2018 WI 7
SUPREME COURT OF WISCONSIN CASE NO.: 2016AP866-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Diamond J. Arberry, Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis. 2d 179, 895 N.W.2d 100 PDC NO: 2017 WI App 26 - Published
OPINION FILED: January 19, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 14, 2017
SOURCE OF APPEAL: COURT: Circuit COUNTY: Fond du Lac JUDGE: Peter L. Grimm
JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs and an oral argument by Ellen J. Krahn, assistant state public defender.
For the plaintiff-respondent, there was a brief and oral argument by Christine A. Remington, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2018 WI 7 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP866-CR (L.C. No. 2015CF294)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. JAN 19, 2018 Diamond J. Arberry, Diane M. Fremgen Acting Clerk of Supreme Court Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals, State v. Arberry,
2017 WI App 26, 375 Wis. 2d 179, 895 N.W.2d 100, affirming the Fond du Lac County circuit court's1 denial of Diamond J.
Arberry's ("Arberry") postconviction motion seeking expunction2
1 The Honorable Peter L. Grimm presided. 2 There are two different words for the noun form of "expunge": we use "expunction," but "expungement" is also used. To be clear, "expungement" and "expunction" mean the same thing. See Expunction of Record Black's Law Dictionary 702 (10th ed. 2014). But see Bryan A. Garner, Legal Usage 346 (3rd ed. 2011). No. 2016AP866-CR
pursuant to Wis. Stat. § 973.015 (2013-14)3 vis-à-vis sentence
modification under Wis. Stat. § 809.30(2)(h).
¶2 In a criminal action by the State, Arberry was charged
with five crimes relating to an incident of shop-lifting on
May 13, 2015: two counts of felony retail theft under Wis. Stat.
§ 943.50(1m)(d) and (4)(bf) for intentionally concealing
merchandize worth between $500 and $5,000; one count of
attempted misdemeanor retail theft under § 943.50(1m)(b) and
(4)(a) for intentionally attempting to take merchandise worth
less than or equal to $500; one count of obstructing an officer
under Wis. Stat. § 946.41(1); and one count of resisting an
officer under § 946.41(1). All counts were charged with
repeater enhancers.
¶3 In the circuit court, Arberry pled no contest to
counts one and three; count two was dismissed and counts four
and five were dismissed but read in. At the plea hearing, the
circuit court accepted Arberry's pleas, found Arberry guilty,
and proceeded to sentencing. No mention was made during sentencing of Arberry's eligibility for expunction. After the
judgments of conviction were entered and the sentence imposed,
Arberry filed a postconviction motion for sentence modification
seeking entry of amended judgments of conviction finding that
Arberry was eligible for expunction. The circuit court denied
the motion, holding that Wis. Stat. § 973.015 requires
3 All references to the Wisconsin Statutes are to the 2013- 14 version unless otherwise noted.
2 No. 2016AP866-CR
expunction to be granted at the time of sentencing. Arberry
appealed.
¶4 The court of appeals affirmed. It held that this
court's recent case, State v. Matasek, 2014 WI 27, 353
Wis. 2d 601, 846 N.W.2d 811, controlled and directed that the
determination regarding expunction "must be made at sentencing."
Arberry, 375 Wis. 2d 179, ¶1.
¶5 We consider one issue on this appeal: whether a
defendant may seek expunction after sentence is imposed. We
conclude that a defendant may not seek expunction after sentence
is imposed because both the language of Wis. Stat. § 973.015 and
Matasek require that the determination regarding expunction be
made at the sentencing hearing.
