State v. Dennis L. Schwind ( 2019 )

2019 WI 48
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP141-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Dennis L. Schwind,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: May 3, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 21, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: David M. Reddy
JUSTICES:
CONCURRED: DALLET, J. concurs and dissents, joined by A.W.
BRADLEY, J. (opinion filed).
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Andrew R. Walter and Walter Law Offices LLC, Elkhorn.
There was an oral argument by Andrew R. Walter.
For the plaintiff-respondent, there was a brief filed by
Kevin M. LeRoy, deputy solicitor general, with whom on the brief
was Misha Tseytlin, solicitor general, and Brad D. Schimel,
attorney general. There was an oral argument by Michael C.
Sanders.
2019 WI 48
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP141-CR
(L.C. 2000CF407)
No.
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAY 3, 2019
Dennis L. Schwind, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an
unpublished summary disposition order of the court of appeals,1
which affirmed the circuit court's2 order denying Dennis L.
Schwind's motion for early termination of probation. Schwind
asserts that the Wisconsin Constitution gives circuit courts the
inherent authority to reduce or terminate a term of probation
1
State v. Schwind, No. 2017AP141-CR, unpublished order
(Wis. Ct. App. Feb. 14, 2018).
2 The Honorable David M. Reddy of Walworth County presided.
No. 2017AP141-CR
for cause. He argues that Wis. Stat. § 973.09(3)(d),3 which
directs the circuit court that it may reduce or terminate a term
of probation if six requirements are met, cannot restrict the
court's inherent authority to reduce or terminate a term of
probation for cause.
¶2 We conclude that the circuit court does not have
inherent authority to grant Schwind's motion for early
termination of probation. Inherent authority of courts consists
of only those powers that are necessary for the judiciary to
accomplish its constitutionally mandated functions and preserve
its role as a coequal branch of government. Probation is a
statutory creation, and the power to reduce or terminate a term
of probation is not necessary for courts to accomplish their
constitutionally mandated functions. Therefore, Wisconsin
courts do not have the inherent authority to reduce or terminate
a period of probation. Accordingly, we affirm the decision of
the court of appeals.
I. BACKGROUND
¶3 In 2001, Schwind pled guilty to first-degree sexual
assault of a child, incest with a child, and engaging in
repeated acts of sexual assault of the same child. Additional
counts of incest with a child and engaging in repeated acts of
sexual assault with a child were dismissed but read-in at
sentencing. Schwind's guilty plea required him to register as a
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
No. 2017AP141-CR
sex offender under Wis. Stat. § 301.45, and the charges exposed
him to a maximum sentence of over 100 years in prison. The
court accepted Schwind's guilty plea and imposed a 10-year
prison sentence, but immediately stayed the sentence and placed
him on probation for a term of 25 years. The conditions of his
probation included one year of jail time with work release
privileges.
¶4 In 2002, Schwind violated the conditions of his
probation. He had physical contact with his victim, had sexual
contact with an animal, had unsupervised contact with children,
and failed a sex offender treatment program. The State did not
initiate probation revocation proceedings, but instead requested
that he serve another one-year term in the Walworth County Jail.
Schwind accepted the State's request and served another one-year
jail term. In 2014, after serving 13 years of his 25-year
probation term, Schwind filed a motion for early termination of
probation.
¶5 Wisconsin Stat. § 973.09(3)(d) directs the circuit
court in regard to how it may "modify a person's period of
probation and discharge the person from probation" when six
requirements are met:
1. The department petitions the court to
discharge the person from probation.
2. The probationer has completed 50 percent of
his or her period of probation.
3. The probationer has satisfied all conditions
of probation that were set by the sentencing court.
3
No. 2017AP141-CR
4. The probationer has satisfied all rules and
conditions of probation that were set by the
department.
5. The probationer has fulfilled all financial
obligations to his or her victims, the court, and the
department, including the payment of any fine,
forfeiture, fee or surcharge, or order of restitution.
6. The probationer is not required to register
[as a sex offender].
Schwind did not, and could not, argue that he had satisfied all
six of these requirements. He therefore could not argue that
Wis. Stat. § 973.09(3)(d) permitted the circuit court to reduce
his probation term.
¶6 Schwind instead argued that his petition for early
termination of probation relied on the circuit court's inherent
authority. He argued that notwithstanding the requirements of
Wis. Stat. § 973.09(3)(d), circuit courts have the inherent
authority to reduce or terminate a term of probation, and a
statute passed by the legislature cannot take that away. The
State opposed the motion on the grounds that Schwind did not
meet the requirements of § 973.09(3)(d), and therefore was not
eligible for early termination of his probation.
¶7 The circuit court denied Schwind's motion in January
2015. In doing so, the circuit court expressed concern that
"once you start utilizing some of those inherent powers, that's
a slippery slope that this court is not willing to go down."
