2017 WI 64
SUPREME COURT OF WISCONSIN CASE NO.: 2015AP1877-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Lazaro Ozuna, Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 369 Wis. 2d 224, 880 N.W.2d 183 (2016 – Unpublished)
OPINION FILED: June 22, 2017 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 11, 2017
SOURCE OF APPEAL: COURT: Circuit COUNTY: Walworth JUDGE: Kristine E. Drettwan
JUSTICES: CONCURRED: DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs and oral argument by Alisha McKay, assistant state public defender, with whom on the briefs was Colleen Marion, assistant state public defender.
For the plaintiff-respondent there was a brief and oral argument by Scott E. Rosenow, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
An amici curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Kori L. Ashley, Christine Donahoe, Susan Lund, Sheila Sullivan, and Legal Action of Wisconsin, Inc., Milwaukee.
2 2017 WI 64 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP1877-CR (L.C. No. 2013CM458)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. JUN 22, 2017 Lazaro Ozuna, Diane M. Fremgen Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. We review an unpublished decision of the court of appeals, State v. Ozuna, No.
2015AP1877-CR, unpublished slip op. (Wis. Ct. App. April 13,
2016), affirming the Walworth County circuit court's order1
denying expungement of the defendant's misdemeanor convictions.
¶2 We affirm the decision of the court of appeals and
hold that the circuit court properly concluded that the
defendant was not entitled to expungement. We do so because the
1 The Honorable Kristine E. Drettwan, presiding. No. 2015AP1877-CR
defendant did not meet the statutory requirements for
expungement. Specifically, in order to be entitled to
expungement, a probationer must "satisf[y] the conditions of
probation." Wis. Stat. § 973.015(1m)(b) (2013-14).2 In this
case, when the Department of Corrections ("DOC") notified the
circuit court that the defendant had completed probationary
supervision, it simultaneously notified the court that the
defendant had violated the court's expressly ordered condition
that he neither possess nor consume alcohol. Consequently, the
circuit court ruled that the defendant was not entitled to
expungement, and the court of appeals affirmed. We affirm the
decision of the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶3 On November 20, 2013, the Walworth County district
attorney's office charged Lazaro Ozuna with one count of
criminal damage to property contrary to Wis. Stat. § 943.01(1)
(2011-2012) and one count of disorderly conduct contrary to Wis.
Stat. § 947.01(1) (2011-2012), both misdemeanors. Ozuna was 17 years old at the time these charges were filed.
¶4 On May 27, 2014, the circuit court held a plea and
sentencing hearing,3 at which Ozuna pled guilty to both counts.
The court accepted Ozuna's guilty plea and imposed a sentence of
120 days' incarceration, but the court stayed the sentence and
2 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated. 3 The Honorable James L. Carlson, presiding.
2 No. 2015AP1877-CR
placed Ozuna on a period of probationary supervision for 12
months. As one of the conditions of his probation, the court
ordered Ozuna "[n]ot to possess or consume alcohol, illegal
drugs or paraphernalia."
¶5 The court further determined that Ozuna's conviction
was eligible for expungement under Wis. Stat. § 973.015 so long
as Ozuna satisfied the conditions of probation. The court
stated, "I will allow expungement if there is no violation of
probation . . . ." The court asked Ozuna if he understood that
he would have to comply with the conditions of probation and
that the convictions "could be on your record unless you
complete the sentence[4] successfully and get it expunged; do you
understand that?" Ozuna answered, "Yes, sir."
¶6 Ozuna was placed on probation under the supervision of
DOC for a term of 12 months. After Ozuna was discharged from
probation, DOC filed a form with the circuit court on June 5,
2015, entitled "Verification of Satisfaction of Probation
Conditions for Expungement." On that form, the probation agent had marked a box labeled "The offender has successfully
completed his/her probation." Further down on the form,
4 We note that probationary supervision, commonly referred to as "probation," is not itself a sentence; rather, it is an alternative to sentencing. State v. Horn, 226 Wis. 2d 637, 647, 594 N.W.2d 772 (1999). However, the expungement statute defines the "successful completion of the sentence" so as to encompass probation. See Wis. Stat. § 973.015(1m)(b). Probation is therefore considered a "sentence" for purposes of the expungement statute. State v. Matasek, 2014 WI 27, ¶36, 353 Wis. 2d 601, 846 N.W.2d 811.
3 No. 2015AP1877-CR
however, the agent had marked the box labeled, "All court
ordered conditions have not been met." The agent inserted the
following explanation: "[Ozuna] [f]ailed to comply with the no
alcohol condition. Lake Geneva PD went to Harbor Shores Hotel
for noise complaint. Mr. Ozaro [sic] cited for underage
drinking (102 pbt [sic]) and marijuana odor in the halls."
¶7 On June 12, 2015, the circuit court entered an order
denying expungement of Ozuna's record. The order noted that
Ozuna had failed to fulfill the obligations of his probation.
Ozuna appealed the circuit court's order, and the court of
appeals affirmed the circuit court. The court of appeals
concluded that "Ozuna was entitled to expungement only if he
successfully completed his sentence. Ozuna did not do so
because he did not satisfy the conditions of probation." Ozuna,
unpublished slip op., ¶11. The court of appeals noted that the
"State claims——and the DOC form confirms——that Ozuna violated
the no alcohol condition of his probation. Nowhere in the
briefs does Ozuna contest this crucial fact." Id., ¶9. For these reasons, the court of appeals affirmed the circuit court's
order denying expungement.
