State v. Davis

HEFFERNAN, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals dated November 13,1984, summarily affirming an order of the circuit court for Milwaukee county, Ralph G. Gorenstein, circuit judge, which, on November 15,1983, extended the probation of Thelmer Davis1 for a third time. We reverse and remand to the circuit court, with directions to terminate Davis' probation supervision. We conclude that the trial judge abused his discretion in deciding to extend the probation period, because he based that decision on Davis' alleged failure to comply with conditions of her probation when those conditions had never before been explicitly stated by the court to be necessary for the satisfactory completion of the probation term.

The record demonstrates that, in 1974, Thelmer Davis was charged with the failure to report income while a recipient of assistance from the Milwaukee County Department of Public Welfare in violation of sec. 49.12 (6), Stats., a felony. After a jury trial, she was found guilty on November 24, 1975. She was placed on probation:

*488. . for the period of 5 years in the custody and control of the Department of Health and Social Services2 subject to its rules and orders and subject to the following conditions [none stated].
"As a further condition of probation the defendant shall make payments in such manner as the Department shall direct as follows: Restitution $1467.00." Emphasis supplied.3

*489Davis was supervised by the probation agent of the Department of Health and Social Services from the date of conviction forward. In 1980, as the end of the five-year probationary period approached, Davis' agent advised the court, again presided over by Judge Gorenstein, that the probationary period should be extended by one year. He reported that, in the interim following the original conviction, Thelmer Davis' husband had, in 1978, been sentenced to the state penitentiary and since that time Davis was the sole source of support of the couple's three children, whose ages were four, nine, and eleven.

The probation agent emphasized that Davis had a steady job and, despite the imprisonment of her husband, the marriage was a stable one and that she was a good mother to her three children. The report revealed that Davis had only paid $105 during her first two years of supervision, but during that period she had been absent from work for two periods of maternity leave. The agent reported that Davis stated she had never been told by the probation department during the first two years to pay more toward her restitution obligation.

It apparently was not until January of 1980, according to the probation authorities, that any attempt was made to analyze Davis' expenses to determine what amounts, in light of her circumstances, she ought to be paying. A budgeting counsellor advised the probation authorities that Davis was "using her money wisely."

On the basis of the budgeting counsellor's analysis, Davis' probation agent concluded that Davis ought to have been paying $15 a month in satisfaction of her restitution obligation for the entire period of her probation. He concluded that, although her more recent performance was satisfactory, he could not characterize her payment pattern during the first two years as evidence of a good-faith effort. It was only that apparent lack of effort during the first two years of supervision that impelled the probation agent to suggest that the court continue Davis *490on probation. He characterized her general rehabilitative status by stating:

"[SJince this agent began supervising her case in November of 1978 approximately there have been no serious adjustment problems on supervision. That is, Miss Davis maintains steady employment, a suitable place of residence, and provided for her family as best she could."

This same report, dated November 17, 1980, stated that the department did not learn until 1979, almost four years after the imposition of probation, that the judge required Davis to pay attorney's fees in the amount of $420. The agent's report stated that Davis, upon learning this, was "quite upset," because she had been told, because she was found indigent, she would be furnished counsel at no expense to herself.

The agent, nevertheless, recommended that the period of supervision be continued for one year and that Davis be expected to make monthly payments of $20.

The record supplied on this review fails to show the order entered subsequent to the hearing on the probation agent's petition, but the journal entries in the judgment roll, dated November 18, 1980, recite:

"Court ordered probation extended for one (1) year and further ordered defendant to pay 10% interest per year on unpaid restitution."

In November of 1981, Davis was returned to court. The judge continued the probation for two years and, without any explanation or rationale appearing in the record before us, told the defendant to increase payments or be sent to jail. This decision was reached despite the recommendation of the probation officer that supervision be discontinued.

On November 15, 1983, Judge Gorenstein extended the period of probation for another two years despite the *491renewed recommendation that probation be discontinued.4 The judge, for the ñrst time, stated that, if the defendant did volunteer work, such work could be counted in credit of her obligation at the rate of $2 per hour. Upon proof being submitted of volunteer work over a number of years, the court stated that credit for volunteer work would be allowed only subsequent to November 15,1983.

On March 19,1984, a notice of appeal to the court of appeals was filed. The court of appeals in a brief per curiam decision affirmed the trial court's order. Petition to review the decision of the court of appeals was granted by this court.

We reverse because of the abuse of discretion by the trial court because, without any analysis of the case itself, except in a most perfunctory way, it altered the terms of the probation and failed to apply in a reasoned manner the principles of Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978).

The defendant was led to believe that, were she to conform to the terms of her probation as set by her probation officer during the terms of her probation, she would be complying with the conditions of her sentence. Yet, in respect to the crucial extension of the sentence, despite the fact that she had been doing everything that was explicitly required of her, she was told by Judge Gorenstein that she would have to get a second job or go to prison to serve a five-year term.

