Because a circuit court must decide whether to grant expungement under § 973.015 “at the sentencing proceeding,” State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, the court doesn’t have authority to consider expungement when it asked to do so in a defendant’s postconviction motion.
Neither the parties nor the court mentioned expungement at Arberry’s sentencing hearing for retail theft, so Arberry filed a postconviction motion asking for expungement, arguing her eligibility for expungement had been unknowingly overlooked at the time of sentencing and, therefore, was a “new factor” that allowed the court to exercise its discretion and grant expungement postconviction. See State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828 (a “new factor” for sentence modification purposes is a fact highly relevant to the sentence that is in existence at the time of the sentence but “unknowingly overlooked by all of the parties”).
The court of appeals disagrees. It is not convinced the issue was “overlooked” and it reads Matasek very strictly:
¶3 …. Matasek, a 2014 seventeen-page unanimous opinion of our supreme court, held that § 973.015 requires that “if a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the sentencing proceeding.” Matasek, 353 Wis. 2d 601, ¶45.
¶4 Arberry asserts that the court and parties overlooked expungement, and thus it is a new factor, but provides no factual support. Arberry was sentenced well after Matasek was decided. At the postconviction hearing, the circuit court stated that it would have considered, and denied, expungement if the parties had requested it, recognizing that consideration of expungement is not a mandatory duty of the court at sentencing. There is no indication that the court, much less the prosecutor, or even Arberry’s counsel, overlooked expungement.
¶5 Neither we nor the circuit court may overrule a holding of our supreme court. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case.”). The circuit court’s decision finding that it could not consider expungement after Arberry’s sentencing hearing was proper under Matasek and is affirmed.
The fact the record shows no consideration of expungement is pretty strong evidence it was overlooked, as is the circuit court’s postconviction statement that “If someone had asked me about [expungement,] I would have said, well, no, she’s not getting expungement. Granted, no one brought it up….” (Arberry’s brief-in-chief at 6 (emphasis added)). But even if that’s convincing evidence the issue was overlooked, there is a legal point at play here that the court mentions but doesn’t elaborate on.
Specifically, a sentencing judge isn’t required to consider expungement as part of its exercise of sentencing discretion (with one exception: under § 973.015(1m)(a)2., in certain cases involving some violations of § 942.08 a judge “shall” order expungement). By contrast, a judge is required to acquire and consider any and all information that might bear on the sentence. State v. Guzman, 166 Wis. 2d 577, 592, 480 N.W.2d 446 (1992) (“Wisconsin has a strong public policy that the sentencing court be provided with all relevant information.”); Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980) (it is the “responsibility” of the sentencing court “to acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence.”). The requirement that the sentencing court obtain all that relevant information explains why there’s a “new factor” argument for sentencing modification: the existence of overlooked facts relevant to the sentence essentially means the court didn’t fulfill its sentencing duty.
Conversely, if there’s no duty to consider expungement, overlooking it can’t be a “new factor”—unless, of course, the supreme court decides to review this case and hold that eligibility for expungement is a “new factor” if everyone overlooks it. That approach would certainly advance the legislative purposes of the expungement statute: “to provide a break to young offenders who demonstrate the ability to comply with the law” and to “provide a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions.” Matasek, 353 Wis. 2d 601, ¶42 (quoted source omitted).
Similarly, because there’s no legal requirement that a sentencing court consider expungement, the failure to do so isn’t an erroneous exercise of discretion. To see this, compare expungement to the Challenge Incarceration and substance abuse programs. Under § 973.01(3g) and (3m) a sentencing court “shall, as part of the exercise of its sentencing discretion,” decide whether the defendant is eligible for those programs. State v. Owens, 2006 WI App 75, ¶9, 291 Wis. 2d 229, 713 N.W.2d 187; State v. Steele, 2001 WI App 160, ¶8, 246 Wis. 2d 744, 632 N.W.2d 112. Thus, unlike expungement, a court’s complete failure to address CIP or SAP eligibility is an erroneous exercise of discretion because it isn’t properly applying the relevant legal standard and is failing to use a demonstrated rational process.
That said, two unpublished cases recognize one scenario where a court can consider expungement during postconviction proceedings: When the sentencing court does consider expungement at sentencing but in the process makes some factual or legal mistake that is the basis for an erroneous exercise of discretion claim. State v. Abdel-Hamid, No. 2015AP1517-CR, unpublished slip op. (Wis. Ct. App. Jan. 20, 2016) (reviewing expungement denial for erroneous exercise of discretion); State v. Armstrong, No. 2016AP97-CR, unpublished slip op. (Wis. Ct. App. Aug. 17, 2016) (judge’s belief the expungement decision could be deferred till after sentencing is an error that can be fixed by reconsidering whether to grant expungement at a postconviction hearing).
As for other avenues of getting expungement considered postconviction, what about an ineffective assistance of counsel claim? Perhaps, if the defendant is eligible for expungement and trial counsel failed to realize the defendant was eligible or failed to think about requesting it. If trial counsel had no valid strategic reason for failing to request expungement, then prejudice can be determined only by asking the sentencing court to consider expungement postconviction and say whether it would have been granted or not.
A final note for expungement fans: There are companion bills pending in the current legislature that propose revising § 973.015 to require the defendant to petition for expungement no sooner than one year after completing his or her sentence and imposing a $100 filing fee for the petition. The bills (2017 SB 53 and 2017 AB 93) were just introduced at the end of February and are of course subject to amendment, for better or worse.