¶8 Ozuna petitioned this court for review, which we
granted on September 15, 2016.
II. STANDARD OF REVIEW
¶9 This case requires us to interpret the expungement
statute, Wis. Stat. § 973.015, which is a question of statutory
interpretation that we review de novo. State v. Hemp, 2014 WI 129, ¶12, 359 Wis. 2d 320, 856 N.W.2d 811. The application of a 4 No. 2015AP1877-CR
statute to undisputed facts is also a question of law for our
independent review, benefiting from the analyses of the circuit
court and court of appeals. State v. Popenhagen, 2008 WI 55,
¶32, 309 Wis. 2d 601, 749 N.W.2d 611.
III. DISCUSSION
¶10 We begin by setting forth the relevant statutory
requirements for expungement and discussing the circuit court's
authority to deny expungement. We then apply these principles
to the facts of this case, and we hold that, because Ozuna did
not satisfy the conditions of probation, the circuit court
properly denied expungement of his conviction. Finally, we
address Ozuna's procedural due process argument, and we conclude
that Ozuna's rights were not violated in this case.
A. A Probationer Must Satisfy the Conditions of Probation In
Order To Be Entitled to Expungement
¶11 The Wisconsin statutes empower a circuit court to
order certain criminal offenses to be expunged from a person's
record, if the offender was younger than 25 at the time of the commission of the offense.5 The overarching legislative purpose
5 Section 973.015(1m)(a)1. provides, in relevant part, that
when a person is under the age of 25 at the time of the commission of an offense . . . 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.
5 No. 2015AP1877-CR
of the expungement statute is to provide "a break to young
offenders who demonstrate the ability to comply with the law."
Hemp, 359 Wis. 2d 320, ¶20 (quoting State v. Leitner, 2002 WI
77, ¶38, 253 Wis. 2d 449, 646 N.W.2d 341). A circuit court may
order expungement "if the court determines the person will
benefit and society will not be harmed by this disposition."
Wis. Stat. § 973.015(1m)(a)1. Under the statutory scheme, the
determination of a defendant's eligibility for expungement must
be made at the time of sentencing. State v. Matasek, 2014 WI
27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811.
¶12 If the circuit court determines that the defendant is
eligible for expungement under Wis. Stat. § 973.015(1m)(a), "the
plain language of the statute indicates that once the defendant
successfully completes his sentence, he has earned, and is
automatically entitled to, expungement." Hemp, 359 Wis. 2d 320,
¶23.6 The statute provides a three-part definition of what it
means to "successfully complete the sentence" for purposes of
earning expungement: "A person has successfully completed the
6 The statute provides, in relevant part, that
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. 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.
Wis. Stat. § 973.015(1m)(b).
6 No. 2015AP1877-CR
sentence if [1] the person has not been convicted of a
subsequent offense and, if on probation, [2] the probation has
not been revoked and [3] the probationer has satisfied the
conditions of probation." § 973.015(1m)(b) (emphasis added).
"If a probationer satisfies these three criteria, he has earned
expungement, and is automatically entitled to expungement of the
underlying charge." Hemp, 359 Wis. 2d 320, ¶23.
¶13 We emphasize that, in order to be entitled to
expungement, the probationer must meet all three of the
statutory criteria, including satisfying "all the conditions of
probation." Id., ¶22. Because the three criteria are distinct,
we reject Ozuna's notion that a probationer has "satisfied the
conditions of probation" under Wis. Stat. § 973.015(1m)(b)
simply because his probation was not revoked. Whether a
probationer's conduct was adequate to avoid revocation is a
question separate and distinct from whether the probationer "has
satisfied all the conditions of probation."7 Hemp, 359
Wis. 2d 320, ¶22. To "satisfy" a condition or obligation is to meet or fulfill it, not merely to avoid the penalty for
violating it. See Satisfy, Webster's Third New International
Dictionary 2017 (2002) ("to conform to (accepted criteria or
requirements): fulfill, meet"). Therefore, the mere fact that a
7 Revocation is a discretionary decision. When a violation of probation occurs, DOC regulations permit the agent to counsel the probationer, issue a warning, or choose another alternative to revocation. See Wis. Admin. Code § DOC 331.03(2)(b) (July 2013).
7 No. 2015AP1877-CR
probationer has completed the term of probationary supervision
without revocation does not necessarily establish that the
probationer has also satisfied the conditions of probation.
