State v. Dowdy

• Decision Date: 21 October 2010
• Docket Number: No. 2010AP772-CR.,2010AP772-CR.
• Citation: State v. Dowdy, 330 Wis.2d 444, 792 N.W.2d 230, 2010 WI App 158 (Wis. App. 2010)
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Carl L. DOWDY, Defendant-Respondent.FN† FN† Petition for review filed.
• Court: Wisconsin Court of Appeals

330 Wis.2d 444

792 N.W.2d 230

2010 WI App 158

STATE of Wisconsin, Plaintiff-Appellant,

v.Carl L. DOWDY, Defendant-Respondent.^FN†FN† Petition for review filed.

No. 2010AP772-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 14, 2010.

Opinion Filed Oct. 21, 2010.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James M. Freimuth, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Bryan J. Cahill of Godfrey & Kahn, S.C., Madison.

Before LUNDSTEN, HIGGINBOTHAM and BLANCHARD, JJ.

BLANCHARD, J.

¶ 1The State appeals from a circuit court order granting Carl Dowdy's request to reduce the period of Dowdy's probation from ten years to seven years.We conclude that the court had neither statutory nor inherent authority to order the reduction.The plain language of Wis. Stat. § 973.09(3)(a)(2007-08)¹ does not authorize the circuit court to reduce Dowdy's probation period.Furthermore, whether or not circuit courts possess inherent authority to reduce a period of probation that is comparable to the inherent authority courts possess to reduce a sentence, courts have no inherent authority to reduce probation based on a finding of successful rehabilitation.Accordingly, we reverse the appealed order.

BACKGROUND

¶ 2 On June 18, 2002, Dowdy was convicted at trial of second-degree sexual assault with use or threat of force or violence.The circuit court sentenced Dowdy to serve fifteen years in prison (sevenyears' initial confinement, followed by eight years' extended supervision).The court stayed this sentence, and imposed a ten-year period of probation.One condition of probation was one year of confinement in the Milwaukee House of Corrections.Another condition was sex offender evaluation and treatment.

¶ 3 Seven years later, Dowdy petitioned for "modification" of his period of probation from ten to seven years, citing Wis. Stat. § 973.09(3)(a) as authority.Because Dowdy had completed seven years of probation, granting this request would result in discharging Dowdy from probation.Dowdy asserted that the reduction was appropriate because his progress on supervision had been largely successful, and he no longer could be said to "pose a threat to the community."

¶ 4 At an evidentiary hearing on the petition, Dowdy presented evidence that he had not contacted the victim in the case while on probation, had completed anger management counseling, maintained employment, and had no addiction or mental health treatment needs.Also at the hearing, three Wisconsin Department of Corrections(DOC) agents who had supervised Dowdy testified to concerns about Dowdy's history on probation.In addition, both the sexual assault victim, through a representative, and the State objected to the petition.The victim related that she was "very opposed," in part because she believed that the original disposition had been inadequate.The State emphasized that Dowdy had not successfully completed sex offender treatment programming and asserted that he represented "a high risk to reoffend."

¶ 5 At the close of the hearing, the circuit court ordered DOC to conduct a new sex offender risk assessment of Dowdy, with Dowdy's consent, and adjourned the matter for a return of that report and the court's decision on the petition.

¶ 6 Following the first hearing, the State filed an objection to the petition, arguing that the circuit court lacked authority to modify the length of Dowdy's probation.Dowdy filed a response, asserting that under various provisions of Wis. Stat. § 973.09, the court had authority to reduce the probationary period.Dowdy made no claim that the court possessed inherent power to reduce his period of probation.

¶ 7 At a second hearing, the circuit court concluded that it had statutory authority to consider the requested reduction in the probationary period.²After hearing further argument from the parties, and considering both the new DOC sex offender risk assessment and a report of a private psychological evaluation submitted by defense counsel, the court found good cause to reduce Dowdy's probation period from the original ten years to seven years upon payment of court-ordered fees.The court made the following findings at the conclusion of the second hearing:

When I review the evaluation of Mr. Dowdy and the history that he's had with the Department of Correction[s], I do believe that the biggest problem that Mr. Dowdy has had is, is that he—there is a—at least he's been labeled as a denier, a refusal to accept sort of his role in this situation because in his mind he believes and he's always believed that it was a consensual relationship.However, he has managed to meet just about every condition except the completion of sex offender treatment.He progresses to a certain point and then is terminatedand he's done that on several occasions.But given his efforts in terms of all other aspects of probation, this Court does find that there is good cause and it would not violate the public safety to terminate probation.

