State v. Fisher

285 Wis.2d 433

2005 WI App 175

702 N.W.2d 56

STATE of Wisconsin, Plaintiff-Respondent, v. Edward W. FISHER, Defendant-Appellant.¹

Nos. 2004AP1289-CR, 2004AP2488-CR.

Court of Appeals of Wisconsin.

Submitted on briefs April 28, 2005.

Decided June 15, 2005.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen Miller Carter of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Warren D. Weinstein, assistant attorney general.

Before Anderson, P.J., Brown and Nettesheim, JJ.

¶ 1. BROWN, J.

Edward W. Fisher appeals from a judgment of conviction pursuant to WIS. STAT. § 961.41(1)(cm)1. (1999-2000)² for delivering five or fewer grams of cocaine, a controlled substance, and an order denying his motion for postconviction relief. He essentially challenges the length of his sentence and the constitutional validity of certain conditions of extended supervision. We disagree with Fisher's various contentions. The circuit court properly considered the primary sentencing factors in arriving at the length of his sentence. Moreover, the conditions of supervision are unambiguous and reasonably related to his rehabilitative needs. We also reject the State's argument that WIS. STAT. § 302.113(7m)(e)1. requires Fisher to wait until the year before his release to supervision before challenging the condition of supervision. That statute applies where an individual seeks modification of an otherwise valid condition, not where he or she challenges its validity. ¶ 2. The criminal complaint states that on June 28, 2002, Fisher encountered an undercover detective working for the Kenosha County Controlled Substance Unit. Fisher climbed into the backseat of the detective's car, and upon receiving the detective's assurance that he was not the police, Fisher directed the detective to where Fisher had parked his van. Upon their arrival, Fisher instructed the detective to follow him in his van to an area called Model Market near the 2300 block of 54th Street. Fisher exited the van at that location, walked back to the detective's vehicle, and obtained from the detective sixty dollars to buy three bags of "rock," meaning crack cocaine. The detective promised to give Fisher twenty dollars when he returned with the drugs. Fisher surrendered his keys to the detective to assure him of his intent to return, walked back to the van, where he retrieved two children, and then continued walking. Fisher returned a short time later with three bags of crack cocaine in his mouth. The detective gave him a prerecorded twenty-dollar bill, which police found on his person when they arrested him. They also tested the three bags of contraband, which weighed .8 grams and tested positive for cocaine base.

¶ 3. Fisher has a somewhat different version of what happened. He claims he ordered dinner at a restaurant, realized he was short of the bill by eighteen cents, and left for his girlfriend's house so he could obtain the eighteen cents. Fisher alleges he saw an acquaintance in the parking lot who summoned Fisher to talk with him and two people sitting in a car near him. All three supposedly assured Fisher that the occupants of the car were not police and asked Fisher to get them some cocaine. He claims he initially maintained that he was not a dealer but agreed to buy the drugs when they offered him twenty dollars. Fisher admits he directed the driver to follow his van to Model Market, where Fisher thought he could find some cocaine, and that when they reached that area, Fisher stopped, surrendered his keys, and obtained sixty dollars from the driver for the three bags of cocaine. He states he left, returned, and got into the car, where he handed the driver three bags. He learned the driver and his passenger were undercover detectives when the driver told him he would look good in stripes and police squads surrounded the vehicle.

¶ 4. The State charged Fisher, and the court set bond. Fisher agreed to waive his preliminary hearing in exchange for dismissal of two penalty enhancers and subsequently pleaded no contest to the remaining charge, delivery of the controlled substance cocaine, in the amount of five grams or fewer.

¶ 5. On October 15, the circuit court imposed a twelve-year sentence with seven years of initial confinement and five years of extended supervision, to be served consecutively to any other sentence. The court made the following observations while explaining its rationale for the sentence imposed:

The Court has read the pre-sentence investigation report, and obviously what pops out boldly ... is that prior record beginning in 1980. The adult record goes on from there for a couple of pages, page-and-a-half. The defendant began his first prison term at age 21. He's now 43, and he's still in and out of prison. This will be his fifth period of incarceration.

