State v. Dowdy

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.

¶ 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.

¶ 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 rehabilitation. 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 petition. 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. Janelle Petryniec (Petryniec), Dowdy's probation agent from December 2003 through January 2008, testified that Dowdy was mostly compliant with probation but had two violations, the first for "fighting" and the second for "his sexual relationships." While acknowledging that Dowdy attended sex offender treatment, Petryniec described how Dowdy misled a doctor into excusing him from a month of treatment. Still, Petryniec noted, Dowdy never tested positive for drugs or alcohol, was self-employed, and had no contact with the victim.

¶ 14. Finally, Shannon Kloss (Kloss), Dowdy's probation agent at the time, testified that Dowdy was non-compliant with probation and specifically with curfew and sex offender treatment. Reviewing a report on Dowdy's sex offender treatment, Kloss explained that Dowdy exhibited "high" treatment needs in regard to criminal thinking and deceptiveness and had a progress score of "zero out of four" in both areas. At the same time, Kloss, like Petryniec, testified that Dowdy never tested positive for drugs or alcohol, never contacted the victim, and never refused sex offender treatment.

¶ 15. At the close of the hearing, the circuit court felt that it needed a better sense of Dowdy's risk and so ordered the DOC to conduct a sex offender risk assessment of Dowdy and provide a report to the court.

¶ 16. Two days after the hearing, on October 1, 2009, the State moved the circuit court to deny Dowdy's petition on the grounds that the court lacked the statutory authority to reduce the length of Dowdy's probation. The State explained that Wis. Stat. § 973.09(3)(a) authorizes the court only to "extend probation for a stated period or modify the terms and conditions thereof' and does not mention reducing the length of probation.

¶ 17. In his response, Dowdy argued that since Wis. Stat. § 973.09(3)(a) authorizes a circuit court to "modify the terms" of probation, it necessarily authorizes a circuit court to reduce the term, or length, of probation.

¶ 18. On January 20, 2010, the DOC filed with the circuit court its report assessing Dowdy's risk of sex offender recidivism. The report, prepared by licensed psychologist Christopher T. Tyre (Tyre), a supervisor in the DOC's Chapter 980 Forensic Evaluation Unit,⁵ concluded that Dowdy is a " 'low risk' sexual offender." Tyre diagnosed Dowdy as having an antisocial personality disorder but noted that he has "made significant changes in his life," and as a result, the "manifestations of this diagnosis appear to be in remission or waning." Tyre noted that while Dowdy was initially in denial of his culpability in the sexual assault, he now "clearly understands that at the time he was only focused on himself," and "despite [the victim's] protestations, he forced her to engage in an act of penis-to-vagina intercourse."

¶ 19. On February 15, 2010, Dowdy filed with the circuit court a report prepared by Michael S. Kotkin (Kotkin), a licensed psychologist retained by Dowdy. Different from Tyre, Kotkin reported that Dowdy still believes that the victim did not tell the truth. According to Kotkin, Dowdy "indicate [d], 'My sexual offense occurred because I thought the victim, in my case, needed sex.'" Nevertheless, Kotkin concluded that Dowdy presents a "low to low-moderate" risk of recidivism and that "there is some basis" for the notion that an additional three years of probation would serve neither Dowdy's nor the community's best interests.

¶ 2.0. The circuit court conducted a second hearing and granted Dowdy's petition to reduce the length of his probation from ten years to seven years. The circuit court determined that it had clear authority under Wis. Stat. § 973.09(3)(a)⁶ to "extend, or shorten, or lengthen probation depending on the defendant and the issues that are presented." In Dowdy's case, the court found good cause to reduce the length of probation, reasoning that Dowdy had "managed to meet just about every condition [of probation] except the completion of sex offender treatment." In regard to sex offender treatment, the court found Dowdy's "biggest problem" to be his denial, namely, his refusal to believe that the victim did not consent. However, as the court explained, as long as Dowdy remains in denial, he will never complete treatment; he will progress only to a certain point and then have to start over.

¶ 21. On February 17, 2010, the circuit court entered its order reducing the length of Dowdy's probation to seven years. By that time, Dowdy had been on probation for nearly seven-and-a-half years, and consequently, the order resulted in Dowdy's discharge from probation.

