### 2022 WI A pp 38


### COURT OF APPEALS OF WISCONSIN PUBLISHED OPINION

Case No.: 2021AP 809

- CR

Complete Title of Case:

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,
V . J UNIOR L. W ILLIAMS - H OLMES , D EFENDANT - A PPELLANT .

Opinion Filed: June 15, 2022 Submitted on Briefs: March 16, 2022 Oral Argument:
JUDGES: Gundrum, P.J., Neubauer and Grogan, JJ. Concurred: Dissented: Appellant ATTORNEYS: On behalf of the defendant

- appellant, the cause was submitted on the

brief s of Dustin C. Haskell , assistant state public defender of Milwaukee

. Respondent ATTORNEYS: On behalf of the plaintiff

- respondent, the cause was submitted on the brief of John W. Kellis , assistant attorney general, and Joshua L. Kaul , attorney general

.

### 2022 WI App 38

COURT OF APPEALS DECISION DATED AND FILED June 15, 2022

Sheila T. Reiff Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP809
- CR Cir. Ct. No. 2019CF 687 STATE OF WISCONSIN IN COURT OF APPEALS

S TATE OF W ISCONSIN , P LAINTIFF - R ESPONDENT ,
V . J UNIOR L. W ILLIAMS - H OLMES , D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER , Judge. Affirmed

.

Before Gundrum, P.J., Neubauer and Grogan, JJ.
¶ 1 GUNDRUM, P.J. Junior L. William s
- Holmes appeals from a judgment and order of the circuit court. He contends the court erred in denying his postconviction motion challenging conditions of his probation and extendedNo. 2021AP809

- CR

2 supervision (hereinafter collectively referred to as “supervision”) that he “not ... reside with any member of the opposite sex without the permission of the Court , nor reside with any child who is not related to [him] by blood without the permission of the Court .” (Emphasis added.) Specifically, Williams

- Holmes contends these conditions (improperly) grant to the court the role of “administering” his supervision with regard to these conditions while the statutes specifically grant that role to the Department of Corrections (the department). He insists we must “amend” the condi tions so that they read that he may not reside with any woman or with a child not related to him by blood without the permission of the department

. ¶ 2 Because Williams

- Holmes’ request would be in conflict with the circuit court’s “probationary program” and because the court’s supervision conditions as written can be read and implemented in a manner consistent with the law, we uphold them, but we do so with the clarification contained herein. We affirm.
Background
¶ 3 Williams

- Holmes pled guilty to two counts of battery, one count of false imprisonment, and one count of bail jumping, all as a repeater, in connection with domestic abuse he committed against his girlfriend. His sentence included confinement in prison followed by a period of extended supervision, and he was also ordered to serve several years of consecutive probation. The circuit court stated that in light of Williams

- Holmes’ history of domestic violence, it was ordering as conditions of supervision th at he “not ... reside with any member of the opposite sex without the permission of the Court , nor reside with any child who is not related to [him] by blood without the permission of the Court .” (Emphasis added.)No. 2021AP809

- CR

3 ¶ 4 In considering whether to separately order that Williams

- Holmes have no contact with the victim, the court stated: “I’ve already put in, in effect, a no contact. He’ll have to come in and get approval .” (Emphasis added.) The court also explained to Williams

- Holmes that “even though I’ve restricted your living with children, you can come back to court and get permission if you show that you’re going to be a responsible individual.” (Emphasis added.)
¶ 5 Postconviction, Williams

- Holmes moved to amend the judgme nt of conviction “to require permission from [the department], not the court, before Mr. Williams

- Holmes may live with women or children not related to him by blood.” In denying Williams

- Holmes’ motion, the circuit court articulated in a written memorandu m that Williams

- Holmes “has moved ... to transfer from the court to [the department] the authority to regulate his residence with women and children unrelated by blood.” (Emphasis added.) The court expressed its belief that it had the constitutional author ity “to impose conditions and regulate the behavior of a probationer.” (Emphasis added.) The court also explained that “[i]t was the practices of [the department] which led me initially to impose the requirement for
my approval of the department’s practice of residential placements of offenders with unrelated children.” (Emphasis added.) The court provided a specific “example of how the department even now approaches this issue.”
¶ 6 The example is a 2019 e