B. The Court May Deny Expungement if a Probationer Does Not
Satisfy the Conditions of Probation
¶14 Although the expungement statute puts the onus on DOC
to determine whether a probationer has satisfied the conditions
of probation and to notify the court when that occurs,8 a court
has no duty to expunge a probationer's record if the probationer
has not satisfied the conditions of probation. This is so
because a person's statutory entitlement to expungement depends
not on whether the court receives a particular notice from DOC,
but on whether the probationer meets all of the statutory
criteria for the "successful completion of the sentence." See
Wis. Stat. § 973.015(1m)(b) (providing that only "[u]pon
successful completion of the sentence" shall a DOC-forwarded
certificate of discharge "have the effect of expunging the
8 As we recognized in State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, a probationer who has met all the requirements of Wis. Stat. § 973.015(1m)(b) and is therefore entitled to expungement has no duty to notify the court of that fact; that duty rests with DOC as the probationary authority. See id., ¶30. DOC policy is in accord with this understanding. Its Electronic Case Reference Manual requires that, "[w]ithin 10 days following the discharge date, the agent shall forward information to the court indicating whether or not the eligible offender has successfully completed probation." Wisconsin DOC Electronic Case Reference Manual, Procedures Prior to Discharge: Expungement, § .04 (effective May 1, 2015) (available at http://doc.helpdocsonline.com/case-closing/transition/status- change).
8 No. 2015AP1877-CR
record"). In Hemp, we held that Wis. Stat. § 973.015(1m)(b)
provides for a "self-executing" expungement process, in which
"the detaining or probationary authority must forward the
certificate of discharge to the court of record upon the
individual defendant's successful completion of his sentence and
at that point the process of expungement is self-executing."
Hemp, 359 Wis. 2d 320, ¶25 (emphasis added). The terms of the
statute provide that this self-executing process is triggered
only "[u]pon successful completion of the sentence," as the
statute defines that term in § 973.015(1m)(b). "In construing
or interpreting a statute the court is not at liberty to
disregard the plain, clear words of the statute." State v.
Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967) (internal
quotation marks omitted). Therefore, under the expungement
statute, it is proper for the circuit court to deny expungement
if a defendant has not met all three criteria for the
"successful completion of the sentence" under Wis. Stat.
§ 973.015(1m)(b), including satisfying the conditions of probation.9
9 We note that, in this instance, Ozuna does not contest the factual determination that he consumed alcohol while on probation, thereby violating one of the conditions of his probation. This case is therefore not the proper vehicle in which to set forth the procedures a court is to follow when such factual matters are disputed. See State v. Smith, 2012 WI 91, ¶62 n.19, 342 Wis. 2d 710, 817 N.W.2d 410 (noting that this court "does not issue advisory opinions or address hypothetical facts"). We note our confidence in the ability of our circuit courts to resolve such matters fairly, a confidence informed by our knowledge that they routinely do just that.
9 No. 2015AP1877-CR
¶15 This conclusion is not in conflict with our holding in
Hemp. Although we stated in Hemp that expungement occurs
automatically when DOC "forwards a certificate of discharge to
the court of record," Hemp, 359 Wis. 2d 320, ¶36, we were
resting on the premise that satisfaction of the conditions of
probation is an indispensable prerequisite to a defendant's
entitlement to expungement. Id., ¶¶22-23. It was because "Hemp
satisfied all the conditions of probation," we explained, that
his "successful completion of probation automatically entitled
him to expungement of his conviction." Id., ¶24. Therefore,
Hemp reinforces our understanding that a probationer's
entitlement to expungement turns on whether the probationer "has
satisfied the conditions of probation," as is required by Wis.
Stat. § 973.015(1m)(b).
¶16 In Hemp, DOC forwarded Hemp's certificate of discharge
to the court, and there was no dispute that Hemp had
successfully completed probation as defined in Wis. Stat.
§ 973.015(1m)(b). "The record clearly indicates Hemp successfully completed probation," we concluded, because Hemp
was not convicted of any subsequent offense while on probation,
his probation was not revoked, and "Hemp satisfied all the
conditions of probation." Hemp, 359 Wis. 2d 320, ¶24. In such
a scenario, expungement was "required by statute" and the clerk
of the circuit court accordingly had a duty to expunge the
record upon receiving a copy of the certificate of discharge
from DOC. Id., ¶33 n.11 (quoting SCR 72.06). But Hemp does not control a case where DOC informs the circuit court that the 10 No. 2015AP1877-CR
probationer violated the court-ordered conditions of probation.
In such a case, where one of the statutory requirements for the
"successful completion of the sentence" under § 973.015(1m)(b)
has not been met, the probationer has no entitlement to
expungement and the self-executing process we described in Hemp
does not occur.
¶17 Our emphasis on the language of the statute is also in
accord with our interpretation of the probation statutes in an
analogous context. In State ex rel. Greer v. Wiedenhoeft, 2014
WI 19, 353 Wis. 2d 307, 845 N.W.2d 373, where DOC issued a
certificate of discharge from probation before the term of
probation had expired, we held that such certificate did not
have the effect of discharging the probationer. Id., ¶¶41, 51.
The statutes provide that a certificate of discharge is issued
"[w]hen the period of probation for a probationer has expired,"
Wis. Stat. § 973.09(5), but the defendant relied on two court of
appeals decisions which suggested that the issuance of a
certificate was the controlling event that effectuated discharge. Id., ¶42. We rejected this argument, explaining
that "[n]either decision stands for the proposition that an
erroneously issued discharge certificate can defeat a valid
sentence imposed by a circuit court." Id. The certificate
could not trump the statute. Similarly, in the expungement
context, the simple fact that DOC forwards a certificate of
discharge or other form to the circuit court does not, by
itself, establish an entitlement to expungement if the record
11 No. 2015AP1877-CR
demonstrates that the probationer has not met the prerequisites
under Wis. Stat. § 973.015(1m)(b).
