State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 held that a sentencing court may consider all facts underlying an expunged record of conviction provided those facts are not obtained from the expunged court records. This case extends Leitner by holding that a sentencing court may consider a defendant’s successful completion of probation in a prior case where his conviction was expunged pursuant to §973.015.
Allen pled no contest to homicide and injury by intoxicated use of a vehicle. His PSI noted that he had been charged with a substantial battery for fighting with another boy in school. He had been placed on probation and successfully completed it so the prior court had expunged his conviction. The State described these facts at the sentencing in this case. The court criticized Allen for not learning from his prior experience on supervision and sentenced him to 5 years of initial confinement and 4 years of extended supervision.
Allen argued that: (1) Leitner prohibited the sentencing court from considering his expunged record of conviction, and (2) his trial counsel ineffective for failing to object to references to his expunged record of conviction in his PSI and at sentencing. In a unanimous decision, SCOW rejected both challenges.
¶42 For the foregoing reasons, we determine that consideration of the fact that a defendant previously successfully completed probation does not contravene the purpose of expunction. The benefits of expunction shield a defendant from some, but not all, of the future consequences of a prior conviction. A defendant is offered a fresh start when a conviction is expunged, but when he returns to the criminal justice system the facts of that expunged record of conviction are not erased and may be properly considered at sentencing.
¶43 Accordingly, we conclude that the sentencing court did not erroneously exercise its discretion when it considered the fact that Allen had previously successfully completed supervision in a case where the record of conviction had been expunged. Under Leitner, a circuit court is permitted to consider not only those facts underlying the crime itself but also all of the facts underlying an expunged record of conviction provided those facts are not obtained from expunged court records.
Given this holding, trial counsel did not perform deficiently by not objecting to references to Allen’s expunged record of conviction. ¶46 (citing State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) and numerous similar cases).
SCOW notes that this holding can be used to a defendant’s advantage. At sentencing, defense counsel could argue that his client’s prior successful completion of probation in an expunged case shows that he is at low risk for re-offending while on probation or supervision.
SCOW also points out that here Allen did not contend that the PSI writer referenced information that should have been destroyed pursuant to SCR 72.06. This suggests a possible issue to be explored in future cases.
Justice Abrahamson filed a short concurrence expressing her concern that “permitting more extensive use of the facts underlying the expunged record of conviction chips away at the purpose of expunction. ¶51.
¶52 For me, the test to apply to the interpretation and application of the expunction statute in different factual situations is whether the court is making it harder for young offenders to escape the shadows of their past. The instant case is a close call.