                                                                   2019 WI 48

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP141-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Dennis L. Schwind,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED:         May 3, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 21, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Walworth
   JUDGE:              David M. Reddy

JUSTICES:
   CONCURRED:          DALLET, J. concurs and dissents, joined by A.W.
                       BRADLEY, J. (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:   ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Andrew R. Walter and Walter Law Offices LLC, Elkhorn.
There was an oral argument by Andrew R. Walter.


       For the plaintiff-respondent, there was a brief filed by
Kevin M. LeRoy, deputy solicitor general, with whom on the brief
was   Misha       Tseytlin,   solicitor   general,   and   Brad   D.   Schimel,
attorney general. There was an oral argument by Kevin M. LeRoy.
                                                                             2019 WI 48
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.         2017AP141-CR
(L.C.          2000CF407)
No.
STATE OF WISCONSIN                                 :             IN SUPREME COURT

State of Wisconsin,

                Plaintiff-Respondent,                                     FILED
        v.                                                            MAY 3, 2019
Dennis L. Schwind,                                                      Sheila T. Reiff
                                                                     Clerk of Supreme Court
                Defendant-Appellant-Petitioner.




        REVIEW of a decision of the Court of Appeals.                    Affirmed.


        ¶1     PATIENCE      DRAKE     ROGGENSACK,        C.J.      We      review       an
unpublished summary disposition order of the court of appeals,1
which       affirmed   the   circuit    court's2       order     denying     Dennis      L.
Schwind's motion for early termination of probation.                             Schwind
asserts that the Wisconsin Constitution gives circuit courts the
inherent authority to reduce or terminate a term of probation




        1
       State v. Schwind, No. 2017AP141-CR,                       unpublished        order
(Wis. Ct. App. Feb. 14, 2018).
        2   The Honorable David M. Reddy of Walworth County presided.
                                                                      No.     2017AP141-CR



for cause.       He argues that Wis. Stat. § 973.09(3)(d),3 which
directs the circuit court that it may reduce or terminate a term
of probation if six requirements are met, cannot restrict the
court's    inherent authority to                 reduce or    terminate       a    term   of
probation for cause.
     ¶2     We       conclude       that   the    circuit     court    does       not   have
inherent    authority           to    grant       Schwind's     motion        for       early
termination of probation.              Inherent authority of courts consists
of only those powers that are necessary for the judiciary to
accomplish its constitutionally mandated functions and preserve
its role as a coequal branch of government.                           Probation is a
statutory creation, and the power to reduce or terminate a term

of probation is not necessary for courts to accomplish their
constitutionally         mandated          functions.         Therefore,          Wisconsin
courts do not have the inherent authority to reduce or terminate
a period of probation.               Accordingly, we affirm the decision of
the court of appeals.
                                     I.    BACKGROUND

     ¶3     In 2001, Schwind pled guilty to first-degree sexual
assault    of    a    child,     incest      with    a   child,   and       engaging      in
repeated acts of sexual assault of the same child.                            Additional
counts of incest with a child and engaging in repeated acts of
sexual    assault      with     a    child    were    dismissed       but    read-in      at
sentencing.      Schwind's guilty plea required him to register as a

     3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.


                                              2
                                                                    No.     2017AP141-CR



sex offender under Wis. Stat. § 301.45, and the charges exposed
him to a maximum sentence of over 100 years in prison.                                 The
court   accepted     Schwind's      guilty    plea    and    imposed        a    10-year
prison sentence, but immediately stayed the sentence and placed
him on probation for a term of 25 years.                   The conditions of his
probation    included      one   year    of   jail   time     with    work       release
privileges.
     ¶4     In     2002,   Schwind       violated    the     conditions          of    his
probation.       He had physical contact with his victim, had sexual
contact with an animal, had unsupervised contact with children,
and failed a sex offender treatment program.                      The State did not
initiate probation revocation proceedings, but instead requested

that he serve another one-year term in the Walworth County Jail.
Schwind accepted the State's request and served another one-year
jail term.         In 2014, after serving 13 years of his 25-year
probation term, Schwind filed a motion for early termination of
probation.
     ¶5     Wisconsin      Stat.    § 973.09(3)(d)         directs        the    circuit

court in regard to how it may "modify a person's period of
probation    and    discharge      the   person     from    probation"          when   six
requirements are met:

          1. The    department   petitions                  the     court        to
     discharge the person from probation.

          2. The probationer has completed 50 percent of
     his or her period of probation.

          3. The probationer has satisfied all conditions
     of probation that were set by the sentencing court.



                                          3
                                                                No.   2017AP141-CR


            4. The probationer has satisfied all rules and
       conditions  of  probation  that  were  set  by  the
       department.

            5. The probationer has fulfilled all financial
       obligations to his or her victims, the court, and the
       department, including the payment of any fine,
       forfeiture, fee or surcharge, or order of restitution.