C. The Circuit Court Properly Denied Expungement
¶18 Here, there was never any dispute about the underlying
facts in the record. DOC submitted a form to the court which
showed that Ozuna had violated one of the court-ordered
conditions of his probation. On the form, the probation agent
checked a box marked "All court ordered conditions have not been
met." The agent noted the nature of the violation, namely, that
Ozuna "[f]ailed to comply with the no alcohol condition,"
because he was "cited for underage drinking." Ozuna has never
made any suggestion that that he did not, in fact, engage in
this conduct during the term of probation.
¶19 These facts demonstrate that Ozuna did not meet the
criteria for expungement, because he did not "satisf[y] the
conditions of probation." Wis. Stat. § 973.015(1m)(b).
According to his probation agent, Ozuna engaged in underage
drinking in spite of the circuit court's command to refrain from consuming alcohol. Based on this clear violation of one of the
court-ordered conditions of probation, Ozuna did not satisfy the
12 No. 2015AP1877-CR
conditions of probation. Therefore, the circuit court properly
denied expungement of Ozuna's record.10
¶20 Ozuna disagrees, arguing that the "fact that [his]
agent forwarded the Verification Form to the circuit court
communicates her determination that [he] met the requirements"
for expungement. However, looking beyond the title of the form
("Verification of Satisfaction of Probation Conditions for
Expungement") to its substance reveals that DOC determined Ozuna
had violated one of the court-ordered conditions of probation.
Although we held in Hemp that a court has no discretion to deny
expungement if a probationer "successfully completed probation
and his probationary authority forwarded his certificate to the
court of record," Hemp, 359 Wis. 2d 320, ¶41 (emphasis added),
there was no dispute in Hemp that the probationer had, in fact,
met the statutory requirements for the successful completion of
probation, including satisfying all the conditions of probation,
id., ¶24. Nothing in Hemp dictates that the mere receipt of a
form from DOC stating that the probationer "successfully completed" probation automatically entitles the probationer to
expungement where, as here, the very same form contains a
contradictory determination by DOC that the probationer violated
10 It appears that Ozuna also failed to satisfy the monetary conditions of probation, and he argues that it would violate equal protection "to deny expungement to probationers who cannot afford to satisfy monetary conditions during supervision." We need not reach this argument, because we conclude that Ozuna's undisputed violation of the no-alcohol condition was sufficient to establish that he was not entitled to expungement.
13 No. 2015AP1877-CR
one of the court-ordered conditions of probation. Because Ozuna
did not satisfy the court-ordered condition that he abstain from
alcohol while on probation, his reliance on Hemp is unavailing.
D. Ozuna's Due Process Rights Were Not Violated
¶21 Finally, we turn to Ozuna's argument that the circuit
court deprived him of his constitutional right to procedural due
process by denying expungement without notice and an opportunity
to be heard. We conclude that Ozuna's due process rights were
not violated.
¶22 "The Fourteenth Amendment to the United States
Constitution and art. I, § 1 of the Wisconsin Constitution
prohibit government actions that deprive any person of life,
liberty, or property without due process of law." Aicher ex
rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶80, 237
Wis. 2d 99, 613 N.W.2d 849. The first step in a procedural due
process analysis is to "examine whether the person has
established that a constitutionally protected property or
liberty interest is at issue." Id. ¶23 Where a liberty interest has been "initially
recognized and protected by state law, . . . the procedural
guarantees of the Fourteenth Amendment apply whenever the State
seeks to remove or significantly alter that protected status."
Paul v. Davis, 424 U.S. 693, 710–11 (1976). We note that
"[r]eputation by itself is neither liberty nor property within
the meaning of the due process clause of the fourteenth
amendment." Weber v. City of Cedarburg, 129 Wis. 2d 57, 73, 384 N.W.2d 333 (1986). Rather, "a person's reputation is protected 14 No. 2015AP1877-CR
by procedural due process only when damage to the reputation is
accompanied by the alteration or elimination of a right or
status previously recognized by state law." Stipetich v.
Grosshans, 2000 WI App 100, ¶24, 235 Wis. 2d 69, 612 N.W.2d 346.
"In such a case, due process would accord an opportunity to
refute the charge . . . ." Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 573 (1972). "The purpose of such notice and
hearing is to provide the person an opportunity to clear his
name." Id. at 573 n.12.
