State v. Johnson

• Decision Date: 16 August 2005
• Docket Number: No. 2004AP2176-CR, 2004AP3031-CR.,2004AP2176-CR, 2004AP3031-CR.
• Citation: 287 Wis.2d 313,2005 WI App 202,704 N.W.2d 318
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy J. JOHNSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

287 Wis.2d 313

2005 WI App 202

704 N.W.2d 318

STATE of Wisconsin, Plaintiff-Respondent, v. Timothy J. JOHNSON, Defendant-Appellant.¹

No. 2004AP2176-CR, 2004AP3031-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 18, 2005.

Decided August 16, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jo C. Vandermause of Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Jeffrey J. Kassel, assistant attorney general.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Timothy Johnson appeals judgments ordering him confined in the county jail for consecutive nine-month periods as a condition of probation and an order denying his motion for postconviction relief. Johnson argues the trial court had no statutory authority to order consecutive periods of conditional jail time. He argues alternatively that requiring him to serve a total of eighteen months in jail as a condition of probation violates WIS. STAT. § 973.09(4)(a), which gives trial courts the authority to order jail time "during such period of the term of probation as the court prescribes, but not to exceed one year."² Because Johnson is serving separate probationary terms, we reject his arguments and affirm the judgments and order.

Background

¶ 2. On September 26, 2003, Johnson entered a no contest plea to one count of failure to pay child support. Several weeks later, on November 10, 2003, Johnson pled guilty to two counts of delivery of cocaine.³ He was found guilty in both cases on the respective days on which he entered his pleas. He was not sentenced for either crime, however, until January 24, 2004. At that time, the trial court withheld sentence on the child support conviction, placing Johnson on probation for five years. As a condition of probation, Johnson was ordered to serve nine months in the county jail. The court also withheld sentence on both drug counts, placing Johnson on probation for twelve years. As a condition of probation, Johnson was ordered to serve nine months in the county jail. Finally, the trial court ordered that the terms of probation in the drug cases and the child support case be concurrent, but made the periods of conditional jail time consecutive to each other. Johnson was thus required, as a condition of probation, to serve a total of eighteen months in the county jail.⁴ ¶ 3. Johnson filed a motion for postconviction relief in the drug cases, arguing that the second nine months of jail time was an unlawful condition of probation. After a hearing, the trial court orally denied his motion.⁵ Johnson now appeals.

Discussion

¶ 4. When we interpret a statute, our goal is to ascertain and give effect to its intended purpose. See, e.g., Wenke v. Gehl Co., 2004 WI 103, ¶ 32, 274 Wis. 2d 220, 682 N.W.2d 405. To achieve that goal, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is clear when we give its words their commonly accepted meanings, we ordinarily stop the inquiry. Id. Context and the structure of the statute in which the questioned language appears may also be critical to establishing the meaning of particular words and phrases. Id., ¶ 46. The language of a statute is not interpreted in isolation, but as part of a larger text, and in relation to the language of surrounding or closely related statutes. Id.

¶ 5. A statute is ambiguous, according to the most common formulation of the test, if it is capable of being understood by reasonably well-informed persons in two or more senses. Id., ¶ 47. To resolve ambiguity in a statute's language, we may move beyond the text of the statute to extrinsic evidence about the scope, history, context, and purpose of the statute. See State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591. But our aim remains the same: to determine what the statute means so it can be given its full, proper, and intended effect. Kalal,271 Wis. 2d 633, ¶ 44.

¶ 6. Johnson argues first that the trial court had no authority to order, as a condition of probation, two consecutive periods of jail time. The State counters that a trial court has the power "to impose any conditions [of probation] which appear to be reasonable and appropriate." WIS. STAT. § 973.09(1)(a). That broad discretion is constrained, the State further asserts, only to the extent that a probation condition is expressly or specifically limited by another statute. See State v. Oakley, 2000 WI 37, ¶¶ 26-27, 234 Wis. 2d 528, 609 N.W.2d 786.

