State v. StenklyftState v. Stenklyft
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- Before:
- Wilcox
Lead Opinion
¶_1. This case is before the
I. ISSUES
¶ 2. The State asserts that the circuit court proceeded under an incorrect theory of law in granting Stenklyft‘s petition. The following issues are presented on appeal: 1) Does
¶ 3. We conclude, in accordance with State v. Tucker, 2005 WI 46, ¶¶ 22-24, 279 Wis. 2d 697, 694 N.W.2d 926, that
¶ 4. In addition, we hold that the plain language of
¶ 5. Furthermore,
II. STANDARD OF REVIEW
¶ 7. In this case we are called upon to interpret
¶ 8. Regarding the constitutionality of
III. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶ 9. On August 14, 2000, the State filed a criminal complaint against Stenklyft, charging him with one count of causing great bodily harm by operating a motor vehicle while under the influence of an intoxi
¶ 10. Subsequently, Stenklyft entered a plea of no contest to the charge of causing great bodily harm by operating a motor vehicle while under the influence of an intoxicant, and the State dismissed the remaining charge. Stenklyft was convicted of violating
¶ 11. By letter dated March 5, 2003, Stenklyft petitioned the circuit court for sentence adjustment under
¶ 13. The circuit court discussed concerns it had with the sentence adjustment provision:
But I think a lot of judges around the state view this law with some skepticism ... because there are no standards in the statutes that tell us what we‘re supposed to be looking at.
I think there is a lot of concern about the absolute veto that a prosecutor‘s office has, no matter what someone has done in prison....
There are some who feel that the statute giving the prosecution absolute veto is unconstitutional, which may invalidate other parts of the Truth in Sentencing laws, while some think just the statute that gives the DA veto is the part that should be stricken as unconstitutional. I‘m not reaching those issues today, except to say I don‘t believe the district attorney can have absolute one hundred percent veto over these сases. There would be no reason to have a provision to filepetitions if there was absolute veto. It seems to me there have to be some reasons for the various positions that people take.
¶ 14. Discussing the merits of the petition, the circuit court stated:
But it seems to me you have done very well in prison. You have apparently taken advantage of all the opportunities available to you and gone beyond what you had to do to try to rehabilitate yourself, but also, to provide some use to the community to keep things like this from happening again.
The circuit court concluded: “[b]ut as I read your petition, I‘m thinking if you‘re not a person that‘s entitled to early release based on what they‘ve done in prison, who is?” Therefore, the circuit court granted Stenklyft‘s petition and directed that he be released on August 1, 2003.
¶ 15. The State filed a motion to reconsider, arguing that
A.
¶ 16. As is well known by the bench and bar in this state, Wisconsin enacted its determinate sentencing scheme, Truth-in Sentencing, in two phases. “The first phase, TIS-I, was enacted in June 1998 and applied to offenses committed on or after December 31, 1999. See 1997 Wis. Act 283. The second phase, TIS-II, was enacted in July 2002 and became effective February 1, 2003. See 2001 Wis. Act 109.” State v. Gallion, 2004 WI 42, ¶ 7, n.3, 270 Wis. 2d 535, 678 N.W.2d 197. See also State v. Cole, 2003 WI 59, ¶ 4, 262 Wis. 2d 167, 633 N.W.2d 700. The main feature of TIS-I was § 973.01(1) (1999-2000), under which “a circuit court was required to impose a bifurcated sentence consisting of a term of confinement in prison followed by a term of extended supervision whenever it sentence [d] a person to ‘imprisonment in the Wisconsin state prisons.‘” Cole, 262 Wis. 2d 167, ¶ 16.
¶ 17. Furthermore, pursuant to
¶ 18. It has been recognized that TIS-I was not a completed work when passed:
The legislature established an 18-month window between the date TIS-I was passed and the date it was to go into effect in order to give the newly established Criminal Penalties Study Committee (CPSC) time to supplement and complete the existing legislation. While the CPSC timely completed its task, producing a lengthy report and statutory proposals for full implementation of truth-in-sentencing, the legislature failed to enact the proposals before TIS-I went into effect.
Cole, 262 Wis. 2d 167, ¶ 41 (footnote omitted). Instead,
During the next two and one-half years, the assembly and senate each passed bills that largely tracked the CPSC‘s recommendations, but differences between those bills were never reconciled. Finally, during a special session called by Gov. McCallum in 2002 to deal with Wisconsin‘s budget crisis, both legislative houses agreed on budget adjustment legislation that included nearly all of the CPSC‘s proposals. On July 26, 2002, the governor signed [2001 Wis. Act 109] into law.
Michael B. Brennan et al., Fully Implementing Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 12.
¶ 19. TIS-II made several modifications to TIS-I, three of which are pertinent to this appeal. First, TIS-II adopted a new nine-category A-I system of classifying felonies.
¶ 20. Second, as part of the reclassification, Act 109 adjusted the length of the initial term of confinement for crimes, because “[t]he CPSC concluded that the maximum initial term of confinement for each crime in the new truth-in-sentencing system ought to roughly parallel the maximum the person could serve in prison before reaching MR under the indeterminate sentencing law that preceded [TIS-I].” Id. at 12. As a result of this change and the delay between TIS-I and TIS-II, “defendants convicted of felonies between December 31, 1999, and February 1, 2003, generally serve longer periods of confinement than the maximum provided for in TIS-II.” Trujillo, 279 Wis. 2d 712, ¶ 6.