            6. The probationer is not required to register
       [as a sex offender].
Schwind did not, and could not, argue that he had satisfied all
six of these requirements.            He therefore could not argue that
Wis. Stat. § 973.09(3)(d) permitted the circuit court to reduce

his probation term.
       ¶6    Schwind   instead      argued   that   his   petition      for   early
termination of probation relied on the circuit court's inherent
authority.      He argued that notwithstanding the requirements of
Wis.    Stat.   § 973.09(3)(d),       circuit    courts   have    the    inherent
authority to reduce or terminate a term of probation, and a
statute passed by the legislature cannot take that away.                       The
State opposed the motion on the grounds that Schwind did not
meet the requirements of § 973.09(3)(d), and therefore was not

eligible for early termination of his probation.
       ¶7    The circuit court denied Schwind's motion in January
2015.       In doing so, the circuit court expressed concern that
"once you start utilizing some of those inherent powers, that's
a slippery slope that this court is not willing to go down."
However, the circuit court did not take a position on whether
circuit      courts    have   the     inherent      authority    to     terminate
probation notwithstanding Wis. Stat. § 973.09(3)(d).                     Instead,


                                        4
                                                                               No.     2017AP141-CR



the circuit court decided that even if it did have the inherent
authority      to     terminate        probation        early,      it   would        decline     to
exercise it in this case.
     ¶8        In      May      2016,           Schwind       filed        a         motion     for
reconsideration, again arguing that the circuit court has the
inherent authority to terminate probation early and should do so
in his case.          The circuit court denied Schwind's motion.                                This
time, the circuit court held that it did not have the inherent
authority to reduce a term of probation.                             It pointed out that
Wis. Stat. § 973.09(3)(d) "lists six requirements that must be
met in order for a circuit court to discharge a probationer,"
and explained that "these six requirements, which function as

conditions          precedent       to      a    probationer        discharge,          would     be
meaningless          if   a     circuit           court      had    broad           discretionary
authority . . . to reduce the length of probation for cause."
     ¶9        The     court     of      appeals        affirmed      in       an     unpublished
summary disposition order.                      State v. Schwind, No. 2017AP141-CR,

unpublished order (Wis. Ct. App. Feb. 14, 2018).                                    The court of
appeals did not decide whether circuit courts have the inherent
authority to reduce or terminate a term of probation.                                   Id. at 4.
Instead, the court of appeals relied on its previous decision in
State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230
(Dowdy I), aff'd, State v. Dowdy, 2012 WI 12, 338 Wis. 2d 565,
808 N.W.2d 691 (Dowdy II).
     ¶10       In    Dowdy     I,     the       court   of   appeals       "did       not     decide
whether    a    circuit        court     possesses        the      inherent         authority     to
reduce a defendant's probation period."                         Schwind, No. 2017AP141-
                                                  5
                                                                   No.   2017AP141-CR



CR, unpublished order at 3 (citing Dowdy I, 330 Wis. 2d 444,

¶31).        However, the court of appeals opined that if circuit
courts were to have inherent authority to modify probation, it
could be exercised only in the same limited situations in which
a     circuit    court     has      the   inherent     authority    to   reduce    a
sentence:       clear mistake, a new factor, or undue harshness or
unconscionability.            Schwind, No. 2017AP141-CR, unpublished order
at 3 (citing Dowdy I, 330 Wis. 2d 444, ¶28).                         The court of
appeals decided that none of these limited circumstances existed
in    Schwind's case; therefore, there               was no      need actually     to
decide whether a court's inherent authority to reduce a criminal
sentence applies to a probation order.                  Schwind, No. 2017AP141-

CR, unpublished order at 4.               We granted Schwind's petition for
review, and now affirm the decision of the court of appeals.
                                    II.   DISCUSSION
                               A.   Standard of Review
       ¶11    This   case      requires    us   to   determine    whether   circuit
courts have the inherent authority to reduce or terminate a term
of probation.        "The issue of judicial authority is a question of
law" that we review independently.               State v. Henley, 2010 WI 97,
¶29, 328 Wis. 2d 544, 787 N.W.2d 350.
                      B.      Inherent Authority of Courts
       ¶12    The Wisconsin Constitution created a court system and
expressly granted certain powers to Wisconsin's courts.                           See
Wis. Const. art. VII.               In addition to these expressly granted
powers, our Constitution also grants courts "those [powers] that
are     necessary        to      enable     courts      to    accomplish       their
                                            6
                                                                       No.     2017AP141-CR



constitutionally and legislatively mandated functions."                              Henley,

328 Wis. 2d 544, ¶73 (citing State ex rel. Friedrich v. Dane
Cty. Cir. Ct., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)).                                   The
powers that are not expressly granted but are necessary for the
courts   to    function    as     courts       are    found     within       the     courts'
inherent authority.        See, e.g., id.
      ¶13     Inherent    authority        is    implicit        in    the      Wisconsin
Constitution.        When the framers created the judiciary in Article
VII, they "had in mind that governmental institution known to
the common law possessing powers characterizing it as a court
and   distinguishing      it    from   all      other     institutions."              In    re
Kading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975).                                For this

reason, the creation of a court system necessarily includes the
conferral       of     those      inherent           powers     that         "from      time
immemorial . . . have been conceded to courts because they are
courts."      Barland v. Eau Claire Cty., 216 Wis. 2d 560, 565, 575
N.W.2d 691 (1998).        Stated otherwise, the Wisconsin Constitution
did not devise a new entity called a "court"; rather, by using
the word "court," it was referring to the institution known as a
court, together with the powers it was understood at common law
to    necessarily      possess.        Therefore,         we    generally          consider
historical practices when determining whether a certain power is
inherent in the judiciary.             See, e.g., id. at 592 (explaining
that the inherent authority of the courts may "spring[] from
historical custom").
      ¶14     Inherent    authority     of      the     court    derives        from       the
doctrine of separation of powers, and allows the judiciary to
                                           7
                                                                       No.     2017AP141-CR



preserve     its    role    as    a   coequal      branch     of   government.         "The
Wisconsin     [C]onstitution           creates       three      separate       coordinate
branches of government, no branch subordinate to the other, no
branch to arrogate to itself control over the other except as is
provided     by the constitution,             and no     branch to           exercise the
power committed by the constitution to another."                          Friedrich, 192