Mr. Fisher, you are quickly becoming an institutionalized man. You can't stand prosperity. When you are out, you're breaking the law, that with your background you should know there's no honor among thieves .... You thought you were dealing with a friend, and you weren't; but the distribution of drugs is a very serious matter. While your attorney indicated it's just a small amount and it will cost hundreds of thousands of dollars to keep you [in confinement], when those drugs get distributed, it costs a lot of money to the community to take care of the people that have become addicted to deal with the same people because they commit crimes in order to get more money to buy more drugs; so it's not as simple as it may look.

The Court believes that based upon your prior record, the nature of this crime, that a prison [sentence] is in order ....

¶ 6. Fisher's extended supervision contained alcohol-related provisions. At the sentencing hearing, the court stated Fisher was not to consume any alcoholic beverages or to "go into any taverns or liquor stores or have any containers for alcoholic beverages in your residence." The judgment of conviction and the written "CONDITIONS OF EXTENDED SUPERVISION" form restates the conditions as follows. First, they admonish Fisher, "Do not possess or consume alcoholic beverages and do not have alcoholic beverages within the residence." Second, they command, "Do not be in taverns or on any premises licensed for the sale of intoxicating beverages, except restaurants and grocery stores."

¶ 7. Fisher sought postconviction relief. The circuit court denied his motion on September 14, 2004. Fisher appeals. Specifically, he argues that the circuit court erroneously exercised its discretion when it did not consider mitigating factors supporting a lighter sentence and disregarded Fisher's treatment needs. He also claims that the conditions of supervision, which forbid him to be in taverns or liquor stores, to consume alcohol, or to have containers for alcohol in his residence, violate his constitutional due process rights in that they are vague, overbroad, and lack any connection to his offense.

¶ 8. We first turn to the conditions of supervision. The State contends, as a threshold issue, that we need not reach the merits regarding the conditions of supervision because Fisher prematurely brought his motion to modify those conditions. In support, the State cites WIS. STAT. § 302.113(7m)(e)1., which reads in pertinent part, "An inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision ...." As additional support, it relies upon WIS. STAT. § 809.30(1)(c), which expressly defines "postconviction relief" to exclude appeals, motions, or petitions pursuant to § 302.113(7m).

¶ 9. Whether or not these statutory provisions preclude Fisher from challenging his conditions of supervision requires us to determine whether Fisher seeks to modify the conditions within the meaning of WIS. STAT. § 302.113(7m)(e)1. This task requires us to construe and apply that statute, which raises questions of law that we review independently. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996) (statutory interpretation an issue of law); Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶ 17, 253 Wis. 2d 323, 646 N.W.2d 314 (application of legal standard to a set of facts a question of law). We give the words in a statute their common and ordinary meanings. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. Where the meaning of the statute is plain, we begin and end with the statutory language. Id. Where the statute is open to multiple reasonable interpretations, however, we may look to extrinsic evidence of legislative intent—such as the statute's scope, context, history, and purpose—to resolve the ambiguity. See id., ¶¶ 46-48.

¶ 10. We disagree with the State's application of WIS. STAT. § 302.113(7m)(e)1. The Wisconsin Statutes do not provide a relevant statutory definition of "modify," so we consult a dictionary to ascertain the plain meaning. Mared Indus., Inc. v. Mansfield, 2005 WI 5, ¶ 32, 277 Wis. 2d 350, 690 N.W.2d 835 ("If a word is not defined in the statute, our next recourse has normally been to use a recognized dictionary to determine the common and ordinary meaning of the word." (Citation omitted.)). WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1452 (unabridged 1993) provides several similar definitions of "modify," all of which contemplate a change in the form of some existing thing. Among these, it lists the following: (1) "to make more temperate and less extreme"; (2) "to make minor changes in the form or structure of . . . alter without transforming"; and (3) "to make a basic or important change ...." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1452 (unabridged 1993). We conclude that § 302.113(7m)(e)1. unambiguously applies only where an inmate seeks to...