On Point: 17. Expungement

State v. Lazaro Ozuna, 2015AP1877-CR, 4/13/16, District 2 (one-judge decision; ineligible for publication), petition for review granted 9/13/16, affirmed 2017 WI 64, ; case activity (including briefs)

Even though DOC discharged Ozuna from probation, he didn’t successfully complete his sentence for purposes of the expungement statute because he was cited for underage drinking while he was on probation and therefore violated the court-imposed probation condition that he not consume any alcohol.

Review of a published court of appeals decision; case activity (including briefs)

Issues:

In State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, this Court held that circuit courts may not consider an expunged record of conviction, but may consider the facts underlying an expunged record of conviction at sentencing. Did the circuit court violate Leitner when it considered at sentencing that Mr. Allen had an expunged conviction and served a term of probation?

Was trial counsel ineffective for failing to object to the references to Mr. Allen’s expunged conviction in the pre-sentence investigation and at sentencing?

State v. Mustafa Z. Abdel-Hamid, 2015AP1517-CR, 1/20/16, District 1 (1-judge opinion, ineligible for publication); case activity, including briefs

After being convicted of two counts of misdemeanor criminal damage to property, the defendant urged the court to grant expungement under Wis. Stat. §973.015. He pointed to his lack of criminal record, his excellent grades, his professional ambitions, and his remorse. The trial court denied expungement and the court of appeals affirmed.

Professor Murat Mungen, Florida State University College of Law, just published this article explaining how expunging a person’s criminal record reduces the chances that he will reoffend.

State v. Christopher Joseph Allen, 2015 WI App 96, petition for review granted 4/7/16, affirmed, 2017 WI 7; case activity (including briefs)

How often does SCOW issue unanimous decisions for the defense these days? Not too often. So you’d think that after being reversed 7-0 in State v. Hemp, District 1 might approach §973.015, with a “once bitten, twice shy” mindset. But with this published decision, D1 seems more determined to rein in Wisconsin’s expunction statute.

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

State v. Kearney W. Hemp, 2014 WI 129, 12/18/14, reversing a published court of appeals decision; opinion by Justice Gableman; case activity

At last, a unanimous SCOW decision settles how §973.015 is really supposed to work. Upon a young person’s successful completion of a sentence or probation, the detaining or probationary authority must issue a certificate of discharge to the court. This alerts the clerk to expunge the record. No petition is necessary. And once a court grants expungement, and the young person performs as required, the court cannot reverse its decision.

State v. Andrew R. Geurts, 2014AP1520-CR, District 4, 12/4/14 (one-judge decision; ineligible for publication); case activity

The circuit court had no authority to expunge the record of Geurts’s criminal case after it was dismissed after his successful completion of a deferred prosecution agreement because § 973.015 applies only to the record of an offense for which the person has been found guilty.

Kenosha County v. Blaire A. Frett, 2014 WI App 127; case activity

State v. Melody P.M., 2009 AP2991 (WI App June 10, 2009), a 1-judge opinion, held that Wis. Stat. § 973.015 permits circuit courts to expunge civil forfeiture violations. Here, the court of appeals explicitly overrules  Melody P.M. and holds that civil forfeiture violations may not be expunged.

On review of a published court of appeals decision; case activity

Issues (composed by On Point)

When, pursuant to Wis. Stat. § 973.015, a sentencing court orders the expunction of a defendant’s record upon successful completion of his sentence, does expunction occur automatically upon the circuit court clerk’s receipt of the defendant’s certificate of discharge or must the defendant file a petition for expunction?

If the defendant must petition the circuit court for expunction, then: (a) is there a deadline by which he must file it, and (b) who is required to forward the certificate of discharge to the circuit court—the defendant or the Department of Corrections (or other detaining authority)?

If a defendant successfully completes his sentence or probation, thereby earning expunction, may the circuit court revoke the grant of expunction based upon the defendant’s post-discharge conduct?