¶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.
¶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).
All the rest is commentary – but, alas, precious little is gained by studying it. The obvious starting point: the statute construed, § 973.09(3) (2009-10), was amended effective 8/3/11, to add subsec. (d) which expressly grants judicial authority to “modify a person’s period of probation and discharge the person from probation if all of” 6 different circumstances apply. (See ¶41 n. 8 of the decision.) In other words, the statutory revision would have superseded the decision in any event, even had the court discerned broad, pre-revision authority to reduce the term. So going forward, the judiciary has indisputable statutory authority to reduce the length of probation, putting aside the onerous showing required. At the same time, the court’s curious refusal to reach the question of inherent judicial authority to reduce the length of probation simply postpones that particular day of reckoning. On, now, to some of the particulars.
It is settled that § 973.09(1)(a) grants nearly unfettered discretion to modify the terms and conditions of probation: State v. Edwards, 2003 WI App 221, ¶14, 267 Wis. 2d 491, 671 N.W.2d 371 (“While the trial court may only modify the conditions of probation for “cause,” … the law places no limitation on what the trial court may consider as cause when making that determination”). The upshot of Dowdy‘s construction, then, is that a court may extend a term of probation for any reason under the sun, but may reduce it for no reason, regardless how compelling. It is a “fundamental canon that statutes are to be construed to avoid absurd, unreasonable, illogical, and senseless interpretations,” State v. Setagord, 211 Wis. 2d 397, 433, 565 N.W.2d 506 (1997). The Dowdy court gives this principle the barest of mention, ¶31, without pausing to apply it. Doesn’t it seem like an absurd result to allow untrammeled authority to extend, but absolutely bar authority to reduce, probationary terms? This doesn’t mean, of course, that the legislature couldn’t have intended something weird; but it certainly does suggest caution in ascribing plain meaning to such an odd scheme.
Indeed, the court ties itself in knots trying to show that the legislature used “term of probation” in § 973.09(2) to mean length of probation, but used “terms” of probation in § 973.09(3)(a) to mean, “conditions” of probation, ¶38 (“[as is] apparent, the word ‘terms’ is synonymous with the word “conditions”); ¶40 (“the legislature consistently used the plural word ‘terms’ in relation to the ‘conditions’ of probation”). So, then, the singular “term” means length of time and the plural “terms” means conditions – even though generally, “the plural includes the singular,” § 990.001(1). But the court’s analysis is flawed for an even more fundamental reason: the court construes the crucial phrase “terms and conditions” in such a way as to make “terms” mere surplusage. Recall, here, another fundamental tenet: “Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage,” State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. (Indeed, the court of appeals in Dowdy relied on this principle to give meaning to “extend,” 2010 WI App 158, ¶17; the principle isn’t exactly obscure.)
No matter, though: the court has spoken, and thus resolved the issue. Sort of. The question of inherent judicial authority to reduce the probationary term has been left open, but you will have to tread carefully. As seen, the supreme court majority (inexplicably) declined to reach the issue, ¶4. A word on that declination. Members of the appellate bar, whether appellant or respondent, can recite in their sleep the following principle: “The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court,” Dandridge v. Williams, 397 U.S. 471, 476 n. 6 (1970). In criminal appeals, this principle in the nature of things benefits the State, because it is the respondent in the crushing number of appeals. But Dowdy prevailed in the trial court, and he was entitled to – and in the event did – raise inherent authority as an alternative ground for affirmance. And so it is more than a bit disconcerting to have the court refuse to apply the alternative-ground principle of review in the rare instance where it would redound to the defendant’s procedural advantage. Just saying. In any event, the court of appeals discussed the issue, this way, 2010 WI App 158:
¶31 We do not decide today whether circuit courts possess inherent authority to reduce probation periods that have already been imposed that is comparable to the well-defined and limited inherent authority courts possess to reduce sentences. We need not do so because we conclude that, even assuming that circuit courts possess this inherent authority, it must be circumscribed in the same way as the inherent authority of courts to modify sentences already imposed. The theoretical inherent authority to prevent the continuation of an inappropriate probation period is logically subject to the same limitations as the established inherent authority to prevent the continuation of inappropriate sentences.
The supreme court’s ducking of the issue leaves the court of appeals’ holding intact. However, much water has since passed under the new-factor bridge – see State v. Harbor, 2011 WI 12 – so that even if the court of appeals correctly assigned new factor analysis to this context, that test is now different. Whether the new factor should apply is something else, and on that subject the interested reader’s attention is directed to the Chief Justice’s comprehensive dissent, ¶¶45-108.