However, the circuit court did not take a position on whether
circuit courts have the inherent authority to terminate
probation notwithstanding Wis. Stat. § 973.09(3)(d). Instead,
4
No. 2017AP141-CR
the circuit court decided that even if it did have the inherent
authority to terminate probation early, it would decline to
exercise it in this case.
¶8 In May 2016, Schwind filed a motion for
reconsideration, again arguing that the circuit court has the
inherent authority to terminate probation early and should do so
in his case. The circuit court denied Schwind's motion. This
time, the circuit court held that it did not have the inherent
authority to reduce a term of probation. It pointed out that
Wis. Stat. § 973.09(3)(d) "lists six requirements that must be
met in order for a circuit court to discharge a probationer,"
and explained that "these six requirements, which function as
conditions precedent to a probationer discharge, would be
meaningless if a circuit court had broad discretionary
authority . . . to reduce the length of probation for cause."
¶9 The court of appeals affirmed in an unpublished
summary disposition order. State v. Schwind, No. 2017AP141-CR,
unpublished order (Wis. Ct. App. Feb. 14, 2018). The court of
appeals did not decide whether circuit courts have the inherent
authority to reduce or terminate a term of probation. Id. at 4.
Instead, the court of appeals relied on its previous decision in
State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230
(Dowdy I), aff'd, State v. Dowdy, 2012 WI 12, 338 Wis. 2d 565,
808 N.W.2d 691 (Dowdy II).
¶10 In Dowdy I, the court of appeals "did not decide
whether a circuit court possesses the inherent authority to
reduce a defendant's probation period." Schwind, No. 2017AP141-
5
No. 2017AP141-CR
CR, unpublished order at 3 (citing Dowdy I, 330 Wis. 2d 444,
¶31). However, the court of appeals opined that if circuit
courts were to have inherent authority to modify probation, it
could be exercised only in the same limited situations in which
a circuit court has the inherent authority to reduce a
sentence: clear mistake, a new factor, or undue harshness or
unconscionability. Schwind, No. 2017AP141-CR, unpublished order
at 3 (citing Dowdy I, 330 Wis. 2d 444, ¶28). The court of
appeals decided that none of these limited circumstances existed
in Schwind's case; therefore, there was no need actually to
decide whether a court's inherent authority to reduce a criminal
sentence applies to a probation order. Schwind, No. 2017AP141-
CR, unpublished order at 4. We granted Schwind's petition for
review, and now affirm the decision of the court of appeals.
II. DISCUSSION
A. Standard of Review
¶11 This case requires us to determine whether circuit
courts have the inherent authority to reduce or terminate a term
of probation. "The issue of judicial authority is a question of
law" that we review independently. State v. Henley, 2010 WI 97,
¶29, 328 Wis. 2d 544, 787 N.W.2d 350.
B. Inherent Authority of Courts
¶12 The Wisconsin Constitution created a court system and
expressly granted certain powers to Wisconsin's courts. See
Wis. Const. art. VII. In addition to these expressly granted
powers, our Constitution also grants courts "those [powers] that
are necessary to enable courts to accomplish their
6
No. 2017AP141-CR
constitutionally and legislatively mandated functions." Henley,
328 Wis. 2d 544, ¶73 (citing State ex rel. Friedrich v. Dane
Cty. Cir. Ct., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)). The
powers that are not expressly granted but are necessary for the
courts to function as courts are found within the courts'
inherent authority. See, e.g., id.
¶13 Inherent authority is implicit in the Wisconsin
Constitution. When the framers created the judiciary in Article
VII, they "had in mind that governmental institution known to
the common law possessing powers characterizing it as a court
and distinguishing it from all other institutions." In re
Kading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975). For this
reason, the creation of a court system necessarily includes the
conferral of those inherent powers that "from time
immemorial . . . have been conceded to courts because they are
courts." Barland v. Eau Claire Cty., 216 Wis. 2d 560, 565, 575
N.W.2d 691 (1998). Stated otherwise, the Wisconsin Constitution
did not devise a new entity called a "court"; rather, by using
the word "court," it was referring to the institution known as a
court, together with the powers it was understood at common law
to necessarily possess. Therefore, we generally consider
historical practices when determining whether a certain power is
inherent in the judiciary. See, e.g., id. at 592 (explaining
that the inherent authority of the courts may "spring[] from
historical custom").