¶ 21. Finally, TIS-II created a number of methods for adjusting and modifying a bifurcated sentence, including mechanisms for allowing an inmate to be released early from prison. See
¶ 22. TIS-II went into effect February 1, 2003. 2001 Wis. Act 109, § 9459. However, by virtue of the “Initial applicability” provisions of 2001 Wis. Act 109, § 9359, certain enumerated provisions of TIS-II first apply to crimes committed on or after February 1, 2003.
¶ 23. Unlike many of the provisions of TIS-II,
¶ 24.
¶ .25. However, an inmate who has completed the “applicable percentage” of his initial term of confinement is not entitled to an automatic sentence adjustment; rather, he must establish one of the grounds specified in
Any of the following is a ground for petition under par. (a):
1. The inmate‘s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.
3. A change in law or procedure related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.
4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.
5. Sentence adjustment is otherwise in the interests of justice.
¶ 26. The statute then sets forth the procedure by which a circuit court may consider the petition and allows the district attorney (and sometimes the victim)9 to object to the petition:
Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate‘s petition. If the district attorney objects to adjustment of the inmate‘s sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate‘s petition.
If the sentencing court receives no objection to sentence adjustment from the district attorney underpar. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate‘s sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.
¶ 27. If the circuit court grants the petition for sentence adjustment, it may change the structure of the inmate‘s sentence only as provided by statute.10 Finally,
B.
¶ 28. The first question we must address is whether
¶ 29. Stenklyft was convicted of causing great bodily harm by operating a motor vehicle while under the influence of an intoxicant, contrary to
¶ 30. Because the crime for which Stenklyft was convicted is now classified as a Class F felony, he must have served 75 percent of his initial confinement time in order to be eligible for sentence adjustment.
C.
¶ 31. Next, we address whether the circuit court is required to dismiss a petition for sentence adjust
¶ 32. The operation of
¶ 33. Specifically, it has been suggested that the court could read “shall” in
¶ 34. Second, reading “shall” as “may” in
¶ 35. Moreover, it is this court‘s duty to “apply [a] statute as written, not interpret it as we think it should have been written.” Columbus Park Hous. Corp., 267 Wis. 2d 59, ¶ 34. Here, the legislature has allowed the circuit court the discretion to dismiss a petition for sentence adjustment outright. Also, it has provided the court with discretion to grant the petition if it determines it is in the public interest to do so. However, the legislature has clearly conditioned the court‘s discretionary power in the second instance upon the district attorney not objecting to the petition. Therefore, we conclude that the plain language of
D.
¶ 36. We now turn and address the constitutionality of
¶ 37. This court has frequently discussed the separation of powers doctrine.
“The doctrine of separation of powers, while not explicitly set forth in the Wisconsin constitution, is implicit in the division of governmental powers among the judicial, legislative, and executive branches.“... Each branch, separate but co-equal, is not subordinate to another, no branch to arrogate to itself control of the other.
State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999) (quoting Friedrich, 192 Wis. 2d at 13). A separation of powers analysis involving judicial power has two steps. First, we must determine if the power allegedly intruded upon is “within the judiciary‘s core zone of exclusive power.” Id. at 645. If so, then “[a]ny exercise of power by the legislature or executive branch within such an area is an unconstitutional violation of the separation of powers.” Id. (emphasis added). If, on the other hand, the power at issue is “within an area of shared powers [,]” then a statute that relates to such
¶ 38. “It is well established that a circuit court has inherent authority to modify a sentence.” Trujillo, 279 Wis. 2d 712, ¶ 10. “Courts have those inherent powers that are necessary ‘to enable the judiciary to accomplish its constitutionally or legislatively mandated functions.’ ” State v. Crochiere, 2004 WI 78, ¶ 11, 273 Wis. 2d 57, 681 N.W.2d 524 (quoting Friedrich, 192 Wis. 2d at 162). However, even power that is inherent in the judiciary may be a shared power. See Friedrich, 192 Wis. 2d at 19-21 (examining whether the judiciary‘s inherent power to set compensation for court-appointed counsel is shared or exclusive and concluding such power is shared).
¶ 39. The parties disagree as to whether the judiciary‘s inherent authority to modify sentences is an exclusive or shared power. We need not reach this issue because even assuming, arguendo, that the power to modify sentences is an exclusive power of the judiciary, we conclude that
¶ 40. We reach this conclusion for several reasons. First, the legislative history of
¶ 41. The original version of 2001 Wis. Act 109, § 1143m, governing petitions for sentence adjustment, contained a provision stating: “Filing a petition under
¶ 42. It is a cardinal rule of statutory construction that “this court must assume that the legislature knew the law in effect at the time of its actions.” State v. Olson, 175 Wis. 2d 628, 641, 498 N.W.2d (1993). The inherent power of a court to modify sentences is well established under our common law, and this court has repeatedly defined the parameters within which that power can be exercised. See Crochiere, 273 Wis. 2d 57, ¶ 12. As explained supra,
¶ 43. Thus, if
¶ 44. Also, the legislature specifically rejected a proposal by the Criminal Law Section of the State Bar that would have established a ground for sentence adjustment based on a “new factor.” John A. Birdsall & Raymond M. Dall‘Osto, Problems with the New Truth-in-Sentencing Law, Wisconsin Lawyer, Nov. 2002, at 13. In addition, we find it significant that
¶ 45. Further, those intimately involved in the drafting of TIS-II have recognized that
A Wisconsin circuit court possesses the inherent authority to modify a previously imposed sentence based on either new factors or a conclusion that the original sentence was “unduly harsh or unconscionable.” Act 109 does not alter an offender‘s right to seek sentence modification on these grounds. It does, however, create additional procedures for modifying a bifurcated sentence.
