State v. Dowdy

• Citation: 338 Wis.2d 565,2012 WI 12,808 N.W.2d 691
• Decision Date: 14 February 2012
• Docket Number: No. 2010AP772–CR.,2010AP772–CR.
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Carl L. DOWDY, Defendant–Respondent–Petitioner.
• Court: United States State Supreme Court of Wisconsin

2012 WI 12

338 Wis.2d 565

808 N.W.2d 691

STATE of Wisconsin, Plaintiff–Appellant,

v.Carl L. DOWDY, Defendant–Respondent–Petitioner.

No. 2010AP772–CR.

Supreme Court of Wisconsin.

Argued Sept. 7, 2011.Decided Feb. 14, 2012.

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 curiae brief was filed on behalf of the Association of Criminal Defense Lawyers by Robert Henak and Henak Law Office, S.C., Milwaukee, and the Wisconsin State Public Defender by Dustin C. Haskell, Kelli S. Thompson, Colleen D. Ball and the Office of the State Public Defender, Milwaukee.ANNETTE KINGSLAND ZIEGLER, J.

[338 Wis.2d 569] ¶ 1 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 Court ¹ granting the defendant's petition to reduce the length of his probation from ten years to seven years, thereby discharging him from probation. The defendant, Carl L. Dowdy (Dowdy), brought his petition pursuant to Wis. Stat. § 973.09(3)(a) (2009–10).² Dowdy argued that § 973.09(3)(a) authorizes the circuit 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.

[338 Wis.2d 570] ¶ 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?

(3) 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 case, did the circuit court appropriately exercise its discretion to reduce the length of Dowdy's probation from ten years to seven years?

¶ 4 We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation. 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.

[1] ¶ 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 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) (2001–02).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 On July 23, 2002, the circuit court sentenced Dowdy to 15 years imprisonment, comprised of seven years of initial confinement and eight years on extended supervision. The court then stayed the sentence in favor of a ten-year period of probation, identifying as “an overwhelming factor” Dowdy's likelihood of rehabilitation. As conditions of probation, the court imposed one year of confinement with work and treatment release privileges and ordered Dowdy to: pay 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 advocate and Dowdy's three probation agents testified. All four opposed Dowdy's petition. 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 with sex offender treatment, and was argumentative. 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 be transferred from Mueller's supervision in November 2003. 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” and the second for “his sexual relationships.” While acknowledging that Dowdy attended sex offender treatment, Petryniec described how Dowdy misled a doctor into excusing him from a month of treatment. Still, Petryniec noted, Dowdy never tested positive for 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 probation and specifically with curfew and sex offender treatment. Reviewing a report on Dowdy's 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. § 973.09(3)(a) authorizes the 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 On January 20, 2010, the DOC filed with the circuit court its report assessing Dowdy's risk of sex offender recidivism. The report, prepared by licensed psychologist Christopher T. Tyre (Tyre), a supervisor in the DOC's Chapter 980 Forensic Evaluation Unit,⁵ concluded that Dowdy is a “ ‘low risk’ sexual offender.” Tyre diagnosed Dowdy as having an antisocial personality disorder but noted that he has “made significant changes in his life,” and as a result, the “manifestations of this diagnosis appear to be in remission or waning.” Tyre noted that while Dowdy was initially in denial of his 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...