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Court of appeals excuses state’s failure to file any brief; upholds denial of expunction

State v. Sean B. Day, 2021AP1018, 11/24/21, District 4 (one-judge decision; ineligible for publication); case activity (including brief)

Day was initially charged with repeated sexual assault of a child for sexual contact with a 14-year-old when he was 17. He ended up pleading to a single count of fourth-degree sexual assault and was put on probation. The circuit court failed to mention expunction at the sentencing hearing, but later–both in writing and at the postconviction motion hearing–it gave the reasons it did not find expunction appropriate.

Day appealed and, per the court of appeals, presented his arguments “ably.” The state presented no arguments, ably or otherwise: it failed to file a brief, even after the court of appeals warned that this could result in summary reversal. (¶8 n.4). An empty threat, as it turns out: for the second time in recent weeks, the court of appeals can’t bring itself to sanction the state for… well, refusing to even show up. Instead it decides the case against Day despite the lack of any opposition, concluding the circuit court properly exercised its discretion. The lower court noted that Day had a previous, non-expunged conviction such that expunction would be less meaningful for him; that his new conviction suggested that he failed to appreciate the seriousness of his conduct; and that granting expunction where the original charge was very serious could discourage the prosecutor from offering plea bargains like the one Day received. Day’s arguments in favor of expunction, while reasonable, can’t overcome the deference the court of appeals owes the circuit court’s discretionary decision.  (¶¶10-15).

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