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  • WisBar News
    February 04, 2014

    Onus on Defendant to Timely File for Ordered Expungement, Appeals Court Clarifies

    Feb. 4, 2014 – Although sentencing judges may order expungement of a criminal conviction when the conditions of probation are satisfied, a defendant still must take affirmative steps to clear the record, a state appeals court majority has ruled.

    Kearney Hemp was under 25 years old when he entered a guilty plea for possession of, coincidentally, THC with intent to distribute. The sentencing judge ordered jail time and an 18-month probation period. The judge also ordered expungement upon successful completion of probation conditions, allowed for those under age 25.

    The expungement statute, Wis. Stat. section 973.015(2), says “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.”

    Hemp successfully completed the conditions of his probation, and the Department of Corrections issued a certificate of discharge to the circuit court in Milwaukee County in 2011. However, nearly a year passed before Hemp's lawyer affirmatively filed a petition for expungement. By that time, he had incurred criminal charges in another county. 

    Thus, the circuit court denied his request for expungement of the possession with intent to deliver THC conviction, citing his new charges. Hemp appealed, arguing that expungement of his previous conviction was automatic when he satisfied the conditions of his probation and the certificate of discharge was received by the court.

    In State v. Hemp, 2013AP1163-CR (Feb. 4, 2014), a three-judge appeals court majority (2-1) affirmed, concluding that Hemp was required to affirmatively petition the circuit court for expungment. And since he had new charges by the time that petition was filed, the majority ruled that Hemp's expungement petition was properly denied.

    The statute, the appeals court majority noted, says the “detaining or probationary authority” must “issue” the discharge certificate when the probationer has satisfied the conditions of probation. But the majority said the statute does not specify who must "forward" the certificate to the circuit court, and it was Hemp's responsibility to petition the court with the certificate.

    “Our analysis of the statute, and the circuit court’s decision ... lead us to conclude that Hemp was indeed responsible for petitioning the circuit court himself, and that the circuit court properly found his petition ‘tardy,’” wrote Judge Joan Kessler, joined by Judge Kitty Brennan.

    The majority pointed to Form CR-266 (Petition to Expunge Court Record of Conviction) to reason that defendants are responsible for filing the proper expungement paperwork.

    “Form CR-266, and all of its requirements, including the attachment of the discharge certificate, are the sole responsibility of the defendant,” Judge Kessler wrote. “It logically follows, then, that Wis. Stat. § 973.015 implicitly requires a defendant seeking the benefit of expungement to provide the circuit court with his discharge certificate.”

    The majority also clarified that an expungement petition must be filed “within a reasonable time following the issuance of a discharge certificate.” The panel noted that Hemp did not petition the court for a year after the certificate was issued.

    “Adopting Hemp’s interpretation would unfairly allow petitioners who have successfully completed probation, but go on to commit other offenses before filing for expungement, to file petitions regarding their original offenses in an attempt to get lower sentences for the subsequent offenses,” Judge Kessler wrote.


    Judge Patricia Curley filed a dissenting opinion. She said state law allows the trial court to grant expungement "at the time of sentencing" and the expungement statute does not specify that a defendant must subsequently petition the court.

    "Nowhere in the statute is there a whiff of a suggestion that Hemp has the laboring oar in this procedure," Judge Curley wrote. "The statute says absolutely nothing about the person who has successfully completed his sentence taking any affirmative action to obtain the expungement."

    Judge Curley argued that, under the statute, the detaining or probationary authority must issue the discharge certificate after the defendant completes the conditions of probation and forward it to the court for automatic expungement. 

    Once the circuit court receives the discharge certificate, Curley explained, the record must be expunged according to the sentencing court's previous order, and the defendant does not need the subsequent circuit court's approval.

    Even if Hemp was required to file a petition, Judge Curley also noted that the statute does not prescribe a time period for any submission to the court by the defendant, so the majority was wrong to conclude that Hemp's petition was filed too late.

    "Hemp got caught up in a Byzantine system that gives no notice of the correct procedure and punishes those without knowledge who get caught in its web," Judge Curley wrote. "Hemp successfully completed his probation. He is entitled to expungement."

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