¶24 Here, Ozuna argues that he had a protected liberty
interest in expungement of his record because the circuit court
ordered, at the time of Ozuna's sentencing, that his conviction
was eligible for expungement. The expungement statute, Ozuna
argues, "creates a substantive right under state law" to have
the stigma of a criminal conviction removed. He relies on our
statement in Hemp that "once the defendant successfully
completes his sentence, he has earned, and is automatically
entitled to, expungement." Hemp, 359 Wis. 2d 320, ¶23. Ozuna further argues that he was deprived of this right without due
process of law, because the circuit court did not provide him
with notice and an opportunity to be heard before it denied
expungement. Ozuna analogizes a denial of expungement to a
revocation of probation. This court has recognized that due
process requires an evidentiary hearing before the State may
revoke probation, State ex rel. Johnson v. Cady, 50 Wis. 2d 540,
548, 185 N.W.2d 306 (1971), and Ozuna argues that the same rule should apply to a denial of expungement. 15 No. 2015AP1877-CR
¶25 We disagree with Ozuna and hold that he did not have a
protected liberty interest in expungement in this case. The
reason that a probationer has a protected liberty interest in
remaining on probation is because the probationer has already
been granted a conditional right to freedom. See Johnson, 50
Wis. 2d at 548 ("After one has gained the conditional freedom of
a probationer . . . the state cannot summarily revoke such
status . . . .") (emphasis added). By contrast, Ozuna cannot
claim that he gained any entitlement to expungement, because the
record shows that he did not meet the statutory criteria for
§ 973.015(1m)(b), which include satisfying all the conditions of
probation. See Hemp, 359 Wis. 2d 320, ¶22.
¶26 Ozuna suggests that the circuit court should have held
a hearing before denying expungement, but he has not pointed us
to any relevant factual dispute that such a hearing could have
resolved. He has never questioned DOC's determination that he
violated the no-alcohol condition by engaging in underage drinking during his period of probation. Because Ozuna was not
entitled to expungement based on his failure to satisfy the no-
alcohol condition, we also conclude that there was no violation
of due process in this case, because Ozuna does not challenge
the underlying facts. See Conn. Dept. of Pub. Safety v. Doe,
538 U.S. 1, 8 (2003) ("Plaintiffs who assert a right to a
hearing under the Due Process Clause must show that the facts
they seek to establish in that hearing are relevant under the statutory scheme."); Stipetich, 235 Wis. 2d 69, ¶25 (affirming 16 No. 2015AP1877-CR
dismissal of a due process claim on summary judgment where the
petitioner "did not produce sufficient evidence to allow a fact-
finder to conclude that she had been deprived of a
constitutionally protected property or liberty interest").
¶27 Because Ozuna did not satisfy the conditions of his
probation, he never earned the expungement for which he was
otherwise eligible. Therefore, Ozuna was not deprived of any
right or status which he previously possessed under state law.
Absent facts permitting a conclusion that Ozuna was entitled to
expungement under Wis. Stat. § 973.015(1m)(b), his reputational
interest in hoping to obtain expungement is not, by itself, a
protected liberty interest. See Weber, 129 Wis. 2d at 73.
¶28 For these reasons, we conclude that Ozuna's due
process rights were not violated.
IV. CONCLUSION
¶29 We hold that the circuit court properly denied
expungement in this case, because Ozuna did not meet the
statutory requirements to be entitled to expungement. The statutory requirements for expungement include the requirement
that the probationer has satisfied the conditions of probation.
Here, DOC notified the circuit court that Ozuna did not meet all
the conditions of probation because Ozuna violated the circuit
court's expressly ordered condition to not possess or consume
alcohol during the term of probation. Therefore, based on this
notification from DOC, the circuit court properly denied
expungement. Further, because Ozuna never met the requirements to be entitled to expungement, the circuit court's denial of 17 No. 2015AP1877-CR
expungement did not violate his right to the due process of law.
We therefore affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
18 No. 2015AP1877-CR.awb
¶30 ANN WALSH BRADLEY, J. (dissenting). The majority
bends over backwards to reach its conclusion. Not only does its
analysis undermine the purpose of the expunction statute, it
also sub silencio overrules recent precedent. Ultimately,
because the implications of its holding are yet unclear, it sows
the seeds of confusion for circuit courts and litigants alike.
And for what?
¶31 Since the circumstances leading to this case arose,
the form in question has been modified to eliminate the
potential for confusion.1 Due to these revisions, those
circumstances will not again be presented. Thus, it is hard to
imagine what benefit can be gained by the uncertainties and
problems that inevitably will be wrought by the majority's sub
silencio overruling of our clear precedent.
¶32 I determine that the more prudent course is to take an
approach that is consistent with the purpose of the statute and
1 This case arose because of an unclear form utilized by the Department of Corrections to notify the circuit court that the defendant had completed his probation. The form had multiple boxes for the probation agent to choose from—boxes indicating whether the offender had or had not successfully completed his probation and boxes indicating whether certain terms of probation had been met.
Here, the probation agent checked the boxes labeled "The offender has successfully completed his/her probation" and "All court-ordered conditions have not been met." Based on those seemingly inconsistent markings, the circuit court determined that the defendant had not satisfied the terms of his probation and denied expunction. The old form has now been modified to include only two boxes: one indicating that the offender has successfully completed probation and one indicating that the offender was not successful.
1 No. 2015AP1877-CR.awb
our recent precedent. Under that approach, youthful offenders
can be deemed to have successfully completed their sentences
when they sufficiently comply with the terms of probation.
¶33 Accordingly, I respectfully dissent.
I
¶34 The focus of this case is Wisconsin's expunction
statute, Wis. Stat. § 973.015. It permits the expunction of an
offender's criminal record if the offender meets various
criteria, including successful completion of probation:
. . . when 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).
¶35 "[S]uccessful completion" is defined in Wis. Stat.
