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No erroneous exercise of discretion in denying chance at expunction

State v. Larry A. Brown, 2021AP12-CR, District 1, 6/29/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Brown was charged with theft by embezzlement and accepted a deferred prosecution agreement for the charge. He subsequently picked up new charges of THC possession and carryng a concealed weapon, for which he was given probation. That of course led to revocation of the DPA and sentencing on the theft. Brown asked for expunction of the theft conviction, which the circuit court denied. It properly exercised its discretion in doing so.

Brown argues the court erroneously exercised its discretion because it didn’t consider the statutory factors—whether expunction would benefit the defendant and not harm society, § 973.015(1m)(a)1.—but instead simply said it wasn’t going to order expunction because the judge in the new case hadn’t granted it. The circuit court did refer to the fact the judge in the new case didn’t allow expunction , but it also clearly considered other facts in the record—like the obvious fact the DPA was revoked because of Brown’s subsequent criminal conduct, and that Brown’s compliance with probation in the new case wasn’t without blemish, as he admitted using THC, missed appointments with his agent, and was ticketed for driving without a license. The court also noted the theft in this case involved “a scheme” perpetrated over several months, not a one-time act. (¶¶9-11).

The court of appeals will search the record for reasons to sustain a lower court’s exercise of discretion, and “by considering all of these facts, the trial court appeared to ‘weigh the benefit of expungement to the offender against the harm to society’ as required, ultimately determining that the harm of expunging this conviction from Brown’s record outweighed any benefit to him.” (¶12). And regardless of the extent of the trial court’s reasoning, the court of appeals will uphold a discretionary decision if there are facts in the record supporting the trial court’s decision had it fully exercised its discretion. The record here supports the trial court’s decision to deny Brown’s expunction request, and Brown hasn’t shown the denial was unreasonable. (¶13).

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