Wis. 2d at 13 (citing State v. Holmes, 106 Wis. 2d 31, 42, 315
N.W.2d 703 (1982)).          For this reason, issues regarding the scope
of inherent authority carry separation of powers concerns, as
defining the inherent authority of courts either too narrowly or
too broadly has the potential to do harm to the separation of
powers    among     the    branches      of       government.        If    the   inherent

authority of courts is defined too broadly, we risk infringing
upon the authority of the legislative or executive branches by
replacing their policy preferences with our own.                              See, e.g.,
Henley, 328 Wis. 2d 544, ¶75 (cautioning courts against invoking
inherent authority "to do whatever they think is 'fair' at any
given point in time.").               If defined too narrowly, however, we
risk     impeding     the        judiciary's        ability     to    carry      out   its
constitutionally mandated functions by giving away portions of
our inherent authority to the other branches of government.
       ¶15   Recognizing the need for caution in this area, we are
careful to invoke inherent authority if, but only if, invocation
is necessary to "maintain [the courts'] dignity, transact their
business,     [and]    accomplish       the       purposes    of     their    existence."
Id., ¶73 (citations omitted).                     In other words, "[a] power is
inherent when it 'is one without which a court cannot properly
                                              8
                                                                    No.      2017AP141-CR



function.'"        Id. (citing State v. Braunsdorf, 98 Wis. 2d 569,

580, 297 N.W.2d 808 (1980)).
      ¶16    With these concerns in mind, "Wisconsin courts have
generally exercised inherent authority in three areas:                              (1) to
guard against actions that would impair the powers or efficacy
of the courts or judicial system; (2) to regulate the bench and
bar; and (3) to ensure the efficient and effective functioning
of the court, and to fairly administer justice."                            Henley, 328
Wis. 2d     544,   ¶73   (citing   City       of   Sun   Prairie       v.   Davis,    226
Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999)).                     Inherent authority
exercised     in   all   of   these    areas       is   necessary      to   enable     the
judiciary to carry out its constitutionally mandated functions

as a coequal branch of government.                  See Friedrich, 192 Wis. 2d
at 16.
      ¶17    The first area in which courts have exercised inherent
authority involves the internal operations of a court.                              Davis,
226 Wis. 2d at 749.           For example, courts have exercised their
inherent authority to prevent the unilateral removal of judicial
assistants     pursuant       to   a   collective         bargaining         agreement,
Barland, 216 Wis. 2d at 566, and to refuse facilities that were
inadequate to carry out a court's business.                      Davis, 226 Wis. 2d
at 749 (citing In re Court Room, 148 Wis. 109, 119-20, 134 N.W.
490   (1912)).       This     authority       is    necessary     to    preserve      the
efficacy of the court system and allow courts to carry out their
constitutional duties.
      ¶18    The    second     area,    regulating         the    bench       and    bar,
includes the inherent authority to discipline members of the
                                          9
                                                                          No.     2017AP141-CR



bar, State ex rel. Fiedler v. Wis. Senate, 155 Wis. 2d 94, 103,

454    N.W.2d        770   (1990),     and    to     resolve       disputes        regarding
representation of a client.             Koschkee v. Evers, 2018 WI 82, ¶12,
382 Wis. 2d 666, 913 N.W.2d 878.                      The inherent authority to
regulate       the    bench     and    bar    is     necessary       to     preserve        the
judiciary's ability to perform its constitutional duties as a
coequal branch of government.
       ¶19     The third area in which courts have exercised inherent
authority, and the area most relevant to this case, involves
"ensuring that the court functions efficiently and effectively
to    provide    the fair administration              of justice."               Davis, 226
Wis. 2d at 749-50 (citation omitted).                      For example, courts have

the inherent authority to hold a person in contempt for failing
to appear, Smith v. Burns, 65 Wis. 2d 638, 645, 223 N.W.2d 562
(1974), to appoint counsel for indigent parties in a child in
need    of     protective      services      (CHIPS)       proceeding,          Joni   B.   v.
State, 202 Wis. 2d 1, 10, 549 N.W.2d 411 (1996), and "to correct
clerical errors at any time."                     State v. Prihoda, 2000 WI 123,
¶17, 239 Wis. 2d 244, 618 N.W.2d 857.                       Without the ability to
exercise       inherent     authority        in    this    area,     courts       would     not
perform their constitutionally mandated functions.                              In all three
of     these     areas,       courts    exercise          inherent     authority          when
necessary to allow them to function as courts.




                                             10
                                                                        No.    2017AP141-CR



                         C.     Sentencing and Probation
     ¶20    We    have    previously       recognized          that   sentencing     is    a
constitutionally          shared        power      among        three     branches        of
government,      and     that    courts    have     the        inherent   authority       to
modify     criminal      sentences        within     certain          narrowly     defined
limits.     State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797

