State’s high court decides expunction should occur at sentencing (UPDATE)

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The Wisconsin Supreme Court made it clear Friday that, under current law, a judge only can decide to expunge a record when a defendant is sentenced, and not at a later date.

The court, in a unanimous decision authored by Chief Justice Shirley Abrahamson, said the law in Wisconsin – as well as the Legislature’s intent with the law – is clear. If it says a judge must make a decision about expunction “at the time of sentencing,” it means exactly that, according to the opinion.

“It’s going to change things,” Jeff Guerard, who argued in front of the justices for defendant Andrew Matasek, said. “No longer are judges able to say ‘I’ll wait and see how he does and see if he or she gets the expunction.’”

Matasek, 23, was sentenced in January 2012 to three years of probation after pleading no contest to manufacturing or delivery of marijuana. His lawyer asked then-Ozaukee County Circuit Judge Tom Wolfgram to defer the expunction decision until after Matasek completed his probation. The judge denied the request and did not order Matasek’s record to be expunged. The Court of Appeals upheld Wolfgram’s decision last year.

The state Supreme Court’s 20-page opinion shoots down all arguments Matasek made, including that the law, as written, allows a judge to defer a sentencing decision.

“The defendant reasons that because the circuit court ‘may order at the time of sentencing that the record be expunged,’ it may also order the record expunged at some other time,” according to the opinion. “The defendant’s interpretation in effect reads the statutory phrase ‘at the time of sentencing’ out of the statute, thus rendering the phrase surplusage. Such an interpretation does not comport with our approach to statutory interpretation.”

Matasek also unsuccessfully argued that “probation” does not equate “sentencing” under Wisconsin law.

The Wisconsin Legislature last took up the issue in 2009, when it expanded expunction options for defendants age 25 and under to include those who committed misdemeanors or certain felonies.

According to the court’s opinion, under the logic of the legislators who passed the law, “offenders will be uncertain whether the circuit court will expunge the record and this uncertainty might provide a weaker incentive to an offender to complete his or her sentence successfully” if a judge can hold off on his or her decision.

READ OUR RELATED CASE DIGEST

A spokesman for Attorney General J.B. Van Hollen, who argued for the state, did not immediately return a phone call Friday.

A few pages of the Supreme Court’s are devoted to an exchange between Wolfgram and Steven Kohn of Kohn Smith Roth, Matasek’s attorney for his plea. According to the opinion, Kohn told the judge that other judges have handled expunction at different times, but Wolfgram was unpersuaded in Matasek’s case.

According to the opinion, Wolfram told Kohn to appeal to him to clarify the law.

“I’d love to be able to come back at the end of three or four, or five years, or whatever it might be, and evaluate the person based on what I see then,” Wolfgram told Kohn.

Guerard, of Ahmad & Guerard LLP, Milwaukee, said other judges across the state have decided to take a “wait-and-see” approach to deciding whether a defendant should have his or her record expunged. Almost all of them stopped, though, when the appellate court issued its decision.

Julius Kim, a criminal defense attorney at Kim & LaVoy SC, Milwaukee, said the practice was inconsistent from judge to judge, though.

He added that he thinks it’s good that there’s now a “definitive answer on how this … statute should be interpreted,” even if he wishes it would have gone the other way.

“From a practitioner’s standpoint,” Kim said, “it’s hard to advise a client which way the case is going to go.”

Though the language of the law dictates otherwise, the court acknowledged “there are policy reasons” for allowing judges to decide after a defendant has completed his or sentence.

“The circuit court will probably be better positioned to weigh the benefit to the offender and the harm to society after (rather than before) the offender has successfully completed the sentence,” according to the opinion.

This is not the first time the state’s high court has considered changes to the expunction process. The justices heard arguments in February 2010 on a rule petition that sought to make it clear to judges how and when they can order records to be expunged; including when charges are dropped or a defendant is not convicted. But that rule petition never was approved.

A legislative bill that would have allowed a judge to make his or her decision after a sentence is completed was introduced last session by state Rep. Nick Milroy, D-South Range. The bill never made it out of committee, though, and it was not immediately clear if Milroy would reintroduce it next session. Follow @eheisigWLJ