¶ 22. The State appealed, and the court of appeals reversed. Dowdy, 330 Wis. 2d 444. The court of appeals concluded that the circuit court "had neither statutory nor inherent authority to order the reduction" of Dowdy's probation. Id., ¶ 1. In regard to statutory authority, the court of appeals determined that "the plain language of Wis. Stat. § 973.09(3)(a) does not grant a circuit court the authority to reduce a probation period." Id., ¶ 16. Instead, the court of appeals concluded, § 973.09(3)(a) authorizes a circuit court "to 'extend probation for a stated period,' and, as a separate grant of authority, to 'modify' an identified set of terms or conditions of the probation." Id., ¶ 18. The court of appeals rejected Dowdy's argument that the authority to "modify the terms" of probation entails authority to modify, by extending or reducing, the term of probation, explaining that such an interpretation would render the statute's use of the word "extend" surplusage. Id., ¶ 17. In addition, examining § 973.09 as a whole, the court of appeals noted that the legislature did not use the plural word "terms" to denote length or duration. Id., ¶ 19.

¶ 23. The court of appeals declined to decide whether a circuit court has inherent authority to reduce the length of probation. Id., ¶¶ 22, 31. However, even assuming that such inherent authority existed, the court of appeals concluded that it must be subject to the same parameters as the circuit court's well-established inherent authority to modify sentences. Id., ¶¶ 28, 31 (citing State v. Crochiere, 2004 WI 78, ¶ 12, 273 Wis. 2d 57, 681 N.W.2d 524). In Dowdy's case, the relevant parameter would be the circuit court's inherent authority to modify a sentence based upon the showing of a "new factor." See id., ¶ 35. However, the court of appeals determined that because post-sentence conduct does not qualify as a "new factor" for purposes of sentence modification, id., ¶ 35 (citing State v. Kaster, 148 Wis. 2d 789, 804, 436 N.W.2d 891 (Ct. App. 1989)), Dowdy's claimed rehabilitation would not qualify as a "new factor" for purposes of probation modification, id. Accordingly, the court of appeals concluded that even assuming the circuit court had inherent authority to reduce the length of Dowdy's probation, such authority could not have been invoked in response to Dowdy's claimed rehabilitation. Id., ¶ 22.

¶ 24. Dowdy petitioned this court for review, which we granted on March 16, 2011.

II. STANDARD OF REVIEW

¶ 25. In this case, we must interpret Wis. Stat. § 973.09(3)(a) to determine whether it grants a circuit court authority to reduce the length of probation. Statutory interpretation presents a question of law that we review de novo while benefiting from the analyses of the court of appeals and circuit court. Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶ 5, 316 Wis. 2d 47, 762 N.W.2d 652.

¶ 26. Assuming Wis. Stat. § 973.09(3)(a) does grant a circuit court authority to reduce the length of probation, then a court may exercise that authority only "for cause." Whether cause exists under § 973.09(3)(a) is subject to the circuit court's discretion. State v. Jackson, 128 Wis. 2d 356, 365, 382 N.W.2d 429 (1986). We will uphold the circuit court's discretionary determination so long as the court reasonably applied the facts of record to the appropriate legal standard. See State v. Ringer, 2010 WI 69, ¶ 24, 326 Wis. 2d 351, 785 N.W.2d 448.

III. ANALYSIS

¶ 27. To determine a circuit court's authority with respect to probation, we must look to the statutes. See Grobarchik v. State, 102 Wis. 2d 461, 467, 307 N.W.2d 170 (1981). Under the doctrine of separation of powers, it is for the legislature to prescribe the penalty for a particular crime and the manner of its enforcement, and it is the duty of the court to impose that penalty. State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 (1999); Grobarchik, 102 Wis. 2d at 467. Accordingly, " [i]f the authority to fashion a particular criminal disposition exists, it must derive from the statutes." Grobarchik, 102 Wis. 2d at 467; see also State v. Sepulveda, 119 Wis. 2d 546, 553, 350 N.W.2d 96 (1984). Probation is one such disposition.

¶ 28. Pursuant to Wis. Stat. § 973.09(l)(a), the legislature has granted a circuit court authority to impose probation. Horn, 226 Wis. 2d at 648. Section 973.09(l)(a) provides, in relevant part, that if a person is convicted of a crime, a court may, by order, impose and stay a sentence and "place the person on probation to the [DOC] for a stated period, stating in the order the reasons therefor." In addition, "[t]he court may impose any conditions which appear to be reasonable and appropriate." § 973.09(1)(a).

¶ 29. Included within a circuit court's statutory authority to impose probation is the authority under Wis. Stat. § 973.09(3)(a) to "extend probation for a stated period or modify the terms and conditions thereof." Section 973.09(3)(a) is the focus of the case before us today. We must interpret § 973.09(3)(a) to determine whether it grants a circuit court authority to reduce the length of probation.

