The supreme court holds that a defendant may not seek expunction after sentence is imposed because the language of § 973.015 and State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, require the decision regarding expunction to be made at the sentencing hearing.
At Arberry’s sentencing hearing neither the parties nor the court mentioned expunction, so Arberry filed a postconviction motion asking for it. She argued her eligibility for expunction was a new factor because it was unknowingly overlooked at the time of sentencing. (¶¶9-10). The supreme court holds a post-sentencing motion seeking expunction is “procedurally barred” by the plain language of § 973.015, which says “the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence….”
¶18 “Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” [Citations omitted]. “Sentencing” is specially defined under Wis. Stat. § 809.30 [under which Arberry brought her postconviction motion]: “‘Sentencing’ means the imposition of a sentence, a fine, or probation in a criminal case. . . .” § 809.30(1)(f)…. Therefore, “at the time of sentencing” means “at the time of the imposition of a sentence, fine, or probation in a criminal case.” Imposition of a sentence happens during the sentencing hearing, not at a sentence modification hearing; by definition, sentence modification is the time at which a defendant may seek modification of an already-imposed sentence. Thus, the phrase “at the time of sentencing” in Wis. Stat. § 973.015 refers to the hearing where sentence is imposed.
¶19 Additionally, “[w]ords are to be given the meaning that proper grammar and usage would assign them.” [Citation omitted]. “The” is a definite article “used as a function word to indicate that a following noun or noun equivalent refers to someone or something that is unique.” [Dictionary citations omitted]. Thus, Wis. Stat. § 973.015(1m)(a)1.’s use of “the” before “time of sentencing” means that the statute contemplates only one unique, specified “time of sentencing”; if expunction may be addressed only at one unique, specified “time of sentencing,” common sense counsels that it would be when sentence is imposed because not every criminal defendant will seek or be granted a sentence modification hearing.
¶20 Similarly, in Matasek, we … held that the phrase “‘at the time of sentencing’ in  § 973.015 [meant] that[,] if a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the sentencing proceeding.” Id., ¶¶6, 45 (emphasis added). Our use of “the” here also contemplates only one time of sentencing.
¶21 Moreover, our analysis in Matasek dictates that that one time is when sentence is imposed. In Matasek, we evaluated two proffered times for expunction: the sentencing hearing when sentence was imposed and after successful completion of the sentence. Id., ¶8. Between the two, we determined that the former—the sentencing hearing—was the only time at which the circuit court could exercise its discretion to expunge a record under the statute, if it was going to do so, because otherwise “at the time of sentencing” would be rendered surplusage. Id., ¶17. Thus, as the court of appeals held, Matasek controls here and dictates that, if a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the hearing where sentence is imposed. See Arberry, 375 Wis. 2d 179, ¶¶3, 5; ….
¶22 In sum, we conclude that the issue of expunction may be raised only at the sentencing hearing because the language of the statute and Matasek dictate that there is only one applicable time of sentencing, and it is the time at which a sentence is imposed….
While the court says it doesn’t address the “new factor” question (¶16), it drops a lengthy footnote doing just that: “it does not make sense to characterize eligibility for expunction as a ‘new factor’” because expunction is not a factor courts consider when imposing a sentence and because the facts underlying eligibility for expunction—the age of the defendant and the maximum imprisonment—will always be known at the time of sentencing. “Thus, expunction cannot be a ‘new factor’ because the facts are not ‘new’” and “silence in the record is insufficient to establish that the court and all of the parties unknowingly overlooked these facts because the statute does not require a circuit court to consider expunction.” (¶16 n.8).
The upshot for trial lawyers: if you have a client eligible for expunction, you must bring it up at sentencing. The upshot for postconviction lawyers: If you are reviewing a sentencing for a client who was eligible for expunction and no one brought it up, you’ll have to investigate whether you have a basis for arguing trial counsel was ineffective for failing to ask for expunction, for as noted in our post on the court of appeals decision, that appears to be the only avenue available to get a circuit court to consider expunction after sentencing under § 973.015 as currently written.