- mail request from a dep artment probation and parole agent seeking the permission of the circuit court for an offender, who presumably had been recently sentenced by this particular judge, to live at a residence “with his girlfriend of two years ... and her 8

- year
- old son along wit h [the girlfriend’s] adult sister and 20

- year
- old niece.” In its e

- mail response denying the agent’s request, the court stated in part, “I definitely would not approve the placement which [the department] is proposing without more information,” notingNo. 2021AP809

- CR

4 tha t, in a case out of Milwaukee, the offender was sentenced somewhat recently without a presentence report “so there is a substantial information gap about him.” The court added, “ I must admit I am concerned that [the department] would suggest this ‘solutio n’” and “I have felt for many years that [ the department] gives too little attention to the vulnerability of children who are involved in these placements, and does not seem to appreciate the enhanced risk these children are exposed to when placements like this are allowed. ” 1 Following this example, the court referred to its belief that “supervision” of its “program of probation” is the role of the court.
¶ 7 On appeal, Williams

- Holmes challenges the conditions of supervision the court orde red in this case and the denial of his postconviction motion related to the same.

Relevant Statutes
¶ 8 W ISCONSIN S TAT

. § 301.03 (2019

- 20), 2 General corrections authority , provides that the department shall:

.... (3) Administer parole, extended supervision , and probation matters , except that the decision to grant or deny parole to inmates shall be made by the parole commission and the decision to revoke probation, extended supervision, or parole, ... shall be made by the division of hearings and appeals in the department of administration. ( Emphasis added.)

1 There is no indication that the offender himself was copied on or aware of these c ommunications.

2 All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.No. 2021AP809

- CR

5 ¶ 9 W ISCONSIN S TAT

. § 973.10, Control and supervision of probationers , provides:

(1) Imposition of probation shall have the effect of placing the defendant in the c ustody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended superv ision. (Emphasis added.) And W IS

. S TAT

. §§ 973.01(5), E XTENDED SUPERVISION
CONDITIONS , and 973.09(1), P robation , respectively provide that when a court imposes a bifurcated sentence , it may “ impose conditions upon t he term of extended supervision” and whe n it places a person on probation it may “impose any conditions which appear to be reasonable and appropriate.”
¶ 10 W ISCONSIN S TAT

. § 973.09(3)(a) provides: “Prior 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.” (Emphasis added.) And W IS

. S TAT

. § 302.113(7m)(a) provides: “[A] person subject to this section [i.e., the defendant] or the department may petition the sentenc ing court to modify any conditions of extended supervision set by the court.” (Emphasis added.)

Discussion
¶ 11 As conditions of supervision, the circuit court ordered that Williams

Holmes “not ... reside with any member of the opposite sex w ithout the permission of the C ourt, nor reside with any child who is not related to [him] by blood without the permission of the C ourt.” As indicated, Williams

- Holmes insists that the se supervision condition s “ must be amended to require permission from [t he department] , not the court .” He points out that following the court’s sentencing of him, he was placed into the custody and under the control of the department, perNo. 2021AP809

- CR

6 W IS

. S TAT

. § 973.10, and asserts that without adopting his proposed “amend[ment]” to th e supervision conditions, the circuit court is left in the position of administering probation and extended supervision matters , contrary to W IS

. S TAT

. § 301.03(3). 3 The State counters that the challenged supervision conditions are authorized by W IS

. S TAT

. § § 973.09(3)(a) and 302.113(7m ) (a) because they amount to little more than the court expressing that in the future the court may be willing to modify the prohibition against Williams

- Holmes residing with women and/ or with children unrelated by blood if the situation warrants.
¶ 12 This appeal calls upon us to interpret and apply various statutes. Statutory interpretation and application are matters of law we review de novo. See Century Fence Co. v. American Sewer Servs ., 2021 WI App 75, ¶8, 399 Wis. 2d 742, 967 N.W.2d 32. Furthermore, i n interpreting statutes that are alleged to be in conflict, we must “ seek [] to harmonize them through a reasonable construction that gives effect to all provisions. ” State v. Reyes Fuerte , 2017 WI 104 , ¶29, 378 Wis. 2d 504 , 904 N.W.2d 773

