On Point: 17. Expungement

Van Oudenhoven v. Wis. Dept. of Justice, 2023AP70-FT, petition for review of a published court of appeals decision, granted 11/12/24; dismissed as improvidently granted 6/24/25; case activity (including briefs)

SCOW granted review to determine whether an expunged conviction for a misdemeanor crime of domestic violence under Wisconsin law qualifies as an “expungement” under 18 U.S.C. § 921(a)(33)(B)(ii) for purposes of obtaining a firearm.

Van Oudenhoven v. Wis. Dept. of Justice, 2023AP70-FT, 6/4/24, District III (recommended for publication); petition for review granted 11/12/24; dismissed as improvidently granted 6/24/25 case activity

Court of Appeals affirms circuit court’s order affirming DOJ’s decision to deny applicant’s request to purchase firearm after applicant’s conviction for a misdemeanor crime of domestic violence was expunged.

State v. Isaac M. Gabler, 2022AP995-CR, District 2, 04/19/23 (one-judge opinion, ineligible for publication); case activity

Gabler pled no contest to violating a temporary restraining order (TRO). The circuit court placed him on probation and denied his request to be eligible for expungement after determining that the public should be able to see that Gabler violated a TRO. Thereafter, the circuit court granted Gabler’s § 806.07 motion to vacate the underlying harassment injunction in part because the TRO upon which it was based was invalid. Nevertheless, the court affirms the circuit court’s denial of Gabler’s postconviction motion to reopen his sentencing hearing on the issue of expungement because “there was a temporary restraining order in place and that order had been violated.” (Opinion, ¶17).

State v. Sean B. Day, 2021AP1018, 11/24/21, District 4 (one-judge decision; ineligible for publication); case activity (including brief)

Day was initially charged with repeated sexual assault of a child for sexual contact with a 14-year-old when he was 17. He ended up pleading to a single count of fourth-degree sexual assault and was put on probation. The circuit court failed to mention expunction at the sentencing hearing, but later–both in writing and at the postconviction motion hearing–it gave the reasons it did not find expunction appropriate.

State v. Jordan Alexander Lickes, review of a published court of appeals decision granted 11/18/20; case activity (including briefs)

Issues presented (from the PfR):

Does the expungement statute’s requirement that a probationer have “satisfied the conditions of probation” also mean that the probationer must perfectly comply at all times with each and every rule of probation set by the probation agent?

When a circuit court chooses to hold a hearing and exercise discretion to determine whether a probationer who violated a rule set by his agent has nevertheless “satisfied the conditions of probation” so as to qualify for expungement, should the appellate court review the circuit court’s decision for an erroneous exercise of discretion?

When a circuit court makes factual findings concerning whether a probationer violated a condition of probation rendering him ineligible for expungement, must the appellate court uphold the finding in the absence of clear error?

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

Demonta Antonio Hall v. Wisconsin Department of Justice, 2020 WI App 12; case activity (including briefs)

In a decision that will certainly benefit some people who were arrested for a crime but never charged, the court of appeals orders the Department of Justice to expunge its records showing Demonta Hall was arrested for two felony offenses that were never prosecuted.

State v. Justin A. Braunschweig, 2018 WI 113, 12/21/18, affirming an unpublished court of appeals decision; case activity (including briefs)

Braunschweig was convicted in 2011 of causing injury by intoxicated operation of a vehicle. The conviction was expunged under § 973.015. In 2016 he was charged with operating while intoxicated and with a prohibited alcohol content, both as a second offense because of the 2011 conviction. The supreme court rejects his claim that the expunged conviction can’t be a predicate offense under § 343.307(1).

State v. Kole R. Eichinger, 2017AP1845-1847-CR, 10/16/18, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

This case highlights an expunction issue that SCOW still needs to resolve. Prior to 2014, circuit courts often delayed deciding expunction until they saw how a defendant did on probation. State v. Matasek, 2014 27, 353 Wis. 2d 601, 846 N.W.2d 811 changed that practice.  It clarified that courts must decide whether to order expunction at the time of sentencing.  What about all of the defendants who were expressly told at sentencing that they could apply for expunction after they completed probation?

State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)

Braunschweig was convicted of first-offense OWI causing injury, but that conviction was expunged. So, when he picked up another OWI, was it a first or a second?