The trial judge's attitude evidencing an abuse of discretion is demonstrated by the transcript. At the very out*492set of the hearing that took place on November 15, 1983, Judge Gorenstein, prior to any statement of the facts, prior to any perspective on the case being furnished by counsel, commenced the substantive portion of the hearing with the statement, "I never do it." This statement was made without either the probation officer, the defendant, or defendant's counsel having an opportunity to be heard. From the very start of the hearing, the trial judge made it clear that no recitation of the facts, no consideration of the circumstances, and no review of the history of the case would impel him to even consider the request of counsel for the probation department for termination or modification of the probation, even though defendant's counsel and the probation officer were prepared to permit the execution of a wage assignment by Davis to make the department of public welfare whole for payments made to Davis. The hearing was made a sham when the trial judge at its very beginning made it clear that he would refuse to respond to, or consider, the circumstances of the case before him.

While restitution had been ordered from the outset, no attempt had ever been made by the judge to determine whether, in the initial probation periods, restitution in reasonable amounts was scheduled or whether the payments could, or should, be made by a young woman who was the sole support for three minor children. Due to judicial neglect, the defendant was set to embark upon a program of restitution which — even if carried out to the letter under Judge Gorenstein's approach to the problem— would only have resulted in repeated additional periods of supervision. Despite the fact that the public welfare department had realistically appraised Davis' capacity to make restitution and had earlier recommended that probation be terminated, the trial judge unrealistically persisted in continuing supervised probation when it was obviously not contributing to either the rehabilitation of the defendant or in making the county whole.

*493Thelmer Davis has been kept on probation for a period of ten years. Except for the first two years after her conviction — a period during which there appears to be little evidence of supervision over her or any guidance to help her — the defendant has usually made her payments on schedule. During the entire period she has been employed at a responsible job and has taken care of her family despite the fact that her husband was in prison. Most of the probationary period, she has single-handedly supported the family and has avoided any further entanglements with the law. Yet the court, at this late date, ten years after the original probation, in the hearing of November 15, 1983, stated:

"She took the money to begin with. She was found guilty by the jury. That's it, no more argument. I want to review this matter in 90 days and if she hasn't got her a second job or made some contribution, she's going to jail."

This statement was made by the trial judge in respect to an employed woman, who was supporting minor children, and who was complying fully with the orders of her probation officer and making restitution as required by the court's previous order.

The transcript reveals the following:

"THE COURT: . . . You've got one year to make it up, and you're either going to do it through volunteer work, $2 an hour, or pay it plus interest.
"MS. HARWICH: Judge, that’s not even the minimum wage, $2 an hour.
"THE COURT: Well, volunteer work is not — I'm not going to give her the same credit as if she's out there. She can go out there and get a Saturday job and get her obligations done. She took the money to begin with. She was found guilty by the jury. That's it, no more argument. I want to review this matter in 90 days and if she hasn't got her a second job or made some contribution, she’s going to jail.
*494"THE CLERK: February 21, 1984 at 9 o'clock.
"MS. HARWICH: Would you wait a moment.
"THE COURT: It should have been paid five years ago.
"MS. HARWICH: Can we wait and see if that day is agreeable for me, please.
"THE COURT: Extend probation for cause for another year. Two years.
"THE CLERK: 2/21/84, 9 o'clock.
"THE COURT: Add the interest on, Mr. Pas-necker so it was ordered back in 1980 — Take it to your friendly bank. They will figure it out."

It should be remembered that the portion of the hearing was subsequent to the urgings of the probation department requesting that probation be terminated because the objective of probation had been satisfied. The crucial recommendation made by the probation department provided:

" Recommendation : Thelmer has made an excellent adjustment to probation supervision, and, given the extensions that have occurred thus far, she has been on probation supervision for a period of eight years. It is felt that during this time she has made a good faith effort toward the payment of court obligations, given the competing demands on her family income. Furthermore, the total amount that she has paid in thus far falls only $298.48 short of full payment of the entire amount of restitution. Therefore, in accordance with the criteria outlined in the Huggett5 case, it appears unreasonable to extend Thelmer's probation any further. She has already been extended three years beyond the original term as handed down by the court on 11/24/75. Furthermore, since practically all of the restitution has been paid, it is felt that an extension of probation for the payment of costs and attorney *495fees is unnecessary. Therefore, it is requested that the court ordered condition of probation requiring payment of the remaining balance of court obligation be removed."

