WI Courts Continue To Limit Criminal Expungement, Even as Legislature Considers Expanding Scope

Published by Jeffrey A. Mandell, Erika Bierma on

In May, Representatives Steffer (R-Howard) and Hoyke (D-Milwaukee) introduced 2017 AB 331 in the Wisconsin Assembly. The proposed legislation would change current Wisconsin law to make expungement available to those previously convicted of a crime or who were ineligible for expungement at the time their case was resolved, and it would expand the number of defendants who can seek expungement. However, this legislative proposal is at odds with the current trend in Wisconsin courts interpreting existing expunction law.

Wisconsin’s current expungement statute, Wis. Stat. § 973.015, allows courts, at the time of sentencing, to order a defendant’s conviction to be expunged after “successful completion” of a sentence, if the defendant is under age twenty-five at the time of conviction and the offense has a maximum period of imprisonment of six years or less. This statute gives the court a chance to “shield youthful offenders from some of the harsh consequences of criminal convictions.” State v. Matasek, 2014 WI 27, ¶42.

The combination of Wisconsin’s Open Records Law and the availability of court records online through the Consolidated Court Automation Program (CCAP) means that anyone with Internet access—read: nearly everyone—can easily obtain criminal history and case history from any Wisconsin court. Without expungement, convictions (whether of the original charge or a lesser, amended charge), charges that do not lead to convictions, and dismissed charges are all viewable by prospective employers, admissions officers, landlords, in-laws, etc. This access has practical consequences. For example, the American Bar Association has identified 38,000 statutes that impose collateral consequences for those with criminal convictions—of those, nearly half negatively impact employment opportunities. State v. Ozuna, 2017 WI 64, ¶ 39 (A.W. Bradley, J., dissenting).

While the purpose and scope of Wis. Stat. § 973.015 seem straightforward at first glance, the law contains ambiguities that courts have interpreted to limit access to expungement. Recent court cases have featured debates over what “expunge” and “successful completion” mean within the statutory context. The judicial trend has been to answer these questions in favor of narrowing the availability and scope of expungement under Wisconsin law.

The committee notes to Wis. Stat. § 973.015 define “expunge” as “to strike or obliterate from the record all references to the defendant’s name and identity.” Comm. Note to Wis. Stat. § 973.015(3) (citing 67 Atty. Gen. 301). But recent decisions have limited the efficacy of expungement in practice. Yes, the criminal record is sealed, with access barred absent a court order—but the police and some other governmental entities can still view the arrest. The court records still exist despite being removed from CCAP and can still be accessed by some individuals. Additionally, the record is still accessible in the Wisconsin Department of Justice’s Crime Information Bureau (CIB) database and the Criminal Justice Information Services Division of the federal Department of Justice’s National Crime Information Center (NCIC) database.

Moreover, under State v. Leitner, 2002 WI 77, courts can use information from judicial records, Department of Corrections files, and police reports relating to a prior, expunged conviction to formulate the sentence for a subsequent conviction, even though the record of the earlier conviction was “obliterate[d].” The Leitner Court clarified that, while § 973.015 bars formal consideration of a prior, expunged conviction, it does not otherwise “shield a misdemeanant from all of the future consequences of the facts underlying a[n expunged] record of a conviction,” so long as “those facts are not obtained from expunged court records.” Leitner, 2002 WI 77,38.

In one recent decision, the Supreme Court expanded even further the acceptable use at sentencing of underlying facts from an expunged record. In State v. Allen, 2017 WI 7 (Feb. 9, 2017), the criminal background check contained in the Pre-Sentence Investigation Report detailed the incident behind the defendant’s ostensibly obliterated record: “This incident involved a fight with another boy at high school and he was charged because the other boy lost a tooth in the fight.” Id., ¶10. Although the report acknowledged that the record was “officially expunged,” the circuit court sentenced more harshly based on the fact of prior offense, noting that Allen “had an opportunity to learn something from that [occasion].” Id., ¶12. The Supreme Court affirmed the circuit court, holding that, even where a record is expunged, many (if not all) of the incriminatory details are still available for a sentencing court’s review and may factor into the court’s subsequent sentencing decision.

In another recent decision, the Wisconsin Supreme Court further limited the availability of expungement. State v. Ozuna, 2017 WI 64, addressed another ambiguity in Wis. Stat. § 973.015: where expungement automatically occurs upon the successful completion of a probation sentence, who decides what “successful” means? Under the terms of his plea agreement, Ozuna’s convictions for criminal damage to property and disorderly conduct were to be expunged once he successfully completed probation. At the end of Ozuna’s probation, the DOC filed a “Verification of Satisfaction of Probation Conditions for Expungement” with the circuit court, indicating that Ozuna had “successfully completed” his term of probation. Notwithstanding the DOC’s determination, the circuit court disregarded the DOC form and denied Ozuna’s expungement. The circuit court based its decision on Ozuna’s receipt of an underage drinking citation—in violation of a no-alcohol probation rule.

The question on appeal was narrow: had Ozuna successfully completed probation, entitling him to expungement? Ozuna’s brief to the Supreme Court pointed out that, “upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.” Under the statute, he argued, the expungement process is ‘self-executing’ once the probation officer determines the sentence is complete.

Ozuna relied on State v. Hemp, 2014 WI 129, and State v. Matasek, 2014 WI 27. Under Hemp, a probation officer was given discretion to determine whether or not probation had been successfully completed. Moreover, once the officer determined the sentence was completed, expungement would be automatic, or self-executing. Under Matasek, the decision of expungement should be made at the sentencing stage, rather than after completion of the sentence. In other words, the circuit court’s role is before the sentence is served, and the probation officer’s role is after. In response, the State claimed that Ozuna had not successfully completed his probation sentence, differenting him from the defendants in Hemp and Matasek, who had done so.

The Supreme Court sided with the State. Its reasoning was simple. The statute says a record can be expunged “upon successful completion” of the sentence—here, probation. Successfully completing his probation required Ozuna to follow all of its requirements. Because Ozuna did not follow the no-drinking conditions of his probation, he did not successfully complete his probation. It did not matter that the DOC indicated otherwise. Nor did it matter that expungement is typically self-executing. What controlled the outcome of the case was that “Ozuna did not meet the criteria for expungement, because he did not satisfy the conditions of his probation.” 2017 WI 64, ¶19.

While the courts have consistently limited expungement, the legislature continues to consider changes in the opposite direction. A series of failed legislative efforts last session would have expanded the expungement statute. AB 1005 would have allowed defendants to petition for expungement of records related to a criminal prosecution after either acquittal or dismissal of charges. AB 1004 would have required expungement of records related to a criminal prosecution where the defendant was found not guilty or the conviction was reversed on appeal. And AB 1008 would have allowed courts to consider expungement after a defendant served their sentence, rather than only at the sentencing hearing.

In light of these failed measures, the prospects for 2017 AB 331 remain unclear. Unlike last session’s proposals, AB 331 has bipartisan sponsorship, but that does not mean it will gain sufficient support to become law. In the meantime, while the expungement statute appears straightforward, defendants should be cautious, bearing in mind judicially imposed limitations.

Law clerk Charles Ureña assisted in researching and writing this post.

Filed Under: appeals, Wisconsin Court of Appeals, Wisconsin Supreme Court

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