Brennan et al., Fully Implementing Truth-in-Sentencing, Wisconsin Lawyer, Nov. 2002, at 53 (footnote omitted).
¶ 47. Finally, if we were to accept Stenklyft‘s position that
¶ 49. However, Stenklyft argues that even if the statute does not relate to the judiciary‘s inherent power to modify sentences, it nonetheless impermissibly interferes with the judiciary‘s shared power in sentencing.
If the subject matter of the statute is within the powers constitutionally granted to the judiciary and the legislature, the statute is within an area of shared powers. Such a statute is constitutional if it does not unduly burden or substantially interfere with either branch. “The focus of this evaluation is on whether one branch‘s exercise of power has impermissibly intruded on the constitutional power of the other branch.”
Horn, 226 Wis. 2d at 645 (citations omitted) (quoting Friedrich, 192 Wis. 2d at 15).
¶ 50. Stenklyft is correct that the judiciary‘s sentencing power is among its shared constitutional powers. Id., at 644-46.” ‘It is the function of the legislature to prescribe the penalty and the manner of its 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. Borrell, 167 Wis. 2d 749, 767, 482 N.W.2d 883 (1992) (quoting Drewniak v. State ex rel. Jacquest, 239 Wis. 475, 488, 1 N.W.2d 899 (1942)).12 Yet, once a criminal sentence becomes final, the court‘s
¶ 51. However,
¶ 52. Stenklyft has not identified any constitutional provision that vests the power of “sentence adjustment” in the judiciary. Rather, similar to other discretionary powers of the judiciary, the authority to grant a “sentence adjustment” springs solely from the statutes. See Horn, 226 Wis. 2d at 648 (“Without [statutory] authority, a court could not place a defendant on probation.“).
¶ 54. We note that the focus of Stenklyft‘s separation of powers challenge is on the power the legislature has provided to the executive branch to veto a petition for sentence adjustment. The main feature of
¶ 55. Historically, the power to grant an inmate reprieve from his sentence was a purely executive function.
In Wisconsin‘s early years of statehood, all criminal sentences were for definite periods of time and were to be fully served. Early discharge for rehabilitation or for good behavior was unknown. In fact, the only reward for good behavior was a lack of further punishment. There existed one method of early release and that was through the use of the executive pardon power by the Governor.
Wisconsin Legislative Council, Information Memorandum 78-43: The Wisconsin Parole Board, Sept. 18, 1978. The legislature later created an executive agency empowered to grant paroles. Id. While the legislature abolished parole under TIS-I, it created several new
¶ 56. The ability to obtain early release under the system of parole existed solely as a matter of legislative grace: “The legislature not only can specify when a person convicted of a particular crime may be eligible for parole but can also disallоw or abolish the right to parole for any or all crimes.” Borrell, 167 Wis. 2d at 764. Likewise, the legislature has no constitutional obligation to provide courts with the power of “sentence adjustment;” it could repeal the statute tomorrow. In other words, the legislature gave the judiciary a discretionary power it does not otherwise possess. As such, the legislature is entitled to specify under what conditions a court is able to exercise its discretionary power and grant an inmate‘s petition for sentence adjustment.
¶ 57. In enacting
¶ 58. Given that the legislature is entitled to place “reasonable regulation[s]” on inherent judicial power that cannot be withdrawn, Horn, 226 Wis. 2d at 651, we cannot conclude that setting conditions precedent for the exercise of a power that can be withdrawn is unconstitutional. Therefore, we conclude that the pros-ecutorial veto provisions in
¶ 60. A circuit court has the inherent power to modify a sentence based upon a showing of a new factor. Trujillo, 279 Wis. 2d 712, ¶ 10. In Trujillo, “[w]e reiterate[d] that the decision to modify a sentence upon the finding of a new factor is left to the sound discretion of the circuit court.” Id., ¶ 29. See also Tucker, 279 Wis. 2d 697, ¶ 10 (accord). In addition, ” ‘a court has the power to correct formal or clerical errors or an illegal or a void sentence at any time.’ Also, a court has the inherent authority to modify a sentence if. .. the sentence is ‘unduly harsh or unconscionable.‘” Chrochiere, 273 Wis. 2d 57, ¶ 12 (quoting Hayes v. State, 46
¶ 61. We see no reason why an inmate may not bring a motion seeking sentence reduction on multiple grounds, invoking separate powers of the circuit court at the same time. That is, there is nothing to prevent an inmate from bringing a motion seeking sentence reduction which: a) invokes the court‘s new power under
¶ 62. We reiterate: the ability of a district attorney to veto a petition for sentence adjustment under
¶ 63. In addition to his separation of powers argument, Stenklyft also argues that the prosecutorial veto provisions of
¶ 64. A procedural due process analysis is a two-part inquiry: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.]” Kentucky Dep‘t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)(citations omitted). Thus, it is essential that the person claiming the constitutional violation establish that the state deprived him of a constitutionally protected interest in life, liberty, or property before the court may address whether the state employed constitutionally adequate process. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 15, 234 Wis. 2d 335, 610 N.W.2d 129; Robinson v. McCaughtry, 177 Wis. 2d 293, 300, 501 N.W.2d 896 (Ct. App. 1993). “The procedural guarantees of the due process clause apply only to the deprivation of interests encompassed by the Fourteenth Amendment‘s protection of liberty and property.” State ex rel. First
¶ 65. Stenklyft largely ignores the first step in this analysis, instead concentrating his argument on why the process provided by
¶ 66. Stenklyft correctly notes that § 973.185 provides a procedure whereby an inmate may petition to he released before he has served his entire initial term of confinemеnt. As explained supra, insomuch as the statute provides a mechanism whereby an inmate may obtain early release from prison,
There is no constitutional or inherent right of aconvicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right[.]
