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Probation – Length of, Judicial Authority to Reduce

State v. Carl L. Dowdy, 2010 WI App 58, review granted, 3/16/11; for Dowdy: Bryan Cahill; BiC; Resp.; Reply

Judges lack statutory authority to reduce the length of probation.

¶16      We 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.   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 of a probationary period.  The word used in § 973.09(3)(a) to refer to the temporal extent of probation is “period,” not “terms.”

Really? The statutory scheme on its face clearly precludes reduction? Let’s take a closer look. The court, as just seen, perceives that “extend” would be unnecessary if “modify” included that concept. The court in effect offers up a truncated version of the State’s argument on the point (pp. 12-13, Brief-in-Chief):

The plain language of Wis. Stat. § 973.09(3)(a) only authorizes a trial court to “extend” probation or to “modify the terms and conditions.” If the word “modify” permitted a trial court both to “extend” a probation period and to “reduce” a probation period while the defendant was serving the probation, there would have been no need for the Legislature to use both “extend” and “modify” in identifying the scope of a trial court’s authority.

But this argument assumes that “modify” always and necessarily includes “extend.” It doesn’t. As Dowdy’s highly competent brief argues (p. 22-23), the “well-established definitions of ‘modify'” includes, “mak(ing) less extreme or severe and to reduce.” You “modify” the length (“term”) of probation when you reduce it; you “extend” it when you, well, increase it. No reason the legislature couldn’t have used both words to connote different things.

What about the idea that the length of probation is keyed rhetorically only to its “period”? That is, the “period” of probation may be extended, but the statute says nothing of “modifying” the period; instead, only “terms” or “conditions” of probation, which must be something other than its length, may be “modified.” It is just not that simple. The court merely assumes that the express grant of authority to “extend” the “period” of probation somehow excludes authority to modify (reduce) its length. Clearly, a court is empowered to “modify” the “terms” of probation: but, the court asserts, “terms” doesn’t refer to length of probation, ¶18 (asserting that “terms” doesn’t refer to length of probationary period). Not so: § 973.09(2) sets out the length of what it explicitly refers to as “(t)he original term of probation.” And § 973.09(2m) provides the remedy for “a term of probation” imposed in excess of the authorized maximum. The legislature, then, intended beyond any doubt to apply “term” to the length of the probationary period. Nor do our appellate courts see it differently; just run a simple string search (“term of probation”) in a Wisconsin appellate court database and you’ll return over 200 results illustrating the point.

The court therefore can’t wholly avoid legislative use of “term” to refer to length of probation, but instead discerns meaning in legislative toggling between use of singular and plural, ¶19. When referring to length of probation, the statute uses “term” in the singular; when the statute uses the plural “terms,” it refers to … well, the court doesn’t quite get around to saying just what. This may help: absent a manifestly different legislative intent, statutory construction requires applying the rule that “(t)he singular includes the plural and the plural includes the singular,” § 990.001. Statutory reference to the “terms” of probation includes the “term” of probation. For that matter, it would have been awkward rhetorically to refer to “modifying the term and the conditions of probation.” Besides, it’s not as if courts don’t impose multiple terms of probation. Thus, a court will have to consider reducing multiple or solitary terms of probation, depending on the circumstance. And, because one term of probation must be concurrent to another term, State v. Gereaux, 114 Wis. 2d 110, 113, 338 N.W.2d 118 (Ct. App. 1983), when the defendant has been placed on multiple terms of probation, a court modifying one term will of necessity modify the other(s), else there’s no real point to the modification. The plural indeed includes the singular.

Under the holding, then, the terms of probation may be modified (for literally any reason, as will be shown momentarily), excepting the term of probation, which may be not be modified for any reason. You be the judge of whether this is sensible, let alone whether the statute unambiguously withholds judicial power to reduce the term of probation.

As to the separate argument that the judiciary has inherent authority to reduce the term of probation, the court concludes that, even if such authority exists, it may not be exercised in response, as here, to claimed successful rehabilitation. The same limitations on inherent authority to reduce sentence would apply, ¶32 (“This preference for finality logically applies to sentencing in the general sense, including its probationary component.”) Thus, the court seeks guidance “from precedent defining the inherent powers to modify sentences,” ¶33. Rehabilitation can’t serve as a basis to reduce sentence, therefore is unavailable as support to reduce a term of probation. “As the supreme court noted in State v. Kluck, 210 Wis. 2d 1, 7-11, 563 N.W.2d 468 (1997), circuit courts have numerous tools to recognize and reward rehabilitation, such as modification of probation conditions and the granting of Huber work-release privileges for probationers serving jail time as a condition of probation, but sentencing modification is not among them,” ¶35.

How valid is this analogy, sentence to probation? For one thing, the “terms” and “conditions” of probation may be modified for just about any reason, State v. Rick L. Edwards, 2003 WI App 221, ¶14 (“the law places no limitation on what the trial court may consider as cause when making that determination”) – which means there is virtually no limit on when a court may extend probation. “Finality,” then doesn’t mean nearly as much in the context of probation as it does with a sentence. It is incongruous to assign authority to extend probation for any reason, but then not merely deny authority to terminate probation but cite finality as the reason. It is a most peculiar form of finality.

Kluck itself, while not discussing the present issue, nonetheless well-illustrates why the analogy between probation and sentence is strained. Explaining why rehabilitation doesn’t support sentence modification even in the absence of the early-release mechanism of parole, Kluck stressed possible alternatives:

¶ 18. One of these means is probation. If the circuit court orders probation at sentencing, it has the authority to modify the terms and conditions of probation at any time. Wis. Stat. § 973.09(3)(a) (1993-94). Probation modification provides the circuit court with a means of rewarding post-sentencing rehabilitation without modifying the sentence.

Modification of probation, then, is a reward for “post-sentencing rehabilitation.” Why would modifying the term of probation be inconsistent with this idea?

We have been instructed often and consistently through the years “that probation is not a sentence,” Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974); and id., at 116 (“probation and sentence are different concepts”). That instruction might or might not be decisive in the present case, but it is one that the court ought to at least have discussed before facilely concluding that the length of probation “is logically subject to the same limitations as the established authority to prevent the continuation of inappropriate sentences,” ¶31.

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