State v. Dowdy

2012 WI 12, 808 N.W.2d 691, 338 Wis. 2d 565, 2012 Wisc. LEXIS 10
CourtWisconsin Supreme Court
DecidedFebruary 14, 2012
DocketNo. 2010AP772-CR
StatusPublished
Cited by33 cases

This text of 2012 WI 12 (State v. Dowdy) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dowdy, 2012 WI 12, 808 N.W.2d 691, 338 Wis. 2d 565, 2012 Wisc. LEXIS 10 (Wis. 2012).

Opinions

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. This is a review of a published decision of the court of appeals, State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230, that reversed an order by the Milwaukee County Circuit Court1 granting the defendant's petition to reduce the length of his probation from ten years to seven years, thereby discharging him from probation. The defendant, Carl L. Dowdy (Dowdy), brought his petition pursuant to Wis. Stat. § 973.09(3)(a) (2009-10).2 Dowdy argued that § 973.09(3)(a) authorizes the circuit court to "modify the terms" of probation and hence authorizes the circuit court to reduce the term, or length, of probation. The circuit court agreed and found cause for reducing the length of Dowdy's probation.

¶ 2. The State appealed, and the court of appeals reversed, concluding that the circuit court had neither statutory nor inherent authority to reduce the length of Dowdy's probation.

[570]*570¶ 3. We granted Dowdy's petition for review. He presents the following four issues:

(1) Does Wis. Stat. § 973.09(3)(a) grant a circuit court authority to reduce the length of probation?
(2) If a circuit court does not have statutory authority to reduce the length of probation, does a circuit court have inherent authority to do so?
(3) If a circuit court has inherent authority to reduce the length of probation, what standard applies when exercising that authority: the "for cause" standard under Wis. Stat. § 973.09(3)(a) or the standard that applies to sentence modification?3
(4) In this case, did the circuit court appropriately exercise its discretion to reduce the length of Dowdy's probation from ten years to seven years?

¶ 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.

[571]*571¶ 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).

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 6. On February 27, 2002, the State charged Dowdy with one count of second degree sexual assault by use or threat of force or violence in violation of Wis. Stat. § 940.225(2)(a) (2001-02).4 The complaint alleged that on February 22, 2002, Dowdy forcibly engaged an acquaintance, Lawanda M., in nonconsensual penis-to-vagina sexual intercourse by holding her arms over her head and forcing her legs apart.

¶ 7. Dowdy pled not guilty, and the case proceeded to a two-day jury trial. On June 18, 2002, the jury found Dowdy guilty of the charged offense.

¶ 8. On July 23, 2002, the circuit court sentenced Dowdy to 15 years imprisonment, comprised of seven years of initial confinement and eight years on extended supervision. The court then stayed the sentence in favor of a ten-year period of probation, identifying as "an overwhelming factor" Dowdy's likelihood of reha[572]*572bilitation. As conditions of probation, the court imposed one year of confinement with work and treatment release privileges and ordered Dowdy to: pay all costs, surcharges, and special assessments; undergo alcohol and other drug abuse (AODA) assessment; have no contact with the victim; seek and maintain full-time employment; participate in sex offender evaluation and treatment; and comply with any other conditions imposed by the Department of Corrections (DOC).

¶ 9. On October 19, 2007, five years into his probation, Dowdy filed a pro se motion to modify his sentence. The circuit court summarily denied Dowdy's motion.

¶ 10. Two years later, on July 15, 2009, Dowdy, through counsel, petitioned the circuit court to reduce the length of his probation from ten years to seven years. The petition was brought pursuant to Wis. Stat. § 973.09(3)(a), which, according to Dowdy, "allows the court to modify the term of probation for cause." As grounds for his petition, Dowdy maintained that he had complied with the conditions of his probation and did not pose a threat to the community. Specifically, Dowdy alleged that he had no contact with the victim; had completed anger management counseling at the request of his probation agent; had been alternately employed full-time, employed part-time, or seeking employment; had participated in sex offender treatment since 2003 and was twice terminated from treatment only because he continued to deny his offense; had voluntarily attended a weekly men's group through church; and lacked AODA or mental health needs.

¶ 11. On September 29, 2009, the circuit court conducted an evidentiary hearing on Dowdy's petition, at which the victim's advocate and Dowdy's three probation agents testified. All four opposed Dowdy's peti[573]*573tion. The victim's advocate testified that the victim was "very opposed" to a reduction in the length of Dowdy's probation, in light of her belief that Dowdy's sentence was too lenient from the start.

¶ 12. Christy Mueller (Mueller), Dowdy's first probation agent, testified that Dowdy often lied about his whereabouts, was uncooperative with sex offender treatment, and was argumentative. She offered, and Dowdy accepted, an alternative to revocation (ATR) for violations of probation that included "possession of cell phone, having contact with minors, failing to comply with his electronic monitoring, and failing to pay his fees for supervision." Dowdy asked to be transferred from Mueller's supervision in November 2003. In her opinion, they did not get along because Dowdy "was constantly fighting [her] against the rules."

¶ 13.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 WI 12, 808 N.W.2d 691, 338 Wis. 2d 565, 2012 Wisc. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dowdy-wis-2012.