High court says judge properly considered fact related to expunged record

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The Wisconsin Supreme Court decided Thursday that a man should not have a new sentencing hearing even though the judge who handed down his punishment had considered facts related to a conviction that had been removed from court records.

The justices’ unanimous ruling stems from a case involving Christopher Allen, a Milwaukee resident who crashed his car into a tree in 2013, killing one passenger and injuring another. His blood-alcohol concentration was found to be 0.122.

The state charged Allen with five crimes. He entered a no contest plea to homicide by the intoxicated use of a vehicle and injury by the intoxicated use of a vehicle. The state agreed to dismiss the three counts, although one would still be read in to the record.

Milwaukee County Circuit Court Judge Jeffrey Wagner sentenced Allen in July 2013 to five years in jail and four years of extended supervision.

Allen later filed a post-conviction motion requesting a new sentencing hearing, arguing that the court had improperly considered facts about his previous conviction for substantial battery in 2005. That conviction had been expunged from official records six years later.

The facts about that previous conviction were contained in a pretrial sentencing report provided to the judge. Allen also argued that his trial counsel had improperly failed to object to those facts at the hearing. He asked the court to vacate a $250 DNA surcharge, a request which Wagner granted.

However, Wagner denied the motion for a new sentencing hearing, reasoning that Allen had been sentenced in response to  his failure to learn from the nine months he had spent in supervision for the 2005 conviction.

Allen’s first appeal – before the District One Court of Appeals in 2015 – failed. The state Supreme Court agreed the following year to take up his case.

The justices’ decision Thursday affirmed the court of appeals. The state’s high court held that a sentencing court is permitted to consider underlying facts from an expunged conviction as long as they do not come from expunged court records.

The justices ruled that because the references to Allen’s expunged conviction came from a pretrial sentencing report, rather than not court records, Wagner had acted properly. They also noted that Allen’s counsel properly chose not to object to those references. Such an objection, the justices found, would have been meritless.

Justice Shirley Abrahamson wrote a concurring opinion stating that she was concerned that the court was eroding the goal of the expungement statute, which is to give a break to young offenders who show an ability to follow the law.