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  • WisBar News
    May 27, 2014

    Supreme Court: Expunction Decision Must Be Made at the Time of Sentencing

    May 27, 2014 – Circuit courts have discretion to order or deny the expunction of a young defendant’s criminal record upon successful completion of the sentence, but that decision must be made at the sentencing stage, not after successful completion.

    That’s what a unanimous Wisconsin Supreme Court recently clarified in State v. Matasek, 2014 WI 27 (May 23, 2014), a case in which the defendant wanted to circuit court to hold the expunction decision until after the defendant satisfied the sentence.

    The defendant, Andrew Matasek, was under 25 years old when he admitted to delivering more than a pound of marijuana. He later pled no contest. The court sentenced Matasek to three years of probation with a suspended jail sentence.

    Under Wis. Stat. section 973.015, those who commit certain crimes while under the age of 25 have the benefit of an expunction statute. It says the circuit 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.”

    The circuit court judge in Ozaukee County ruled that, given the severity of the crime, society would be harmed if Matasek’s record was allowed to be expunged.

    However, the judge indicated a desire to revisit the expungement issue at a later date. Defense counsel argued that the court could find that Matasek was eligible for expunction if and when he successfully completed the terms of his three-year probation.

    The sentencing judge disagreed. It said the court must make an expunction decision “at the time of sentencing,” according to the statute, but suggested that defense counsel appeal. The judge noted that circuit courts have interpreted the statute differently.

    Matasek appealed, and a three-judge appeals court panel affirmed. It said expunction decisions must be made at the time of sentencing, not at some later date. Recently, the supreme court affirmed the lower courts, providing guidance on this expunction issue.

    The supreme court rejected Matasek’s argument that a circuit court’s discretion to order or deny expungement extends to “when” the record may be expunged.

    “The defendant’s interpretation in effect reads the statutory phrase ‘at the time of sentencing’ out of the statute, thus rendering the phrase surplusage,” wrote Chief Justice Shirley Abrahamson for the unanimous supreme court. “Such an interpretation does not comport with our approach to statutory interpretation.”

    Matasek also argued, unsuccessfully, that he never received a “sentence” because he was placed on probation and his sentence was withheld. “Clearly, the expunction statute envisions probation within the word ‘sentence,’” the chief justice wrote.

    The court recognized that a circuit court may be better positioned to make an expunction decision after the defendant completes the sentence. But the supreme court noted that limiting expunction decisions to the sentencing stage is not unreasonable.

    “By deciding expunction at the time of sentencing, a circuit court creates a meaningful incentive for the offender to avoid reoffending,” wrote Chief Justice Abrahamson, noting that a ‘wait-and-see’ approach may give offenders less certainty about record expungement and potentially a weaker incentive to complete a sentence successfully.

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