sentence. Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974); State v. Hays, 173 Wis. 2d 439, 444, 496 N.W.2d 645 (Ct. App. 1992); State v. Meddaugh, 148 Wis. 2d 204, 211, 435 N.W.2d 269 (Ct. App. 1988). However, probation is an alternative to sentencing. Garski v. State, 75 Wis. 2d 62, 69, 248 N.W.2d 425 (1977). See also State v. 118 Gereaux, 1983). 114 Wis. 2d 110, 113, 338 N.W.2d (Ct. App. Like sentencing which is within shared powers, probation is one possible disposition for criminal defendants. [T]he purpose of the probation statute [was] to confer a new power upon the courtï£§the power to suspend the execution of a sentence and to place the defendant on probation. Drinkwater v. State, 69 Wis. 2d 60, 66, 230 N.W.2d 126 (1975) (citing State ex rel. Zabel v. Municipal Court, 179 Wis. 195, 201, 190 N.W. 121, 191 N.W. 565 (1923)). Because probation is so closely related to sentencing as a possible criminal disposition, we conclude that 9 No. 97-2751-CR probation and administration of probation revocation are within powers constitutionally granted to the legislature. ¶19 The analysis is second inquiry whether in probation the and separation probation of revocation within powers constitutionally granted to the judiciary. the question is easily answered. powers are Again, Although probation is not a sentence, it is a possible disposition for criminal defendants, and therefore, probation falls within the judiciary s power to impose a penalty. See Drinkwater, 69 Wis. 2d at 66 (the probation statute broadens the power of courts by giving them authority to place a defendant on probation). sentencing, the legislature has In fact, like specifically granted the judiciary the authority to impose probation as an alternative to sentencing. Wis. Stat. § 973.09(1)(a). Without such statutory authority, a court could not place a defendant on probation. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 545, 185 N.W.2d 306 (1971). 79, 83 (1916)) (1955) (at See also Affronti v. United States, 350 U.S. (citing the Ex Parte United States, federal level judicial 242 power to U.S. 27 permit probation springs solely from legislative action ). ¶20 We determine, consistent with sentencing and probation as an alternative to sentencing, that probation and probation revocation are within shared powers. 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. 10 No. ¶21 Having concluded that both and probation sentencing 97-2751-CR are within shared powers, we turn to the third inquiry of the separation of powers analysisï£§whether the subject matter of Wis. Stat. § 973.10(2), requiring administrative probation revocation, unduly burdens or substantially interferes with the judiciary s function to impose criminal penalties. ¶22 The probation legislature s provides that grant of unless authority probation is to impose statutorily prohibited for a particular offense, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the corrections] for § 973.09(1)(a). branch revokes brought person a on stated probation to the period . . . department . Wis. [of Stat. Also, according to statute, if the executive the before the defendant s court for probation, sentencing the if probationer the is sentence was withheld, or, if the probationer was sentenced but the sentence stayed, the probationer is sent to prison to serve the sentence. Wis. Stat. defendant] § 973.10(2)(a) is required to and (b). serve The upon sentence revocation [the is the punishment for the crime of which he [or she] has previously been convicted. Wis. 2d 376, State ex rel. Flowers v. H&SS Department, 81 386, 260 N.W.2d 727 (1978) (regarding parole revocation) (citing Brown v. Warden, U.S. Penitentiary, 351 F.2d 564, 567 (7th Cir. 1965)). ¶23 When a circuit court imposes probation and sentences a defendant, whether a sentence 11 is imposed and stayed, or No. 97-2751-CR withheld, the circuit court fully exercises its constitutional function to impose a criminal disposition. imposes a sentence but stays its If a circuit court execution and places the defendant on probation, the circuit court fully exercises its discretion sentence and constitutional within the function statutory in guidelines determining provided for the the offense and in placing the defendant on probation pursuant to Wis. Stat. sentence § 973.09(1)(a). and places the If a defendant circuit on court probation, withholds the circuit court exercises its discretion and constitutional function in ordering such disposition and, if necessary, will later exercise its discretion in imposing a sentence after probation has been revoked. Probation substantially revocation interfere with does the not unduly judiciary s burden or constitutional function to impose criminal penalties. ¶24 Horn argues that probation is a stay in an ongoing criminal proceeding and that allowing administrative revocation of probation ongoing allows criminal judiciary. the executive proceeding We disagree. which branch is the to intrude province in of an the The plain language of the statute regarding imposing probation provides that a court may withhold sentence or impose sentence . . . and stay its execution . . . . Wis. Stat. § 973.09(1)(a). sentence imposed, not the This language provides that a criminal proceeding, is stayed by probation. ¶25 In fact, the criminal proceeding cannot be stayed because once a defendant has been charged with a crime, tried, 12 No. 97-2751-CR defended, convicted, sentenced, and gone through an appeal if desired, the litigation is over and the judicial process has ended. Johnson, 50 Wis. 2d at 546. Whether a convicted defendant is sentenced to prison or the circuit court imposes probation, [t]he adversary system has terminated and the administrative process, vested in the executive branch of the government, processes