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Sentencing, Expungement, § 973.015(1)(a) (2009-10): Retroactivity

State v. Nathan J. Meinhardt, 2012 WI App 82 (recommended for publication); case activity

Amendments to § 973.015(1)(a) (2009-10), which expanded the offender’s age-ceiling and the eligible pool of offenses, doesn’t apply retroactively.

¶3        The determinative issue in this case is whether the circuit court has the authority to apply the amended version of Wis. Stat.§ 973.015(1)(a) retroactively to Meinhardt’s case.  The question of whether a statute can be applied retroactively is a question of law which this court reviews de novo.  See Snopek v. Lakeland Medical Ctr., 223 Wis. 2d 288, 293, 588 N.W.2d 19 (1999).  When determining whether to give a statute retroactive effect, we are bound by the legislature’s express intent.  State v. Jason J.C., 216 Wis. 2d 12, 15, 573 N.W.2d 564 (Ct. App. 1997).  “The general rule of statutory construction is that statutes are construed as relating to future and not to past acts.”  City of Madison v. Town of Madison, 127 Wis. 2d 96, 102, 377 N.W.2d 221 (Ct. App. 1985).  There are, however, exceptions to this rule.  One such exception is that a statute may be applied retroactively if the statute is remedial or procedural rather than substantive so long as there is no clear legislative intent to the contrary and retroactive application would not affect contracts or vested rights.  Snopek, 223 Wis. 2d at 294.

¶4        Meinhardt’s argument is that Wis. Stat. § 973.015(1)(a) should be applied retroactively because it is a procedural statute.  Seeid.  We need not address that line of reasoning or the cases Meinhardt cites in support of it in detail because his contention ignores the overriding principle that where legislative intent is clear, we need not look further.[2]  See Jason J.C., 216 Wis. 2d at 19; Snopek, 223 Wis. 2d at 294.

¶5        In this case, the legislature’s intent to apply Wis. Stat. § 973.015(1)(a) prospectively rather than retroactively is found in the Act that amended the statute.  See 2009 Wis. Act 28, §§ 9309 and 9400.  First, § 9309 explains that “[t]he treatment of section 973.015(1)(a) and (c) of the statutes first applies to sentencing orders that occur on the effective date of this subsection.”  (Emphasis added.)  Then, § 9400 gives the majority of the act, including § 9309, an effective date of July 1, 2009.  Therefore, under the amended § 973.015(1)(a), a defendant must be under twenty-five at the commission of his offense and be sentenced on or after July 1, 2009, as well as meeting the additional criteria in the statute, to qualify for expungement.  While Meinhardt was of appropriate age when he committed his offense, he was sentenced prior to July 1, 2009.  Because of that, the circuit court was correct in finding that it had no authority to order expungement.

State v. Melody P.M., No. 2009AP2994, unpublished slip op. (Ct. App. June 10, 2010), distinguished on ground that case dealt with expungement of forfeiture not criminal offense, ¶4 n. 2:

… We need not either follow or disavow Melody P.M. in this case because that court simply did not deal with the issue which is before us.  A close reading reveals that the court’s authority to retroactively expunge records was not directly addressed, presumably because it was not raised by the parties.  See Melody P.M., unpublished slip op., ¶4.  Instead, the issue was whether forfeitures, which were ineligible for expungement under the old Wis. Stat. § 973.015(1)(a) (2007-08), were eligible for expungement under the new Wis. Stat. § 973.015(1)(a) (2009-10).  See Melody P.M., unpublished slip op., ¶¶4-7.  At any rate, our holding now controls.

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