§ 973.015(1m)(b). It requires an offender to have "satisfied
the conditions of probation":
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.
¶36 Wis. Stat. § 973.015(1m)(b) anticipates that a
certificate of discharge will issue upon successful completion
of probation and that the certificate "shall have the effect of expunging the record":
2 No. 2015AP1877-CR.awb
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 . . . . ¶37 The majority reads this language in a manner that
severely limits an offender's ability to utilize the statute.
In doing so, it undermines the statute's purpose, overrules
recent precedent sub silencio, and creates confusion. I address
each in turn.
A
¶38 It is well established that the purpose of Wis. Stat.
§ 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.'" State v. Matasek, 2014
WI 27, ¶42, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting State v.
Leitner, 2002 WI 77, ¶38, 253 Wis. 2d 449, 646 N.W.2d 341).
¶39 This is a laudable purpose given the extreme
consequences a criminal conviction can have on an individual.
As Legal Action of Wisconsin's amicus brief observes, the
consequences of a criminal conviction are both wide-ranging and
long lasting:
The American Bar Association (ABA) has identified over 38,000 statutes and regulations that impose collateral consequences on people convicted of crimes. Over half of these laws deny employment opportunities . . . .An offense history that once would have languished in the practical obscurity of an old court file, has now become a permanent and highly part of an individual’s public history.
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Amicus Br. 2. The negative impact a criminal record can have on
employment is particularly troubling as "[r]esearch consistently
shows that finding quality steady employment is one of the
strongest predictors of desistance from crime." Devah Pager,
Double Jeopardy: Race, Crime, and Getting a Job, 2005 Wis. L.
Rev. 617, 647.2
¶40 Thus, expunction offers not only a substantial benefit
to an offender and society, it also "offers young offenders a
fresh start without the burden of a criminal record and a second
chance at becoming law-abiding and productive members of the
community." State v. Hemp, 2014 WI 129, ¶19, 359 Wis. 2d 320,
856 N.W.2d 811. It comes as no surprise then that the history
of the expunction statute "show[s] a consistent legislative
effort to expand the availability of expungement to include a
broader category of youthful offenders." Id., ¶20.
¶41 With this background, Wis. Stat. § 973.015 should be
liberally construed to provide expunction. See Marquez v.
Mercedes-Benz United States, LLC, 2012 WI 57, ¶23 n.19, 341 Wis. 2d 119, 815 N.W.2d 314 (citing Hughes v. Chrysler Motors
Corp., 197 Wis. 2d 973, 983, 542 N.W.2d 148 (1996)) ("remedial
2 Other collateral consequences stemming from a criminal record include the denial of government issued licenses or permits, ineligibility for public services and public programs, and the elimination or impairment of civil rights. See http://www.uniformlaws.org/ActSummary.aspx?title=Collateral%20Co nsequences%20of%20Conviction%20Act ("the numbers and complexity of these consequences have mushroomed and the U.S. prison population has grown . . . There is a real concern on a societal level that collateral consequences may impose such harsh burdens on convicted persons that they will be unable to reintegrate into society.").
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statutes should be liberally construed to advance the remedy the
legislature intended to provide.").
¶42 Yet, the majority interprets the expunction statute in
a manner that severely limits an offender's ability to utilize
it. Although it correctly states that an offender must "satisfy
all the conditions of probation," it seemingly adopts the
State's position that the offender's perfect compliance is
required in order to be entitled to expunction. Majority Op.,
¶13. In doing so, the majority completely ignores Ozuna's
argument that the word "satisfy" has been defined to mean "[t]o
meet or be sufficient for (a requirement)." See Satisfy, The
American Heritage Dictionary of the English Language, (5th ed.
2017)..
¶43 The majority's approach undermines the statute's
purpose and the legislature's intent to reach a broader category
of youthful offenders. Probationers must adhere to such a
myriad of conditions that requiring perfection effectively
removes the possibility of expunction. For example, there are the standard rules of community supervision that probationers
must follow.3 These rules range from obtaining approval prior to
borrowing money or making a purchase on credit, to reporting for
scheduled and unscheduled appointments.
¶44 Under the majority approach, an offender would be
denied expunction for missing a single unscheduled appointment
due to such unavoidable circumstances as an inability to find a
3 See http://doc.wi.gov/community-resources/Rules-of- Community-Supervision/standard-rules-of-supervision-english.
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babysitter, getting stuck in traffic, or being unable to leave
work. That result is unreasonable and completely at odds with
the purpose of the expunction statute.
B
¶45 In addition to undermining the statute's purpose, the
majority's opinion also sub silencio overturns recent precedent.
¶46 A scant three years ago, this court considered how an
offender obtains expunction. Hemp, 359 Wis. 2d 320. In Hemp,
the circuit court had determined at sentencing that the
defendant was eligible for expunction conditioned upon
successful completion of probation. Id., ¶5. After the
defendant completed probation he received a certificate of
discharge from the Department of Corrections. Id., ¶6. The
circuit court, however, denied his petition for expunction
because it was "tardy". Id., ¶9.
