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Court of appeals continues to constrict expunction statute

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

Lickes got probation on three counts, and the court made him expunction-eligible on all of them. The length of the terms differed however; two of the counts would be discharged some time before the third. While still on probation for all three, Lickes violated various DOC-imposed conditions. These violations were resolved with an ATR. The court holds, first, that this violation meant he could not have his convictions expunged, even if his agent ultimately submitted a form saying he’d successfully completed his probation. The court views the question as one of statutory construction and holds that the statute is clear and provides the circuit court no discretion in the matter. (¶36). It also rejects an argument about the rule of lenity. (¶¶33-34).

And that’s really all the court would have to say to decide this case: the rule violation rendered expunction unavailable on all three counts. For reasons unknown, the court nevertheless decides a second issue related to the first two counts: it holds that Lickes also didn’t satisfy a court ordered condition because he completed the sex-offender treatment the court had ordered after the expiration of his probation. This fact-bound decision is, again, unnecessary to the decision here, and  it’s unclear why the court bothered. In any case, the takeaway here is, as we said with Ozuna, expunction is more or less at the whim of the probation agent and the judge.

{ 1 comment… add one }
  • Peter Heyne August 25, 2020, 3:13 pm

    If there is a silver lining, the multiple DOC rule violations did not appear to be de minimis (nor not rationally related to the crimes of conviction); and there was no factual dispute that the violations occurred.

    So (thankfully) it is not as if the agent, on a whim, arbitrarily imposed an unreasonable rule of supervision; and there is a serious doubt if the probationer in fact violated said rule.

    Per the agent, “Mr. Lickes has had unapproved sexual contact, has given his agent false information, and has been terminated from Sex Offender Treatment.” ¶4

    Moreover, the probationer “signed a statement admitting that he had ‘violated the rules and conditions of probation as described on the front,’ and agreeing to accept the 45 days of jail time requested by DOC [as an ATR].” ¶5. Lickes does not dispute that he violated DOC rules of probation. ¶14

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