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State v. Lazaro Ozuna, 2015AP1877-CR, petiton for review granted , 9/13/16

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues:

(1)  Whether to satisfy the conditions of probation for purposes of Wisconsin’s expungement statute, § 973.015(1m)(b), a probationer must perfectly comply with every probation condition, or whether under State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, it is enough that the probation agent determines that the probationer has successfully completed probation?

(2)  Whether Ozuna‘s procedural due process rights were violated when the court failed to provide him with notice or a hearing before denying expungement?

Ozuma satisfied all of the conditions of his probation except two. He was cited once for underage drinking (something he wasn’t to do on probation) and he didn’t pay all of his fines. This didn’t trouble the DOC. It issued the “Verification of Satisfaction of Probation Conditions for Expungement.” The court saw this and without holding a hearing wrote on the form “expungement denied.” Did the court have the authority to reverse its prior order for expungement once the DOC certified that probation had been successfully completed? Hemp, which holds that expungement is automatic once the DOC forwards a certificate of discharge to the court, suggests the answer is “no.” So does State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, which holds that a circuit court’s discretion to grant or deny expungement must be exercised at the time of sentencing. See our prior posts on Hemp here and See Mike Tobin’s analysis of the decision here. See our post on Matasek here. Among other things, SCOW’s decision should clarify whether perfection is required to satisfy conditions of probation. In a stern rebuke to Ozuna, the court of appeals said that it is:

Ozuna invites this court to create a new, lower bar with no clear delineation or foundation in the statute. If Ozuna’s lone drinking citation is considered acceptable, how about two? Or three? While grace and mercy are indispensable components of justice, the real tragedy here is that Ozuna found the grace of expungement not worth the price of abstinence from alcohol during probation. That choice was his, and this court finds nothing in the statute granting it liberty to extend a third chance when Ozuna chose to spurn the second. ¶10.

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