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SCOW: Expunction requires perfect conduct on probation, maybe?

State v. Lazaro Ozuna, 2017 WI 64, 6/22/17, affirming an unpublished court of appeals opinion; case activity (including briefs)

Lazaro Ozuna, a teenager, pled to two misdemeanors and got probation. The court also ordered that the convictions be expunged on successful completion of probation under Wis. Stat. § 973.015. Ozuna got through probation and was discharged, but he picked up an underage drinking ticket along the way–a violation of the no-drink condition of his probation but obviously not a terribly serious one. So, did he “successfully complete” his probation so as to be entitled to expunction?

The majority here says “no.” Its conclusion hangs on a single statutory phrase that grants expunction if “the probationer has satisfied the conditions of probation.” Wis. Stat. § 973.015(1m)(b). Not drinking was a “condition,” Ozuna didn’t “satisfy” it, the end.

A straightforward, easy-to-understand holding. This simplicity is achieved, however, by ignoring both Ozuna’s argument and the practical problems the decision creates. The two-justice dissent lays it all out nicely:

In sum, the majority opinion makes no sense to me. It defies:

  • the purpose of the statue;
  • the statutory directive that where a certificate of discharge has issued it “shall have the effect of expunging the record . . . .” Wis. Stat. § 973.015(1m)(b);
  • a reasonable interpretation of the word “satisfies” that is more consistent with the statute’s purpose and legislative history;
  • our clear and recent precedent; and
  • reality (the majority’s apparent demand for absolute perfection is unmoored from the reality of the lives of many youthful offenders).

(¶67).

As the dissent says, “satisfy” could mean either “perfect” or “sufficient” compliance. (¶42). The dissent argues that the latter is more consistent with the remedial purpose of the expunction law–to give youthful offenders a second chance and a clean slate.

Perhaps a bigger problem with the majority’s rule is how this is all going to work in practice. That recent precedent the dissent refers to is State v. Hemp, 2014 WI 129, ¶19, 359 Wis. 2d 320, 856 N.W.2d 811. It held (in accord with the statutory language) that it is the department of corrections that determines whether a person has successfully completed probation and files appropriate paperwork with the court, resulting in expunction. Now, the majority has thrust the circuit court into a decision-making role.

But how is the court to know whether the person has “satisfied the conditions”? The updated DOC form simply says that the person has or hasn’t successfully completed probation. What if the court has reason to doubt DOC’s assessment? What if the probationer does? Will there be hearings? Is a hearing needed in every case? What’s the standard of proof? Etc., etc…. The majority simply says this isn’t the case to explain the substance or procedure of the law it has just announced because it’s “confident” the lower courts will just figure it out. Per the dissent:

Because the most likely result of the majority’s decision is that circuit courts will adopt ad hoc procedures, an offender’s chance at expunction could come down to which court receives the offender’s certificate of discharge. This poses a whole host of future due process concerns. By creating an opportunity for circuit courts to review whether the terms of probation have been met, and failing to provide any guidance on how to do so, the majority creates more problems than it has solved, leaving confusion in its wake.

….

It is unclear to me why the majority has bent over backwards to reach its confusing conclusion. What is clear, however, is just how devastating the majority opinion is to the health of our justice system and to the lives of many youthful offenders.

With the stroke of a pen, the majority has inexorably altered the trajectory of those lives. They will forever wear the scarlet letter of convicted criminal and, together with their families, face a future of collateral consequences for their youthful convictions.

Moreover, as the dissent points out, probation rules are pervasive and sometimes ambiguous. Does a person who misses a single appointment with his or her PO fail to “successfully complete” probation? Once again, the majority unfortunately gives no guidance–which, practically speaking, probably means it’s up to the whim of DOC and/or the circuit court.

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