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Court must decide at the time of sentencing whether a conviction may be expunged under § 973.015(1)(a)

State v. Andrew J. Matasek, 2013 WI App 63, petition for review granted, affirmed, 2014 WI 27; case activity

The plain language of § 973.015 requires the circuit court to decide at the time of sentencing whether the defendant’s conviction can be expunged on successful completion of the sentence:

 ¶9        Matasek is correct that Wis. Stat. § 973.015(1)(a) grants a court discretion to determine whether a defendant’s conviction should be expunged. …  However, contrary to Matasek’s assertion, that the legislature granted courts discretion to determine whether to order expunction does not mean the legislature also granted courts discretion to decide when to make that determination.  Instead, the statute plainly and unambiguously directs courts to exercise their discretion in ordering expunction “at the time of sentencing[.]”  See Wis. Stat. § 973.015(1)(a).  If the legislature had intended the meaning Matasek urges, it could have instead written that a court may order expunction at the time of sentencing or after successful completion of the defendant’s sentence.  Because the legislature did not include the underlined language, accepting Matasek’s interpretation would require us to add words to the statutory text.  We may not read language into the text of an unambiguous statute.  See Cavey v. Walrath, 229 Wis. 2d 105, 111, 598 N.W.2d 240 (Ct. App. 1999).  Alternatively, the legislature could have simply omitted the phrase “at the time of sentencing.”  Matasek’s interpretation, however, would impermissibly render that language mere surplusage.  See Kalal, 271 Wis. 2d 633, ¶46 (A court must seek to avoid surplusage by giving effect to every word in a statute.).

In addition, the procedure under § 973.015(2) for expunging the record after completion of the sentence presumes that by the time the sentence is completed the court has already decided whether to expunge the conviction. Thus, interpreting sub. (1)(a) to allow the circuit court to defer addressing expunction until after completion of the offender’s sentence would be inconsistent with sub (2).  (¶10). See also State v. Szulczewski, 216 Wis. 2d 495, 503, 574 N.W.2d 660 (1998) (court must reasonably construe statutes to avoid conflicts).

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