. Thus, we will do so.
¶ 13 In its sentencing comments expounding on the challenged supervision conditions, the circuit court appeared to indicate that its conditions that Williams

-

3 Williams

- Holmes clarifies in his brief

- in

- chief that he is “ not challenging the [circuit] court’s authority to impose a condition limiting his ability to live with women and unrelated children” and , again , that he is “not seeking to overturn” th ese condition s. In his reply brief, he further a dds that the court “was authorized to set a t erm of supervision limiting Mr. Williams

Holmes’ living options” and again notes he “has not challenged the court’s discretionary authority to limit his ability to live with women or nonbiological children.” Wi lliams

- Holmes’ concessions work out well as we have already determined that challenged supervision condition s very similar to the one s before us

— and ordered by the same judge

— w ere “reasonable and appropriate.” See State v. Luckett , No. 2009AP2679

- CR, unpu blished slip op. ¶¶3, 11, 18 (WI App Apr

. 21, 2010)

. While we are not bound by this prior unpublished decision, we do find it persuasive because in Luckett we noted that “ [ t ] he circuit court’s focus was clearly on the protection of community interests, wh ich is a valid factor in crafting conditions” of supervision , i d. , ¶11 , and similarly in th e case now before us , the court imposed the challenged supervision conditions because of Williams

Holmes’ “history of domestic violence.”No. 2021AP809

- CR

7 Holmes not reside wit h any woman and/or with any child not related to him by blood “without the permission of the Court” meant that William

- Holmes could not reside with any woman and/or such child unless the court modified the conditions, thereby giving its “permission.” Rela ted to this understanding of the supervision conditions, the court stated: “I’ve already put in, in effect, a no contact. He’ll have to come in and get approval .” (Emphasis added.) The court further explained to William

Holmes that “even though I’ve restricted your living with children, you can come back to court and get permission if you show that you’re going to be a responsible individual.” (Emphasis added.)
¶ 14 In its postconviction memorandum, however, the circuit court seemed to indicate that its “without the permission of the court” language was referring to a more informal process of approval and oversight of department decisions related to these supervision conditions as opposed to actual modification of the conditions pursuant to W IS

. S TAT

. §§ 973.09(3)(a) and 302.113(7m)(a). Related to this understanding of the supervision conditions, the court referred to its role as one of “regulat[ing]” the “behavior” o f a “probationer,” including regulating who that probationer resides with during supervision. The court explained that it was the

“ practices ” of the department that led the court to impose its “without the permission of the court” requirement. Referring to a prior case before it, the court provided an example of informal, e

- mail oversight the court exercised over a department

- agent’s “placement” decision as to who the offender in that case could or could not reside with. The court further expressed its b elief that “supervision” of its “program of probation” is the role of the court.
¶ 15 The imposition of conditions of probation and extended supervision are discretionary matters for the circuit court, State v. Miller , 2005 WI App 114, ¶11, 283 Wis. 2d 465, 701 N.W.2d 47

— who is far more familiar with the particularNo. 2021AP809

- CR

8 offender than we are

— and we are to “look for reasons to sustain a circuit court’s discretionary decision,” see State v. Muth , 2020 WI 65, ¶14, 392 Wis. 2d 578, 945 N.W.2d 645 . Fu rthermore, W IS

. S TAT

. §§ 973.09(1) and 973.01(5) “specifically authorize[] the [circuit] court to impose” supervision conditions. See State v. Linse , 161 Wis. 2d 719, 725 , 469 N.W.2d 201 (Ct. App. 1991) . Thus, as we harmonize W IS

. S TAT

. § 301.03(3) ’s grant of authority to the department to “administer” supervision matters with § 973.09(3)(a) and W IS

. S TAT

. § 302.113(7m)(a)’s grant of authority to circuit courts to “modify” conditions of supervision, it is important that our application of the court’ s conditions of supervision be consistent with the general “probationary program” “envisioned” and “ordered” by the court. See Linse , 161 Wis. 2d at 724

- 25 (expressing that in the situation where the department imposes additional conditions on a probation er, “the court is best able to determine whether these additional conditions are consistent with the probationary program envisioned by the court” and holding that where such additional conditions conflict with a court