¶47 This court examined whether Wis. Stat. § 973.015
placed any burden on the defendant to petition the circuit court
for expunction within a specific timeframe and concluded that the duty rested on the detaining or probationary authority, not
the defendant. Hemp, 359 Wis. 2d 320, ¶25. We further
concluded that "once the detaining or probationary authority
forwards the certificate of discharge to the court of record,
expungement has been effectuated." Id., ¶29; see also id., ¶25
("the detaining or probationary authority must forward the
individual defendant's successful completion of his sentence and at that point the process of expungement is self-executing.");
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id., ¶32 ("the forwarding of the certificate of discharge to the
circuit court is what triggers expungement").
¶48 In explaining the holding, this court specifically
rejected the notion that a certificate of discharge must be
approved by the circuit court prior to a grant of expunction.
Id., ¶36. We recognized that any inference necessitating
circuit court approval would be "impos[ing] additional
requirements that are contrary to the statute's plain language."
Id. We repeatedly emphasized that the circuit court's role with
respect to expunction was limited to its decision at sentencing.
Id., ¶¶39, 40, 42. Thereafter, the determination of whether a
probationer had successfully completed probation was effectively
left to those in the best position to evaluate it: the probation
agents.
¶49 The majority now reinserts the circuit court into the
process of effectuating expunction. It declares that "a
person's statutory entitlement to expungement depends not on
whether the court receives a particular notice from the DOC . . . " and that "it is proper for a circuit court to deny
expungement if a defendant has not met all three criteria for
the 'successful completion of the sentence . . . .'" Majority
Op., ¶14.
¶50 These declarations cannot be squared with the holdings
in Hemp. A certificate of discharge cannot be the trigger for
automatically effectuating expunction if the circuit court has
the option to review it and make an independent determination on the matter. Under the majority's analysis, expunction is no
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longer automatic or self-executing as Hemp mandated. Further,
no longer is it the probation agent that exclusively determines
whether an offender has successfully completed probation. By
reintroducing the circuit court into the expunction process
after the DOC has issued its certificate of discharge, the
majority unequivocally, yet sub silencio, overrules Hemp, 359
Wis. 2d 320.4
C
¶51 In overruling Hemp, the majority creates confusion for
circuit courts and litigants alike.
¶52 It is now unclear what will happen when a certificate
of discharge is issued. Will it trigger expunction——as the
plain language of the statute requires? See Wis. Stat.
§ 973.015(1m)(b) ("a certificate of discharge which shall be
forwarded to the court of record and which shall have the effect
of expunging the record . . . ." (emphasis added)).
¶53 Or will the court opt to review it——in clear violation
of the Hemp holding? See Hemp, 359 Wis. 2d 320, ¶32 ("the forwarding of the certificate of discharge to the circuit court
4 Recently, 2017 A.B. 331 was introduced in the Wisconsin Legislature to amend Wis. Stat. § 973.015(1m). The proposed legislation would allow for the filing of a petition for expunction with the sentencing court after completion of the sentence. The Legislative Reference Bureau (LRB) analysis explains: "Current law specifies that the expungement order must be made only at sentencing and then the record is expunged when the person completes his or her sentence." The LRB's description of current law is in accord with the plain meaning interpretation set forth in this dissent and underscores that the majority is indeed sub silencio overruling Hemp.
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is what triggers expungement"); id., ¶29 ("once the detaining or
probationary authority forwards the certificate of discharge to
the court of record, expungement has been effectuated."); id.,
¶25 ("the detaining or probationary authority must forward the
individual defendant's successful completion of his sentence and
at that point the process of expungement is self-executing.").
¶54 What criteria will the court use to decide whether to
review the certificate of discharge? What procedures will a
court follow if it decides to review a certificate of discharge?
¶55 Also left unanswered is what happens if there is a
factual debate over whether the offender has satisfied the terms
of probation. Must the court hold a hearing? Will the offender
have a chance to appear and argue the case? What is the impact
of this disarray?
¶56 Rather than providing guidance, the majority leaves a
void. It suggests that because Ozuna is not contesting the
facts, this case "is not the proper vehicle in which to set forth the procedures a court is to follow when such factual
matters are disputed." Majority op., ¶14 n.9. It further
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expresses its "confidence" in the circuit court's ability "to
resolve such matters fairly." Id.5
¶57 The majority's confidence provides cold comfort for a
youthful offender hoping to get a second chance through
expunction.
¶58 Because the most likely result of the majority's
decision is that circuit courts will adopt ad hoc procedures, an
offender's chance at expunction could come down to which court
receives the offender's certificate of discharge. This poses a
whole host of future due process concerns. By creating an
opportunity for circuit courts to review whether the terms of
probation have been met, and failing to provide any guidance on
how to do so, the majority creates more problems than it has
solved, leaving confusion in its wake.
II
5 We previously declined the opportunity to revamp our supreme court rule on expunction. On June 30, 2009, the Board of Governors of the State Bar of Wisconsin filed a rules petition seeking changes to Supreme Court Rule (SCR) Ch. 72 (Retention and Maintenance of Court Record). The petition also asked this court to amend SCR 72.06 (Expunction). After public hearing and further discussion the court took no action on the petition, in part because it was aware that the Wisconsin State Legislature was then planning to establish a committee to study the issue of expunction. In ensuing years, a number of legislative proposals have been introduced to address the issue, but none has advanced to fruition. Ultimately, this court voted to dismiss the petition and await further legislative action. For a more detailed history of the petition, see S.Ct. Order 09-07 (issued July 19, 2016).