N.W.2d 828; see also Hayes v. State, 46 Wis. 2d 93, 101, 175
N.W.2d    625    (1970),      overruled     on     other        grounds   by     State    v.
Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973).                                Schwind
attempts to widen the scope of this aspect of inherent authority
by framing it as the power to modify criminal dispositions more
generally, thereby adding reduction and termination of probation

to the judiciary's inherent authority.                         The problem with this
framing is that the judiciary's power to sentence and its power
to order probation are distinct powers that come from different
sources.     The judiciary's sentencing power existed at common law
and is a part of the Wisconsin Constitution; the power to impose
probation,       on    the      other    hand,     is      a     statutory       creation.
Probation, as opposed to sentencing, was not incorporated into
the Wisconsin Constitution as a power of the judiciary and it is
not necessary for the judiciary to perform its constitutionally
mandated functions.
     ¶21    Sentencing in Wisconsin is an area of shared power
among the three branches, as the inherent authority of courts to
impose criminal sentences existed at common law prior to the
adoption of the Wisconsin Constitution.                    "It is the function of
the legislature to prescribe the penalty and the manner of its
                                           11
                                                                      No.       2017AP141-CR



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. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772

(1999); see also State v. Borrell, 167 Wis. 2d 749, 769, 482
N.W.2d     883    (1992)    (explaining     that      at    common    law,       Wisconsin
courts "possessed the inherent and discretionary power to punish
violations of law in the absence of a statute prescribing the
punishment.").        The judiciary's power at common law went even
further      than   simply    sentencing        those      convicted      of     violating
criminal statutes; in some cases, courts could punish offenders
for "[c]ommon-law crimes" in the absence of any violation of a
criminal statute.          See id.
       ¶22     Sentencing     was      therefore           understood       to      be    a
constitutionally shared power among the three branches in 1848,
when the Wisconsin Constitution was ratified.                             See id.        The
inherent       authority     to      sentence     a     convicted         criminal       was
therefore implicitly included in the Wisconsin Constitution by
the creation of a "court" system.                See, e.g., Kading, 70 Wis. 2d
at   518     (explaining     that    by   creating      "courts,"         the    Wisconsin
Constitution created the "governmental institution known to the
common law possessing powers characterizing it as a court and
distinguishing it from all other institutions.").
       ¶23     Probation, on the other hand, is a newer concept.                         It
is not something Wisconsin courts had the power to do at common
law, but is instead a statutory creation.                      See, e.g., State ex
rel. Zabel v. Milwaukee Cty. Mun. Ct., 179 Wis. 195, 201, 190
N.W.     121     (1923)    (the   legislature's         passage      of     a    probation
                                          12
                                                                No.     2017AP141-CR



statute in 1909 "confer[red] a new power upon the court——the
power to suspend the execution of the sentence and place the
defendant on probation."); Horn, 226 Wis. 2d at 648 ("[A] court

could not place a defendant on probation" in the absence of a
statute authorizing it to do so.).
     ¶24    Probation is a possible disposition for an individual
who has been convicted of a crime.               Wis. Stat. § 973.09(1)(a);
see also id. at 647.           It is not a sentence; it is an alternative
to sentencing.          Id. at 648.       Probation can be understood as
"supervised, conditional freedom." Neil P. Cohen, The Law of
Probation and Parole § 1:2 (2d ed.).                   In lieu of imposing a
criminal    sentence,         the    legislature       has   chosen     to      allow

sentencing courts to either withhold sentencing, or impose a
sentence    but    stay       its   execution,   and     instead      release    the
individual into the community subject to "any conditions which
appear to be reasonable and appropriate" to the court.4                         Wis.
Stat. § 973.09(1)(a).
     ¶25    We have recognized that "[p]robation is a privilege
extended to a convict by the grace of the state.                      It is not a
right."     State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶39,
353 Wis. 2d 307, 845 N.W.2d 373; see also Edwards v. State, 74
Wis. 2d    79,    83,   246    N.W.2d   109   (1976)    ("Probation     is   not   a
matter of right, rather it is a privilege.").                  "The dual goals


     4 Reasonable and appropriate conditions of probation may, in
the court's discretion, include a period of confinement not to
exceed one year. Wis. Stat. § 973.09(4)(a).


                                         13
                                                                              No.    2017AP141-CR



of probation are 'the rehabilitation of those convicted of crime
and the protection of the state and community interest.'"                                  State

v.   Sepulveda,      119       Wis. 2d      546,        554,    350        N.W.2d    96   (1984)
(citation omitted).            By authorizing courts to give probation in
lieu of a criminal sentence, the legislature gave the courts a
new power to extend the mercy of the state when it decides that
"supervised,        conditional        freedom"          will     best       rehabilitate        a
defendant while adequately protecting the interests of the state
and the community.
      ¶26    In Horn, 226          Wis. 2d         at    647, we       said        probation    is
"within     powers       constitutionally           granted           to    the     judiciary."
However, this general statement must be understood in context.

As   mentioned      earlier,      it   is     the       role    of    the     legislature       to
prescribe penalties, whereas it is the role of the judiciary to
impose penalties within the legislature's prescribed range.                                    For
this reason, we recognized in Horn that "the legislature has
constitutional authority to offer probation as an alternative to
sentencing,"     and      that    "[w]ithout            such    statutory          authority,    a
court could not place a defendant on probation."                              Id. at 648.
      ¶27    Therefore, while sentencing                       and probation have both
been described as shared powers with the legislature, the source
of   the    judiciary's        power     in    these       two       areas     is    different.
Sentencing     is    a    shared       power       because       it        comes    within     the
inherent authority of the judiciary, implicit in the Wisconsin
Constitution     due      to     its   incorporation             of    common       law   as    it
existed in 1848.          Given this deeply rooted historical practice,
we have recognized that courts have inherent authority to modify
                                              14
                                                                    No.    2017AP141-CR



sentences within certain narrowly defined limits.                         See Harbor,