¶14 Inherent authority of the court derives from the
doctrine of separation of powers, and allows the judiciary to
7
No. 2017AP141-CR
preserve its role as a coequal branch of government. "The
Wisconsin [C]onstitution creates three separate coordinate
branches of government, no branch subordinate to the other, no
branch to arrogate to itself control over the other except as is
provided by the constitution, and no branch to exercise the
power committed by the constitution to another." Friedrich, 192
Wis. 2d at 13 (citing State v. Holmes, 106 Wis. 2d 31, 42, 315
N.W.2d 703 (1982)). For this reason, issues regarding the scope
of inherent authority carry separation of powers concerns, as
defining the inherent authority of courts either too narrowly or
too broadly has the potential to do harm to the separation of
powers among the branches of government. If the inherent
authority of courts is defined too broadly, we risk infringing
upon the authority of the legislative or executive branches by
replacing their policy preferences with our own. See, e.g.,
Henley, 328 Wis. 2d 544, ¶75 (cautioning courts against invoking
inherent authority "to do whatever they think is 'fair' at any
given point in time."). If defined too narrowly, however, we
risk impeding the judiciary's ability to carry out its
constitutionally mandated functions by giving away portions of
our inherent authority to the other branches of government.
¶15 Recognizing the need for caution in this area, we are
careful to invoke inherent authority if, but only if, invocation
is necessary to "maintain [the courts'] dignity, transact their
business, [and] accomplish the purposes of their existence."
Id., ¶73 (citations omitted). In other words, "[a] power is
inherent when it 'is one without which a court cannot properly
8
No. 2017AP141-CR
function.'" Id. (citing State v. Braunsdorf, 98 Wis. 2d 569,
580, 297 N.W.2d 808 (1980)).
¶16 With these concerns in mind, "Wisconsin courts have
generally exercised inherent authority in three areas: (1) to
guard against actions that would impair the powers or efficacy
of the courts or judicial system; (2) to regulate the bench and
bar; and (3) to ensure the efficient and effective functioning
of the court, and to fairly administer justice." Henley, 328
Wis. 2d 544, ¶73 (citing City of Sun Prairie v. Davis, 226
Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999)). Inherent authority
exercised in all of these areas is necessary to enable the
judiciary to carry out its constitutionally mandated functions
as a coequal branch of government. See Friedrich, 192 Wis. 2d
at 16.
¶17 The first area in which courts have exercised inherent
authority involves the internal operations of a court. Davis,
226 Wis. 2d at 749. For example, courts have exercised their
inherent authority to prevent the unilateral removal of judicial
assistants pursuant to a collective bargaining agreement,
Barland, 216 Wis. 2d at 566, and to refuse facilities that were
inadequate to carry out a court's business. Davis, 226 Wis. 2d
at 749 (citing In re Court Room, 148 Wis. 109, 119-20, 134 N.W.
490 (1912)). This authority is necessary to preserve the
efficacy of the court system and allow courts to carry out their
constitutional duties.
¶18 The second area, regulating the bench and bar,
includes the inherent authority to discipline members of the
9
No. 2017AP141-CR
bar, State ex rel. Fiedler v. Wis. Senate, 155 Wis. 2d 94, 103,
454 N.W.2d 770 (1990), and to resolve disputes regarding
representation of a client. Koschkee v. Evers, 2018 WI 82, ¶12,
382 Wis. 2d 666, 913 N.W.2d 878. The inherent authority to
regulate the bench and bar is necessary to preserve the
judiciary's ability to perform its constitutional duties as a
coequal branch of government.
¶19 The third area in which courts have exercised inherent
authority, and the area most relevant to this case, involves
"ensuring that the court functions efficiently and effectively
to provide the fair administration of justice." Davis, 226
Wis. 2d at 749-50 (citation omitted). For example, courts have
the inherent authority to hold a person in contempt for failing
to appear, Smith v. Burns, 65 Wis. 2d 638, 645, 223 N.W.2d 562
(1974), to appoint counsel for indigent parties in a child in
need of protective services (CHIPS) proceeding, Joni B. v.
State, 202 Wis. 2d 1, 10, 549 N.W.2d 411 (1996), and "to correct
clerical errors at any time." State v. Prihoda, 2000 WI 123,
¶17, 239 Wis. 2d 244, 618 N.W.2d 857. Without the ability to
exercise inherent authority in this area, courts would not
perform their constitutionally mandated functions. In all three
of these areas, courts exercise inherent authority when
necessary to allow them to function as courts.
10
No. 2017AP141-CR
C. Sentencing and Probation
¶20 We have previously recognized that sentencing is a
constitutionally shared power among three branches of
government, and that courts have the inherent authority to
modify criminal sentences within certain narrowly defined
limits. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797
N.W.2d 828; see also Hayes v. State, 46 Wis. 2d 93, 101, 175
N.W.2d 625 (1970), overruled on other grounds by State v.
Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973). Schwind
attempts to widen the scope of this aspect of inherent authority
by framing it as the power to modify criminal dispositions more
generally, thereby adding reduction and termination of probation
to the judiciary's inherent authority. The problem with this
framing is that the judiciary's power to sentence and its power
to order probation are distinct powers that come from different
sources. The judiciary's sentencing power existed at common law
and is a part of the Wisconsin Constitution; the power to impose
probation, on the other hand, is a statutory creation.
Probation, as opposed to sentencing, was not incorporated into
the Wisconsin Constitution as a power of the judiciary and it is
not necessary for the judiciary to perform its constitutionally
mandated functions.