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¶59 Contrary to the majority, I would interpret the
expunction statute in a manner consistent with its remedial
purpose. See State v. Leitner, 253 Wis. 2d 449, 470, 646
N.W.2d 341 (2002). ("A cardinal rule in interpreting statutes is
that an interpretation supporting the purpose of the statute is
favored over an interpretation that will defeat the manifest
objective of the statute.").
¶60 Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Circuit Ct. for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Where the
language is ambiguous, a court may consult extrinsic sources,
such as the statute's purpose and legislative history, to
discern a statute's meaning. Id., ¶48.
¶61 Here, both litigants present reasonable meanings for
the words "satisfied the conditions of probation." The State
contends that it means perfect compliance with the terms of
probation, while Ozuna pointed to a dictionary definition of
"satisfy" that reads "[t]o meet or be sufficient for (a requirement)". Satisfy, The American Heritage Dictionary of the
English Language, (5th ed. 2017) (emphasis added). Thus, the
statute is ambiguous. Kalal, 271 Wis. 2d 633, ¶47 ("a statute
is ambiguous if it is capable of being understood by reasonably
well-informed persons in two or more senses.").6
6 This court has previously recognized statutory ambiguity created by use of the word "satisfy". Abitz v. Abitz, 155 Wis. 2d 161, 172 455 N.W.2d 609 (1990) (referring to "the ambiguous word 'satisfy' in sec. 766.55(2)(c), Stats.").
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¶62 As discussed above, the purpose of the expunction
statute is well established. It is a remedial statute meant "to
provide a break to young offenders who demonstrate the ability
to comply with the law," which the legislature has consistently
sought to expand. Leitner, 253 Wis. 2d 449, ¶38; see also Hemp,
359 Wis. 2d 320, ¶20. Accordingly, using the definition of
"satisfy" that permits expunction when an offender has
"sufficiently" complied with the terms of probation is more
consistent with the purpose of the statute than using a
definition that would limit expunction to offenders with have
"perfect" compliance.
¶63 A definition of "satisfy" that is based on sufficiency
instead of perfection is also supported by the statute's
legislative history.
¶64 In 1983 the legislature amended the definition for
"successful completion of a sentence" provided in Wis. Stat.
§ 973.015(1m)(b). The initial draft of the amendment stated
that in order for a probationer to successfully complete a sentence, the probationer "must not violate any conditions of
probation." Drafting file for 1983 Wis. Act 519, Legislative
Reference Bureau, Madison, Wis. This language was replaced with
the current language stating that to successfully complete a
sentence, a probationer "must also satisfy the conditions of
probation." It appears the legislature expressly considered
requiring perfect compliance with the terms of probation and
rejected it.
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¶65 I turn now to apply the definition of "satisfy" based
on sufficiency to the case at hand. Although the form from the
Department of Corrections indicates that Ozuna violated the term
of probation prohibiting any alcohol use (it noted a single
citation for underage drinking), no significant violations were
reported. Indeed, the Department of Corrections indicated that
Ozuna's compliance with the terms of probation was sufficient by
checking the box labeled "the offender has successfully
completed his/her probation." Accordingly, I conclude that
Ozuna successfully completed his sentence.
¶66 Wisconsin Stat. § 973.015 provides that when an
offender has successfully completed his sentence, and the
probation authority has forwarded a certificate of discharge to
the court, it shall have the effect of expunging the offender's
record.7 Here, because Ozuna successfully completed probation,
expunction should have been granted automatically when the DOC's
verification was received by the court. Hemp, 359 Wis. 2d 320,
¶29. Therefore, the court of appeals should be reversed. III
¶67 In sum, the majority opinion makes no sense to me.
It defies:
7 In this case the Department of Corrections (DOC) issued a Verification Form, rather than a certificate of discharge. That is because the DOC does not issue certificates of discharge to misdemeanants. See Wis. Admin. Code DOC § 328.16(2). Nevertheless, the DOC is required to notify the court of a probationer's successful completion of sentence. Wis. Stat. § 973.09(5)(c). It does so through the Verification Form, which serves as the functional equivalent of a certificate of discharge for purposes of Wis. Stat. § 973.015.
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the purpose of the statue;
the statutory directive that where a certificate of discharge has issued it "shall have the effect of expunging the record . . . ." Wis. Stat. § 973.015(1m)(b);
a reasonable interpretation of the word "satisfies" that is more consistent with the statute's purpose and legislative history;
our clear and recent precedent; and
reality (the majority's apparent demand for absolute perfection is unmoored from the reality of the lives of many youthful offenders).
¶68 It is unclear to me why the majority has bent over
backwards to reach its confusing conclusion. What is clear,
however, is just how devastating the majority opinion is to the
health of our justice system and to the lives of many youthful
offenders.
¶69 With the stroke of a pen, the majority has inexorably
altered the trajectory of those lives. They will forever wear
the scarlet letter of convicted criminal and, together with
their families, face a future of collateral consequences for
their youthful convictions.
¶70 For the reasons set forth above, I respectfully
dissent.
¶71 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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