¶ 30. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. To that end, statutory interpretation begins with the language of the statute. Id., ¶ 45. If the meaning is plain, our inquiry ends. Id.

¶ 31. We give statutory language "its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. In addition, statutory language is not interpreted in isolation but rather in context, that is, in relation to the language of surrounding or closely-related statutes. Id., ¶ 46. Our interpretation should give reasonable effect to every word, so as to avoid surplusage or absurd results. Id. If this analysis yields a plain statutory meaning, then the language is unambiguous, and there is no need to consult extrinsic sources of legislative intent. Id. Indeed, we must" 'presume that a legislature says in a statute what it means and means in a statute what it says ....'" Id., ¶ 39 (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

¶ 32. If, however, a statute is "capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Id., ¶ 47. Generally, only if a statute is ambiguous will we aid our interpretation with extrinsic sources. Id., ¶ 50. This general rule "prevents the use of extrinsic sources of interpretation to vary or contradict the plain meaning of a statute . . . ." Id., ¶ 51.

¶ 33. Applying the foregoing principles to Wis. Stat. § 973.09(3)(a), we conclude that the statute does not grant a circuit court authority to reduce the length of probation. Our conclusion is based upon the statute's plain language.

¶ 34. The plain language of Wis. Stat. § 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. Section 973.09(3)(a) clearly authorizes a circuit court to extend the length of probation. Noticeably absent from the statute, however, is any authority to "reduce" probation for a stated period.

¶ 35. Still, Dowdy argues that a circuit court's authority to "modify the terms and conditions" of probation encompasses the authority to reduce the length of probation. Dowdy reasons that the word "modify" commonly means to reduce or lessen in severity. By authorizing the circuit court to "modify the terms" of probation, Dowdy argues, Wis. Stat. § 973.09(3)(a) necessarily authorizes the circuit court to reduce the term, or length, of probation. We disagree.

¶ 36. It is true that the word "modify" can mean to reduce or make less severe, but it is also true that "modify" commonly denotes change or alteration generally. The American Heritage Dictionary of the English Language 1161 (3d ed. 1992); see also State v. Fisher, 2005 WI App 175, ¶ 10, 285 Wis. 2d 433, 702 N.W.2d 56. In other words, while the word "modify" could mean to change by reducing or lessening, it could also mean to change by extending or increasing. If, as Dowdy suggests, the phrase "modify the terms" in Wis. Stat. § 973.09(3)(a) authorizes a circuit court to change, by reducing or extending, the length of probation, then the statute's specific grant of authority to "extend probation for a stated period" is superfluous. We cannot interpret § 973.09(3)(a) in a manner that renders an entire phrase of the statute needless. See Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 37. Furthermore, Dowdy's interpretation of the phrase "modify the terms" rests on the faulty premise that the plural word "terms" is the same as the singular word "term," which is synonymous with length. Dowdy is correct that ordinarily, when construing statutes, we follow the rule that "the plural includes the singular." See Wis. Stat. § 990.001(1). However, that general rule must yield to the "manifest intent of the legislature." § 990.001. The plain language of Wis. Stat. § 973.09(3)(a), which authorizes a circuit court to "extend probation for a stated period," evinces the legislature's intent for the word "period" to mean the duration or length of probation. To construe the word "terms" as "term" and hence synonymous with length would be to deprive the word "period" of independent meaning. Again, our principles of statutory interpretation preclude such a result. See Kalal, 271 Wis. 2d 633, ¶ 46; Graziano v. Town of Long Lake, 191 Wis. 2d 812, 822, 530 N.W.2d 55 (Ct. App. 1995) ("[W]here the legislature uses similar but different terms in a statute, particularly within the same section, we may presume it intended the terms to have different meanings."). Instead, we must strive to give the plural word "terms" independent, reasonable effect. See Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 38. The plural word "terms" has a special definitional meaning in the law. Black's Law Dictionary defines the plural word "terms" as "[provisions that define an agreement's scope; conditions or stipulations." Black's Law Dictionary 1482 (7th ed. 1999). As that definition makes apparent, the word "terms" is synonymous with the word "conditions." See id. at 290 (defining "condition"). In fact, in the law, the words are used interchangeably and often appear together as "terms and conditions." See, e.g., Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶ 8, 330 Wis. 2d 340, 793 N.W.2d 476; Ehlinger v. Hauser, 2010 WI 54, ¶ 10 n.7, 325 Wis. 2d 287, 785 N.W.2d 328; Johnson Controls, Inc. v. London Mkt., 2010 WI 52, ¶¶ 32, 44, 325 Wis. 2d 176, 784 N.W.2d 579; Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44, ¶ 10, 324 Wis. 2d 703, 783 N.W.2d 294. Wisconsin Stat. § 973.09(3)(a) is no exception. By providing that a circuit court may "modify the terms and conditions" of probation, the legislature authorized a circuit court to change the conditions imposed upon a probationer, namely, the obligations upon which his or her probation depends. See Edwards v. State, 74 Wis. 2d 79, 83-84, 246 N.W.2d 109 (1976) (making clear that the circuit court had authority under § 973.09(3)(a) to modify for cause the probationer's condition that she refrain from consorting with her co-defendants); State v. Schell, 2003 WI App 78, ¶ 13, 261 Wis. 2d 841, 661 N.W.2d 503 (discussing § 973.09 and using the plural word "terms" interchangeably with the "conditions" of probation). By interpreting § 973.09(3)(a) in this manner, we give independent, reasonable effect to both the phrase "modify the terms and conditions" of probation and the phrase "extend probation for a stated period."

