Circuit court can revisit expungement after sentencing if it erred in deferring decision at sentencing

State v. Armstrong, 2016AP97-CR, District 2, 8/17/16 (one-judge decision; ineligible for publication); case activity (including defendant’s brief; the state did not file a response brief)

While § 973.015 and State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, require that expungement be decided at the time of sentencing, not put off till after the defendant completes the sentence, a circuit court has the power to decide expungement after sentencing when it erred in deferring, on its own accord, a defendant’s expungement request at the time of sentencing.

When Armstrong pled to several misdemeanor offenses in 2010 he asked the judge to order expungment, but the judge deferred a decision on expungement until after Armstrong completed his four-year period of probation. (¶¶2-5). Having successfully completed probation in 2014, he moved for expungement. (¶6). By the time the circuit court addressed the motion, Matasek had been issued, and based on that decision the circuit court concluded it had no power to grant expungement at this point. (¶¶7-9). It reaffirmed that conclusion in denying Armstrong’s motion to reconsider. (¶¶10-12).

The court of appeals disagrees, holding that Matasek does not bar a circuit court that alone decided to defer an expungement request. from later deciding that request after probation has been successfully completed. (¶14). The court of appeals finds the facts in Matasek are distinguishable because in that case the defendant asked that the court withhold its decision on expungement until after he successfully completed his probation. Further, it notes, the supreme court acknowledged that circuit courts had concluded § 973.015 allowed them to defer a decision on expungement, and it expressly said it was not deciding the “question of the effect of a circuit court’s having incorrectly deferred the discretionary expunction decision….” Matasek, 353 Wis. 2d 601, ¶5 n.3. Thus:

¶15     Where a circuit court has deferred a request for expungement based on its own erroneous interpretation of § 973.015, deciding the deferred request later, after the offender has successfully completed probation, does not undermine the policy behind § 973.015. The Matasek court noted that deciding expungement at sentencing “creates a meaningful incentive for the offender to avoid reoffending” whereas under a “‘wait-and-see’ approach, offenders will be uncertain whether the circuit court will expunge the record and this uncertainty might provide a weaker incentive to an offender to complete his or her sentence successfully.” Matasek, 353 Wis. 2d 601, ¶43. This legislative policy was not undermined here, for Armstrong did comply with the law and successfully completed his probation without reoffending, despite the fact he had a “weaker incentive” to do so. Ultimately, “[t]he legislative purpose of … § 973.015 is to provide … a break to young offenders who demonstrate the ability to comply with the law and to provide a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions.” Matasek, 353 Wis. 2d 601, ¶42 (citation omitted). Armstrong did comply with the law, and whether he should be shielded from some of the harsh consequences of his convictions, such as the added difficulty a conviction may have on him finding employment, should be decided on the merits. To do otherwise, because of an error on the part of the circuit court, would be unjust.

Deciding that the circuit court had the power to order expungement doesn’t ultimately help Armstrong, however. Despite saying it didn’t have the power to grant expungement, the circuit court also addressed the merits of Armstrong’s request and decided expungement would be inappropriate. (¶¶9, 12). The court of appeals affirms this decision as an appropriate exercise of discretion.

¶16     …. The court found that Armstrong did not show that he would benefit from expungement. There was insufficient evidence that Armstrong had been denied employment because of his convictions and not because of some other reason, such as a lack of qualifications or skills. Defense counsel’s “general statements,” as the court noted, were not proof. Further, the circuit court rationally concluded that Armstrong had failed to show that society would not be harmed by the expungement. If the convictions were expunged, anyone who hired Armstrong would be unable to take additional prudent steps to ensure the protection of its employees. Under these circumstances, we cannot say that the circuit court erroneously exercised its discretion when it concluded that the harm to society outweighed the benefit to Armstrong. ….