State v. Kearney Hemp, 2014 WI App 34, petition for review granted 6/12/14, reversed 2014 WI 129; case activity
Every so often there’s an opinion that makes you shake your head in disbelief. This is one of them.
Hemp was convicted with 1 count of possession with intent to deliver THC, aka hemp. A court granted conditional jail time, probation and “expungement upon successful completion of probation,” which Hemp in fact completed. The DOC issued a discharge certificate to the court, and the court noted it on CCAP. See Hemp’s brief. Eight months later, Hemp was charged with possession of THC and OWI in a different county. He then petitioned for expunction of the first conviction. The court said, essentially, “wait, Mr. Hemp, first prove you successfully completed probation,” even though the discharge certificate had been in the court’s file for 9 months. Hemp’s lawyer failed to respond. So Hemp got a second lawyer, who filed a 2nd petition for expunction, which the court denied as “tardy” for having violated the “implied time element” for filing a petition in § 973.015(2). Slip op.¶ 5.
Issue: § 973.015(2) says: “Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.” (Emphasis supplied). Was Hemp required to petition for expunction of the 1st conviction, or was expunction to occur automatically once: (a) he successfully completed probation, and (b) the DOC issued a discharge certificate to the court? And whose job was it to forward the discharge certificate to the court?
Holding: Though the statute doesn’t require the defendant to forward the certificate to the circuit court, the COA held that Judicial Conference Form CR-266 imposes this requirement upon the defendant. Other statutes explicitly require defendants to petition for expunction, the legislature must have intended, but somehow omitted, the same requirement for § 973.015. Moreover, “Upon,” according to Webster’s Dictionary means “immediately following on: very soon after.” Slip op. ¶15. The defendant (allegedly) waited a year before filing a petition. That was an “unreasonable” delay and violates the “upon” requirement.
What stuck in the majority’s craw is that if Hemp got his first conviction expunged, he would receive a lower sentence in the 2nd case. But as the dissent notes: So what? How does the timing of the expunction Hemp earned change the result? Dissent, ¶24. Then there’s the question of whether the circuit court retains discretion to revisit its expunction decision after the defendant successfully completes probation. That very issue is now pending in SCOW, see State v. Matasek, 2013 WI App 63, ¶7, 348 Wis. 2d 243, 831 N.W.2d 450. See prior post here and the briefs for that case here. Query why the COA didn’t sua sponte stay this case until SCOW resolves the matter.
Next, the majority admits § 973.015(2) does not require the defendant to file the discharge certificate with the circuit court. But it infers this requirement from Form CR-266—a form neither the statute (nor, dare we add, the Wisconsin Judicial Benchbook) mention. (Please, defense lawyers, raise your virtual hands if you have heard of it). Then there’s the brand new, unspecified expunction deadline inferred from the preposition “upon,” without citation to any legal authority. The court notes that when used in a statute, words like “immediately,” “forthwith,” and “promptly” require notice “in a reasonable time.” But § 973.015 doesn’t use any of those words. The list of statutory construction, calculation, and other errors could go on and on, which raises the question: what on earth happened with the majority opinion? The answer might be that it cut and pasted a bit too much from the State’s brief, which doesn’t cite even 1 case applying § 973.015. See for yourselves. Opinion here. State’s brief here. In any event, contrary to the statutory history of § 973.015, which has steadily expanded the right to expunction, Matasek and Hemp together now make it really hard to get expunction. Enough said (for now).
This decision leaves out a class of individuals who stand to be irreparably harmed by this decision–because as On Point notes, there is this uncertain issue of “who’s job was it to forward a certificate of discharge”. Here,its asserted it was Mr. Hemp, and perhaps so, as its a felony–but that judicially created requirement appears to ignore the handling of misdemeanors by current statute. To wit: sec. 973.09(5), which does not appear to be mentioned at all in the court’s decision, states, “When the period of probation for a probationer has expired, the probationer shall be discharged from probation and the department shall do all of the following: …(c) In all cases, notify the court that placed the probationer on probation that the period of probation has expired.”
It would seem that the DOC’s current obligation as set out by statute to “NOTIFY THE COURT” would already suffice for the 973.015 requirement for both felony and misdemeanor matters (although admittedly its unclear how that is envisioned, as there apparently may not a already be form developed by DOC, unlike the Director of State Court’s CR-266 already created–one wonders what the process for doing that is).
Why would it suffice? Because by the specific language of the 973.09 statute, the defendant ONLY gets the referenced “certificate of discharge” (which from experience in reviewing closed court files generally have been dot-matrix style printouts, sometimes a 1/4 page of paper) FOR A FELONY under paren (5)(a)*, but NOT FOR A MISDEMEANOR under (2)**–so it would appear practical (impossible?) for a misdemeanor expunction case to result in discharge.
So in sum, this requirement would appear to call into question the decision’s conclusion on page 7, “We conclude that § 973.015 requires a petitioner to forward his discharge certificate as soon practicable. ”
Perhaps it will be possible for Mr. Hemp to pursue this issue on further appeal because if that is indeed the requirement, it logically would follow that it is impossible to obtain misdemeanor expunction.
Expunction benefits the young and the naive (not the experienced and savvy) who have little expertise or ability to navigate the legal system. Setting up this requirement by this decision stands to prevent what appears to have been intended by the statute, and impede court process when pro se defendants try to solve the riddle in the enigma in the mystery.
* 973.09(5)(a) If the probationer was placed on probation for a felony, issue the probationer one of the following:
1. A certificate of discharge from probation for the felony for which he or she was placed on probation if, at the time of discharge, the probationer is on probation or parole for another felony.
2. A certificate of final discharge if, at the time of discharge, the probationer is not on probation or parole for another felony. A certificate of final discharge under this subdivision shall list the civil rights which have been restored to the probationer and the civil rights which have not been restored to the probationer.
*** 973.09(5)(b) If the probationer was placed on probation for a misdemeanor, notify the probationer that his or her period of probation has expired.
“The article on the Wisconsin Bar web page states: “Form CR-266, and all of its requirements, including the attachment of the discharge certificate, are the sole responsibility of the defendant,” Judge Kessler wrote. “It logically follows, then, that Wis. Stat. § 973.015 implicitly requires a defendant seeking the benefit of expungement to provide the circuit court with his discharge certificate.”
Editor’s note: The original version of this post incorrectly referred to the “Judicial Council” CR-Form 266. It should have said “the Judicial Conference” CR-Form 266.” That change has been made.