Id. “That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained.” Id. at 11.
¶ 67. However, courts have recognized that “[w]hile there is no constitutional right to parole, a state may create a protected liberty interest in parole through its statutes and regulations governing the parole decision-making process.” Heidelberg v. Ill. Prisoner Review Bd., 163 F.3d 1025, 1026 (7th Cir. 1998)(citing Greenholtz, 442 U.S. at 12). See also Felce v. Fiedler, 974 F.2d 1484, 1490 (7th Cir. 1992)(accord).
¶ 68. Stenklyft has not shown that there is a constitutional right to “sentence adjustment.” Thus, he must demonstrate that
¶ 69. In the context of parole, “[a] state creates an expectation of release that rises to the level of a liberty interest within the meaning of the Due Process Clause if its parole system requires release whenever a parole board or similar authority determines that the necessary prerequisites exist.” Heidelberg, 163 F.3d at 1026 (emphasis added). Thus, statutes that mandate release if, when, or unless certain conditions are met “created a presumption that parole release will be granted” and
¶ 70. As such, Wisconsin‘s mandatory parole scheme,
¶ 71. Applying these standards to
If the sentencing court receives no objection to sentence adjustment from the district attorney underpar. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate‘s sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.
(Emphasis added.)
¶ 72. First, it should he patently obvious that the mere existence of the prosecutorial veto in
¶ 73. Second, and more importantly,
¶ 75. Stenklyft‘s final argument is that if
V SUMMARY
¶ 76. We conclude, in accordance with Tucker, 279 Wis. 2d 697, ¶¶ 22-24, that
¶ 77. In addition, we hold that the plain language of
¶ 78. Furthermore,
¶ 79. Therefore, because we determine
¶ 80. I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this opinion.
By the Court. — The orders of the circuit court are reversed and remanded.
Notes
All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.
The concurrences/dissents are the opinion of the majority of the court. It is possible that this matter is moot, as Stenklyft petitioned for sentence adjustment with two months remaining on his initial term of confinement and, according to his sentence, should be on extended supervision at the time this opinion is released. However, the parties did not argue mootness before this court. On remand, any sentence modification must be made in conformity with
Stenklyft‘s letter incorrectly cited “state statute 973.95.”
As of the date of his petition, Stenklyft had served a total of one year, ten months, and 25 days in confinement.
However, in State v. Trujillo, 2005 WI 45, ¶ 2, 279 Wis. 2d 712, 694 N.W.2d 933, this court reaffirmed that courts should continue to apply existing new factor jurisprudence in the aftermath of truth-in-sentencing.
As recognized by those involved in the development of TIS-II, ‘Wis. Stat.
Section
Confinement In Prison, (a) An inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony-may petition the sentencing court to аdjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence. If an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.
(g) Except as provided under par. (h), the only sentence adjustments that a court may make under this subsection are as follows:
1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.
2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less up to 30 days, and a corresponding increase in the term of extended supervision.
(h) 1. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b)3. and the total sentence length of the adjusted sentence is greater than the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the total sentence length does not exceed the maximum sentеnce length of that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.
2. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b)(3). and the adjusted term of extended supervision is greater than the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the term of extended supervision does not exceed the maximum term of extended supervision that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.
“Thus, the sentencing court is required to exercise discretion to fashion a sentenced within the range provided by the legislature. ..” State v. Borrell, 167 Wis. 2d 749, 765, 482 N.W.2d 883 (1992). Furthermore, this court has clearly held that “[t]he legislature has authority to determine the scope of the sentencing court‘s discretion.” State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 (1999).
We disagree with Stenklyft that
In State v. Lindsey, 203 Wis. 2d 423, 441, 554 N.W.2d 215 (Ct. App. 1996), the court of appeals upheld Wisconsin‘s “three-strikes” law in the face of a separation of powers challenge. The defendant argued that the “legislature‘s grant of sole sentencing discretion to the prosecution violates the separation of powers doctrine . . ..” Id. at 439. The court of appeals rejected this challenge, noting “there is no inherent power of the judiciary to absolutely determine the nature of the punishment.” Id. at 441 (citing State v. Sittig, 75 Wis. 2d 497, 499-500, 249 N.W.2d 770 (1977)).
We emphasize that we do not purport to hold that sentence adjustment is the equivalent of parole. We merely recognize that both sentence adjustment and parole are legislative mechanisms designed to afford an inmate reprieve from his sentence by granting him early release. The statutory mechanisms are different, but the nature of the power involved is similar.
We note that a court in Indiana addressing a similar statute reached the same conclusion:
By the present statute, the jurisdiction of the sentencing court to modify the sentence remains but the court had no authority to render the particular modification of [the inmate‘s] sentence because 365 days had passed since he had begun to serve his sentence and the prosecuting attorney had not approved the modification. The legislature was free, through the statute, to give the trial court authority to render a modification of the sentence with whatever conditions and within whatever time it deemed appropriate. The legislature chose to subject the authority to reduce or suspend a sentence to the approval of the prosecuting attorney if 365 days had passed. Even though the authority to modify is subjеct to such a condition, the statute does not take judicial power away from the trial court and give it to the prosecuting attorney. The statute gives the sentencing court authority, subject to certain conditions, to change the sentence of the defendant after the court has pronounced sentence and after the defendant has begun to serve that sentence. In other words, the statute gives the court authority it does not otherwise have and does not transfer power between branches of government. The scheme therefore does not violate the separation of powers.
Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind. Ct. App. 1994).
State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982).
Concurrence Opinion
¶ 81. {concurring in part and dissenting in part). I agree with the lead opinion that the order of the circuit court should be reversed. Because I disagree with the lead opinion‘s conclusion that
¶ 82. Because Justices Ann Walsh Bradley, N. Patrick Crooks, and Louis B. Butler join this concurrence/dissent and because Justices Ann Walsh Bradley and Louis B. Butler and I join the concurrence/dissent of Justice N. Patrick Crooks, we four form a majority (1) to declare that
¶ 83. The net effect of the two concurring/dissenting opinions is that read together, “shall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under
¶ 84. We conclude that the judicial power is compromised when the district attorney is given the unilateral power to end a circuit court‘s consideration of an inmate‘s petition for sentence adjustment. A district attorney‘s exercise of a core judicial function is barred by the separation of powers doctrine.1
¶ 85. Wisconsin Stat.
HH
¶ 87. The Wisconsin Constitution vests the legislative power in the two houses of the legislature4 and the executive power in the governor.5 The Wisconsin Constitution vests the judicial power of the state in the unified court system as follows:
The judicial power of this statе shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform state-wide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature under section 14.6
¶ 88. The doctrine of separation of powers is implicit in the division of governmental powers among the judicial, legislative, and executive branches.7 The principles of separation of powers are easy to state but the boundaries that separate the powers of the three branches are “shadowy and not well defined. It is the duty of the court to define them, and see that they are respected.”8
¶ 89. A well-accepted principle is that each branch has exclusive core constitutional powers upon which no other branch may intrude.9 This court explained the exclusive core constitutional powers of each branch more than 70 years ago. This explanation remains good law today: “The co-ordinate branches of the government. . . should not abdicate or permit others to infringe upon such powers as are exclusively committed to them by the constitution.”10 As this court has said:
In Wisconsin the jurisdiction and power of the courts is conferred, not by act of the Legislature, but by theConstitution itself. While the Legislature may regulate in the public interest the exercise of the judicial power, it cannot, under the guise of regulation, withdraw that power or so limit and circumscribe it as to defeat the constitutional purpose.11
¶ 90. Many powers are not, however, exclusively committed to one of the branches, but are shared powers. The court has admonished that as to shared powers “there should be such generous co-operation as will tend to keep the law responsive to the needs of society.”12 With regard to shared pоwers, the legislature cannot impose an unreasonable burden and substantial interference with the judicial branch‘s authority.13
¶ 91. Sentencing a defendant is an area of shared responsibility,14 and, broken down to its component parts, requires each of the three branches of government to exercise a core power. The legislature prescribes the penalty and the manner of its enforcement.15 The courts impose the penalty (the sentence).
¶ 92. What is at issue in the present case is not a legislative enactment prescribing a penalty or fixing a sentencing range. Nor is the executive‘s act of charging, executing the sentence, or granting clemency at issue. Rather, Wis. Stat
¶ 93. The question then is whether a circuit court‘s power to decide a petitioner‘s request for sentence adjustment under
¶ 94. The text of the statute evinces a clear violation of the separation of powers doctrine:
973.195 Sentence Adjustment.18
(lr) Confinement in Prison, (a) An inmate who is serving a sentence... may petition the sentencing court to adjust the sentence ....
(c) Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate‘s petition. If the district attorney objects to adjustment of the inmate‘s sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate‘s petition.
(f) If the sentencing court receives no objection to sentence adjustment from the district attorney under par. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate‘s sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.
(i) An inmate may submit only one petition under this subsection for each sentence imposed under s. 973.01.
¶ 95. According to the statute, an inmate first files a petition with the circuit court that originally-sentenced the inmate.19 When an inmate files a petition under
¶ 96. If, however, a circuit court is considering the possibility of granting the petition, it must notify the district attorney. If the district attorney objects to the circuit court‘s adjustment of the inmate‘s sentencing, the circuit court must deny the petition. And once an inmate files under the statute and the district attorney objects to a circuit court‘s adjustment of the inmate‘s sentencing, the inmate may never seek another sentence adjustment under
¶ 97. The fundamental problem with the statute is that it requires the circuit court to render a particular decision, namely a denial of a petition brought by the inmate, not upon the merits of the a petition but upon the decision of a district attorney. And the district attorney‘s “No adjustment for you!” is final for all time. The district attorney holds the keys to the inmate‘s ability to get a decision on the merits from the circuit court.
¶ 98. This court has declared numerous times that the power to decide an individual case is an
¶ 99. Several cases, old and of recent vintage, are illustrative of the well-established principles governing the instant statute: the power to decide an individual case is an exclusive core judicial power, and any invasion of the exclusive core constitutional powers of the judiciary violates the doctrine of separation of powers under our state constitution. The legislature cannot compel a circuit court to decide a case in a particular way.