It is clear that it was only after Davis had been on probation for over eight years that the judge informed her that any volunteer work could be done in satisfaction of her restitution obligation. Had she been so informed earlier of this alternative, her obligation might well have been satisfied at an earlier time, for community work of the nature so tardily approved had been performed by Davis on a volunteer basis over a period of years prior to Judge Gorenstein's recognition of it.

The court of appeals stated that implicit in the trial court's decision is a finding that the probationer would have had the ability to pay if she had made a good-faith effort to secure another or second job. This legal proposition is contrary to Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978), where this court recognized that it was possible for a probationer to make a good-faith effort to make restitution yet still be unable to pay the money owed. If such a finding was implicit in Judge Gorenstein's order, the finding was not based on the appropriate legal standard of Huggett and, hence, is in itself an abuse of discretion. See, State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968). Implicit or not, the finding and the resulting order constituted an abuse of discretion in the circumstances here where Davis has made regular payments as directed in the amount thought appropriate by her probation officer and previously approved by the trial judge. Never before this final hearing, insofar as the record reveals, had Davis ever been informed that she was required to secure a second job or was she apprised of the fact that she would be given monetary credits toward her indebtedness by volunteer community work. It was capri*496cious for the court, eight years after the original probation order, to change the rules of probation and subject Davis, who was already — the record reveals — working overtime to support her family, to the requirement of assuming the burden of a second job or to impose an alternative requirement of "volunteer" work. Had the alternative been posed in the original order, it may well have aided Davis in her rehabilitation. The trial judge concluded that only if Davis was working at a second job could he consider her effort to be in good faith. This bit of judicial philosophy was imparted to the probationer for the first time in 1983.

In the instant case, the original probation period of five years was extended three times by the trial judge, for a total period double the maximum term of imprisonment for the original offense. In each case of extension of probation, the defendant substantially complied with the terms of probation, not only in terms of paying the restitution ordered by the probation department, but also in otherwise conducting herself in an exemplary manner. The record clearly showed that, in response to the court's order, Davis was paying the maximum possible toward restitution. In fact, the record showed that the payment of the ordered restitution caused her to fall behind in payment of the necessities of life for her family. A study by the Consumer Budget Counseling Service of Milwaukee undertaken at the request of the probation agent concluded that Davis could pay no more than $15 per month, that she was using her money wisely, and that she had no need of financial and debt counseling. The probation agent concluded that she could pay $15 per month toward the discharge of her debt. This she substantially did following the conclusion of the Budget Counseling Service report in 1980. The probation agent in his 1980 report commented, "Miss Davis maintains steady employment, a suitable place of residence, and provided for her family as best she could."

*497In the probation agent's report to the trial judge dated October 24, 1983, he stated:

"Thelmer has made an excellent adjustment to probation supervision, and . . . has been on probation supervision for a period of eight years . . . during this time she has made a good faith effort toward the payment of court obligations, given the competing demands on her family income."

The probation agent’s recommendation that the supervision of Davis be terminated was rejected by Judge Gorenstein.

This court has specifically stated that the criminal justice system should not be employed to perform the functions of a collection agency (Huggett v. State, 83 Wis. 2d at 804), but it appears that that was precisely the function imposed upon the court in this case by Judge Goren-stein. We see no reason why the criminal justice system in these circumstances, where Davis has repeatedly and continuously demonstrated good faith, should not relinquish its hold upon Davis.

If, as it appears, she is indebted to the county welfare authorities, further criminal sanctions for the enforcement of a debt are inappropriate, although an agreement may be worked out to satisfy Davis' civil liabilities to the county welfare authorities. As stated above, such an agreement had been prepared by Davis' counsel and the county's attorney for presentation to the court in November of 1983. We conclude that it is inappropriate, however, to further continue criminal sanctions for the collection of what is acknowledged to be a debt, In Huggett, supra at 798, this court noted the dual goals of probation are " 'the rehabilitation of those convicted of crime and the protection of the state and community interest.'" Debt collection per se should not be facilitated by continuing the criminal process of supervision when the rehabilitative purposes have been accomplished and, as in this case, *498when a reasonable alternative for the payment of restitution has been proposed by the defendant and the probation department.

The record reveals that Davis is gainfully employed and has held the same responsible job for over ten years. The record fails to reveal any failures on probation or criminal conduct whatsoever during the almost ten-year period of probation except for the fact that she has not been able to make restitution in full during that period. It would appear that all of the purposes of the criminal law have been satisfied in the proceedings to date. To the extent that Davis has a monetary obligation, and she does, it is civil in nature — she owes money to the county. To the extent that she has perpetrated a fraud upon the county, she has been punished by a ten-year period of supervision. The record reveals that it is only because of the obligation to make monetary restitution that the probation continues. As this court stated in Huggett, supra at 803:

"If the probationer lacks the capacity to pay and has demonstrated a good faith effort during probation, failure to make restitution cannot be 'cause' for extending probation."

