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SCOW issues big win for young offenders seeking expungement

State v. Kearney W. Hemp, 2014 WI 129, 12/18/14, reversing a published court of appeals decision; opinion by Justice Gableman; case activity

At last, a unanimous SCOW decision settles how §973.015 is really supposed to work. Upon a young person’s successful completion of a sentence or probation, the detaining or probationary authority must issue a certificate of discharge to the court. This alerts the clerk to expunge the record. No petition is necessary. And once a court grants expungement, and the young person performs as required, the court cannot reverse its decision.

This case picks up where State v. Matasek, decided last term, left off. Matasek held that under §973.015 the circuit must decide whether or not to grant expungement at the time of sentencing. See prior post. Hemp addresses what happens after expungement is granted. The issue has troubled public defenders because, after negotiating or arguing for expungement during a case, they technically cannot represent their former clients in expungement proceedings. Turns out no lawyer is necessary.  The expungement process is self-executing. Says SCOW:

If a circuit court finds an individual defendant eligible for expungement and conditions expungement upon the successful completion of the sentence, then the plain language of the statute indicates that once the defendant successfully completes his sentence, he has earned, and is automatically entitled to, expungement. Slip op. ¶23.

Nothing in Wis. Stat. § 973.015 authorizes the circuit court to revisit, impose new requirements, or otherwise reverse its decision to find an individual eligible for expungement conditioned upon the successful completion of the sentence.  Matasek, 353 Wis. 2d 601, ¶45.  Slip op. ¶24.

[W]e conclude the detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant’s successful completion of his sentence and at that point the process of expungement is self-executing.  Wisconsin Stat. § 973.015(2) places no burden on the individual defendant to forward his certificate of discharge to the court of record and petition for expungement within a certain period of time.  Slip op. ¶25.

It would be inconsistent with both the plain language of the statute and with common sense to expect a (usually) unrepresented individual seeking expungement, who is (usually) neither educated in the law nor in legal procedure, to perform the inspection necessary to ensure that expungement was effectuated.  To be clear, one who has successfully completed probation need not forward a copy of his certificate of discharge, as that duty does not rest with him, but with the detaining or probationary authority.  Slip op. ¶35.

[T]he circuit court and court of appeals incorrectly determined that Wis. Stat. § 973.015 contains an implicit time limit.  There is no basis in Wis. Stat. § 973.015 on which the court of appeals or the circuit court could find such a time limit within which a defendant must petition for expungement.  Slip op. ¶37.

The circuit court had placed Hemp on probation for possession of THC and other crimes and ordered expungement. Hemp successfully completed probation, but was then convicted of a 2nd crime. The court of appeals majority was offended by the prospect that expungement of Hemp’s 1st conviction would yield a lower sentence in his 2nd case. To prevent this result, it grafted a 1-year deadline onto §973.015 and declared that persons seeking expungement must file a Form CR-266 with the circuit court.  SCOW balked. Form CR-266, it explained, is just a tool a defendant may use to obtain expungement when the detaining authority has failed to forward the certificate of discharge to the court. It is not a requirement. SCOW also said that Form CR-266 is misleading and ordered revision of it. Slip op. ¶35.

Special thanks to Sheila Sullivan and her team at Legal Action of Wisconsin, who filed an excellent amicus brief describing the consequences of the court of appeals’ misinterpretation of § 973.015 for our clients. Thanks also to trial lawyers Mark Gumz, Tom Reed, and Laurie Osberg for their “boots on the ground” perspective on the expunction process, which formed the spine of the SPD’s amicus brief. Plus see Mike Tobin‘s analysis of the case on the Collateral Consequences Resource Center website here!



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