¶ 100. In Davis v. Village of Menasha, 21 Wis. 491, 497 (1867), this court struck down as a violation of separation of powers a law that required a trial court to grant a new trial upon the request of either party if the presiding judge died or left the state before expiration of the time for settling a bill of exceptions. The сourt invalidated the statute, explaining:
No room is left for the exercise of the judgment and discretion of the court, but the judgment must be set aside and a new trial allowed in the specified case, providing the application is made at the time and in the manner there prescribed. It seems to us that this law, then, may well be held to be the exercise of judicialfunctions, not vested in the legislature, but belonging to another department of the government under our constitution.25
¶ 101. Again, this time in City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W.2d 128 (1890), this court held unconstitutional a statute that required a trial court to issue an injunction, even though the petitioner did not prove damages justifying an injunction. Because the statute “takes away the jurisdiction of the courts to inquire into the facts and determine the necessity and propriety of granting or refusing an injunction,” the court held the statute unconstitutional.26
¶ 102. In Thoe v. Chicago, Milwaukee & St. Paul Railway Co., 181 Wis. 456, 195 N.W. 407 (1923), this court held unconstitutional a statute prohibiting a trial court from granting a directed verdict before submitting the case to the jury.27 We said a motion to direct a verdict calls for the exercise of legal judgment, an exercise of judicial power, and is not to be decided by legislative fíat. The court wrote:
Neither has the legislature power to declare in advance that the evidence is legally sufficient in every case. It may or it may not be. Whether it is or not is for thecourt to determine in the exercise of the powers conferred upon it by the constitution. A motion to direct a verdict calls for the exercise of legal judgment by applying the law to the facts of each case. It cannot be done wholesale by legislative fiat.28
¶ 103. In re E.B., 111 Wis. 2d 175, 186, 330 N.W.2d 584 (1983), this court held that the legislature could require a circuit court to give the jury a copy of written instructions but could not mandate reversal if the circuit court did not abide by the statute. “Legislation which mandates automatic reversal of trial court judgments upon [the statute‘s] violation impermissibly limits and circumscribes judicial power.”29
¶ 104. In Joni B. v. State, 202 Wis. 2d 1, 8, 549 N.W.2d 411 (1996), the court held that it was a violation of separation of powers for the legislature to prohibit a court from appointing counsel for anyone other than the child in CHIPS proceedings. The court stated that a circuit court‘s power to appoint counsel is an inherent power to serve the interests of the circuit court and that a court may use its inherent authority to appoint counsel for the orderly and fair presentation of a case. The legislative enactment impermissibly infringed upon that judicial power.
¶ 105. Because deciding the merits of a case is the essence of a court‘s function, and because the statute delegates to a district attorney the power to mandate the denial of a petition in each case, we conclude that the legislation in question is an unconstitutional violation of the doctrine of separation of powers.
¶ 106. To make matters worse, if that is possible, the district attorney has represented the State as its attorney in investigating, charging, and prosecuting the criminal charges against the inmate.30 Once charges are filed, the district attorney becomes the attorney for the State, a party to the criminal proceedings, and is subject to the court‘s authority.31 Thus the statute allows a circuit court‘s deliberative process and judgment to be circumvented by one of the parties involved in the litigation: the district attorney.32 The statute allows the district attorney to decide&emdash;unilaterally&emdash;whether an inmate‘s sentence will be adjusted, and thereby unconstitutionally impairs the judiciary‘s duty to administer justice impartially, as well as being violative of the separation of powers doctrine.33
¶ 108. Thus, even if we were to conclude that the statute does not invade the exclusive core constitutional powers of the judiciary, the elimination of a circuit court‘s power to decide an inmate‘s petition without the approval of the district attorney is an impermissible burden and a substantial interference with the judicial branch‘s ability to administer justice impartially.34
rH l-H hH
¶ 109. The State argues, and the lead opinion agrees, that
¶ 110. Parole is gone under Truth in Sentencing, and more importantly for this case,
¶ 111. The lead opinion opines that this procedure is constitutional, declaring that the district attorney‘s permission is just a “condition precedent” that must be met. Lead op., ¶ 51. The lead opinion‘s reasoning contravenes the clear words of the statute and is without weight. Permission by the prosecutor cannot be said to be a “condition precedent” because the plain text of the statute grants a circuit court power to consider the merits of an inmate‘s petition even before the district attorney is notified of the petition. If the district attorney‘s permission were simply a “condition precedent” to the consideration of an inmate‘s petition,
¶ 112. But
¶ 113. This statute granting the district attorney a veto power over a circuit court‘s decision-making process on an inmate‘s petition for sentence adjustment is constitutionally over the top.
IV
¶ 114. The lead opinion carefully explains that despite the statute, a circuit court has inherent power over sentence modification.38 We agree with the lead opinion that a circuit court has inherent power over
¶ 115. Under our decisions that limit a circuit court‘s inherent power to modify a sentence, a circuit court may modify a sentence when the sentence is unduly harsh or unconscionable or has a legal error or on the basis of a new factor. If there are cases that overturn a sentence on the grounds that the sentence was too harsh or unconscionable they are few and far between. Few cases arise in which a circuit court has committed a legal error in sentencing. If a legal error occurs, clearly the circuit court should amend the sentence.
V
¶ 116. Although the court must take care not to expand the judicial branch‘s exclusive judicial authority, the lead opinion in this case goes too far the other way.
¶ 117. Eighty years ago this court warned judges of their solemn duty to maintain the boundaries of judicial power unimpaired as follows:
[ I]t is the solemn duty of every judge, as a sworn officer of the state, to maintain the boundaries of that power unimpaired.
Courts have not, as some people suppose, any option in the matter. The people through the constitution have vested in the courts certain powers and charged the court with the responsibility for the exercise of those powers. Every judicial officer takes an oath that he [or she] will support and maintain the constitution.. .. [The judicial officer] may not fritter or barter away the power committed to his [or her] hands. He [or she] has assumed a responsibility which must be discharged with the utmost fidelity.39
¶ 118. Sadly, the lead opinion here has willingly conceded to the executive branch the most central aspect of the judiciary‘s power: the power to render a judgment in a case properly before it.
¶ 119. We therefore write separately on the issue of the unconstitutionality of the statute if it is interpreted as granting a district attorney veto power over a petition for sentence adjustment.