¶ 39. The statutory context of Wis. Stat. § 973.09(3)(a) confirms our interpretation. Section 973.09(l)(a), the statute from which a circuit court's authority to impose probation derives, provides that a court may place a person on probation "for a stated period" and also may "impose any conditions" of probation. Subsection (l)(a) thus confirms that the legislature drew a distinction between the "period" or length of probation and any imposed "conditions" of probation. Interpreting subsection (3) (a) in light of subsection (l)(a), it is even more clear that a circuit court's authority to "modify the terms and conditions" of probation does not include the authority to reduce the length of probation.

¶ 40. As Dowdy points out, however, Wis. Stat. § 973.09(l)(a) uses the singular word "term," in addition to "period," to mean a length of time. Similarly, § 973.09(2) outlines the minimum and maximum "original term of probation" that may be imposed for different quantities and classes of misdemeanor and felony offenses. There is no doubt that in the context of § 973.09(2), "term" means a length of time. Still, the legislature's use of the singular word "term" in § 973.09(2) does not change our interpretation of the plural word "terms" in § 973.09(3)(a). As evident by the succeeding subsections of Wis. Stat. § 973.09, the legislature consistently used the plural word "terms" in relation to the "conditions" of probation. See, e.g., §§ 973.09(3)(a) ("terms and conditions"); 973.09(3)(bm)2. ("terms and conditions"); 973.09(3)(bm)3. ("terms and conditions").

¶ 41. Finally, the succeeding subsections of Wis. Stat. § 973.09(3) confirm that a circuit court's authority under subsection (3) (a) with respect to the length of probation is limited to extension. First, subsections (3)(b) and (3)(bm), which concern a circuit court's duty to conduct a probation review hearing upon notice of a probationer's failure to pay restitution or supervision fees, speak only to a circuit court's authority to extend probation or to modify its conditions. See §§ 973.09(3)(b) ("If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution .. .." (Emphasis added.)); 973.09(3)(bm)2. ("A waiver of a probation review hearing under this subdivision shall include an acknowledgement by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation or a revocation of probation." (Emphasis added.)); 973.09(3)(bm)3. ("If the [DOC] proves by a preponderance of the evidence that the probationer owes unpaid fees under s. 304.074, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation." (Emphasis added.)).⁷ Second, subsection (3)(c) lists three circumstances that "may constitute cause for the extension of probation" but is silent as to any circumstances that may constitute cause for the reduction of probation. § 973.09(3)(c) (emphasis added). In fact, in all of § 973.09(3), the only mention of a probation reduction in any form is in subsection (3)(d), which authorizes the DOC to discharge a probationer "if the person has completed 50 percent of his or her period of probation." § 973.09(3)(d). Notably, subsection (3)(d) grants only the DOC, not a circuit court, the authority to discharge a probationer before the expiration of his or her probation period.⁸ Had the legislature intended for a circuit court to have such statutory authority, it simply could have said so.

IV CONCLUSION

¶ 42. 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.

¶ 43. 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, 93 Wis. 2d at 443.

By the Court.

The decision of the court of appeals is affirmed.

¶ 44. DAVID T. PROSSER, J., did not participate.

