State v. Schwind

386 Wis.2d 526

926 N.W.2d 742

2019 WI 48

STATE of Wisconsin, Plaintiff-Respondent,

v.Dennis L. SCHWIND, Defendant-Appellant-Petitioner.

No. 2017AP141-CR

Supreme Court of Wisconsin.

Oral Argument: February 21, 2019

Opinion Filed: May 3, 2019

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.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review an unpublished summary disposition order of the court of appeals,¹ which affirmed the circuit court's² order denying Dennis L. Schwind's motion for early termination of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 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 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.

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, 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-CR, unpublished order at 3 (citing Dowdy I, 330 Wis. 2d 444, ¶ 31, 792 N.W.2d 230 ). 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, 792 N.W.2d 230 ). 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 constitutionally and legislatively mandated functions." Henley, 328 Wis. 2d 544, ¶ 73, 787 N.W.2d 350 (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, 575 N.W.2d 691 (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 preserve...