333 Wis. 2d 53, ¶35 (citing State v. Hegwood, 113 Wis. 2d 544,
546, 335 N.W.2d 399 (1983)).
       ¶28     In contrast, probation is a shared power not because
it is a common-law judicial power that was incorporated into the
Wisconsin Constitution, but only because the legislature chose
to permit it.        While courts had the power to impose sentences at
common    law    even   in       the   absence     of   a    legislatively    created
sentencing range, Borrell, 167 Wis. 2d at 769, courts have never
had      the    power       to     impose        probation      without     statutory
authorization.          The       legislature       could      eliminate    probation
completely if it saw fit, Horn, 226 Wis. 2d at 648, because

probation "was unknown to Wisconsin law" prior to its statutory
creation in 1909.           Drinkwater v. State, 69 Wis. 2d 60, 68-69,
230 N.W.2d 126 (1975).             Probation therefore could not have been
incorporated into the Wisconsin Constitution as a power that
"from time immemorial has been conceded to courts because they
are courts," and is not necessary for courts to perform their
constitutionally mandated functions.
       ¶29     This conclusion is confirmed because reducing a term
of probation does not fit within any of the three areas in which
courts       have    traditionally          exercised         inherent     authority.
Regarding the first area, reducing or terminating a period of
probation does not guard against any action that would impair
the efficacy of the court system.                   As mentioned earlier, this
area     involves     the     court's       internal        operations,    which   has
included       the   inherent      authority       to   prevent     the    unilateral
                                            15
                                                                No.    2017AP141-CR



removal of judicial assistants.                See Barland, 216 Wis. 2d at

566.       Reducing a probation term does not guard against actions
that would impair the efficacy of the courts.              Second, the power
to reduce a probation term is not related to regulating the
bench and bar.
       ¶30    Third,   the   power   to    reduce   probation    terms    is   not
necessary to ensure "the efficient and effective functioning of
the    court," or "to fairly administer             justice."         Henley, 328
Wis. 2d 544, ¶73.       As mentioned earlier, the powers exercised in
this area, such as appointing counsel to indigent parties or
correcting clerical errors,5 are necessary to enable the court to
effectively and efficiently resolve the disputes before it.                     In

contrast, the power to reduce a term of probation can come into
existence only after the circuit court has resolved the matter
before it.      A court that has placed a defendant on probation has


       5
       Our conclusion that courts do not have the inherent power
to reduce or terminate a term of probation does not mean that
courts are unable to correct clerical errors in judgments of
probation.   As we have previously explained, "the law is clear
that a court has the power to correct clerical errors at any
time." State v. Prihoda, 2000 WI 123, ¶17, 239 Wis. 2d 244, 618
N.W.2d 857. Correcting a clerical error in a judgment does not
constitute a modification of that judgment; rather, it is simply
a correction of the record to reflect the judgment the circuit
court actually rendered.   See, e.g., Hoffman v. State, 88 Wis.
166, 174, 59 N.W. 588 (1894) ("the court has power, after the
term, to correct a mistake in the entry of its judgment, so as
to   make   the   record  conform  to   the   judgment   actually
pronounced"); accord, Prihoda, 239 Wis. 2d 244, ¶17 n.9.      For
this reason, courts have always had, and continue to have, the
inherent   authority   to  correct  clerical   errors  in   their
judgments.


                                          16
                                                                                    No.     2017AP141-CR



either chosen to withhold sentencing, or has chosen to impose a
sentence and stay its execution.                            Wis. Stat. § 973.09(1)(a).                 In
either    case,          "[t]he         adversary       system      has    terminated           and    the
administrative process, vested in the executive branch of the
government,         directed             to     the    correctional           and    rehabilitative
processes          of        the        parole        and    probation        system        has       been
substituted in its place."                       Horn, 226 Wis. 2d at 650.

       ¶31     Likewise, the power to reduce or terminate a term of
probation is not necessary to fairly administer justice.                                                As
mentioned earlier, "[p]robation is a privilege extended to a
convict       by    the       grace       of     the    state.        It      is     not    a   right."
Wiedenhoeft, 353 Wis. 2d 307, ¶39.                               This said, while the power
to    reduce       a     criminal             sentence      in    limited       circumstances           is
necessary for courts to fairly administer justice, the same is
not true of the power to reduce probation.                                     An individual who
has    been    erroneously               sentenced          based   on    the       circuit     court's
ignorance of a new factor has been unjustly given a greater
punishment than he is due.                       In contrast, an individual placed on
probation is already receiving the discretionary privilege of
the State's mercy, and cannot similarly argue that the failure
to    extend       him       more       mercy    is     a   failure      to    fairly       administer
justice.
       ¶32     The legislature has the power to completely eliminate
the    availability                of    probation          without      infringing          upon     the
courts' constitutional duty to fairly administer justice.                                               It
follows that the legislature may place reasonable limits on the
availability            of    probation          without         interfering         with    the      fair
                                                       17
                                                                                No.    2017AP141-CR



administration of justice.                   "The fair administration of justice
is not a license for courts, unconstrained by express statutory
authority, to do whatever they think is 'fair' at any given
point in time."           Henley, 328 Wis. 2d 544, ¶75.