- ordered condition of supervision, the court

- ordered condition “will prevail”).
¶ 16 It appears to us that the problem underlying this appeal is that this particular circuit court judge and the department may have previously treated similar “without the permission of the court” language related to similar domestic

- abuse

driven conditions imposed by this judge as allowing for a type of informal, situation

by

- situation oversight by the court of who an offender may or may not reside with, as opposed to the court requiring its no

- re siding

- with

- women
- or
- children

unrelated

- by

- blood condition to be modified through the mechanisms of W IS

. S TAT

. §§ 973.09(3)(a) and 302.113(7m)(a).
¶ 17 If the circuit court’s “permission” for William

- Holmes to reside with women and/or with c hildren unrelated by blood or with a particular woman and/orNo. 2021AP809

- CR

9 with a particular child unrelated by blood is effectuated through the informal, oversight/“regulation”/“supervision” procedure the court appears to have utilized in at least the prior example it referenced in its postconviction memorandum, this would be unlawful as it would amount to the court usurping the department’s statutorily granted authority to “administer” extended supervision and probation “matters.” See W IS

. S TAT

. § 301.03(3). The cour t’s method for granting its “permission” for an offender to reside with particular individuals as indicated in this memorandum amounts to the court effectively managing, directing, and superintending this supervision condition on a situation

- by

- situation b asis. See Manitowoc County v. Local 986A, AFSCME, AFL
- CIO , 170 Wis. 2d 692, 698 , 489 N.W.2d 722 (Ct. App. 1992) (defining “administer” as “to manage the affairs of ... to direct or superintend the execution, use or conduct of” ( citing administer , W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY (1976 ) ) ) . This is the department’s role. 4
¶ 18 If, however, the court’s “permission” to reside with women and/or with children unrelated by blood or with a particular woman and/or with a particular child unrelated by blood is effectuated pursuant to W IS

. S TAT

. §§ 973.09(3) and

4 Our supreme court has previously noted that “the legislature has constitutional authority to offer probation as an alternative to sentencing, the judiciary has authority to impose probation, and the executive branch has the authority to administer probation.” State v. Horn , 22 6 Wis. 2d 637, 648 , 594 N.W.2d 772 (1999).

Whether a convicted defendant is sentenced to prison or the circuit court imposes probation, “[ t ] he adversary system has terminated and the administrative process, vested in the executive branch of the governmen t, directed to the correctional and rehabilitative processes of the parole and probation system has been substituted in its place. ” The j udiciary phase of the criminal process

— imposing a penalty

— is complete.
Id. at 650 ( alteration in original; citation omitted). Consistent with W IS

. S TAT

. § 301.03(3), the Horn court expressed that administration of probation is “vest[ed]” in the executive branch, Horn , 226 Wis. 2d at 650; however, it also recognized that modification of terms and conditions of probation may be accomplished pursuant to W IS

. S TAT

. § 973.09(3)(a). Horn , 226 Wis. 2d at 651.No. 2021AP809

- CR

10 302.113(7m) and the requi rements and procedures of those statutes, then such a grant of permission is lawful as it would merely amount to a statutorily authorized modification of the conditions of supervision. For modification of the probation condition s, for example , such modifi cation would have to be effectuated pursuant to § 973.09(3), and thus, the modification would need to be “for cause” and made “by order.” Modification of the extended supervision conditions would have to be effectuated pursuant to § 302.113(7m), which all ows for either the offender or the department to “petition” the court “to modify any conditions of extended supervision set by the court” and which contains other procedures and requirements. Absent the court granting “permission” through a modification o f the condition s in a manner consistent with these statutory provisions, the condition s prohibiting William

- Holmes from residing with any woman and/ or with any child unrelated by blood remain in effect.
¶ 19 We cannot accommodate William

- H olmes’ request that we simply “amend” the language of the circuit court’s supervision conditions from “without the permission of the court” to “without the permission of the department” because such a change would clearly be inconsistent with the probation ary program envisioned and ordered by the court. Indeed, the court’s chosen l anguage for the conditions themselves as well as other above

- identified aspects of the record make it quite clear that in sentencing William