¶ 8The State appeals the circuit court's order that the period of probation be "modified" from ten to seven years.

DISCUSSION

Interpretation and Application of Wis. Stat. § 973.09(3)(a)

¶ 9 Review of the circuit court's decision requires us to interpret and apply Wis. Stat. § 973.09(3)(a).Statutory interpretation is a question of law subject to de novo review.Harnischfeger Corp. v. LIRC,196 Wis.2d 650, 659, 539 N.W.2d 98(1995).

¶ 10 When interpreting a statute, we begin with the statutory language.State ex rel. Kalal v. Circuit Court for Dane County,2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110.If the meaning of the statute is plain, we ordinarily stop the inquiry and apply that meaning.Id.We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results."Id.,¶ 46." 'If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' "Id.(citation omitted).

¶ 11 Contextual clues to legislative intent"ascertainable from the text and structure of the statute itself, rather than [from] extrinsic sources, such as legislative history," should be used to determine whether the meaning of a statute is plain.Id.,¶¶ 46-48.Courts should consider the potential illumination offered by " 'the words of the provision as they interact with and relate to other provisions in the statute and to other statutes.' "Beard v. Lee Enterprises, Inc.,225 Wis.2d 1, 10-11, 591 N.W.2d 156(1999)(citation omitted).

¶ 12 Three years before his probation period was to be completed, Dowdy asked the court to reduce his probation period to the past seven years, based on his allegedly successful accomplishment of the goals of his probationary period.Dowdy argued, as he does here, that Wis. Stat. § 973.09(3)(a) confers authority on the court to reduce his probation upon a finding of cause.The statute provides: "Prior 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."The State argues that there is nothing in the language of the statute that authorizes the court to reduce a period of probation.According to the State, the statute plainly authorizes the court only to extend the period of probation, or to modify the terms and conditions of probation.We agree with the State on this question of statutory interpretation.

¶ 13 Dowdy's argument focuses on the phrase "modify the terms and conditions thereof" in the statute.He argues that this language grants the court the authority to reduce the period of probation.Dowdy's construction of this phrase is unreasonable.

¶ 14 As an initial matter, we note that, unlike the defendant in State v. McCready,2000 WI App 68, 234 Wis.2d 110, 608 N.W.2d 762, Dowdy did not request that the circuit court terminate his probation and sentence him for the first time.SeeState v. Migliorino,150 Wis.2d 513, 541, 442 N.W.2d 36(1989)(probationer has right at any time to refuse probation, subjecting probationer to sentence instead ofcontinuing terms and conditions of probation).

¶ 15We also note that DOC, the agency that administers probation and supervises probationers through its Division of Community Corrections, did not request or concur with early termination of Dowdy's probation, another scenario that we do not address in this opinion.See2009 Wis. Act 28, § 3392d(eff. Oct.1, 2009)(DOC may discharge probationer after completion of one-half of probation period).

¶ 16We conclude that we do not have cause to refer to legislative history or other extrinsic tools, because the plain language of Wis. Stat. § 973.09(3)(a) does not grant a circuit court the authority to reduce a probation period.Dowdy's argument that § 973.09(3)(a) is ambiguous on this point is incorrect.

¶ 17 It is clear from the terms of Wis. Stat. § 973.09(3)(a) that the legislature did not intend to grant to circuit courts the authority to "modify" probationary dispositions by reducing them in length.In interpreting a statute, we are obligated to seek meaning in every word used by the legislature.Kalal,271 Wis.2d 633, ¶ 46, 681 N.W.2d 110.In this case, there would be no need to employ the word "extend" as it is used in § 973.09(3)(a) if "modify" meant "extend or reduce," as Dowdy argues.

¶ 18 Instead, courts are authorized under Wis. Stat. § 973.09(3)(a), by order and upon a showing of cause, to "extend probation for a stated period," and, as a separate grant of authority, to "modify" an identified set of terms or conditions of the probation.Neither the word "terms," nor the word "conditions," refers to the length...