       ¶33    For these reasons, we conclude that courts do not have
the inherent authority to reduce a term of probation.                                    In doing
so, we continue construing the judiciary's inherent authority
narrowly.        See id., ¶74            n.28     ("early cases invoked                  inherent
authority      more       often    because        the       procedural       rules      governing
courts were somewhere between non-existent and non-exhaustive.
See generally Thomas O. Main, Judicial Discretion to Condition,
79 Temp. L. Rev. 1075, 1111–15 (2006) (noting generally that the

scope of a court's inherent authority is inversely related to
the    breadth      of    procedural         statutes         and       rules    the    court     is
subject to).         As federal and state courts became subject to more
comprehensive         rules       [],      the        need        for     inherent      authority
lessened.").
       ¶34    In this case, Schwind's petition for early termination
of    probation      is    not     based     on       the    circuit       court's      statutory
authority      to    discharge         him     from     probation          under      Wis.     Stat.
§ 973.09(3)(d).           It is undisputed that he has failed to satisfy
at    least    three        of     the     statutory          requirements            under     this
section.      That       is,     the     department           of        corrections      did    not
petition the court to discharge him from probation; he violated
the conditions of his probation; and he is required to register
as a sex offender under Wis. Stat. § 301.45.                                    He has instead
asked    the     circuit         court    to      use       its    inherent       authority       to
                                                 18
                                                                            No.       2017AP141-CR



terminate his probation early.                     As we have concluded, however,
circuit courts have no such power.                       Section 973.09 provides the
sole basis for a circuit court's power to reduce or terminate a
term of probation.            Because probation was created by statute and
Schwind    cannot       meet    the     requirements           of    § 973.09(3)(d),              the
circuit court has no power to terminate his probation.
                                  III.       CONCLUSION
     ¶35       We conclude that the circuit court does not have the
power     to    grant       Schwind's     motion         for    early       termination           of
probation.        Inherent authority of courts consists of only those
powers that are necessary for the judiciary to accomplish its
constitutionally mandated functions and preserve its role as a

coequal        branch    of    government.               Probation       is       a       statutory
creation,       and     the   power     to   reduce        or       terminate         a    term   of
probation       is    not     necessary      for     courts         to   accomplish           their
constitutionally            mandated     functions.                 Therefore,            Wisconsin
courts do not have the inherent authority to reduce or terminate
a period of probation.             Accordingly, we affirm the decision of

the court of appeals.
     By    the       Court.—The    decision         of    the       court   of        appeals      is
affirmed.
     ¶36       SHIRLEY S. ABRAHAMSON, J., withdrew from participation
before oral argument.




                                              19
                                                                        No.   2017AP141-CR.rfd


      ¶37   REBECCA          FRANK     DALLET,          J.     (concurring        in     part,
dissenting       in    part).         The   questions          before     this    court    are
twofold:     (1) May a circuit court reduce a term of probation as
an   exercise         of    its   inherent         authority      to     efficiently       and
effectively function and to administer justice fairly?                                 And, if
so, (2) What limitations should be placed on a circuit court's
inherent authority to reduce a term of probation?                              The majority
opinion makes the sweeping conclusion that circuit courts have
no inherent authority over probation because it is a statutory

creation.     I respectfully disagree.                       I conclude that a circuit
court may reduce a term of probation as an exercise of its
inherent authority to efficiently and effectively function and
to   administer        justice       fairly.        I   further     conclude       that    the
exercise    of    a        circuit    court's      inherent       authority       should    be
circumscribed by the goals of probation:                            rehabilitating the
defendant and protecting the public.

      I.    A circuit court may reduce a term of probation as
            an exercise of its inherent authority to ensure
            the court functions efficiently and effectively
            and administers justice fairly.
      ¶38   Our jurisprudence defines the inherent authority of a

circuit court as the power that is "necessary to enable courts
to accomplish their constitutionally and legislatively mandated
functions."       State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544,

787 N.W.2d 350 (citing State ex rel. Friedrich v. Circuit Court
for Dane Cty., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)).                                    In
other words, inherent authority is authority without which the
court cannot function.                Relevant to this case, circuit courts


                                               1
                                                                          No.      2017AP141-CR.rfd


have exercised inherent authority "to ensure the efficient and
effective functioning of the court, and to fairly administer
justice."        Henley, 328 Wis. 2d 544, ¶73.

       ¶39      Within       its    function       to        administer      justice,        circuit
courts are called upon to impose a disposition when sentencing
persons convicted of crimes, whether that disposition results in
a   "sentence"         of     confinement         or    the    imposition       of    a    term   of
probation.            See State v. Horn, 226 Wis. 2d 637, 647-48, 594
N.W.2d 772           (1999)    (reasoning          that       probation      "is      so     closely

related to sentencing as a possible criminal disposition" and
that       it   falls       within       the    shared        powers    of      the    executive,
legislative, and judicial branches).                           Courts impose probation to
further the goals of rehabilitating the defendant and protecting
society without placing the defendant in prison.                                   See State v.

Gray, 225 Wis. 2d 39, 68, 590 N.W.2d 918 (1999).                                   To accomplish
these       goals,        circuit        courts        are    empowered       by      Wis.     Stat.
§ 973.09(1)(a) to fashion the terms of probation to meet the

rehabilitative            needs     of    the     defendant.           State     v.    Hays,      173
Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992).
       ¶40      This court has held that inherent within the probation
statute         is    a     circuit       court's        continuing       power       to      modify
probationary terms to effectuate the goals of rehabilitation of
the defendant and protection of society.1                              State v. Sepulveda,

       1
       According to the majority opinion's reasoning, the circuit
court may for cause modify the terms of probation to discontinue
all probationary services pursuant to Wis. Stat. § 973.09(3)(a),
yet has no inherent authority to reduce the term of probation.
This leads to an absurd result.