1 The Honorable M. Joseph Donald presided.

2 Wisconsin Stat. § 973.09(3)(a) (2009-10) states that "[plrior 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."

All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

On July 19, 2011, the legislature amended Wis. Stat. § 973.09(3) by recreating subsection (3)(d). See 2011 Wis. Act 38, §§ 93b, 93c. The new subsection (3)(d), which went into effect on August 3, 2011, expressly grants a circuit court authority to discharge a probationer before the expiration of his or her probation period, subject to six requirements. See id.; infra note 8.

3 The standard that applies to sentence modification was most recently articulated in State v. Harbor, 2011 WI 28, ¶¶ 35-52, 333 Wis. 2d 53, 797 N.W.2d 828. See also State v. Ninham, 2011 WI 33, ¶¶ 88-90, 333 Wis. 2d 335, 797 N.W.2d 451.

4 Wisconsin Stat. § 940.225(2) (a) (2001-02) provides that whoever "[h]as sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence" is guilty of a Class BC felony.

5 Wisconsin Stat. ch. 980 governs "Sexually Violent Person Commitments."

6 While the circuit court cited Wis. Stat. § 973.09(2), we, like the court of appeals, assume that the circuit court meant to reference § 973.09(3)(a). See State v. Dowdy, 2010 WI App 158, ¶ 7 & n.2, 330 Wis. 2d 444, 792 N.W.2d 230.

7 In their amicus curiae brief, the Wisconsin State Public Defender and the Wisconsin Association of Criminal Defense Lawyers rely on Wis. Stat. § 973.09(3)(bm)4. to argue that the plural word "terms" must mean the length of probation. Section 973.09(3)(bm)4. states, in relevant part, that "[i]f the court does not extend or modify the terms of probation under subd. 3., it shall issue a judgment for the unpaid fees ...." (Emphasis added.) The amicus curiae maintain that § 973.09(3)(bm)4. can be read only to mean that a circuit court may "extend... the terms of probation," and consequently, the plural word "terms" must refer to a length of time. We might agree with the amicus curiae, were it not for the statute's qualifying language of "under subd. 3." Section 973.09(3)(bm)3., to which subsection (3)(bm)4. refers, makes clear that the word "extend" modifies only "the period of probation," not "the terms and conditions of probation."

The amicus curiae make the same argument by relying on language in State v. Sepulveda, 119 Wis. 2d 546, 350 N.W.2d 96 (1984). The Sepulveda court stated: "This court recognized in Huggett that inherent within the probation statute is the court's continued power to effectuate the dual purposes of probation, namely rehabilitating the defendant and protecting society, through the court's authority to modify or extend probationary terms." Id. at 554 (emphasis added); see also State v. Schell, 2003 WI App 78, ¶ 13, 261 Wis. 2d 841, 661 N.W.2d 503. Again, however, we point out the significance of the qualifying language. The Sepulveda court was merely paraphrasing our discussion of Wis. Stat. § 973.09(3)(a) in Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978). Huggett makes more than clear that a circuit court's authority to extend probation relates to the "period" of probation. See id. at 794, 795, 799, 801, 803.

8 Notable still, when the legislature created Wis. Stat. § 973.09(3)(d), it proposed language that would have expressly granted a circuit court authority to discharge a probationer before the expiration of his or her probation period. See 2009 Wis. Act 28, § 3392d (proposing that § 973.09(3)(d) include language permitting "[t]he court [to] modify the person's period of probation and order the person discharged from probation if the person has complied with the conditions of his or her probation, has paid restitution ordered under s. 973.20, and has paid all ordered court costs, fines or forfeitures, and supervision fees"). However, the Governor successfully vetoed that language. See id.; State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 51, 271 Wis. 2d 633, 681 N.W.2d 110 (providing that legislative history may be consulted "to confirm or verify a plain-meaning interpretation").

In fact, on July 19,2011, after we received the parties' briefs in the instant case, the legislature recreated Wis. Stat. § 973.09(3)(d) and this time successfully added language expressly granting a circuit court authority to discharge a probationer before the expiration of his or her probation period. See 2011 Wis. Act 38, §§ 93b, 93c. The new statute went into effect on August 3, 2011, id., and lists six requirements that must be met in order for a circuit court to discharge a probationer, see id., § 93c. Significant for our purposes today, these six requirements, which function as conditions precedent to a probationer's discharge, would he meaningless if a circuit court had broad discretionary authority under § 973.09(3)(a) to reduce the length of probation for cause.