State v. Melody P.M., No. 2009AP2994, District IV, 6/10/10
court of appeals decision (1-judge; not for publication)
Civil conviction for an ordinance violation may be expunged under § 973.015.
Can’t provide any of the background beyond what’s recited in the opinion, because all traces have been removed from both circuit court and appellate dockets. Makes sense: if you’re going to order expungement then the order ought to have practical meaning. Here’s what we do know: Melody plea-bargained a misdemeanor retail theft down to an ordinance violation for the same offense, in 2000. She wasn’t entitled then to expungement because State v. Michaels, 142 Wis. 2d 172, 417 N.W.2d 415 (Ct. App. 1987) held that § 973.015 didn’t apply to civil forfeitures, reasoning that the statutory title, “Misdemeanors, special disposition,” was “persuasive” as to legislative intent. The title referenced “misdemeanors,” therefore forfeitures were off the table, and that was that. (True enough, caselaw does support consideration of statute titles; at the same time, § 990.001(6) clearly, or so one might think, provides that such titles “are not part of the statutes.” Not part of, yet integral to their meaning: a riddle for the ages.) Time marches on and in 2009, the statute was amended to eliminate the reference to “misdemeanors” in the title, which now simply says, “Special disposition.” Well, you can’t very well say that the statute excludes ordinance violations because of the titular reference to misdemeanors, then shrug off the elimination of that very reference.
¶7 The June 30, 2009 amendment to Wis. Stat. § 973.015, in addition to enlarging the maximum period of imprisonment a violation may have in order to be eligible for expungement, eliminated the term “Misdemeanors” from the name of the statute. Absent that term, there is nothing in the plain language of § 973.015 limiting its application to only misdemeanor offenses. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“statutory interpretation ‘begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’”). We therefore conclude that following the effective date of the amendment to the statute, § 973.015 applies not only to misdemeanors, but also to forfeitures.
Not discussed by the court: the amendment applies retroactively, otherwise of course relief wouldn’t be possible. And, what happens when the case is charged as an ordinance violation? This was a “CM” case, so the circuit court had continuing criminal-court jurisdiction over it, which made authority to enter an expungement order non-problematic. But at the same time, the expungement statute falls within the criminal procedure code, § 967.01, while ordinance cases don’t. Assuming that a violation prosecuted as an ordinance case doesn’t fall within an expungement provision, including § 973.015, does such contingent availability of expungement create an equal protection problem? You would think a decent argument could be made.
This is a very interesting issue and debate. This decision leaves more questions than answers. Yes, as the summary above notes, Melody obviously permitted retroactive application of the expungement statute. Is that because the language of the statute would allow post-sentencing expungement. The statute says that the court “may order at sentencing” that the record be expunged. Does this mean that the court “must” make that order or “shall” make that order at sentencing? The word “may” seems to suggest that the court has the discretion as to whether or not this has to be ordered at sentencing. The legislature, of course, could have used more commas to say “may order, at sentencing,…” or the legislature could have said “the court may only order at sentencing…”. As it stands, different courts are treating and applying the statute in different ways, which does in fact raise equal protection issues for certain defendants.
As I read the statute, it states that a defendant’s record can be expunged upon successful completion of the “sentence.” Wisconsin case law has consistently defined probation as not being a sentence. Does this mean the statute doesn’t specifically allow for expungement if a defendant is placed on probation? I don’t know of any judge who has interpreted the statute in this way, but if we’re going to read it in the strictest possible way, this could be a potential problem.
Either the legislature needs to make this statute more clear, or the court of appeals needs to revist the issue of retroactive application and issue a clear ruling. This may be one of the more important legal issues under development in Wisconsin right now. Given that felonies can now be expunged, there will also be questions of what expungement actually means. Does an expunged conviction still count as a felony for civil rights deprivation purposes? i.e. can a felon, with an expunged offense, lawfully possess a firearm?