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  • WisBar News
    July 12, 2017

    Drinking Ticket Downs Young Offender’s Chance at Expungement

    Joe Forward

    Supreme Court chamber in Wisconsin State Capitol

    July 12, 2017 – The Wisconsin Supreme Court has ruled (5-2) that a 17-year-old offender who received a drinking ticket while on probation is not eligible for expungement of his convictions, meaning he can never clear them from his record.

    In State v. Ozuna, 2017 WI 64 (June 22, 2017), a 5-2 majority ruled that expungement is only available to those who satisfy all conditions of probation, and the court had ordered Lazaro Ozuna not to consume alcohol as a condition of probation.

    “The statutory requirements for expungement include the requirement that the probationer has satisfied the conditions of probation,” wrote Justice Michael Gableman.

    “Ozuna violated the circuit court’s expressly ordered condition not to possess or consume alcohol during the term of probation.”

    Two justices dissented, concluding the decision “undermine[s] the purpose of the expunction statute” and “perfect compliance” with conditions of probation is not required, so long as compliance is sufficient for a successful probation discharge.

    “The majority’s approach undermines the statute’s purpose and the legislature’s intent to reach a broader category of youthful offenders,” wrote Justice Ann Walsh Bradley.

    “Probationers must adhere to such a myriad of conditions that requiring perfection effectively removes the possibility of expunction.”

    What Happened?

    In 2013, Ozuna pled guilty to disorderly conduct and criminal damage to property, misdemeanor charges. The sentencing court placed Ozuna on probation for 12 months. He was prohibited from consuming or possessing alcohol as a condition of probation.

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    The sentencing court also ordered expungement, under Wis. Stat. section 973.015, which allows sentencing judges to order expungement at the time of sentencing if the defendant was under 25 when the crime was committed. Expungement is only available for crimes that carry a maximum period of imprisonment of six years or less.

    If the court orders expungement, expungement is automatic “upon successful completion of the sentence.” Successful completion of a sentence means “a person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation.”

    Upon successful completion of probation, the probationary authority must send a “certificate of discharge” to the court, which has the effect of expunging the record.

    In Ozuna’s case, the probation agent sent the court a form indicating that Ozuna had successfully completed his probation. But the probation agent also noted that Ozuna did not meet all conditions of probation, because he was cited for underage drinking.

    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 judge in Walworth County then entered an order denying expungement, noting Ozuna did not meet all conditions of probation. The appeals court affirmed.

    Majority Affirms: No Expungement

    The majority ruled that the statute clearly requires the defendant to “satisfy the conditions of probation” in order to successfully complete the sentence.

    Ozuna argued that he successfully completed the sentence because his probation was not revoked. But the majority noted that revocation is just one aspect.

    “[T]he mere fact that a probationer has completed the term of probationary supervision without revocation does not necessarily establish that the probationer has also satisfied the conditions of probation,” Justice Gableman wrote for the majority.

    The majority noted that expungement, if ordered by the sentencing court, is self-executing when the probation agent sends the discharge certificate to the court, but it is only self-executing if the defendant has met all conditions of probation.

    Finally, the majority rejected Ozuna’s argument that the circuit court deprived him of due process by denying expungement without an opportunity to be heard.

    “We disagree with Ozuna and hold that he did not have a protected liberty interest in expungement in this case,” wrote Justice Gableman, noting he was not entitled to expungement without satisfying the conditions of probation, which he did not do.

    Dissent: Sufficient Compliance is Enough

    Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson. They concluded that expungement is appropriate, under recent precedent and the statute’s purpose, when youthful offenders “sufficiently comply with the terms of probation.”

    The dissenters noted the collateral consequences of criminal convictions on youthful offenders throughout life, and noted that section 973.015 is supposed to give them a break. Noting that purpose, they said the statute should be liberally construed.

    “Although [the majority] correctly states that an offender must ‘satisfy all the conditions of probation,’ it seemingly adopts the State’s position that the offender’s perfect compliance is required in order to be entitled to expunction,” A.W. Bradley wrote.

    The dissenters said requiring perfect compliance “effectively removes the possibility of expunction” because probationers are often required to comply with a myriad of rules and conditions that can be easily violated because of unavoidable circumstances.

    “[A]n offender would be denied expunction for missing a single unscheduled appointment due to such unavoidable circumstances as an inability to find a babysitter, getting stuck in traffic, or being unable to leave work early,” Justice A.W. Bradley wrote.

    The dissent also said the majority’s decision effectively overrules a prior decision that made expungement self-executing when the court receives probation discharge papers. In Ozuna’s case, the papers indicated that Ozuna successfully completed probation.

    “By creating an opportunity for circuit courts to review whether the terms of probation have been met, and failing to provide any guidance on how to do so, the majority creates more problems than it has solved, leaving confusion in its wake,” Bradley wrote.

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