- Holmes, the court lacked confidence i n theNo. 2021AP809

- CR

11 department’s ability and/or willingness to properly administer the no

- residing

- with

women
- or
- unrelated

- children conditions imposed in this case. 5
¶ 20 To harmonize the statutes and do so in a manner consistent with the circuit court’s probationary program in this case, which includes restricting who Williams

- Holmes may live with for the purpose of protecting the community and rehabilitating Williams

- Holmes, see State v. Sepulveda , 119 Wis. 2d 546, 554

- 55, 350 N.W.2d 96 (1984) (identifyi ng that “the dual purposes of probation [are] rehabilitating the defendant and protecting society”), we hold that the “permission” of the court for Williams

- Holmes to reside with a woman or with a child not related by blood, if given, is to be granted by t he court through the means of an actual modification of the supervision conditions via W IS

. S TAT

. § § 302.11 3 (7m) and 973.09(3) and the procedures and requirements related to those statutes. Our holding today is consistent with case law.

5 We note that in a summary order issued a year ago, we granted a defendant’s request to amend the circuit court’s nearly identical supervision

- condition language from “without court’s permission” to “without permission of the supervising agent.” State v. Exson , No. 2020AP411

- CR, unpublished op. and order at *5 n.3 (WI App June 9, 2021). A significant difference between that case and this one is that in Exson the State agreed with the defendant’s request for this change, stating in its briefing:

[I]f the circuit court insists on requiring [the defendant] to seek permission to live with women or minor children (as opposed to ordering a condition that would simply bar [th e defendant] from living with women or children for the duration of his extended supervision), the condition should be amended only to reflect that [the defendant] must seek the permission of the Department of Corrections, rather than the circuit court.
Th e State has taken a very different, adversarial position in the cas e now before us and in doing so also developed legal arguments in support of its position.No. 2021AP809

- CR

12 ¶ 21 In Sepulveda , our supreme court reflected on “the probation statute, particularly [ W IS

. S TAT

. §] 973.09(3)(a) addressing the court’s power to extend probation or modify its terms” and then expressed that “inherent within the probation statute is the cour t ’ 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 .” 6 Sepulveda , 119 Wis. 2d at 554 (emphasis added) . Thus, o ur supreme court recognized that the circuit courts do have continuing power, even after sentencing, to effectuate the purposes of probation, but indicated that this power is to be exercised “through” the statutory authority to modify the terms and co nditi ons of probation, namely § 973.09(3)(a).
¶ 22 Similar to Sepulveda , in State v. Hays we stated [t]he theory of probation envisions that an individual convicted of a crime who is responsive to supervision and guidance may be rehabilitated wit hout placing him or her in prison. To achieve this theory a [circuit] court is permitted to impose conditions of probation that are designed to rehabilitate the probationer and protect society. Inherent in the probation statute is a continuing power in t he [circuit] court to accomplish the theory of probation through the court’s authority to modify the terms of probation

. State v. Hays , 173 Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992) (second and third emphasis added; citations omitted). This statement came immediately after our quotation of the W IS

. S TAT

. § 973.09(3)(a) language: “Prior to the expiration of any probation period, the court, for cause and by order, may extend probatio n for a stated period or modify the terms and conditions thereof.” Id. Our statement related to the “continuing power” of the circuit court to accomplish the stated “theory of

6 We have previously clarified that “ [ e ] xtended supervision is akin to probation” and

“ [ t ] herefore, ‘case law relating to the propriety of conditions of probation is applicable to conditions of supervision.’” State v. Harris , 2008 WI App 189, ¶12, 315 Wis. 2d 537, 763 N.W.2d 206 (citations omitted)

.No. 2021AP809

- CR

13 probation” did not suggest that a circuit court has the authority to engage in some sort of informal, situation

- by

- situation oversight of a defendant on supervision but instead indicated, like the Sepulveda court did, that this continuing power is exercised “through” the statutory mechanism of § 973.09(3)(a) for modifying a conditio n of probation. See Hays , 173 Wis. 2d at 445 (emphasis omitted).
¶ 23 For the foregoing reasons, we affirm the circuit court, but clarify that “permission” for William

- Holmes to reside with women and/or with children unrelated by blood or w ith any particular woman and/or with any particular child unrelated by blood must be effectuated “through” W IS

. S TAT

. §§ 973. 09 and 302.113.
By the Court.

— Judgment and order affirmed.