Sentencing court assures defendant: “You can ask for expunction later.” Court of appeals says: “No, you can’t”

State v. Kole R. Eichinger, 2017AP1845-1847-CR, 10/16/18, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

This case highlights an expunction issue that SCOW still needs to resolve. Prior to 2014, circuit courts often delayed deciding expunction until they saw how a defendant did on probation. State v. Matasek, 2014 27, 353 Wis. 2d 601, 846 N.W.2d 811 changed that practice.  It clarified that courts must decide whether to order expunction at the time of sentencing.  What about all of the defendants who were expressly told at sentencing that they could apply for expunction after they completed probation?

Eichingher is one of those defendants. In 2012, he pled to 5 misdemeanors. The sentencing court imposed 24 months probation and said:

I am going to hold open the decision on expungement, but I will allow you to apply for expungement after 20 months of your probation. So depending on how you do on probation, you might come back to me and have a favorable response with to expungement.

In 2017, Eichinger moved for expunction based upon what the sentencing judge had promised. A different judge denied his motion for lack of authority under Matasek and State v. Hemp, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811.  Expungement had not been ordered at the time of sentencing so it was too late to grant it now. The court of appeals affirmed, citing Matasek, Hemp and State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832.  See Opinion ¶¶9-13.

See our prior posts on Matasek, Hemp, and Arberry. The court of appeals overlooks key facets of these decisions, which defense lawyers should note. In Matasek, the sentencing court said that it wished it could withhold ruling on expunction to see how the defendant did on probation. Unfortunately, it had to follow the statute and decide the matter at sentencing. Based on what it knew then, it also had to deny expunction. The SPD filed an amicus brief explaining that there have been many cases where sentencing courts withheld ruling on expunction. In those cases, circuit courts should have inherent authority to address the issue after sentencing based upon their promise to the defendant. SCOW expressly chose not to address what circuit courts should do when the sentencing court tells the defendant he may request expunction after he completes probation and the defendant follows this instruction. Matasek, ¶5 n3. SCOW also chose not to resolve the “inherent authority” issue in and it has yet to do so.  Matasek, ¶6 n.4.

Factually, Arberry is very different from Eichinger’s situation. Neither the parties nor the court said anything about expunction at the time of sentencing. Arberry filed a postconviction motion arguing that expunction was a new factor overlooked by the sentencing court. SCOW held, essentially, “at the time of sentencing” means just that. Because expunction wasn’t addressed then, it can’t be addressed now.  SCOW also declined to address the new factor argument. Arberry, ¶16, n.10  Arberry should not control this case because here the sentencing court expressly told Eichinger that it would allow him to apply for expunction at a later date.  The sentencing court did not know that 2 years in the future Matasek would change this practice.

If you have a client in Eichinger’s predicament, know this: In Matasek the DOJ assured SCOW that defendants who were erroneously told that they could apply for expunction after sentencing may move for sentence modification based upon a new factor.  See the State’s brief at 17.  Also, defendant’s argue that the circuit court has inherent authority to follow through on its  commitment as noted, but not decided, in Matasek.