¶21 Sentencing in Wisconsin is an area of shared power
among the three branches, as the inherent authority of courts to
impose criminal sentences existed at common law prior to the
adoption of the Wisconsin Constitution. "It is the function of
the legislature to prescribe the penalty and the manner of its
11
No. 2017AP141-CR
enforcement; the function of the courts to impose the penalty;
while it is the function of the executive to grant paroles and
pardons." State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772
(1999); see also State v. Borrell, 167 Wis. 2d 749, 769, 482
N.W.2d 883 (1992) (explaining that at common law, Wisconsin
courts "possessed the inherent and discretionary power to punish
violations of law in the absence of a statute prescribing the
punishment."). The judiciary's power at common law went even
further than simply sentencing those convicted of violating
criminal statutes; in some cases, courts could punish offenders
for "[c]ommon-law crimes" in the absence of any violation of a
criminal statute. See id.
¶22 Sentencing was therefore understood to be a
constitutionally shared power among the three branches in 1848,
when the Wisconsin Constitution was ratified. See id. The
inherent authority to sentence a convicted criminal was
therefore implicitly included in the Wisconsin Constitution by
the creation of a "court" system. See, e.g., Kading, 70 Wis. 2d
at 518 (explaining that by creating "courts," the Wisconsin
Constitution created the "governmental institution known to the
common law possessing powers characterizing it as a court and
distinguishing it from all other institutions.").
¶23 Probation, on the other hand, is a newer concept. It
is not something Wisconsin courts had the power to do at common
law, but is instead a statutory creation. See, e.g., State ex
rel. Zabel v. Milwaukee Cty. Mun. Ct., 179 Wis. 195, 201, 190
N.W. 121 (1923) (the legislature's passage of a probation
12
No. 2017AP141-CR
statute in 1909 "confer[red] a new power upon the court——the
power to suspend the execution of the sentence and place the
defendant on probation."); Horn, 226 Wis. 2d at 648 ("[A] court
could not place a defendant on probation" in the absence of a
statute authorizing it to do so.).
¶24 Probation is a possible disposition for an individual
who has been convicted of a crime. Wis. Stat. § 973.09(1)(a);
see also id. at 647. It is not a sentence; it is an alternative
to sentencing. Id. at 648. Probation can be understood as
"supervised, conditional freedom." Neil P. Cohen, The Law of
Probation and Parole § 1:2 (2d ed.). In lieu of imposing a
criminal sentence, the legislature has chosen to allow
sentencing courts to either withhold sentencing, or impose a
sentence but stay its execution, and instead release the
individual into the community subject to "any conditions which
appear to be reasonable and appropriate" to the court.4 Wis.
Stat. § 973.09(1)(a).
¶25 We have recognized that "[p]robation is a privilege
extended to a convict by the grace of the state. It is not a
right." State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶39,
353 Wis. 2d 307, 845 N.W.2d 373; see also Edwards v. State, 74
Wis. 2d 79, 83, 246 N.W.2d 109 (1976) ("Probation is not a
matter of right, rather it is a privilege."). "The dual goals
4 Reasonable and appropriate conditions of probation may, in
the court's discretion, include a period of confinement not to
exceed one year. Wis. Stat. § 973.09(4)(a).
13
No. 2017AP141-CR
of probation are 'the rehabilitation of those convicted of crime
and the protection of the state and community interest.'" State
v. Sepulveda, 119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984)
(citation omitted). By authorizing courts to give probation in
lieu of a criminal sentence, the legislature gave the courts a
new power to extend the mercy of the state when it decides that
"supervised, conditional freedom" will best rehabilitate a
defendant while adequately protecting the interests of the state
and the community.
¶26 In Horn, 226 Wis. 2d at 647, we said probation is
"within powers constitutionally granted to the judiciary."
However, this general statement must be understood in context.
As mentioned earlier, it is the role of the legislature to
prescribe penalties, whereas it is the role of the judiciary to
impose penalties within the legislature's prescribed range. For
this reason, we recognized in Horn that "the legislature has
constitutional authority to offer probation as an alternative to
sentencing," and that "[w]ithout such statutory authority, a
court could not place a defendant on probation." Id. at 648.
¶27 Therefore, while sentencing and probation have both
been described as shared powers with the legislature, the source
of the judiciary's power in these two areas is different.
Sentencing is a shared power because it comes within the
inherent authority of the judiciary, implicit in the Wisconsin
Constitution due to its incorporation of common law as it
existed in 1848. Given this deeply rooted historical practice,
we have recognized that courts have inherent authority to modify
14
No. 2017AP141-CR
sentences within certain narrowly defined limits. See Harbor,
333 Wis. 2d 53, ¶35 (citing State v. Hegwood, 113 Wis. 2d 544,
546, 335 N.W.2d 399 (1983)).