¶6 Thus, we affirm the decision of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶7 The State charged Arberry with the following five
crimes: (1) retail theft under Wis. Stat. § 943.50(1m)(d) and (4)(bf), for intentionally concealing merchandise worth between
$500 and $5,000 held for resale by Victoria's Secret without the
consent of the merchant and with intent to deprive the merchant
permanently of possession of the merchandise; (2) retail theft
under § 943.50(1m)(d) and (4)(bf), for intentionally concealing
merchandise worth between $500 and $5,000 held for resale by TJ
Maxx without the consent of the merchant and with intent to
deprive the merchant permanently of possession of the merchandise; (3) attempted misdemeanor retail under
3 No. 2016AP866-CR
§ 943.50(1m)(b) and (4)(a), for attempting to intentionally take
and carry away merchandise worth up to $500 held for resale by
the Buckle without the consent of the merchant and with intent
to deprive the merchant permanently of possession of the
merchandise; (4) obstructing an officer under Wis. Stat.
§ 946.41(1), for knowingly obstructing an officer while such
officer was doing an act in an official capacity and with lawful
authority; and (5) resisting an officer under § 946.41(1), for
knowingly resisting an officer while such officer was doing an
act in an official capacity and with lawful authority.
¶8 On August 27, 2015, Arberry pled no contest to count
one without the repeater enhancer, and to count three as
charged. Count two was dismissed and counts four and five were
dismissed but read in. The circuit court accepted Arberry's
pleas as to counts one and three and found Arberry guilty.
¶9 The circuit court then sentenced Arberry. On count
one, for felony retail theft in violation of Wis. Stat.
§ 943.50(1m)(d), Arberry was sentenced to one year initial confinement and two years extended supervision, to be served
concurrently. On count three, for misdemeanor attempted retail
theft in violation of § 943.50(1m)(b), Arberry was sentenced to
two years of probation, to be served consecutively to the
sentence for count one, with an imposed and stayed sentence of
one year of initial confinement and one year of extended
supervision. The issue of expunction was not raised during this
hearing.
4 No. 2016AP866-CR
¶10 On February 17, 2016, Arberry filed a postconviction
motion for sentence modification under Wis. Stat. § 809.30(2)(h)
seeking entry of amended judgments of conviction finding that
she was eligible for expunction. She argued that the circuit
court has inherent power to modify a sentence if there is a "new
factor."4 She then argued that Matasek's "clarification of when
the court must exercise its discretion to determine eligibility
for [expunction] constitutes a 'new factor' that [the circuit
court] may take into consideration" in modifying her sentence
because, although it was in existence at the time of the
original sentencing, it was "unknowingly overlooked by all of
the parties."5
4 A "new factor" is
a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.
State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (quoting Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). 5 The parties do not dispute that, at the time of sentencing, Arberry met the threshold requirements for expunction under Wis. Stat. § 973.015(1m):
[W]hen a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence . . . .
(continued) 5 No. 2016AP866-CR
¶11 On March 24, 2016, the circuit court held a hearing on
Arberry's postconviction motion. The circuit court held:
[T]he Court is constrained by the statute. It does require the matter to be granted at the time of sentencing. . . .
Granted, no one brought it up. I didn't bring it up. I don't think as a judge, I have to say no when no one has asked me to say no or asked me to grant it. So I think technically the motion is barred by the case law that's been rendered.[6]
§ 973.015(1m)(a)1. In this regard, we note that Arberry has not raised an ineffective assistance of counsel claim regarding the expunction issue. See Wis JI——Criminal SM-36 (2013) ("After the finding of guilt and decision as to the sentence to be imposed, the court shall, if requested by the defendant or defendant's counsel, and may, on the court's own motion, determine whether the defendant should be afforded [expunction] under § 973.015." (Emphasis added)). To succeed on an ineffective assistance of counsel claim, Arberry would have had to demonstrate that failure to raise expunction was deficient performance and that the deficient performance was prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
We further note that since filing the present case, Arberry's extended supervision on count one has been revoked; that is, she did not successfully complete her sentence as to count one and she is not entitled to expunction on count one. See Wis. Stat. § 973.015(1m)(b) ("A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation."). This does not, however, render the case moot because we nonetheless address issues that are "likely to arise again and should be resolved by the court to avoid uncertainty." See State v. Leitner, 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341 (quoting State ex rel. La Crosse Tribune v. Cir. Ct. for La Crosse Cty., 115 Wis. 2d 220, 229, 340 N.W.2d 460 (1983)). 6 The circuit court also ruled on the merits of expunction:
(continued) 6 No. 2016AP866-CR
On April 4, 2016, the circuit court entered its order denying
Arberry's postconviction motion.