¶ 120. I am authorized to state that Justices ANN WALSH BRADLEY, N. PATRICK CROOKS, and LOUIS B. BUTLER, JR. join this opiniоn.
1 would treat the district attorney‘s veto as a severable provision and excise it.
The lead opinion goes to great length, making numerous arguments to uphold the statute. I do not undertake an analytical critique of each argument, although I could. The lead opinion builds its case on weak underpinnings, supported by quotations taken out of context. Very little research by a reader will quickly reveal the weaknesses that permeate the lead opinion.
State ex rel. Friedrich v. Dane County Circuit Court, 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995).
Wis. Const. art. W § 1.
Friedrich, 192 Wis. 2d at 15; State v. Holmes, 106 Wis. 2d 31, 38, 68-69, 315 N.W.2d 703 (1982).
Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 195 N.W.407 (1923). See also Barland v. Eau Claire County, 216 Wis. 2d 560, 573, 575 N.W.2d 691 (1998); Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d 649, 663, 480 N.W.2d 502 (1992); State v. Holmes, 106 Wis. 2d 31, 42-43, 315 N.W.2d 703 (1982).
In re Complaint Against Grady, 118 Wis. 2d 762, 778, 348 N.W.2d 559 (1984).
Rules of Court Case, 204 Wis. 501, 514, 236 N.W. 717 (1931).
John F. Jelke Co. v. Hill, 208 Wis. 650, 660, 242 N.W. 576 (1932).
Rules of Court Case, 204 Wis. at 514. See also Demmith v. Wis. Judicial Conference, 166 Wis. 2d 649, 663, 480 N.W.2d 502 (1992).
Friedrich, 192 Wis. 2d at 14.
State v. Borrell, 167 Wis. 2d 749, 767, 482 N.W.2d 883 (1992).
State v. Setagord, 211 Wis. 2d 397, 407, 565 N.W.2d 506 (1997) (citing In Matter of Judicial Administration Felony Sentencing Guidelines, 120 Wis. 2d 198, 203, 353 N.W.2d 793 (1984)); State v. Lindsey, 203 Wis. 2d 423, 440-41, 554 N.W.2d 215 (Ct. App. 1996).
Borrell, 167 Wis. 2d at 767.
United States v. Benz, 282 U.S. 304, 311 (1931). See also State v. Nardini, 445 A.2d 304, 312 (Conn. 1982) (“The power [to adjust a sentence under the legislative enactment] ... is in effect only a change of judgment, and for that reason [is] a radically different thing from [executive action upon a sentence, such as a pardon]” (quoted source omitted)).
The lead opinion finds it “significant that § 973.195 is specifically titled ‘Sentence adjustment’ rather than ‘Sentence modification.‘” Lead op., ¶ 44. Statutory interpretation has reached a new level if the difference between “sentence modification” and “sentence adjustment” qualifies as “significant.” This court, which so frequently resorts to the dictionary for statutory interpretation, fails to look up the words “adjustment” and “modification.” If it did, it would find them synonyms. The American Heritage Dictionary of the English Language defines “adjustment” as “a modification, fluctuation, or correction” and “modification as “[a] small alteration, adjustment, or limitation.” The American Heritage Dictionary of the English Language 22, 1161 (3d ed. 1992) (emphasis added).
Wisconsin Stat.
Any of the following is a ground for a petition under par. (a):
1. The inmate‘s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correction programs since he or she was sentenced.
3. A change in law or procedure related to sentencing or revocation of extеnded supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.
4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.
5. Sentence adjustment is otherwise in the interests of justice.
State v. Mitchell, 144 Wis. 2d 596, 618, 424 N.W.2d 698 (1988) (upholding rape shield statute against a separation of powers attack, but citing four Wisconsin Supreme Court cases for the proposition that a statute‘s mandating the result in a case is unconstitutional).
Id.
Davis v. Village of Menasha, 21 Wis. 491, 497, (1867).
City of Janesville v. Carpenter, 77 Wis. 288, 301, 46 N.W. 128 (1890), explained:
The legislature usurped the judicial power of the courts by the enactment of this statute. It adjudicates an act unlawful and presumptively injurious and dangerous, which is not and cannot be made to be so without a violation of the constitutional rights of the defendant, and imperatively commands the court to enjoin it without proof that any injury or danger has been or will be caused by it.
Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 195 N.W. 407 (1923).
Id. at 465.
In re E.B., 111 Wis. 2d 175, 186, 330 N.W.2d 584 (1983).
Wisconsin Stat.
Once the prosecution has commenced, the case is subject to the court‘s exclusive authority in many ways. See State v. Prihoda, 2000 WI 123, ¶ 19, 239 Wis. 2d 244, 618 N.W.2d 857 (changes to the sentence portion of a written judgment of conviction can be authorized only by a judge); State v. Comstock, 168 Wis. 2d 915, 927, 485 N.W.2d 354 (1992) (district attorney may not bind a court to a plea agreement, nor may a district attorney amend charges without permission from the court); State v. Johnson, 231 Wis. 2d 58, 64-65, 604 N.W.2d 902 (Ct. App. 1999) (court determines whether probable cause exists to believe the defendant committed the charged crime; if probable cause is lacking, the court dismisses the charge); State v. Dums, 149 Wis. 2d 314, 321-22, 440 N.W.2d 814 (Ct. App. 1989) (district attorney cannot, sua sponte, dismiss charges).
