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“Close enough” is good for horseshoes and hand grenades, but not the expungement statute

State v. Lazaro Ozuna, 2015AP1877-CR, 4/13/16, District 2 (one-judge decision; ineligible for publication), petition for review granted 9/13/16, affirmed 2017 WI 64, ; case activity (including briefs)

Even though DOC discharged Ozuna from probation, he didn’t successfully complete his sentence for purposes of the expungement statute because he was cited for underage drinking while he was on probation and therefore violated the court-imposed probation condition that he not consume any alcohol.

Under § 973.015(1m)(a)1., a sentencing court may order a conviction to be expunged if the defendant successfully completes the sentence imposed. “Successful completion” means the person hasn’t been convicted of another offense and, if the defendant was placed on probation, that “the probation has not been revoked and the probationer has satisfied the conditions of probation.” § 973.015(1m)(b). Upon successful completion of the sentence, the detaining or probationary authority issues a certificate of discharge; expungement is then automatic. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811.

Ozuna was placed on probation for two misdemeanors. He didn’t get revoked, and DOC issued a discharge certificate that said he “successfully completed” his probation. But it also said he didn’t meet all the court-ordered conditions because of the underage drinking citation. (¶¶2-3). The judge denied expungement, and the court of appeals affirms based on a strict reading of the statute:

¶6     What it means for a person to “successfully complete[]” his or her sentence is defined in Wis. Stat. § 973.015(1m)(b):

A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.

Therefore, one who completes probation without revocation or another conviction still fails to “successfully complete[]” his sentence if he does not satisfy all conditions of probation. Id.

¶7     According to the DOC form, Ozuna was cited for underage drinking after giving a preliminary breath test of 102 [sic]. Both the written judgment of conviction and the circuit court’s oral ruling confirm that one of the conditions of Ozuna’s probation was that he refrain from consuming alcohol. Thus, according to the statutory definition, Ozuna did not successfully complete his sentence and was not entitled to expungement. ….

The court says this result doesn’t run afoul of Hemp’s stricture that a court can’t revisit its original expungement decision because the defendant in that case satisfied his conditions of probation; Ozuna didn’t, despite the fact DOC’s form says Ozuna “successfully completed” the sentence. (¶7 n.2). And, the court says, substantial compliance with probation conditions isn’t enough, as there is no basis in the statutory language for that conclusion and it provides no standard for deciding if the conditions were satisfied: “If Ozuna’s lone drinking citation is considered acceptable, how about two? Or three?” (¶10).

The court declines to address Ozuna’s argument that there are due process problems with blindly accepting DOC’s representation that he was cited for underage drinking. The court says Ozuna hasn’t disputed he was cited or developed an argument about what mechanisms are (or should be) available through DOC or the court system or both to correct errors in the DOC’s discharge certificate. (¶9). So if you’re litigating an expungement denial in the future and you find it’s based on an error made by DOC, propose some way to try to fix the error (a letter to DOC with proof of the error and request for a new certificate? a motion to the sentencing court?) in conjunction with your due process argument.

{ 2 comments… add one }
  • Robert R. Henak April 14, 2016, 9:46 am

    Why are statutory requirements for the state always viewed by the courts as merely “directory,” e.g., State v. Olson, 222 Wis. 2d 283, 288, 588 N.W.2d 256, 258 (Ct. App. 1998), while perceived requirements for defendants are automatically deemed mandatory? On the issue of mandatory versus directory, see generally Cross v. Soderbeck, 94 Wis. 2d 331, 340, 288 N.W.2d 779, 782 (1980).

  • Peter Heyne April 19, 2016, 9:09 am

    I had a case in which the trial court granted expungement upon successful completion of probation. Client had no rule violations while on probation, but was not able to pay all her court fees in time (including my court-appointed attorney fees), so probation was extended. To her credit (literally), in a few months, she was able to pay all the fees and was discharged by DOC.

    Come early January 2015, just after Hemp was decided, I checked in with the clerk of courts just to make sure they did their duty. The clerk of courts here never even heard of Hemp (why was there not a state-wide memo??). So I provided a copy of the decision and argued that my client had successfully completed probation. Maybe not in the original 6 months’ term (Judge really cut her a break giving her the minimum), but not long thereafter. The trial court did not specifically state that one of the express conditions of probation, and more importantly, of expungement, was to pay all costs within the 6 months.

    Likewise, for the equities, my client had no rule violations, no bad conduct–just penury. To withhold expungement because of her inability to pay all the fees in 6 mos. was in effect a type of debtor’s prison. The clerk of courts consulted the presiding judge of the county and chief judge of our district, and eventually the system relented and expunged the record.

    I suspect that in the future, like Deferred Judgment Agreements becoming more like real (i.e., detailed) civil contracts, trial courts will be more explicit about the preconditions for expungement.

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