¶28 In contrast, probation is a shared power not because
it is a common-law judicial power that was incorporated into the
Wisconsin Constitution, but only because the legislature chose
to permit it. While courts had the power to impose sentences at
common law even in the absence of a legislatively created
sentencing range, Borrell, 167 Wis. 2d at 769, courts have never
had the power to impose probation without statutory
authorization. The legislature could eliminate probation
completely if it saw fit, Horn, 226 Wis. 2d at 648, because
probation "was unknown to Wisconsin law" prior to its statutory
creation in 1909. Drinkwater v. State, 69 Wis. 2d 60, 68-69,
230 N.W.2d 126 (1975). Probation therefore could not have been
incorporated into the Wisconsin Constitution as a power that
"from time immemorial has been conceded to courts because they
are courts," and is not necessary for courts to perform their
constitutionally mandated functions.
¶29 This conclusion is confirmed because reducing a term
of probation does not fit within any of the three areas in which
courts have traditionally exercised inherent authority.
Regarding the first area, reducing or terminating a period of
probation does not guard against any action that would impair
the efficacy of the court system. As mentioned earlier, this
area involves the court's internal operations, which has
included the inherent authority to prevent the unilateral
15
No. 2017AP141-CR
removal of judicial assistants. See Barland, 216 Wis. 2d at
566. Reducing a probation term does not guard against actions
that would impair the efficacy of the courts. Second, the power
to reduce a probation term is not related to regulating the
bench and bar.
¶30 Third, the power to reduce probation terms is not
necessary to ensure "the efficient and effective functioning of
the court," or "to fairly administer justice." Henley, 328
Wis. 2d 544, ¶73. As mentioned earlier, the powers exercised in
this area, such as appointing counsel to indigent parties or
correcting clerical errors,5 are necessary to enable the court to
effectively and efficiently resolve the disputes before it. In
contrast, the power to reduce a term of probation can come into
existence only after the circuit court has resolved the matter
before it. A court that has placed a defendant on probation has
5
Our conclusion that courts do not have the inherent power
to reduce or terminate a term of probation does not mean that
courts are unable to correct clerical errors in judgments of
probation. As we have previously explained, "the law is clear
that a court has the power to correct clerical errors at any
time." State v. Prihoda, 2000 WI 123, ¶17, 239 Wis. 2d 244, 618
N.W.2d 857. Correcting a clerical error in a judgment does not
constitute a modification of that judgment; rather, it is simply
a correction of the record to reflect the judgment the circuit
court actually rendered. See, e.g., Hoffman v. State, 88 Wis.
166, 174, 59 N.W. 588 (1894) ("the court has power, after the
term, to correct a mistake in the entry of its judgment, so as
to make the record conform to the judgment actually
pronounced"); accord, Prihoda, 239 Wis. 2d 244, ¶17 n.9. For
this reason, courts have always had, and continue to have, the
inherent authority to correct clerical errors in their
judgments.
16
No. 2017AP141-CR
either chosen to withhold sentencing, or has chosen to impose a
sentence and stay its execution. Wis. Stat. § 973.09(1)(a). In
either case, "[t]he adversary system has terminated and the
administrative process, vested in the executive branch of the
government, directed to the correctional and rehabilitative
processes of the parole and probation system has been
substituted in its place." Horn, 226 Wis. 2d at 650.
¶31 Likewise, the power to reduce or terminate a term of
probation is not necessary to fairly administer justice. As
mentioned earlier, "[p]robation is a privilege extended to a
convict by the grace of the state. It is not a right."
Wiedenhoeft, 353 Wis. 2d 307, ¶39. This said, while the power
to reduce a criminal sentence in limited circumstances is
necessary for courts to fairly administer justice, the same is
not true of the power to reduce probation. An individual who
has been erroneously sentenced based on the circuit court's
ignorance of a new factor has been unjustly given a greater
punishment than he is due. In contrast, an individual placed on
probation is already receiving the discretionary privilege of
the State's mercy, and cannot similarly argue that the failure
to extend him more mercy is a failure to fairly administer
justice.
¶32 The legislature has the power to completely eliminate
the availability of probation without infringing upon the
courts' constitutional duty to fairly administer justice. It
follows that the legislature may place reasonable limits on the
availability of probation without interfering with the fair
17
No. 2017AP141-CR
administration of justice. "The fair administration of justice
is not a license for courts, unconstrained by express statutory
authority, to do whatever they think is 'fair' at any given
point in time." Henley, 328 Wis. 2d 544, ¶75.
¶33 For these reasons, we conclude that courts do not have
the inherent authority to reduce a term of probation. In doing
so, we continue construing the judiciary's inherent authority
narrowly. See id., ¶74 n.28 ("early cases invoked inherent
authority more often because the procedural rules governing
courts were somewhere between non-existent and non-exhaustive.