Other state courts have declared invalid a statute giving the prosecutor the ability to veto a court‘s sentence. See State v. Prentiss, 786 P.2d 932, 936 (Ariz. 1989) (statutory provision that allowed a judge to impose an alternative sentence only upon prosecutor‘s consent was invalid as a violation of separation of powers); People v. Superior Court (On Tai Ho), 520 P.2d 405, 407 (Cal. 1974) (statutory provision that gave prosecutor the power to veto a court‘s decision to an alternative sentence was an unconstitutional violation of separation of powers); State v. LeCompte, 406 So. 2d 1300, 1311 (La. 1981) (statutory provision that only allowed a judge to reduce a sentence if it was the prosecutor who moved for the change violated separation of powers); State v. Olson, 325 N.W.2d 13, 17-19 (Minn. 1982) (The question presented was: “Can the legislature, having granted authority to the courts to sentence without regard to the mandatory minimum provisions [of the statute], condition that authority upon a discretionary act of the prosecutor?” Id. at 17. The court said no, it violates separation of powers.).
Friedrich, 192 Wis. 2d at 14.
State v. Horn, 226 Wis. 2d 637, 650, 594 N.W.2d 772 (1999).
United States v. Benz, 282 U.S. 304, 311 (1931).
On this basis, the present case is significantly different from the Indiana court of appeals case cited by the lead opinion, Beanblossom v. State, 637 N.E.2d 1345 (Ind. Ct. App. 1994). Lead op., ¶ 69 n.16. In Beanblossom, the court of appeals was very explicit in stating that trial courts in Indiana do not have inherent power to modify a sentence, and that if they did, the result of the case might very well be different. The court said:
[The argument that the statute violates the separation of powers] presupposes that the trial court has the inherent power to effect the modification of a sentence and that the statute somehow takes this power away from the court. If the trial court had such inherent authority, then the statute in question might well he considered to have usurped that authority. The case law [in Indiana], however, indicates that the trial court does not have such inherent power under the circumstances.
Beanblossom, 637 N.E.2d at 1347.
Thoe, 181 Wis. at 467-68.
Concurrence Opinion
¶ 121. {concurring in part and dissenting in part). Here, it is necessary to construe “shall” as directory and permissive, in order to save the constitutionality of the statute. I agree with the concurrence/dissent of Chief Justice Abrahamson that the statute, if interpreted as mandatory, is unconstitutional. If we interpret “shall” as mandatory, such
¶ 122. If at all possible, we should construe a statute in a way that will save it as constitutional. When this court decided In re Hezzie, 219 Wis. 2d 848, 580 N.W.2d 660 (1998), we concluded that “[statutes are presumed to be constitutional; therefore, ‘every presumption must be indulged to uphold the law if at all possible.‘” Id. at 862 (quoting Norquist v. Zeuske, 211 Wis. 2d 241, 250, 564 N.W.2d 748 (1997); see also State ex rel. Fort Howard Paper Co. v. Lake Dist. Bd., 82 Wis. 2d 491, 505, 263 N.W.2d 178 (1978) (“The cardinal rule of statutory construction is to preserve a statute and find it constitutional if it is at all possible to do so.“); White House Milk Co. v. Reynolds, 12 Wis. 2d 143, 150-51, 106 N.W.2d 441 (1960) (“It is an elementary principle of law in this state that this court will search
¶ 123. I concur with the mandate of the lead opinion to reverse, but I would decide this case by holding that the apparent veto given to a district attorney by the Wisconsin Legislature in
¶ 124. This court has, in several instances, considered whether the use of the word “shall” was directory, rather than mandatory. See State ex rel. Marberry v. Macht, 2003 WI 79, ¶ 15, 262 Wis. 2d 720, 665 N.W.2d
¶ 125. In light of the above cases, I take issue with the lead opinion‘s conclusion that the language cannot be read in
¶ 126. If the statutes at issue were to be interpreted as containing a directory and permissive “shall,” then the record of the proceedings must clearly demonstrate that the circuit court exercised its discretion and weighed the appropriate factors when the court reached its decision on sentence adjustment. An example of such balancing would be a record that showed that the circuit court considered the nature of the crime, character of the defendant, protection of the public, positions of the State and of the victim, and other relevant factors such as “[t]he inmate‘s conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs. . . .”
¶ 127. Additionally, if the provisions of the statute at issue are interpreted as being directory, then there is no need to address the issue of severability, as discussed in the briefs of counsel. Also, I do not address mootness, since no question in that regard was raised, argued or briefed by counsel.
¶ 128. In summary, in order to preserve the statute and find it constitutional, it must be construed as giving the circuit court discretion to accept or reject an objection from the district attorney on a petition for sentence adjustment. The use of “shall” here is directory, not mandatory.
¶ 129. For the reasons discussed herein, I respectfully concur in part and dissent in part.
Unless otherwise indicated all references to the Wisconsin Statutes are to the 2003-04 edition.
While the circuit court considered some of these factors in the motion hearings for sentence adjustment and for reconsideration, the court did not make a sufficient record demonstrating an exercise of discretion in light of all of the appropriate factors. The circuit court did discuss the need for balancing, but only in regard to the incentive for rehabilitation of the defendant against the harm suffered by the victim and the victim‘s desire for punishment. The circuit court was correct when the court expressed concern over whether the absolute veto given to the district attorney would stand up, but stopped short of finding such a veto unconstitutional, stating that “I‘m not reaching those issues today.”
Since Chief Justice Shirley S. Abrahamson, Justices Ann Walsh Bradley, and Louis B. Butler, Jr. join this concurrence/dissent, and since I join the concurrence/dissent of Chief Justice Abrahamson, we form a majority on the directory nature of the statute and the reason for remand to the circuit court.