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SCOW will address whether circuit court can revisit expungement if it overlooked eligibility at sentencing

State v. Diamond J. Arberry, 2016AP866-CR, 6/16/17, granting a petition for review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. When a defendant is eligible for expungement under § 973.015 but expungement is not addressed the sentencing hearing, can the defendant raise the issue in a postconviction motion? If so, is a “new factor” motion the appropriate vehicle for bringing such a claim?

2. Did the circuit court err in its exercise of discretion when it denied Arberry expungement based on reasons that could apply in any case?

As explained in our post on the decision being reviewed, despite compelling evidence to the contrary the court of appeals wasn’t convinced the circuit court overlooked expungement at Arberry’s sentencing hearing; and even if it was overlooked, the court read State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, very parsimoniously, viewing it as erecting a bar against a circuit court ever revisiting expungement postconviction. Our post suggested expungement didn’t fit into the “new factor” mold very neatly and quite match up with CIP or SAP eligibility, as a court isn’t mandated to consider expungement. An astute reader took issue with that analysis, however, and the post itself noted the supreme court could decide that overlooking expungement can be the basis for a new factor postconviction motion (a result that certainly advances the expungement statute’s purposes). We’ll now learn whether, and under which postconviction rubric, a defendant can go back to a sentencing judge to ask the judge to consider expungement when it wasn’t considered the first time round.

Regarding the second issue: In denying expungement as requested by Arberry’s postconviction motion the circuit court cited some general boilerplate rationales against expungement as a policy, without reference to the specifics of Arberry’s offense and character. A decision on this issue will develop the law on what a circuit court must consider when it’s deciding an expungement request, whether at sentencing or postconviction.

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