                                                   2
                                                                  No.    2017AP141-CR.rfd


119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984).                       We have upheld the
exercise of a circuit court's authority to modify the conditions
of probation where the intent of probation is frustrated by a
court-ordered condition not being met.                       Id. at 556; see also

Gray, 225 Wis. 2d at 69.               It is necessary, therefore, that
circuit courts also have the inherent authority to reduce a term
of probation once the intent of probation is satisfied.
       ¶41    The majority opinion concludes that a circuit court
has no inherent authority to reduce a term of probation for the

following reasons:           (1) probation is a statutory creation and
therefore only the statute provides the parameters of how it may
be    imposed;   (2)   the    source    of      the     circuit    court's     inherent
authority to impose probation or a sentence comes from the way
in which those dispositions were imposed at common law; and (3)
probation already confers upon an individual "the discretionary
privilege of the State's mercy" such that no other mercy should
be granted.       Majority op., ¶31.                 I address each argument in

turn.
       ¶42    First and foremost, a statute cannot limit the circuit
court's      inherent authority.        The          issue   of whether      a circuit
court has the statutory authority to reduce a term of probation
was already decided by this court in State v. Dowdy, 2012 WI 12,
¶4, 338 Wis. 2d 565, 808 N.W.2d 691 (Dowdy II).                         The unanswered
question in Dowdy II was whether the circuit court has inherent
authority to reduce a term of probation, the question now before
us.     To the extent that Wis. Stat. § 973.09 denominates the
disposition      of    probation,      it       is    no     different     than    other

                                            3
                                                                    No.    2017AP141-CR.rfd


dispositions enacted by the legislature, leaving to the courts
the    function of imposing those dispositions.                           See Horn, 226

Wis. 2d at 646.       While the majority opinion points to the fact
that probation is within the powers that the courts share with
the legislature, the fact that this power is shared does not
diminish      the   circuit       court's       authority      to     accomplish             its
constitutionally      and     legislatively           mandated   functions             and    to
exercise its inherent authority in doing so.                          See id. at 643
("Each    branch,    separate      but   co-equal,        is   not        subordinate         to

another, no branch to arrogate to itself control the other.")
       ¶43    Second, the majority distinguishes the circuit court's
inherent authority to reduce a sentence from that of probation
based upon an assumption that only sentencing existed at common
law.     Although the genesis of our modern adult probation system
was approved by the governor in 1909 and codified at Chapter 541
of the Wisconsin Laws of 1909, there are historical analogues to
modern day probation.           See Edwin C. Conrad, Commentaries on the

Wisconsin Law of Probation, 29 Am. Inst. Crim. L. & Criminology
449    (1938-1939)   (commenting         that     despite      the    lack        of   power,
prior to the enactment of the present probation law, Wisconsin
courts had repeatedly suspended sentences in order to give a
defendant a chance to improve his or her behavior).                               Probation
as a dispositional alternative is thus not necessarily, as the
majority assumes, a "newer concept."                  Majority op., ¶23.
       ¶44    Moreover,     the   common        law   authority       of    a     court       to
modify    a   sentence    was     extremely       limited      and        could    only       be
exercised during the court's term, as defined by statute, and

                                            4
                                                                   No.    2017AP141-CR.rfd


before the sentence had commenced.                    Hayes v. State, 46 Wis. 2d

93, 105, 175 N.W.2d 625 (1970), abrogated on other grounds by
State v. Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973).                            In
Hayes,      this    court    held    that       the     circuit    court's        inherent
authority to amend, modify, and correct a judgment of sentence
extends beyond the authority to do so at common law.                            Hayes, 46
Wis. 2d at 101.             Likewise, the circuit court's authority to
reduce a term of probation should not be constricted by the
common law imposition of that disposition.

      ¶45    Finally, the majority concludes that a circuit court's
ability to reduce a term of probation is not necessary to fairly
administer justice because a probationer has already used up
their allotment of mercy granted by the State by being placed on
probation in the first place.                   Based on this reasoning, the
majority would thus deny the circuit court inherent authority to
reduce   a    term     of   probation   even          where   a   similarly       situated
individual seeking sentencing modification would be entitled to

a sentence modification.            For example, a person serving a prison
sentence who cooperates with law enforcement may be entitled to
a   sentence       modification     whereas      a    probationer        who    cooperates
would not.         Likewise, applying the majority's reasoning, if the
circuit court relied upon incorrect information at sentencing, a
defendant sentenced to jail or prison would be entitled to a
sentence modification whereas a defendant placed on probation
would not.         This is far from administering justice.                     I therefore
dissent and conclude that a circuit court may reduce a term of
probation      as     an    exercise    of       its      inherent        authority     to

                                            5
                                                                No.   2017AP141-CR.rfd


efficiently and effectively function and to administer justice
fairly.

