In State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, this Court held that circuit courts may not consider an expunged record of conviction, but may consider the facts underlying an expunged record of conviction at sentencing. Did the circuit court violate Leitner when it considered at sentencing that Mr. Allen had an expunged conviction and served a term of probation?
Was trial counsel ineffective for failing to object to the references to Mr. Allen’s expunged conviction in the pre-sentence investigation and at sentencing?
What’s the difference between a sentencing court considering an expunged record of conviction versus the facts underlying an expunged record of conviction? Supposedly, the former is like using an expunged record as a sentence enhancer. The latter is like considering the facts of an uncharged offense or the facts relating to an offense of which the defendant was acquitted. Leitner holds that a court is acquire full knowledge of the character and behavior pattern of the defendant before imposing sentence. Leitner ¶45. Toward this end, the facts underlying the record of an expunged conviction arguably elucidate the defendant’s character. Id. ¶44.
Of course, one problem with that line of thinking is that it arguably undercuts the idea that “expungement offers young offenders a fresh start without the burden of a criminal record . . . ” See State v. Hemp, 2014 WI 129, __Wis. 2d__, 856 N.W.2d 811. See our prior post on Hemp here. Hopefully, SCOW’s decision in this case will reinforce its unanimous decision for the defense in Hemp.