It is apparent that the trial judge, over the objections of the probation department, after the rehabilitative function of probation has been accomplished, is attempting to use the criminal law system for the collection of a debt. Section 973.09(3)(b), Stats., a portion of the laws enacted subsequent to the commencement of Davis' term of probation, requires that:

"A probationer shall not be discharged from probation until payment of the ordered restitution ... or the court determines that there is substantial reason not to continue to require payment."

*499Under the circumstances here, the continuation of probation for that purpose alone constitutes an abuse of discretion. The record teems with substantial reasons why the court should not have continued the probation period to compel payment of restitution. The defendant should be discharged from probation.

While this court in general accepts cases only if they are likely to be of significant precedential importance, we conclude that this case fits that category because it demonstrates the improper use of the criminal process to collect what eventually became no more than a civil debt. Additionally, we wish to make it absolutely clear that conditions of probation, from the outset, should not be altered except in circumstances that evidence the appropriate exercise of judicial discretion.

The reports of the probation department uniformly reflected that the defendant was conforming herself to the requirements of law. To the extent that reports of the Department of Public Welfare can reveal such facts, she was leading an exemplary life. For a period of eight years, she has been in substantial compliance with the requirements of conduct and repayment of the debt as outlined by the probation department. Her obligation to the welfare department was debt — simpliciter. The fulminations of the trial judge threatening her with a return to jail unless she secured an additional job were absurd — absurd because the expressly stated threat was that, because Davis was paying her debt to the county at a rate at which the probation department had set and previously had been approved by the court, but which the judge now thought insufficient, she should be sent to jail. The record reveals that Davis is living a law-abiding and productive life, supporting herself and her children.

This record demonstrates an instance where continued probation based on an altered definition of "good faith" during the probation period would severely under*500mine the probationer's prospect and expectation of rehabilitation which had been established by faithfully following the requirements as originally set. To extend her probation beyond a period that is now more than double the maximum sentence she could have received is unreasonable where the only deficiency is recognized as a mere debt. To threaten her with jail is to use the criminal law system to collect what even this particular judge earlier recognized in the same proceedings as a debt.

The decision of the court of appeals affirming the order of the circuit court should be reversed. Upon remand to the circuit court, Thelmer Davis should be discharged from further supervision. To the extent that her earlier adjudication of fraud constitutes a finding of indebtedness to the county, such indebtedness at this juncture is enforceable only by civil remedies.

By the Court. — The decision of the court of appeals is reversed. The case is remanded to the circuit court, and it is directed that the circuit court discharge the defendant Thelmer Davis from further supervision arising out of her conviction for violation of sec. 49.12(6), Stats., entered by the circuit court for Milwaukee county on November 24, 1975.

In the record the defendant is variously referred to as Thelma or Thelmer. Moreover, her surname appears not only as Davis, but as Lock. We accept the name used by the petitioner in the appeal and review briefs — Thelmer Davis.

We emphasize that the order placed full custody and control in the Department of Health and Social Services. We also emphasize that, under the verbiage of this order, a probationer could very well conclude that only the Department of Health and Social Services need be satisfied. While this is clearly incorrect, this case illustrates the importance of clarity in imposing rules for probation and clarity in respect to who is setting the conditions of probation.

All of the probation reports incorporate the following understanding of the terms of probation:

"Original Term of Probation: 5 years (Sentence was apparently imposed and stayed but exact nature of the sentence as indicated on the court order is not clear)."

There is a recurring reference to a two-week initial incarceration in the county jail. However, that portion of the original order was struck out, by whom the record does not demonstrate. Whether that term of incarceration was imposed or whether it was served is not clear. This uncertainty of provisions of the sentence and the conditions of probation permeates the record as a whole and demonstrates the failure of the court from the time of the conviction onward to set down with specificity the sanctions to be imposed and the conditions of probation with a minimally acceptable degree of clarity and precision. The journal entry on the day of sentencing, November 24, 1975, reflects that the trial judge ordered "restitution of costs." It can be surmised that what was intended was restitution and costs or perhaps merely payment of costs. The actual monetary charge for legal defense was not noted in the journal until December 9, 1975. There is nothing in the record to show that Davis was ever apprised of the existence of an amount of these costs for legal fees until near the end of the first five years of probationary supervision.

Davis' probation officer stated that, during the two-year period, Davis had continued to make the required payment, that she was steadily employed by the Wisconsin Telephone Company, and during most of the period in question was the sole support of her three children. Her probation officer requested that probation be terminated because of Davis' excellent adjustment to probation and her good-faith efforts to pay restitution. He proposed that a wage assignment be executed to assure payment of restitution.

It should be noted that only in the documents submitted by the probation department was the Huggett standard considered. It was ignored by the trial judge.