Case questions whether expungement can be sought after sentencing

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Must judges consider whether criminal defendants are eligible to have their criminal records wiped clean if the possibility of elimination is not first brought up during sentencing proceedings?

That’s the question at the heart of an appeal filed in the case of State v. Arberry, which is up for oral arguments next week.

Current law lets offenders ask for the elimination of certain criminal records as long as the crimes in question were committed before the age of 25. However, the process, known as expungement, has certain limitations.

A request for expungement, for one, may be made only at sentencing proceedings. It’s that restriction that now threatens to trip up Diamond Arberry, a Milwaukee resident who was caught shoplifting with two other women at a Buckle Store in Fond du Lac. When the police arrested Arberry, then a high school senior, they also searched the car she had been riding in and found various items that had been stolen from stores in Oshkosh and Green Bay.

Officials charged Arberry in 2015 with three counts of retail theft and two counts of obstructing an officer. In a plea agreement reached with the state, she requested probation and time in the county jail. Fond du Lac County Circuit Court Judge Peter Grimm instead imposed a prison sentence.

The possibility of expungement never came up in those proceedings. Arberry is now saying that the omission was the fault of not only her own defense counsel but also the state and the judge overseeing the case. She filed a post-conviction motion asking the court to find that her record can be expunged after she has served out her sentences.

Judge Grimm denied the request, noting that both state and case law allow for expungement to be granted only at the time of sentencing. What’s more, Grimm suggested that an expungement request, had one been put to him, would have most likely been turned down.

“If somebody would have asked me about it, I would have said, ‘Well no, she’s not getting expungement,’” Grimm said, according to a transcript. “Granted, no one brought it up. I don’t think, as a judge, I have to say ‘no’ when no one has asked me to say ‘no’ or to grant it.”

Arberry next turned to the Wisconsin Court of Appeals, arguing that Grimm had discretion to consider her eligibility for expungement even though a formal request had not been made during the sentencing proceedings. She contended that Grimm abused that discretion when he later turned Arberry down for expungement.

The appeals court, however, affirmed Grimm, noting that the Wisconsin Supreme Court, in State v. Matasek, held in 2014 that a circuit court can exercise its discretion to grant expungement only during sentencing proceedings.

Arberry and her counsel, Assistant State Public Defender Ellen Krahn, are now contending that a request for expungement, because one had not been made when Arberry was being sentenced, should be allowed through a motion for sentence modification. Arberry’s eligibility for expungement, they argue, was a “new factor,” meaning a fact or set of facts that is highly relevant to a particular sentencing but was not originally known to the trial judge.

Courts have the authority to modify a criminal sentence if a defendant proves the existence of a new factor.

In such instances, it makes little difference why the fact or set of facts wasn’t considered. It might have been simply overlooked when a sentence was handed down, or might not have even been in existence then.

Arberry is contending that the proper way to deal with expungement questions, when they are not brought up at sentencing, is through motions for sentence modification. Should the high court not accept that argument, Arberry is asking the justices to instead require circuit courts to consider expungement for eligible criminal defendants.

The state’s response, among other things, has been to argue that state statute and case law have made it clear that the proper time to ask for expungement is during sentencing, not sentence-modification proceedings.

The state, represented by Assistant Attorney General Christine Remington, is also contending that a court’s silence on whether a criminal defendant is eligible for expungement cannot count as a new factor. The reason, she’s arguing, is that silence is not evidence by itself that the parties in a case have overlooked a particular matter.

The state also notes that it’s defendants who have an obligation to bring up expungement requests during sentencing proceedings. It argues that allowing defendants to use sentence-modification motions for that purpose would undermine the legislative intent behind the state’s expungement statute, Wis. Stat. 973.015.