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SCOW holds that expungement requires perfect compliance with DOC-imposed conditions of probation

State v. Jordan Alexander Lickes, 2021 WI 60, affirming a published court of appeals opinion, 2019AP1272-CR, 6/15/21, case activity (including briefs)

In State v. Ozuna, SCOW held that a young offender’s violation of any court-imposed conditions of probation renders expungement unavailable. Here, Lickes argued that: (1) the same rule does not apply to conditions imposed by the DOC, and (2) the circuit court has the discretion to find that an offender has satisfied the DOC’s conditions even if he has violated one or more of them and especially when, as in this case, the DOC itself requests expungement. In a split decision, SCOW rejects both arguments, making expungement a pipe dream for most young offenders.

R.G. Bradley wrote the majority opinion. On the first issue, the decision was unanimous. The term “conditions of probation” in §973.015(1m)(b) means both the conditions imposed by the sentencing court and the conditions imposed by the DOC.  SCOW reached this conclusion by construing that statute consistently with closely related statutes using the same term. See Opinion ¶¶15-27. 

Just one of those statutes is §973.10(1),  which provides that “[i]mposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department[.]” According to SCOW: “‘As a matter of law,’ therefore, individuals are required to ‘abide . . . with departmental regulations.’ State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 52, 393 N.W.2d 105 (Ct. App. 1986).” Opinion, ¶19.

The decision regarding the circuit court’s discretion to find that a young offender has satisfied the conditions of probation was split 5-2 with Karofsky joining the conservatives.

Justice A.W. Bradley wrote the dissent. It mirrored her dissent in Ozuna where she stressed that the purpose of the expungement statute is to shield young offenders from the harsh consequences of a criminal conviction when they can demonstrate an ability to comply with the law.  She argued that requiring young offenders to comply perfectly with the sentencing court’s myriad of conditions of probation effectively removes the possibility of expungement.

Her dissent in Lickes’ case doubles down on that point. A standard probation rule prevents the offender from buying things on credit. What if he buys gas with a credit card? AWB notes that under the majority opinion, the circuit court has no discretion to declare that he has still satisfied the conditions of probation.

¶41 Admittedly, the violations here are more significant than the above examples, but that matters not. The majority interprets “satisfaction” as an all-or-nothing proposition. Thus, in the majority’s view, regardless of the severity of the violation, the circuit court has no discretion at all in deciding whether to grant or deny expungement. Majority op., ¶30.

¶42 With a mere three paragraphs of analysis on the issue, see id., ¶¶28-30, the majority jettisons the future lives of countless young offenders and their families, who will be harmed by this stunted analysis. And why? The answer of the majority is”the legislature made us do this.”

¶43 Nonsense. The legislature did no such thing. The plain text of Wis. Stat. § 973.015(1m)(b) requires that a probationer “satisfy” the conditions of probation. Here, both the DOC and the circuit court, entities in the best position to make such a finding, determined that Jordan Lickes did so.

¶44 Rather than embracing those determinations, the majority instead embarks upon a misguided and destructive path. Its conclusory determination runs counter to the statutory language, has no basis in the case law the majority cites, and thwarts the purpose of the expungement statute.






{ 2 comments… add one }
  • Chris June 18, 2021, 10:52 am

    An offender who is able to complete probation without any violations was probably too low risk/low needs to require supervision in the first place. The majority decision leaves a major issue undecided: who gets to adjudicate a contested ‘violation’ for purposes of expungement? In this case, they had a signed admission, but in many cases the circuit court will just take the agent’s word for it. It’s a bad idea to make a DOC agent judge, jury, and executioner, particularly when many exaggerate the truth, and more than a few relish the opportunity to punish supervisees who look at them the wrong way. This opinion also allows third-party providers to torpedo an offender’s opportunity to expunge his or her record by generically saying they didn’t “pass” programming. Basic due process should require a neutral arbiter like the circuit court to determine whether there was a violation within the meaning of 973.015(1m)(b) rather than accepting an agent’s written summary as the gospel truth.

  • Peter Heyne June 20, 2021, 3:22 pm

    Expanding on the comment above, there are significant procedural and substantive issues. E.g., what is the application of State v. Peebles, 2010 WI App, 156, 330 Wis. 2d 243, 792 N.W.2d 212, and more recently, State v. Alexander, 2015 WI 6, 360, Wis. 2d 292, 858 N.W.2d 662, which forbid the trial court from relying on compelled incriminating statements to a probation agent?

    There seems to be a Hobson’s choice … to avoid revocation (for refusing to give a statement to DOC), give a compelled statement to your PO admitting to minor rule violations, but thereby forfeit expungement even if the agent supports expungement.

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