¶ 7. On that limited point, we agree with the State. Under WIS. STAT. § 973.09(4)(a), trial courts have the explicit authority to require a probationer to be confined in the county jail "during such period of the term of probation as the court prescribes." We have concluded elsewhere that the authority to impose conditional jail time includes the authority to stay time as well as the authority to fix the specific time a probationer must spend in jail. State v. Edwards, 2003 WI App 221, ¶¶ 11-12, 22, 267 Wis. 2d 491, 671 N.W.2d 371. The principles of Edwards thus dictate that a trial court also has the power to delay imposing conditional jail time until after some other event, such as a program or another period of conditional jail time, has occurred.

¶ 8. The problem here is therefore not when the periods of conditional jail time were imposed, but how long the total period of confinement is. The court's authority to impose jail time as a condition of probation is expressly limited to "such period of the term of probation as the court prescribes, but not to exceed one year." WIS. STAT. § 973.09(4)(a). The State argues that the one-year limit on conditional jail time does not apply in this case because Johnson is not serving a single probationary term. Johnson contends that the phrase "term of probation" refers to a single period of probation associated with multiple convictions at the same time. He further contends that he was convicted at the same time for the drug and child support cases because he was sentenced on the same day in both cases.

¶ 9. The language of WIS. STAT. § 973.09, the general probation statute, supports Johnson's contention that the phrase "term of probation" refers to a single unit of time that may be extended to reflect multiple convictions. The statute provides that the original term of probation for misdemeanors shall be "not less than 6 months nor more than 2 years," WIS. STAT. § 973.09(2)(a)1., while the original term of probation for felonies is "not less than one year nor more than either the maximum term of confinement . . . or 3 years." WIS. STAT. § 973.09(2)(b)1. If the probationer is convicted of multiple⁶ misdemeanors at the same time, the maximum original term of probation may be increased by a year. WIS. STAT. § 973.09(2)(a)2. Similarly, if a probationer is convicted of two or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction. WIS. STAT. § 973.09(2)(b)2. If Johnson was convicted at the same time in his drug and child support cases, those crimes would, as the State apparently concedes, give rise to a single "term of probation," which in turn would mean that the one-year limit on conditional jail time applied to that term ¶ 10. Thus, the critical question is whether Johnson was convicted at the same time in the drug and child support cases. To answer that question, we must decide whether conviction occurs, for the purposes of WIS. STAT. § 973.09, at the time a guilty plea is entered or at the time of sentencing and the entry of judgment.

¶ 11. Johnson argues that the word conviction is ambiguous. Like courts in other jurisdictions, Wisconsin courts have repeatedly recognized that conviction can refer either to the finding of guilt or to the entire procedural process resulting in a judgment and sentence.⁷ See, e.g., State v. Wimmer, 152 Wis. 2d 654, 658, 449 N.W.2d 621 (Ct. App. 1989). Because WIS. STAT. § 973.09 neither defines conviction nor clearly indicates which meaning of conviction is intended, we conclude that conviction is ambiguous in the probation statute as well. To resolve that ambiguity, we look both to extrinsic evidence of legislative intent and to our interpretation of the word conviction in similar or related statutes.

¶ 12. The legislative history of the provisions provides little insight into what the legislature intended when, in 1965, it first granted trial courts the authority to impose jail time as a condition of probation.⁸ There is no discussion of the new provision, which sets out the parameters for ordering conditional jail time that still govern trial courts today:

[t]he court may also require as a condition of probation that the probationer be confined in the county jail between the hours or periods of his employment during such portion of his term of probation as the court specifies, but not to exceed one year.

WIS. STAT. § 973.09(4)(a) (1965). Nor are there any drafting records or revisions that might clarify the purpose of adding jail time to the broad array of conditions that can be imposed on probationers. At the time the provision was added, the probation statute contained no reference to multiple convictions. It simply set out the temporal parameters of the probationary period: "[t]he original term of probation shall not be less than one year nor more than either the statutory maximum ... or 3 years, whichever is greater." WIS. STAT. § 57.01(3) (1965).

¶ 13. In the late 1960s, as part of a complete reworking of Wisconsin criminal procedure, the probation statute was revised to give trial courts the authority to make the period of probation consecutive to a sentence on a different charge whether "imposed at the same time or...