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Cases dismissed after completion of deferred prosecution agreement can’t be expunged under § 973.015

State v. Andrew R. Geurts, 2014AP1520-CR, District 4, 12/4/14 (one-judge decision; ineligible for publication); case activity

The circuit court had no authority to expunge the record of Geurts’s criminal case after it was dismissed after his successful completion of a deferred prosecution agreement because § 973.015 applies only to the record of an offense for which the person has been found guilty.

Geurts was charged with disorderly conduct. He entered into a deferred prosecution agreement under which he pled no contest and a finding of guilt was deferred for 12 months while Geurts complied with various conditions. When he entered his plea, Geurts sought to “reserve” his right to expungement under § 973.015 if he successfully completed the DPA; the state objected, saying that statute doesn’t apply to dismissed charges. The circuit court said declined to decide the issue at that point and said Geurts could make the argument after he completed the DPA. But after Geurts satisfied the DPA and moved for expungement, the circuit court agreed with the state and held § 973.015 didn’t apply because Geurts had never been found guilty. (¶¶2-7).

The court of appeals agrees, rejecting Geurts’s argument that § 973.015 is ambiguous when read in context with § 971.37, which governs DPAs, as interpreted by State v. Daley, 2006 WI App 81, 292 Wis. 2d 517, 716 N.W.2d 146:

¶14     This argument is meritless for reasons that include at least the following. First, Geurts fails to explain why I should conclude that the legislature intended to modify or define the phrase “for which the person has been found guilty” in Wis. Stat. § 973.015(1)(a)[1.] through the use of any term in Wis. Stat. §971.37. Second, the holding in Daley referred to by Geurts has nothing remotely to do with expunction. Discussion in that case involves the requirements the State can attach to a deferred prosecution agreement and plea withdrawal standards in the context of a deferred prosecution. Id., ¶¶6-18. …

Geurts also relied on the unpublished decision in State v. Melody P.M., No. 2009AP2994 (Wis. Ct. App. June 10, 2010), which held that § 973.015 applied to ordinance violations. But as the court notes (¶14 n.2), Melody P.M. has been overruled by Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014) (recommended for publication).

Geurts’s argument that the circuit court has inherent authority to expunge is rejected as undeveloped (¶¶17-18), and his argument that the circuit court had equitable authority to grant expungement is forfeited (¶¶20-21). A court’s authority to grant equitable relief “must be in response to the invasion of legally protected rights,” Breier v. E.C., 130 Wis. 2d 376, 389, 387 N.W.2d 72 (1986), and Geurts failed to present an argument in the circuit court as to what legally protected right was invaded.

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