State v. Mustafa Z. Abdel-Hamid, 2015AP1517-CR, 1/20/16, District 1 (1-judge opinion, ineligible for publication); case activity, including briefs
After being convicted of two counts of misdemeanor criminal damage to property, the defendant urged the court to grant expungement under Wis. Stat. §973.015. He pointed to his lack of criminal record, his excellent grades, his professional ambitions, and his remorse. The trial court denied expungement and the court of appeals affirmed.
On two different occasions, the defendant and his friends drove around randomly shooting BB guns out of his car windows. They shot a boy, a residential window, a car window, and other property. That conduct generated the two misdemeanor convictions. The defendant first argued that nothing in the record supported the trial court’s conclusion that he would not benefit from expungement. The court of appeals disagreed:
¶13 The trial court told Abdel-Hamid that “life is a series of choices. Sometimes we make poor choices and sometimes we need to learn that there are consequences for our actions and that they follow us.” The court went on to state that “[it] believe[d] the number of events, the days that this occurred over, the number of victims, would send a bad message to you. That—and you need to understand that there are consequences.” Obviously, the trial court’s overarching concern was to teach Abdel-Hamid that when you commit mindless crimes, there are consequences. The trial court was aware of his stellar school record and his ambitious plans for the future but clearly felt expunging his convictions would unduly depreciate the seriousness of what he did and send the wrong message. The trial court’s explanation was a proper exercise of discretion.
The defendant also challenged the trial court’s holding that society would not benefit from expungement. Nothing in the record suggested that he would reoffend, he said. But the court of appeals held that there can be other reasons why a trial court could decide that expungement would not benefit society. Slip op. ¶15 (citing State v. Matasek, 2014 WI 27, ¶9, 353 Wis. 2d 601, 846 N.W.2d 811). Here, the trial court gave valid reasons.
¶16 Similarly, the trial court here said that the number of criminal events over a series of days and the number of victims prevented her from expunging his convictions. The trial court went on to say:
these actions were extremely disruptive to members of our community and a young 15 year old was—received minor injuries from the result of a BB gun being shot at him. So, I believe the community would be harmed by expungement. Not because of the BB gun or the battery that was dismissed and read in, but the totality of the events.
This case suggests it will be ineffective assistance of counsel for any attorney defending a criminal case where expunction is legally available to not substitute this Judge.
I think, but am not sure, there’s a case on the issue of ineffectiveness for failing to substitute. If memory serves, an attorney cannot be ineffective for failing to substitute because it’s impossible to show that the outcome would have been different. You can’t, after all, go down both paths simultaneously and compare outcomes. And you don’t know which judge you would get on the sub, so you can’t call them as a witness and ask what they would have done. But I suppose it might be ineffective if the issue of substitution is never raised and discussed with the client. I always bring it up, give my advice, and then let the client decide.
The case making if difficult, if not impossible, to claim ineffective assistance for failing to file a substitution request is State v. Damaske, 212 Wis. 2d 169, 200-01, 657 N.W.2d 905 (Ct. App. 1997).