¶12 On April 22, 2016, Arberry appealed. On March 8,
2017, the court of appeals affirmed the circuit court. See
Arberry, 375 Wis. 2d 179. The court of appeals held that, under
Matasek, "the determination of [expunction] must be made at
sentencing." Id., ¶1. It further held that there was no
factual support for a new factor analysis because "Arberry was
sentenced well after Matasek was decided"7 and "[t]here is no
indication that the court, much less the prosecutor, or even
Arberry's counsel, overlooked [expunction]." Id., ¶4.
¶13 On April 7, 2017, Arberry filed a petition for review
in this court. On June 12, 2017, we granted the petition.
[O]n the merits, even if I were to reconsider or think about it——and I can be honest and I can tell you that if you had asked me at sentencing, I would have said no. And I'm also going to say no today for the reason that convictions have consequences and they are of public record so that the public can protect themselves. The public has the right to know who commits what crimes so they can make decisions to decide how to best interact with an individual for their own mutual decisions of mutual benefit of commerce or trade or employment or otherwise.
Because we affirm on procedural grounds, we need not address whether this post-sentencing ruling on the merits of the motion was a proper exercise of discretion, and decline to do so. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (holding that an appellate court need not decide an issue if the resolution of another issue is dispositive). 7 Arberry was sentenced on August 27, 2015; State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, was decided on May 23, 2014.
7 No. 2016AP866-CR
II. STANDARD OF REVIEW
¶14 "The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346. Whether Wis. Stat. § 973.015
permits a circuit court to decide the issue of expunction after
sentence is imposed is a question of statutory interpretation.
See Matasek, 353 Wis. 2d 601, ¶10. Thus, we review de novo
whether § 973.015 requires a circuit court to decide the issue
of expunction at the sentencing hearing.
III. ANALYSIS
¶15 We consider one issue on this appeal: whether a
conclude that a defendant may not seek expunction after sentence
is imposed because both the language of Wis. Stat. § 973.015 and
Matasek require that the determination regarding expunction be made at the sentencing hearing.
¶16 Arberry argues that expunction may be raised in a
postconviction motion for sentence modification as a "new
factor" because sentence modification is a "time of sentencing"
under Wis. Stat. § 973.015 and eligibility for expunction is a
"new factor" where it was unknowingly overlooked and highly
relevant to the sentence. The State argues that expunction can never be a new factor because it is not relevant to sentencing;
8 No. 2016AP866-CR
that is, it is not a factor that circuit courts take into
consideration in determining the sentence to be imposed, and
thus, expunction may only be raised and addressed at the
sentencing hearing. We do not address the "new factor"
arguments because we conclude that a post-sentencing motion
seeking expunction is procedurally barred.8 See Sweet v. Berge,
8 We briefly note, however, that it does not make sense to characterize eligibility for expunction as a "new factor." First, expunction is not listed in the case law as a factor courts consider when imposing a sentence. The traditional factors a circuit court considers when imposing a sentence are the gravity of the offense, the character of the offender, and the need to protect the public. See State v. Gallion, 2004 WI 42, ¶29, 270 Wis. 2d 535, 678 N.W.2d 197; see also Wis. Stat. § 973.017 (listing aggravating and mitigating factors in sentencing); Harris v. State, 75 Wis. 2d 513, 519-20, 250 N.W.2d 7 (1977) (listing 12 non-exclusive factors a circuit court should consider in exercising its sentencing discretion). Presumably then, expunction cannot be a "new factor" in sentence modification because it is not a "factor" that is "relevant to the imposition of sentence." Harbor, 333 Wis. 2d 53, ¶40.
