The longer period of probation applicable to a misdemeanor act of domestic abuse under Wis. Stat. § 973.09(2)(a)1.b. may be ordered even though the charging documents did not allege the crime was an act of domestic abuse.
Edwards was charged with substantial battery, strangulation and suffocation, and disorderly conduct based on an incident with his live-in girlfriend. (¶¶4-5). The two felonies were denominated “domestic abuse” offenses and, along with the penalties, referred to imposition of “the domestic abuse assessment under § 973.055. The DC count did not refer to “domestic abuse.” (¶5). After Edwards was convicted, the judge placed him on probation for two years for the DC, relying on § 973.09(2)(a)1.b., which allows up to two years’ probation for a person convicted of a misdemeanor act of domestic abuse instead of the usual maximum term of probation of one year (§ 973.09(2)(a)1r.).
Edwards argued he was denied due process because of the lack of notice the DC might be an act of domestic abuse that would subject him to the longer term of probation. Not so, says the court of appeals. First, probation is not a sentence, but an alternative to a sentence, and “[u]nlike with a maximum sentence or a penalty enhancer, there is no statutory requirement that an accused be advised of potential probation terms or conditions.” (¶7). Next, relying on State v. Luu, 2009 WI App 91, 319 Wis. 2d 778, ¶15, 769 N.W.2d 125, which held that § 973.09 gives sufficient notice of the potential original length of probation and the fact that probation could be extended without limit, the court holds the statute also provides enough notice of the longer potential period of probation in this situation:
¶9 Here, as in Luu, the statute itself provided Edwards sufficient notice of the potential probationary term for acts of domestic abuse. The State did not need to set forth in the information and complaint that it was seeking two years of probation under Wis. Stat. § 973.09(2)(a)1.b. The fact that the State did indicate that it sought a finding of domestic abuse in the first two [felony] counts does not create a duty to do so in the third.
In addition, the court concludes the information and complaint did not mislead Edwards or provide him with insufficient notice so as to constitute a violation of his right to due process because the complaint’s probable cause account “is all about his beating his live-in girlfriend, threatening that he would kill himself if she did not come home right away, and then being found in bed with a cell phone and knife. Including “domestic abuse” as magic words in the recitation of the disorderly conduct count was not necessary.” (¶10). As the concurrence succinctly explains:
¶14 …. So, bottom line, it is irrelevant whether the state charged Edwards with “disorderly conduct” rather than “disorderly conduct—domestic abuse.” The fact is that he was the perpetrator of an ongoing, fluid domestic abuse incident and he therefore should have known that the trial court might consider his disorderly conduct as being part of that incident.
The court also holds that the facts of the case show the trial court’s conclusion the DC was an act of domestic abuse was “far from erroneous.” (¶12).
Is it so plain Edwards would know the DC might result in extra probation given the facts alleged in the complaint? Given that the other two charges were tagged as “domestic abuse,” wouldn’t it be just as logical he would think the DC wasn’t alleged to be “domestic abuse”? The charges were in the same document, after all. And we presume the legislature chooses its words carefully and precisely, Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984), so why not prosecutors who draft charging documents?
On the other hand, even if the DC charge was denominated as “domestic abuse,” would that have alerted Edwards to the possibility he’d face a longer term of probation? It is virtually certain the complaint would not have told him that, for as the court says (¶7) there is no statutory requirement that the maximum terms of probation be set forth in the charging document. It would have been up to Edwards or his lawyer to read § 973.09(2)(a)1. to discern he faced two years of probation instead of one. So if you’re handling a case with a misdemeanor that might be an act of domestic abuse under § 968.075(1)(a)–or that might be covered by some other category under § 973.09(2)(a)1.–be aware your client could be subject to more probation regardless of whether the complaint specifically alleges the charge is subject to extra probation.
Finally, Edwards had a trial, so there was ample evidence to show the DC was an act of domestic abuse. The record might not be complete or detailed enough for the judge to find the predicate facts for ordering extra probation where there is a plea and only sparse information in the probable cause section of the complaint.