State v. Stewart, 2005AP979-CR.

• Decision Date: 15 March 2006
• Docket Number: No. 2005AP980-CR.,No. 2005AP979-CR.,2005AP979-CR.,2005AP980-CR.
• Citation: 2006 WI App 67,713 N.W.2d 165
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald W. STEWART, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

713 N.W.2d 165

2006 WI App 67

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald W. STEWART, Defendant-Appellant.

No. 2005AP979-CR.

No. 2005AP980-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 2, 2006.

Opinion Filed March 15, 2006.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, Assistant State Public Defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, Assistant Attorney General, and Peggy A. Lautenschlager, Attorney General.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

¶ 1 ANDERSON, J

Ronald W. Stewart appeals from judgments convicting him of felony bail jumping and felony fleeing and orders denying his postconviction motions. The parties agree and so do we that the trial court erred in imposing an eight-year term of probation for Stewart's felony bail jumping conviction. WISCONSIN STAT. § 973.09(2)(b) (2003-04)¹ expressly provides that the maximum term of probation for Class B-H felonies is linked to the maximum term of confinement for the crimes in those classes. Felony bail jumping is a Class H felony and the maximum term of confinement for a Class H felony is three years. Because Stewart was convicted of two felonies at the same time, the maximum period of probation under § 973.09(2)(b) is five years. Therefore, Stewart's eight-year term of probation is commuted under WIS. STAT. § 973.09(2m) to a five-year term.

¶ 2 Stewart also argues that the trial court erred in imposing as a condition of probation for the felony bail jumping conviction and as a condition of extended supervision for the felony fleeing conviction that he was not to enter Richmond township in Walworth county. We conclude that this geographical limitation does not comply with the requirements that it be narrowly drawn and not unduly restrictive of his liberties. Therefore, the condition precluding Stewart from entering Richmond township is stricken from the judgments of conviction. We remand so the trial court can enter amended judgments of conviction consistent with this opinion.

Eight-year term of probation

¶ 3 Stewart pled guilty to felony bail jumping in violation of WIS. STAT. § 946.49(1)(b). The trial court sentenced Stewart to an eight-year probation term. The court determined that pursuant to WIS. STAT. § 973.09(2)(b), the maximum term of probation depends upon the maximum term of imprisonment and not the maximum term of confinement. The maximum term of imprisonment equals the maximum term of initial confinement plus the maximum term of extended supervision. Michael B. Brennan, Thomas J. Hammer & Donald V. Latorraca, Fully Implementing Truth-In-Sentencing, WIS. LAW., Nov. 2002, at 12 Figure 1. From this, the trial court reasoned that the maximum term of probation for a felony bail jumping conviction, a Class H felony, is six years: the maximum term of confinement is three years and the maximum term of extended supervision is three years. See WIS. STAT. § 973.01(2)(b) and (d). The trial court then added one year for each of Stewart's felony convictions for a total term of probation of eight years. See § 973.09(2)(b). The parties both agree that the trial court's interpretation and application of § 973.09(2)(b) runs contrary the statute's plain language.

¶ 4 Statutory interpretation and the application of a statute to specific facts are questions of law that we review de novo. State v. Moran, 2005 WI 115, ¶ 26, 284 Wis.2d 24, 700 N.W.2d 884. "[S]tatutory interpretation `begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" Id. (citation omitted). "`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.' Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history." Id. (citation omitted).

¶ 5 WISCONSIN STAT. § 973.09(2) provides:

(2) The original term of probation shall be:

....

(b) 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater.

2. If the probationer is convicted of 2 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.

Id. (emphasis added). Thus, the statute plainly and unambiguously provides that the maximum term of probation is dependent upon the maximum term of confinement for the crime committed and not, as the trial court held, the maximum term of imprisonment.

¶ 6 While the language of the statute is clear and we need not consult extrinsic sources, we do observe that our interpretation of WIS. STAT. § 973.09(2)(b) is consistent with the interpretations set forth by other judges and legal scholars. The record contains a chart constructed by Judge Patrick J. Fiedler. The chart entitled "Truth in Sentencing II—Penalty Chart" shows that under § 973.09(2)(b), the maximum term of probation equals the maximum term of confinement for Class B-H felonies.

