On Point: 17. Expungement

State v. Cheneye Leshia Edwards, 2017AP633-CR, 4/17/18, District 1 (1-judge opinion, ineligible for publication), case activity (including briefs).

Edwards entered a plea to disorderly conduct and asked the sentencing court to order expungement in the event he successfully completed probation.  The court denied the request without explaining why. So Edwards filed a postconviction motion arguing that (1) the sentencing court erroneously exercised its discretion, and (2) the postconviction court had the inherent authority to grant expunction.  The court of appeals reversed on (1) and declined to address (2).

State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113;  case activity (including briefs)

Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?

State v. Diamond J. Arberry, 2018 WI 7, affirming a published court of appeals decision; case activity (including briefs)

The supreme court holds that a defendant may not seek expunction after sentence is imposed because the language of § 973.015 and State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, require the decision regarding expunction to be made at the sentencing hearing.

State v. Lazaro Ozuna, 2017 WI 64, 6/22/17, affirming an unpublished court of appeals opinion; case activity (including briefs)

Lazaro Ozuna, a teenager, pled to two misdemeanors and got probation. The court also ordered that the convictions be expunged on successful completion of probation under Wis. Stat. § 973.015. Ozuna got through probation and was discharged, but he picked up an underage drinking ticket along the way–a violation of the no-drink condition of his probation but obviously not a terribly serious one. So, did he “successfully complete” his probation so as to be entitled to expunction?

State v. Diamond J. Arberry, 2016AP866-CR, 6/16/17, granting a petition for review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. When a defendant is eligible for expungement under § 973.015 but expungement is not addressed the sentencing hearing, can the defendant raise the issue in a postconviction motion? If so, is a “new factor” motion the appropriate vehicle for bringing such a claim?

2. Did the circuit court err in its exercise of discretion when it denied Arberry expungement based on reasons that could apply in any case?

State v. Diamond J. Arberry, 2017 WI App 26, petition for review granted 6/16/17, affirmed, 2018 WI 7 ; case activity (including briefs)

Because a circuit court must decide whether to grant expungement under § 973.015 “at the sentencing proceeding,” State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, the court doesn’t have authority to consider expungement when it asked to do so in a defendant’s postconviction motion.

State v. Christopher Joseph Allen, 2017 WI 7, affirming a published court of appeals decision, 2014AP2840-CR, 2/9/17 ; case activity (including briefs)

State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 held that a sentencing court may consider all facts underlying an expunged record of conviction provided those facts are not obtained from the expunged court records. This case extends Leitner by holding that a sentencing court may consider a defendant’s successful completion of probation in a prior case where his conviction was expunged pursuant to §973.015.

State v. Rachel M. Helmbrecht, 2017 WI App 5; case activity (including briefs)

A circuit court’s decision on whether to order expungement under § 973.015 involves the exercise of discretion, and therefore the general rules governing the proper exercise of discretion apply to the expungement decision.

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues:

(1)  Whether to satisfy the conditions of probation for purposes of Wisconsin’s expungement statute, § 973.015(1m)(b), a probationer must perfectly comply with every probation condition, or whether under State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, it is enough that the probation agent determines that the probationer has successfully completed probation?

(2)  Whether Ozuna‘s procedural due process rights were violated when the court failed to provide him with notice or a hearing before denying expungement?

State v. Armstrong, 2016AP97-CR, District 2, 8/17/16 (one-judge decision; ineligible for publication); case activity (including defendant’s brief; the state did not file a response brief)

While § 973.015 and State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, require that expungement be decided at the time of sentencing, not put off till after the defendant completes the sentence, a circuit court has the power to decide expungement after sentencing when it erred in deferring, on its own accord, a defendant’s expungement request at the time of sentencing.