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.
Under § 973.015(1m)(a)1., a sentencing court may order a conviction to be expunged if the defendant successfully completes the sentence imposed. “Successful completion” means the person hasn’t been convicted of another offense and, if the defendant was placed on probation, that “the probation has not been revoked and the probationer has satisfied the conditions of probation.” § 973.015(1m)(b). Upon successful completion of the sentence, the detaining or probationary authority issues a certificate of discharge; expungement is then automatic. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811.
Ozuna was placed on probation for two misdemeanors. He didn’t get revoked, and DOC issued a discharge certificate that said he “successfully completed” his probation. But it also said he didn’t meet all the court-ordered conditions because of the underage drinking citation. (¶¶2-3). The judge denied expungement, and the court of appeals affirms based on a strict reading of the statute:
¶6 What it means for a person to “successfully complete” his or her sentence is defined in Wis. Stat. § 973.015(1m)(b):
A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.
Therefore, one who completes probation without revocation or another conviction still fails to “successfully complete” his sentence if he does not satisfy all conditions of probation. Id.
¶7 According to the DOC form, Ozuna was cited for underage drinking after giving a preliminary breath test of 102 [sic]. Both the written judgment of conviction and the circuit court’s oral ruling confirm that one of the conditions of Ozuna’s probation was that he refrain from consuming alcohol. Thus, according to the statutory definition, Ozuna did not successfully complete his sentence and was not entitled to expungement. ….
The court says this result doesn’t run afoul of Hemp’s stricture that a court can’t revisit its original expungement decision because the defendant in that case satisfied his conditions of probation; Ozuna didn’t, despite the fact DOC’s form says Ozuna “successfully completed” the sentence. (¶7 n.2). And, the court says, substantial compliance with probation conditions isn’t enough, as there is no basis in the statutory language for that conclusion and it provides no standard for deciding if the conditions were satisfied: “If Ozuna’s lone drinking citation is considered acceptable, how about two? Or three?” (¶10).
The court declines to address Ozuna’s argument that there are due process problems with blindly accepting DOC’s representation that he was cited for underage drinking. The court says Ozuna hasn’t disputed he was cited or developed an argument about what mechanisms are (or should be) available through DOC or the court system or both to correct errors in the DOC’s discharge certificate. (¶9). So if you’re litigating an expungement denial in the future and you find it’s based on an error made by DOC, propose some way to try to fix the error (a letter to DOC with proof of the error and request for a new certificate? a motion to the sentencing court?) in conjunction with your due process argument.