¶ 7 The record also contains a November 2002 Wisconsin Lawyer article entitled "Fully Implementing Truth-In-Sentencing" written by Judge Michael B. Brennan, Thomas J. Hammer and Donald V. Latorraca. Judge Brennan was the staff counsel for, and Hammer served on, the Criminal Penalties Study Committee (CPSC), which was the entity responsible for drafting proposed statutes for the full implementation of truth-in-sentencing. See Brennan, supra, at 10 & 10 n.a1, 11-12.

¶ 8 In their Wisconsin Lawyer article, Judge Brennan and Hammer and Latorraca teach that prior to TIS-II, the original term of probation for a person convicted of a felony could not be more than either the statutory maximum term of imprisonment for the crime or three years, whichever was greater. See Brennan, supra, at 49. The authors then instruct that following the enactment of TIS-II, "[t]he maximum term of probation for Class B-H felonies equals the maximum initial term of confinement for those crimes." See Brennan, supra, at 12 Figure 1, 49. The authors explain the reasons for the changes as follows:

The CPSC recommended that the maximum original term of probation for Class B-H felonies be linked to the maximum term of confinement for crimes in those classes, rather than the maximum term of imprisonment. The committee believed that the dual objects of probation—rehabilitation of the offender and protection of the state and community interest—could be achieved within these time periods. The legislature adopted the CPSC's recommendations.

Id. at 49 (footnotes omitted).

¶ 9 Having set forth the proper interpretation of WIS. STAT. § 973.09(2), we now turn to its application in this case. Stewart was convicted of felony bail jumping, which is a Class H felony. The maximum term of confinement for a Class H felony is three years. See WIS. STAT. § 973.01(2)(b)8. Because Stewart also was convicted of felony fleeing at the same time, the maximum term of probation is increased by two years (one year for each felony conviction) for a total of five years. See § 973.09(2)(b). Stewart's eight-year term of probation is commuted to a five-year term. See § 973.09(2m).

Banishment as a condition of probation and extended supervision

¶ 10 As a condition of his probation and a condition of his extended supervision, the trial court banished Stewart from Richmond township in Walworth county. Stewart complains that, given the facts and circumstances, the condition fails to meet the requirements that it be narrowly drawn and not unduly restrictive of his liberties.

¶ 11 Sentencing courts have wide discretion and may impose any conditions of probation or supervision that appear to be reasonable and appropriate. State v. Nienhardt, 196 Wis.2d 161, 167, 537 N.W.2d 123 (Ct.App.1995); State v. Koenig, 2003 WI App 12, ¶ 7, 259 Wis.2d 833, 656 N.W.2d 499. We review such conditions under the erroneous exercise of discretion standard to determine their validity and reasonableness measured by how well they serve their objectives: rehabilitation and protection of the state and community interest. Nienhardt, 196 Wis.2d at 167, 537 N.W.2d 123; Koenig, 259 Wis.2d 833, ¶ 7, 656 N.W.2d 499.

¶ 12 The conditions may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation. Nienhardt, 196 Wis.2d at 168, 537 N.W.2d 123. Convicted felons do not enjoy the same degree of liberty as those individuals who have not been convicted of a crime. State v. Oakley, 2001 WI 103, ¶ 17, 245 Wis.2d 447, 629 N.W.2d 200. Whether a particular condition violates a defendant's constitutional right is a question of law which this court reviews de novo. State v. Lo, 228 Wis.2d 531, 534, 599 N.W.2d 659 (Ct.App.1999).

¶ 13 Geographical limitations, while restricting a defendant's rights to travel and associate, are not per se unconstitutional. See Predick v. O'Connor, 2003 WI App 46, ¶ 18, 260 Wis.2d 323, 660 N.W.2d 1; Nienhardt, 196 Wis.2d at 168-69, 537 N.W.2d 123 (declining to address the defendant's specific constitutional claims, but indicating that the geographical limitation in that case did not impermissibly infringe on her constitutional rights). Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick, 260 Wis.2d 323, ¶ 18, 660 N.W.2d 1.

¶ 14 The facts underlying the crimes charged in Stewart's other criminal cases formed the basis for the trial court's decision to impose a geographic restriction as a condition of Stewart's probation and extended supervision. The record shows that in 2003 Stewart made several telephone calls of a sexual nature to one of his neighbors....