See generally Thomas O. Main, Judicial Discretion to Condition,
79 Temp. L. Rev. 1075, 1111–15 (2006) (noting generally that the
scope of a court's inherent authority is inversely related to
the breadth of procedural statutes and rules the court is
subject to). As federal and state courts became subject to more
comprehensive rules [], the need for inherent authority
lessened.").
¶34 In this case, Schwind's petition for early termination
of probation is not based on the circuit court's statutory
authority to discharge him from probation under Wis. Stat.
§ 973.09(3)(d). It is undisputed that he has failed to satisfy
at least three of the statutory requirements under this
section. That is, the department of corrections did not
petition the court to discharge him from probation; he violated
the conditions of his probation; and he is required to register
as a sex offender under Wis. Stat. § 301.45. He has instead
asked the circuit court to use its inherent authority to
18
No. 2017AP141-CR
terminate his probation early. As we have concluded, however,
circuit courts have no such power. Section 973.09 provides the
sole basis for a circuit court's power to reduce or terminate a
term of probation. Because probation was created by statute and
Schwind cannot meet the requirements of § 973.09(3)(d), the
circuit court has no power to terminate his probation.
III. CONCLUSION
¶35 We conclude that the circuit court does not have the
power to grant Schwind's motion for early termination of
probation. Inherent authority of courts consists of only those
powers that are necessary for the judiciary to accomplish its
constitutionally mandated functions and preserve its role as a
coequal branch of government. Probation is a statutory
creation, and the power to reduce or terminate a term of
probation is not necessary for courts to accomplish their
constitutionally mandated functions. Therefore, Wisconsin
courts do not have the inherent authority to reduce or terminate
a period of probation. Accordingly, we affirm the decision of
the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶36 SHIRLEY S. ABRAHAMSON, J., withdrew from participation
before oral argument.
19
No. 2017AP141-CR.rfd
¶37 REBECCA FRANK DALLET, J. (concurring in part,
dissenting in part). The questions before this court are
twofold: (1) May a circuit court reduce a term of probation as
an exercise of its inherent authority to efficiently and
effectively function and to administer justice fairly? And, if
so, (2) What limitations should be placed on a circuit court's
inherent authority to reduce a term of probation? The majority
opinion makes the sweeping conclusion that circuit courts have
no inherent authority over probation because it is a statutory
creation. I respectfully disagree. I conclude that a circuit
court may reduce a term of probation as an exercise of its
inherent authority to efficiently and effectively function and
to administer justice fairly. I further conclude that the
exercise of a circuit court's inherent authority should be
circumscribed by the goals of probation: rehabilitating the
defendant and protecting the public.
I. A circuit court may reduce a term of probation as
an exercise of its inherent authority to ensure
the court functions efficiently and effectively
and administers justice fairly.
¶38 Our jurisprudence defines the inherent authority of a
circuit court as the power that is "necessary to enable courts
to accomplish their constitutionally and legislatively mandated
functions." State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544,
787 N.W.2d 350 (citing State ex rel. Friedrich v. Circuit Court
for Dane Cty., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)). In
other words, inherent authority is authority without which the
court cannot function. Relevant to this case, circuit courts
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have exercised inherent authority "to ensure the efficient and
effective functioning of the court, and to fairly administer
justice." Henley, 328 Wis. 2d 544, ¶73.
¶39 Within its function to administer justice, circuit
courts are called upon to impose a disposition when sentencing
persons convicted of crimes, whether that disposition results in
a "sentence" of confinement or the imposition of a term of
probation. See State v. Horn, 226 Wis. 2d 637, 647-48, 594
N.W.2d 772 (1999) (reasoning that probation "is so closely
related to sentencing as a possible criminal disposition" and
that it falls within the shared powers of the executive,
legislative, and judicial branches). Courts impose probation to
further the goals of rehabilitating the defendant and protecting
society without placing the defendant in prison. See State v.
Gray, 225 Wis. 2d 39, 68, 590 N.W.2d 918 (1999). To accomplish
these goals, circuit courts are empowered by Wis. Stat.
§ 973.09(1)(a) to fashion the terms of probation to meet the
rehabilitative needs of the defendant. State v. Hays, 173
Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992).
¶40 This court has held that inherent within the probation
statute is a circuit court's continuing power to modify
probationary terms to effectuate the goals of rehabilitation of
the defendant and protection of society.1 State v. Sepulveda,
1
According to the majority opinion's reasoning, the circuit
court may for cause modify the terms of probation to discontinue
all probationary services pursuant to Wis. Stat. § 973.09(3)(a),
yet has no inherent authority to reduce the term of probation.
This leads to an absurd result.
2
No. 2017AP141-CR.rfd
119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984). We have upheld the
exercise of a circuit court's authority to modify the conditions
of probation where the intent of probation is frustrated by a
court-ordered condition not being met. Id. at 556; see also
Gray, 225 Wis. 2d at 69. It is necessary, therefore, that
circuit courts also have the inherent authority to reduce a term
of probation once the intent of probation is satisfied.