directed of the to the parole criminal Furthermore, imposed because prosecution . . . . (1973) (holding is system has penaltyï£§is does not rehabilitative been The judiciary phase of a revocation it and probation processï£§imposing probation stay and Id. at 546. substituted in its place. the correctional not a lift stage complete. a of judicially a criminal Gagnon v. Scarpelli, 411 U.S. 778, 782 that a person who is subject to probation revocation is entitled to a hearing); State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 513, 563 N.W.2d 883 (1997); State ex rel. Hanson v. H&SS Dept., 64 Wis. 2d 367, 379, 219 N.W.2d 267 (1974); State ex rel. Lyons v. H&SS Dept., 105 Wis. 2d 146, 149, 312 N.W.2d 868 (Ct. App. 1981). civil proceeding. ¶26 probation until the Vanderbeke, 210 Wis. 2d at 513. Although or a court modify the time Rather, revocation is a probation has terms statutory of expires, a authority defendant s Wis. Stat. to extend probation up § 973.09(3)(a), allowing the executive branch to determine whether a defendant has violated the conditions of his or her probation to such a degree as to substantially warrant revocation interfere with 13 does not either unduly the burden or judiciary s No. constitutional statutory function authority to to impose extend criminal probation prior to the expiration of probation. 97-2751-CR penalties or modify or its its terms The judiciary still has authority to sentence the convicted defendant to prison or to impose probation and withhold or stay sentencing. ¶27 court s Defendant powers contempt. attempts regarding to make an probation analogy and between powers a regarding While the power of a court to hold a person in contempt is an inherent power of the court . . . the legislature may subject the power to reasonable regulation, [but] it may not withdraw the power. Smith v. Burns, 65 Wis. 2d 638, 645, 223 N.W.2d 562 (1974) (citations omitted). Like the judiciary s contempt power, the judiciary has constitutional authority to impose a criminal penalty. within its Also, like contempt, the legislature constitutional authority has subjected judiciary s sentencing power to reasonable regulation. the While the legislature may not withdraw the court s power to impose criminal parameters dispositions, and it authority can to and place rather than imposing a sentence. does a impose defendant sentencing on probation As discussed above, by vesting the administration of probation including probation revocation in the executive branch, the legislature has not withdrawn the judiciary s powerï£§it is simply a reasonable regulation within the legislature s power. If anything, an analogy between probation revocation and the judiciary s contempt power supports our conclusion that vesting probation 14 revocation in the No. executive branch does not unduly burden or 97-2751-CR substantially interfere with the judiciary. ¶28 review Horn also argues that the judiciary lacks meaningful of disagree. of an an administrative revocation of probation. Certiorari is a meaningful review. administrative decision is by We Judicial review writ of certiorari, reviewing the agency s decision, not that of the circuit court. State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997). inquiries: (1) whether A court s review consists of four the tribunal stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action represented was arbitrary, its will, not oppressive its or judgment; unreasonable and (4) and whether the evidence was such that it might reasonably make the decision Id. (citing Van Ermen v. D.H.S.S., 84 Wis. 2d 57, that it did. 63, 267 N.W.2d 17 (1978)). ¶29 is the Horn finally argues that it is striking that Wisconsin only state that requires judicial probation revocation. administrative rather than First, we note that we analyze Wis. Stat. § 973.10(2) using a separation of powers analysis based on the Wisconsin Constitution. How this analysis might play based out in other jurisdictions constitutions is of no consequence. the federal Constitution administrative revocation forbids of on state Additionally, [n]othing in a state probation from imposed Ware v. Gagnon, 659 F.2d 809, 812 (7th Cir. 1981). 15 other providing by a for court. No. ¶30 97-2751-CR The United States Supreme Court determined that due process requires that a person subject to parole revocation be afforded a officer hearing at both the revocation hearing. (1972). before a neutral preliminary and hearing detached and at hearing the final Morrissey v. Brewer, 408 U.S. 471, 486, 489 The neutral and detached hearing officer, however, need not be a judicial officer or lawyer. Id. at 486, 489. Although Morrissey involved parole revocation, the Morrissey rules also See Gagnon, 411 U.S. at 782. apply to probation revocation. Because neither the federal constitution nor principles of due process require conducted that before jurisdictions a relying probation court, on we revocation are judicial not proceedings persuaded rather than by be other administrative probation revocation. ¶31 In sum, we hold that administrative revocation of probation, as provided in Wis. Stat. § 973.10(2), falls within an area of shared powers. Horn has failed to show beyond a reasonable doubt that the legislative delegation of probation revocation to substantially the executive interferes with branch the unduly judiciary s function to impose criminal penalties. burdens or constitutional The judiciary retains authority to impose a sentence on the convicted defendant or to impose probation and withhold or stay a sentence. § 973.10(2) is constitutional. Accordingly, we Therefore, reverse the order of the circuit court. By the Court. The order of the circuit court is reversed. 16 No. 17 97-2751-CR 1

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