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¬†¬ß973.015, with a “once bitten, twice shy” mindset. But with this published decision, D1 seems more determined to rein in Wisconsin’s¬†expunction statute.
After celebrating a job promotion, Allen drove his car at 97 miles per hour into a tree while intoxicated. One passenger/co-worker was injured, and the other died. Allen pled guilty to both injury and homicide by intoxicated use of a vehicle. The circuit court ordered a PSI, which revealed that Allen had a substantial battery conviction 8 years earlier. In that case, he had received a withheld sentence conditioned on paying restitution and completing anger management classes and probation. He met all of these conditions, so the circuit court expunged his conviction.
At the sentencing hearing in this case, the circuit court did not discuss the facts underlying Allen’s expunged conviction (he was in a fight during high school). Instead it repeatedly and explicitly discussed the fact of the conviction. In the circuit court’s view, the fact that Allen had successfully completed probation several years earlier justified a sentence even longer than what the State proposed. The court of appeals affirmed based on¬†State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.
Leitner holds that a sentencing court may not consider an expunged record of conviction, but it may consider “the facts underlying a record of a conviction expunged under¬†¬ß973.015.”¬†Leitner, ¬∂44. What’s the difference? According to Leitner, considering the facts underlying a conviction is like considering the facts of an uncharged offense or the facts relating to an offense the defendant was acquitted of. In contrast, an expunged record of conviction cannot be used, for example, as a sentence enhancer. The court of appeals attempts to erase the distinction:
Here, the circuit court used the fact of Allen’s prior supervision to “elucidate his character”–particularly his failure to learn of the consequences of breaking the law . . . Taking into consideration both the sentencing court‚Äôs responsibility to sentence a defendant based upon the ‚Äú‚Äėfull knowledge of the character and behavior pattern of the convicted defendant,‚Äô‚ÄĚ see Leitner, ¬∂45 (citation and footnote omitted), and the expunction statute‚Äôs limited purpose in only protecting defendants from some of the harsh consequences of an expunged conviction . . . we conclude that a sentencing court must be permitted to consider all of the facts underlying an expunged criminal record, and not just those facts underlying the crime itself. Slip op.¬†¬∂18. (emphasis in original).
Compare that cramped reading of the expunction statute’s purpose with Hemp‘s understanding: “Expungement offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming a law-abiding and productive members of the community.” Hemp,¬†¬∂19. If sentencing courts may now consider literally “all of the facts underlying an expunged criminal record” (here, the fact of conviction and probation) not just the facts underlying the crime then where is the stopping point? Under this decision, there is none.¬†Hemp‘s “fresh” start is looking rather stale.