      II.    The exercise of the circuit court's inherent
             authority to reduce a term of probation should be
             circumscribed by the dual purposes of probation:
             rehabilitation of the defendant and protection of
             the public.
      ¶46    The inherent authority of a circuit court to reduce a
term of probation must be limited to only the power necessary to
ensure the efficient and effective functioning of the court and
the fair administration of justice.                 The State argues, and the
court of appeals agreed, that if this court recognizes a circuit
court's inherent authority to reduce a term of probation, the
circuit court should use the same criteria as a court evaluating
a request to modify a sentence.                   State v. Dowdy, 2010 WI App

158, ¶31, 330 Wis. 2d 444, 792 N.W.2d 230 (Dowdy I).                        To prevail
on a motion to modify a sentence, a defendant must show either:
a clear mistake or illegality, identification of a new factor,
or   undue    harshness   or    unconscionability.             Id.,    ¶28.      A    new
factor is defined as one the circuit court could not or did not
consider     at    sentencing       but   should   now   consider      in     order    to
fulfill      the   purpose     of     the   original     sentence.            State    v.
Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524,
abrogated on other grounds by State v. Harbor, 2011 WI 28, 333
Wis. 2d 53, 797 N.W.2d 828.
      ¶47    Because    sentencing          and    probation     serve        different
purposes, constraining a circuit court's authority to reduce a
term of probation in the same way that it modifies a sentence is

an attempt to put a square peg in a round hole.                       There are four

                                            6
                                                                           No.    2017AP141-CR.rfd


main     purposes            of     sentencing:             deterrence,          rehabilitation,
retribution, and segregation.                         Dowdy II, 338 Wis. 2d 565, ¶97

(Abrahamson, C.J., dissenting).                            Finality after sentencing is
crucial       to        assure          that    the       purposes    of    retribution          and
deterrence are met.                     Crochiere, 273 Wis. 2d 57, ¶21; State v.
Loomis, 2016 WI 68, ¶96, 371 Wis. 2d 235, 881 N.W.2d 749.                                        The
goal of sentence reduction is thus backward-looking in order to
correct unjust sentences.                      See State v. Kluck, 210 Wis. 2d 1, 8-
9, 563 N.W.2d 468 (1997).                        A circuit court's consideration of

rehabilitation as a reason to modify a sentence interferes with
finality and payment of the debt a defendant owes to society and
is     therefore         not      a     "new     factor"      for    purposes      of    sentence
modification.            Id. at 7; see also Jones v. State, 70 Wis. 2d 62,

72, 233 N.W.2d 441 (1975); State v. Wuensch, 69 Wis. 2d 467,
477, 230 N.W.2d 665 (1975).
       ¶48    In         contrast,             probation       is     forward-looking            and
therefore          a    defendant's            actions      post-sentencing         necessarily

inform       any       modification.              The      purpose    of   probation       is     to
"protect      the        public         from    criminal      conduct      and     to   help     the
probationer            become       a    useful      member    of    society."          Wagner    v.
State,       89    Wis.        2d       70,    77,    277     N.W.2d 849     (1979).           Once
rehabilitation is achieved, the purposes of probation are served
and its term should end.                       Because of the differing purposes of
sentencing             and    probation,          constraining         a    circuit       court's
authority to reduce probation in the same way that it modifies a
sentence would not further the purposes of probation and would



                                                      7
                                                                            No.    2017AP141-CR.rfd


provide          no   meaningful        ability        for     a    defendant        to     seek    a
reduction in the term of probation.
        ¶49       Schwind argues that, similar to the circuit court's
ability          to   modify     the   terms       and    conditions         of    probation,      a
circuit court's inherent authority to reduce a term of probation
should be circumscribed by the "for cause" standard.                                      See Wis.

Stat. § 973.09(3)(a) ("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.")            "[F]or cause," however, must be defined narrowly to
provide guidance to the circuit court and limit the potential
for abuse.            See Dowdy I, 330 Wis. 2d 444, ¶27 (noting that a

circuit court's inherent authority is "limited").                                  A requirement
that a defendant show by clear and convincing evidence that the
goals       of    probation      have       been   met       adequately       circumscribes        a
circuit court's inherent authority to reduce a term of probation
and furthers the efficiency and effectiveness of the courts and

the fair administration of justice.
      ¶50         As of June 30, 2018, 66,196 people were on community
supervision           in   the     state      of       Wisconsin.           See     Division       of
Community         Corrections, Wis.           DOC,       2018 A          Year in     Review (Dec
2018),           https://doc.wi.gov/DataResearch/DataAndReports/DCCYearIn
Review.pdf.           Over 32 million dollars was spent in 2018 alone to
purchase          products       or    services          for       the     benefit     of     these
individuals.           Id.     Once the dual goals of probation are met, it
is not only in the interest of each individual defendant, but
also in the interest of society, to reduce a defendant's term of

                                                   8
                                                              No.   2017AP141-CR.rfd


probation thereby freeing up precious resources to better serve
others in our community.
     ¶51   If the inherent authority of the courts is defined too
narrowly, "we risk impeding the judiciary's ability to carry out
its constitutionally mandated functions by giving away portions
of our inherent authority to the other branches of government."
Majority op., ¶14.         The majority eliminates a circuit court's
inherent authority to reduce a term of probation and, in so
doing, gives away necessary power of the court to administer

justice fairly.        I conclude that in order to efficiently and
effectively function and to fairly administer justice, a circuit
court has the inherent authority to reduce a term of probation
where a defendant has been rehabilitated and therefore the goals
of the probation disposition have been achieved.
     ¶52   Lastly,     I   concur   in   part      in   affirming    the      circuit
court's decision.       The circuit court stated that even if it had
the inherent authority to reduce Schwind's term of probation,

early termination of probation was not warranted in this case.
In   making    this    determination,        the    circuit     court      did     not
erroneously exercise its discretion.                Therefore, I concur with
the majority opinion in affirming the circuit court's decision
to deny Schwind's motion to reduce his term of probation.
     ¶53 For the foregoing reasons, I concur in part and dissent
in part.
     ¶54   I   am     authorized    to   state      that   Justice      ANN      WALSH
BRADLEY joins this concurrence/dissent.



                                         9
    No.   2017AP141-CR.rfd




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