Second, the facts underlying eligibility for expunction—— the age of the defendant and the maximum period of imprisonment——will always be known at the time of sentencing. Thus, expunction cannot be a "new factor" because the facts are not "new." In this regard, we note that silence in the record is insufficient to establish that the court and all of the parties unknowingly overlooked these facts because the statute does not require a circuit court to consider expunction. See Wis. Stat. § 973.015(1m)(a)1. ("[T]he court may order, at the time of sentencing that the record be expunged upon successful completion of the sentence." (Emphasis added.)); see also infra note 11. Silence could exist for a variety of reasons; here, it could very simply be that the court did not deem Arberry a candidate for expunction because she presented a high risk to reoffend. And the court was right, as Arberry's extended supervision has been revoked since her appeal. See supra note 5.
(continued) 9 No. 2016AP866-CR
113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (holding that
an appellate court need not decide an issue if the resolution of
another issue is dispositive).
¶17 "[S]tatutory interpretation begins with the language
of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin
Stat. 973.015 states in relevant part as follows:
[W]hen a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. Wis. Stat. § 973.015(1m)(a)1. (emphasis added). The question
before us is whether "at the time of sentencing" means only at
the time when sentence is imposed or whether it also encompasses
post-sentencing motions for sentence modification. We conclude
Simply stated, the fact that expunction, if it is to be considered, must be considered "at the time of sentencing" does not mean that it is a factor considered in imposition of the sentence; rather, it simply means that, procedurally, expunction, if it is to be addressed, must be addressed at the same proceeding where the sentence is imposed. In this regard, we note that, in the infrequent event there is a resentencing hearing under Wis. Stat. § 974.06, a circuit court could consider expunction at that hearing because it then is the hearing where sentence is imposed. To be clear, expunction alone could not be the basis for granting a resentencing hearing, but it could be considered at resentencing.
10 No. 2016AP866-CR
that "at the time of sentencing" means only at the time when
sentence is imposed.
¶18 "Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Kalal, 271 Wis. 2d 633, ¶45; see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 69 (2012) ("Words are to be
understood in their ordinary, everyday meanings——unless the
context indicates that they bear a technical sense.").
"Sentencing" is specially defined under Wis. Stat. § 809.30:
"'Sentencing' means the imposition of a sentence, a fine, or
probation in a criminal case. . . ." § 809.30(1)(f).9
Therefore, "at the time of sentencing" means "at the time of the
imposition of a sentence, fine, or probation in a criminal
case." Imposition of a sentence happens during the sentencing
hearing, not at a sentence modification hearing; by definition,
sentence modification is the time at which a defendant may seek modification of an already-imposed sentence. Thus, the phrase
"at the time of sentencing" in Wis. Stat. § 973.015 refers to
the hearing where sentence is imposed. 9 Arberry's motion for sentence modification was brought under Wis. Stat. § 809.30(2)(h), as permitted under Wis. Stat. § 973.19(1)(b). Thus, this definition is applicable here as relevant statutory context. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is interpreted in the context in which it is used . . . in relation to the language of surrounding or closely-related statutes . . . .").
11 No. 2016AP866-CR
¶19 Additionally, "[w]ords are to be given the meaning
that proper grammar and usage would assign them." Scalia &
Garner, supra ¶18, at 140. "The" is a definite article "used as
a function word to indicate that a following noun or noun
equivalent refers to someone or something that is unique."
