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  • WisBar News
    December 03, 2015

    Sentencing Court Allowed to Consider Facts Underlying Expunged Record

    Joe Forward

    Dec. 3, 2015 – Christopher Allen hit a tree while driving drunk, killing one passenger and injuring another. Recently, a state appeals court ruled that a sentencing court properly considered facts relating to a prior record of conviction that was later expunged.

    Allen relied on a 2002 Wisconsin Supreme Court case, State v. Leitner, to argue that sentencing courts are prohibited from considering expunged records of conviction, except for facts underlying the crime that led to the conviction.

    Allen had a previous conviction for substantial battery that was expunged. The court could consider facts underlying the battery crime, he argued, but no other facts.

    In this case, the sentencing court considered the fact that Allen went through supervision as a condition of probation on the expunged battery charge. The court was concerned that Allen seemingly did not learn his lesson despite that experience.

    In State v. Allen, 2014AP2840-CR (Nov. 24, 2015), a three-judge panel for the District I Appeals Court ruled that the sentencing court could consider it, despite Leitner.

    The Sentencing

    The criminal complaint alleged that Allen, 25 years old at the time, was driving his car at approximately 97 miles per hour with a blood alcohol concentration of 0.122 grams when he hit a tree in 2013. In exchange for a no contest plea to one count of homicide by intoxicated use of a motor vehicle, the state agreed to dismiss other charges.

    A presentence investigation (PSI) report revealed that Allen had a prior record. When he was about 18 years old, Allen was convicted of substantial battery.

    In that case, the court withheld the sentence and allowed expunction once he completed conditions, including supervision. In 2011, the conviction was expunged.

    In his homicide by intoxicated use of a motor vehicle case, the state reviewed the PSI – including his prior battery – and recommended that Allen serve a four-year prison term, followed by an amount of extended supervision that the court deemed appropriate.

    The sentencing court imposed a five-year prison sentence, which was more than the state had recommended, followed by four years of extended supervision.

    In rendering the sentence, the judge noted that Allen went through supervision for the expunged 2005 battery, and suggested that Allen should have learned his lesson then.


    In a postconviction motion, Allen argued that the sentencing judge improperly considered his expunged battery.

    The circuit court denied the motion, concluding that the sentencing court properly considered the fact of his prior supervision relating to the expunged battery conviction. The appeals court affirmed, despite Allen’s argument under the Leitner decision.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    “The question before this court is whether the circuit court’s consideration of Allen’s prior supervision in his expunged case was a consideration of ‘the facts underlying a record of conviction expunged under [Wis. Stat.] § 973.015,’ and thereby a permissible consideration under Leitner,” Judge Kitty Brennan wrote.

    “Allen narrowly interprets the ‘facts’ a court can consider under Leitner, limiting them to only those facts surrounding the underlying expunged criminal act,” she explained.

    The appeals court said sentencing courts can consider the facts underlying an expunged record because Wisconsin law requires judges to make informed decisions with full knowledge of a defendant’s character and behavior patterns.

    “Furthermore, reading Leitner to allow sentencing courts to consider the facts of record, and not just the facts of the underlying crime, comports with the expunction statute’s purpose,” wrote Judge Brennan, noting the purpose is to shield young offenders from some, but not all, the harsh consequences that result from criminal convictions.

    “Here, the circuit court used the fact of Allen’s prior supervision to ‘elucidate his character’ – particularly his failure to learn of the consequences of breaking the law.”

    The panel noted that sentencing courts are still not permitted to use an expunged conviction itself as a basis to enhance a sentence, and expunged records of conviction cannot be used to impeach witnesses on cross-examination.

    But sentencing judges “must be permitted to consider all of the facts underlying an expunged criminal record, and not just those facts underlying the crime itself.”


    Judge Joan Kessler wrote a concurring opinion. She agreed with the result but said the majority “extended Leitner beyond what is necessary to decide the appeal before us.”

    “Consistent with the teachings of Leitner, the trial court properly considered Allen’s behavior in connection with the case which had been expunged,” she wrote. “Nothing in Leitner, nor the facts presented here, requires us to go further.”

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