State v. Junior L. Williams-Holmes

2022 WI App 38

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP809-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUNIOR L. WILLIAMS-HOLMES,

DEFENDANT-APPELLANT.

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
briefs 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 NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 15, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP809-CR Cir. Ct. No. 2019CF687

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUNIOR L. WILLIAMS-HOLMES,

DEFENDANT-APPELLANT.

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. Williams-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 extended
No. 2021AP809-CR

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
conditions 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 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.)

2
No. 2021AP809-CR

¶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 judgment 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 memorandum 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 authority “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 department 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 with [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,” noting

3
No. 2021AP809-CR

that, 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 ‘solution’” 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 ordered in this case and the denial of his postconviction motion related to
the same.

Relevant Statutes

¶8 WISCONSIN STAT. § 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
communications.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

4
No. 2021AP809-CR

¶9 WISCONSIN STAT. § 973.10, Control and supervision of
probationers, provides:

(1) Imposition of probation shall have the effect of placing
the defendant in the custody 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 supervision.

(Emphasis added.) And WIS. STAT. §§ 973.01(5), EXTENDED SUPERVISION
CONDITIONS, and 973.09(1), Probation, respectively provide that when a court

imposes a bifurcated sentence, it may “impose conditions upon the term of extended
supervision” and when it places a person on probation it may “impose any
conditions which appear to be reasonable and appropriate.”

¶10 WISCONSIN STAT. § 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
WIS. STAT. § 302.113(7m)(a) provides: “[A] person subject to this section [i.e., the
defendant] or the department may petition the sentencing 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 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.” As indicated, Williams-Holmes insists that these
supervision conditions “must be amended to require permission from [the
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, per

5
No. 2021AP809-CR

WIS. STAT. § 973.10, and asserts that without adopting his proposed “amend[ment]”
to the supervision conditions, the circuit court is left in the position of administering
probation and extended supervision matters, contrary to WIS. STAT. § 301.03(3).3
The State counters that the challenged supervision conditions are authorized by WIS.
STAT. §§ 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, in 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” these conditions. In his reply brief, he
further adds that the court “was authorized to set a term 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.” Williams-Holmes’ concessions
work out well as we have already determined that challenged supervision conditions very similar
to the ones before us—and ordered by the same judge—were “reasonable and appropriate.” See
State v. Luckett, No. 2009AP2679-CR, unpublished 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, which is a valid factor in crafting conditions” of supervision, id., ¶11, and similarly in the
case now before us, the court imposed the challenged supervision conditions because of Williams-
Holmes’ “history of domestic violence.”

6
No. 2021AP809-CR

Holmes not reside with 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.” Related 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 WIS. STAT. §§ 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” of 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 belief 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 particular

7
No. 2021AP809-CR

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. Furthermore, WIS. STAT. §§ 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
WIS. STAT. § 301.03(3)’s grant of authority to the department to “administer”
supervision matters with § 973.09(3)(a) and WIS. STAT. § 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 probationer, “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-residing-with-women-or-children-
unrelated-by-blood condition to be modified through the mechanisms of WIS. STAT.
§§ 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 children unrelated by blood or with a particular woman and/or

8
No. 2021AP809-CR

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 WIS. STAT. § 301.03(3). The court’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 basis. 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,
WEBSTER’S THIRD NEW INT’L DICTIONARY (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 WIS. STAT. §§ 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, 226 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 government, directed to the correctional and rehabilitative
processes of the parole and probation system has been substituted
in its place.” The judiciary phase of the criminal process—
imposing a penalty—is complete.

Id. at 650 (alteration in original; citation omitted). Consistent with WIS. STAT. § 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 WIS. STAT. § 973.09(3)(a). Horn, 226 Wis. 2d at 651.

9
No. 2021AP809-CR

302.113(7m) and the requirements 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
conditions, for example, such modification 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 allows 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 of the conditions in
a manner consistent with these statutory provisions, the conditions prohibiting
William-Holmes from residing with any woman and/or with any child unrelated by
blood remain in effect.

¶19 We cannot accommodate William-Holmes’ 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 probationary program
envisioned and ordered by the court. Indeed, the court’s chosen language 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 in the

10
No. 2021AP809-CR

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) (identifying 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 the court through the means of an actual
modification of the supervision conditions via WIS. STAT. §§ 302.113(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 [the 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.

The State has taken a very different, adversarial position in the case now before us and in doing so
also developed legal arguments in support of its position.

11
No. 2021AP809-CR

¶21 In Sepulveda, our supreme court reflected on “the probation statute,
particularly [WIS. STAT. §] 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 court’s continued power to effectuate the dual purposes of
probation, namely, rehabilitating the defendant and protecting society, through the
court’s authority to modify or extend probationary terms.”6 Sepulveda, 119 Wis. 2d
at 554 (emphasis added). Thus, our 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 conditions 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 without 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 the [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 WIS. STAT. § 973.09(3)(a) language: “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.” 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).

12
No. 2021AP809-CR

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
condition 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 with any particular woman and/or with any particular child
unrelated by blood must be effectuated “through” WIS. STAT. §§ 973.09 and
302.113.

By the Court.—Judgment and order affirmed.

13