Webster's Third New International Dictionary 2368 (1986); see
also The American Heritage Dictionary of the English Language
1333 (1969) ("The" is used "[b]efore singular or plural nouns
and noun phrases that denote particular specified persons or
things"). Thus, Wis. Stat. § 973.015(1m)(a)1.'s use of "the"
before "time of sentencing" means that the statute contemplates
only one unique, specified "time of sentencing"; if expunction
may be addressed only at one unique, specified "time of
sentencing," common sense counsels that it would be when
sentence is imposed because not every criminal defendant will
seek or be granted a sentence modification hearing.
¶20 Similarly, in Matasek, we considered whether Wis.
Stat. § 973.015 (2011-12)10 "allows a circuit court to delay the expunction decision until the offender's successful completion
of the sentence." Matasek, 353 Wis. 2d 601, ¶5. We held that
the phrase "'at the time of sentencing' in [] § 973.015 [meant]
that[,] if a circuit court is going to exercise its discretion
to expunge a record, the discretion must be exercised at the
10 The operative language is the same as in the 2013-14 version of the Wisconsin Statutes interpreted here.
12 No. 2016AP866-CR
sentencing proceeding." Id., ¶¶6, 45 (emphasis added). Our use
of "the" here also contemplates only one time of sentencing.
¶21 Moreover, our analysis in Matasek dictates that that
one time is when sentence is imposed. In Matasek, we evaluated
two proffered times for expunction: the sentencing hearing when
sentence was imposed and after successful completion of the
sentence. Id., ¶8. Between the two, we determined that the
former——the sentencing hearing——was the only time at which the
circuit court could exercise its discretion to expunge a record
under the statute, if it was going to do so, because otherwise
"at the time of sentencing" would be rendered surplusage. Id.,
¶17. Thus, as the court of appeals held, Matasek controls here
and dictates that, if a circuit court is going to exercise its
discretion to expunge a record, the discretion must be exercised
at the hearing where sentence is imposed. See Arberry, 375
Wis. 2d 179, ¶¶3, 5; Scalia & Garner, supra ¶18, at 322-26 ("If
a statute uses words or phrases that have already received
authoritative construction by the jurisdiction's court of last resort . . . they are to be understood according to that
construction.").
¶22 In sum, we conclude that the issue of expunction may
be raised only at the sentencing hearing because the language of
the statute and Matasek dictate that there is only one
13 No. 2016AP866-CR
applicable time of sentencing, and it is the time at which a
sentence is imposed.11
IV. CONCLUSION
¶23 We consider one issue on this appeal: whether a
conclude that a defendant may not seek expunction after sentence
is imposed because both the language of Wis. Stat. § 973.015 and
11 Arberry asks this court, in the alternative, to exercise its superintending power under Article VII, section 3 of the Wisconsin Constitution to direct that circuit courts are required to consider expunction for eligible defendants at the sentencing hearing in order to effectuate Wis. Stat. § 973.015's purpose of "provid[ing] a break to young offenders who demonstrate the ability to comply with the law." We decline this invitation. First, the statute states that "the court may order at the time of sentencing that the record be expunged . . . ." § 973.015(1m)(a)1. (emphasis added). Thus, such a directive would contravene the permissive language of the statute. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 (2012) ("The traditional, commonly repeated rule is that shall is mandatory and may is permissive.").
Second, our superintending authority is invoked "to implement procedural rules not specifically required by the Constitution or the [statute]" as "a remedy for a violation of recognized rights." State ex rel. State Pub. Def. v. Ct. App., Dist. IV, 2013 WI 31, ¶18, 346 Wis. 2d 735, 828 N.W.2d 847 (alteration in original). Here, doing as Arberry asks would not remedy any violation of a recognized right because it is the defendant's burden to raise the issue of expunction, not the circuit court's. See Wis JI——Criminal SM-36 (2013). Thus, we decline to exercise our superintending power to place additional requirements on the circuit court to specifically make determinations in every sentencing where expunction might be an option. It simply is not required.
14 No. 2016AP866-CR
Matasek require that the determination regarding expunction be
¶24 Thus, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
15 No. 2016AP866-CR