Section 973.015 provides that a circuit court “may order at the time of sentencing that the record be expunged upon successful completion of the sentence . . .” SCOW now clarifies that a court must decide expunction at sentencing. Circuit court practices varied, so this decision clarifies the law and sets the stage for (possibly) a bigger battle over Wisconsin’s expunction statute.
Matasek pled guilty to the manufacture or delivery of THC. At sentencing, the court had misgivings about granting expunction, so Matasek’s lawyer urged the court to delay its final decision until after Matasek completed his term of probation. The court agreed that such a delay made sense but said that the statute didn’t allow for it. In a succinct, no-nonsense, “plain language interpretation of the statute” opinion SCOW held:
¶41 We agree with the defendant, as did the circuit court, that there are policy reasons for permitting the circuit court to decide on expunction after the offender completes his or her sentence rather than at the time of sentencing. The circuit court will probably be better positioned to weigh the benefit to the offender and the harm to society after (rather than before) the offender has successfully completed the sentence.
¶42 Yet requiring the expunction decision to be made at the time of sentencing is not contrary to the purpose of the statute and does not produce an unreasonable or absurd result. The legislative purpose of Wis. Stat. § 973.015 is “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.”
¶43 This legislative purpose can be met by requiring the expunction decision to be made at the time of sentencing. By deciding expunction at the time of sentencing, a circuit court creates a meaningful incentive for the offender to avoid reoffending. If the legislature allows the circuit court to take the defendant’s proffered “wait-and-see” approach, offenders will be uncertain whether the circuit court will expunge the record and this uncertainty might provide a weaker incentive to an offender to complete his or her sentence successfully.
¶44 In sum, a reasonable reading of the text of the expunction statute in view of the purpose of the statute is that the legislature included the words “at the time of sentencing” to limit the point in time at which the circuit court is to make a decision about expunction, and that the phrase “at the time of sentencing” means at the proceeding at which the circuit court announces the sanction.
A couple of points worth noting. Matasek argued that he was placed on probation but not given a “sentence” and thus § 973.015(1)(a) shouldn’t apply to him at all. But SCOW observed that in some statutes and circumstances “probation is not considered a sentence; in other statutes and under other circumstances probation is a sentence.” Slip op. ¶ 30. Reading § 973.015 as applying only to sentences would lead to several absurd results, one of them being that a probationer could never receive expunction.
The SPD filed an amicus brief pointing out that some circuit courts had deferred their final decision on expunction until after the defendants had completed their term of probation or sentence. What is to become of them? SCOW acknowledged the problem, but declined to address it. Slip op. ¶5, n.3. Note, however, that the State of Wisconsin told SCOW not to worry. Defendants can just move for a sentence modification based upon a new factor–i.e. the circuit court erroneously interpreted the expunction statute. So, defense lawyers, you might try taking that concession (here on page 17 of the State’s brief) to the bank!
Lastly, regarding the operation and effect of § 973.015, Matasek is the tail wagging a dog named Hemp. Yes, SCOW is poised to decide a petition for review in State v. Hemp, where the court of appeals changed the ground rules on expunction to the detriment of young offenders. Who must initiate the expunction process? Is there a deadline? May a circuit court reverse a decision to grant expunction? Click here for more on Hemp and here for the SPD’s amicus brief in support of the petition for review.