¶41 The majority opinion concludes that a circuit court
has no inherent authority to reduce a term of probation for the
following reasons: (1) probation is a statutory creation and
therefore only the statute provides the parameters of how it may
be imposed; (2) the source of the circuit court's inherent
authority to impose probation or a sentence comes from the way
in which those dispositions were imposed at common law; and (3)
probation already confers upon an individual "the discretionary
privilege of the State's mercy" such that no other mercy should
be granted. Majority op., ¶31. I address each argument in
turn.
¶42 First and foremost, a statute cannot limit the circuit
court's inherent authority. The issue of whether a circuit
court has the statutory authority to reduce a term of probation
was already decided by this court in State v. Dowdy, 2012 WI 12,
¶4, 338 Wis. 2d 565, 808 N.W.2d 691 (Dowdy II). The unanswered
question in Dowdy II was whether the circuit court has inherent
authority to reduce a term of probation, the question now before
us. To the extent that Wis. Stat. § 973.09 denominates the
disposition of probation, it is no different than other
3
No. 2017AP141-CR.rfd
dispositions enacted by the legislature, leaving to the courts
the function of imposing those dispositions. See Horn, 226
Wis. 2d at 646. While the majority opinion points to the fact
that probation is within the powers that the courts share with
the legislature, the fact that this power is shared does not
diminish the circuit court's authority to accomplish its
constitutionally and legislatively mandated functions and to
exercise its inherent authority in doing so. See id. at 643
("Each branch, separate but co-equal, is not subordinate to
another, no branch to arrogate to itself control the other.")
¶43 Second, the majority distinguishes the circuit court's
inherent authority to reduce a sentence from that of probation
based upon an assumption that only sentencing existed at common
law. Although the genesis of our modern adult probation system
was approved by the governor in 1909 and codified at Chapter 541
of the Wisconsin Laws of 1909, there are historical analogues to
modern day probation. See Edwin C. Conrad, Commentaries on the
Wisconsin Law of Probation, 29 Am. Inst. Crim. L. & Criminology
449 (1938-1939) (commenting that despite the lack of power,
prior to the enactment of the present probation law, Wisconsin
courts had repeatedly suspended sentences in order to give a
defendant a chance to improve his or her behavior). Probation
as a dispositional alternative is thus not necessarily, as the
majority assumes, a "newer concept." Majority op., ¶23.
¶44 Moreover, the common law authority of a court to
modify a sentence was extremely limited and could only be
exercised during the court's term, as defined by statute, and
4
No. 2017AP141-CR.rfd
before the sentence had commenced. Hayes v. State, 46 Wis. 2d
93, 105, 175 N.W.2d 625 (1970), abrogated on other grounds by
State v. Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973). In
Hayes, this court held that the circuit court's inherent
authority to amend, modify, and correct a judgment of sentence
extends beyond the authority to do so at common law. Hayes, 46
Wis. 2d at 101. Likewise, the circuit court's authority to
reduce a term of probation should not be constricted by the
common law imposition of that disposition.
¶45 Finally, the majority concludes that a circuit court's
ability to reduce a term of probation is not necessary to fairly
administer justice because a probationer has already used up
their allotment of mercy granted by the State by being placed on
probation in the first place. Based on this reasoning, the
majority would thus deny the circuit court inherent authority to
reduce a term of probation even where a similarly situated
individual seeking sentencing modification would be entitled to
a sentence modification. For example, a person serving a prison
sentence who cooperates with law enforcement may be entitled to
a sentence modification whereas a probationer who cooperates
would not. Likewise, applying the majority's reasoning, if the
circuit court relied upon incorrect information at sentencing, a
defendant sentenced to jail or prison would be entitled to a
sentence modification whereas a defendant placed on probation
would not. This is far from administering justice. I therefore
dissent and conclude that a circuit court may reduce a term of
probation as an exercise of its inherent authority to
5
No. 2017AP141-CR.rfd
efficiently and effectively function and to administer justice
fairly.
II. The exercise of the circuit court's inherent
authority to reduce a term of probation should be
circumscribed by the dual purposes of probation:
rehabilitation of the defendant and protection of
the public.
¶46 The inherent authority of a circuit court to reduce a
term of probation must be limited to only the power necessary to
ensure the efficient and effective functioning of the court and
the fair administration of justice. The State argues, and the
court of appeals agreed, that if this court recognizes a circuit
court's inherent authority to reduce a term of probation, the
circuit court should use the same criteria as a court evaluating
a request to modify a sentence. State v. Dowdy, 2010 WI App
158, ¶31, 330 Wis. 2d 444, 792 N.W.2d 230 (Dowdy I). To prevail
on a motion to modify a sentence, a defendant must show either:
a clear mistake or illegality, identification of a new factor,
or undue harshness or unconscionability. Id., ¶28. A new
factor is defined as one the circuit court could not or did not
consider at sentencing but should now consider in order to
fulfill the purpose of the original sentence. State v.
Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524,
abrogated on other grounds by State v. Harbor, 2011 WI 28, 333
Wis. 2d 53, 797 N.W.2d 828.
¶47 Because sentencing and probation serve different
purposes, constraining a circuit court's authority to reduce a
term of probation in the same way that it modifies a sentence is
an attempt to put a square peg in a round hole. There are four
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No. 2017AP141-CR.rfd
main purposes of sentencing: deterrence, rehabilitation,
retribution, and segregation. Dowdy II, 338 Wis. 2d 565, ¶97
(Abrahamson, C.J., dissenting). Finality after sentencing is
crucial to assure that the purposes of retribution and
deterrence are met. Crochiere, 273 Wis. 2d 57, ¶21; State v.
Loomis, 2016 WI 68, ¶96, 371 Wis. 2d 235, 881 N.W.2d 749. The
goal of sentence reduction is thus backward-looking in order to
correct unjust sentences. See State v. Kluck, 210 Wis. 2d 1, 8-
9, 563 N.W.2d 468 (1997). A circuit court's consideration of
rehabilitation as a reason to modify a sentence interferes with
finality and payment of the debt a defendant owes to society and
is therefore not a "new factor" for purposes of sentence
modification. Id. at 7; see also Jones v. State, 70 Wis. 2d 62,
72, 233 N.W.2d 441 (1975); State v. Wuensch, 69 Wis. 2d 467,
477, 230 N.W.2d 665 (1975).
¶48 In contrast, probation is forward-looking and
therefore a defendant's actions post-sentencing necessarily
inform any modification. The purpose of probation is to
"protect the public from criminal conduct and to help the
probationer become a useful member of society." Wagner v.
State, 89 Wis. 2d 70, 77, 277 N.W.2d 849 (1979). Once
rehabilitation is achieved, the purposes of probation are served
and its term should end. Because of the differing purposes of
sentencing and probation, constraining a circuit court's
authority to reduce probation in the same way that it modifies a
sentence would not further the purposes of probation and would
7
No. 2017AP141-CR.rfd
provide no meaningful ability for a defendant to seek a
reduction in the term of probation.
¶49 Schwind argues that, similar to the circuit court's
ability to modify the terms and conditions of probation, a
circuit court's inherent authority to reduce a term of probation
should be circumscribed by the "for cause" standard. See Wis.
Stat. § 973.09(3)(a) ("Prior to the expiration of any probation
period, the court, for cause and by order, may extend probation
for a stated period or modify the terms and conditions
thereof.") "[F]or cause," however, must be defined narrowly to
provide guidance to the circuit court and limit the potential
for abuse. See Dowdy I, 330 Wis. 2d 444, ¶27 (noting that a
circuit court's inherent authority is "limited"). A requirement
that a defendant show by clear and convincing evidence that the
goals of probation have been met adequately circumscribes a
circuit court's inherent authority to reduce a term of probation
and furthers the efficiency and effectiveness of the courts and
the fair administration of justice.
¶50 As of June 30, 2018, 66,196 people were on community
supervision in the state of Wisconsin. See Division of
Community Corrections, Wis. DOC, 2018 A Year in Review (Dec
2018), https://doc.wi.gov/DataResearch/DataAndReports/DCCYearIn
Review.pdf. Over 32 million dollars was spent in 2018 alone to
purchase products or services for the benefit of these
individuals. Id. Once the dual goals of probation are met, it
is not only in the interest of each individual defendant, but
also in the interest of society, to reduce a defendant's term of
8
No. 2017AP141-CR.rfd
probation thereby freeing up precious resources to better serve
others in our community.
¶51 If the inherent authority of the courts is defined too
narrowly, "we risk impeding the judiciary's ability to carry out
its constitutionally mandated functions by giving away portions
of our inherent authority to the other branches of government."
Majority op., ¶14. The majority eliminates a circuit court's
inherent authority to reduce a term of probation and, in so
doing, gives away necessary power of the court to administer
justice fairly. I conclude that in order to efficiently and
effectively function and to fairly administer justice, a circuit
court has the inherent authority to reduce a term of probation
where a defendant has been rehabilitated and therefore the goals
of the probation disposition have been achieved.
¶52 Lastly, I concur in part in affirming the circuit
court's decision. The circuit court stated that even if it had
the inherent authority to reduce Schwind's term of probation,
early termination of probation was not warranted in this case.
In making this determination, the circuit court did not
erroneously exercise its discretion. Therefore, I concur with
the majority opinion in affirming the circuit court's decision
to deny Schwind's motion to reduce his term of probation.
¶53 For the foregoing reasons, I concur in part and dissent
in part.
¶54 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence/dissent.
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No. 2017AP141-CR.rfd
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