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  • WisBar News
    August 31, 2020

    Appeals Court Reverses Expungement Order, Convictions Remain on Record

    Joe Forward


    Aug. 31, 2020 – A state appeals court has reversed a circuit court order expunging a defendant’s convictions, concluding he did not satisfy all conditions of his probation.

    Jordan Lickes was convicted on four charges stemming from sexual intercourse with a 16-year-old girl when he was 19. He received a jail sentence, a stayed prison sentence and probation, which required him to complete a sex offender treatment program.

    The court ordered that if Lickes successfully completed his probation (sentence), three of four counts (fourth degree sexual assault, disorderly conduct, and genital exposure) would be expunged under Wis. Stat section 973.015, which allows individuals who were under age 25 when they committed a crime to obtain an expungement order.

    The crime must not carry a maximum prison sentence of more than six years. Under the expungement statute, “the 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 by this disposition.”

    In 2015, however, the court received a letter from Lickes’ probation officer, noting Lickes had violated his probation multiple times, including termination from the sex offender treatment program. Lickes agreed to accept a 45-day jail term with Huber privileges.

    In 2018, the probation officer filed submitted a “verification of satisfaction of probation conditions for expungement” form with the court, noting Lickes had successfully completed the terms of his probation and met all conditions.

    The state opposed the expungement on the grounds that Lickes did not “successfully complete the sentence,” as the statute requires, because he violated his probation.

    The state noted that Lickes admitted that he violated the rules and conditions of probation. Lickes argued that he admitted violating Corrections Department rules of probation, but he successfully complied with all court-ordered conditions of probation.

    The circuit court agreed with Lickes and ordered expungement on three convictions. But in State v. Lickes, 2019AP1272 (Aug. 20, 2020), a three-judge panel for District IV Court of Appeals reversed, concluding Lickes was not entitled to expungement.

    Lickes did eventually complete the sex offender treatment program, as the court required, but did not do so within the two-year probationary period for two counts.

    “The circuit court’s probation condition requiring Lickes to ‘complete’ sex offender treatment for Counts 1 and 3 cannot reasonably be construed to mean that Lickes was permitted to complete the treatment after his probationary period ended for those counts,” wrote Appeals Court Judge Jennifer Nashold.

    “Because Lickes did not complete sex offender treatment within the two-year probationary period for Counts 1 and 3, he did not satisfy a court-ordered condition of probation.” The panel concluded Lickes was not entitled to expungement on two counts.

    As to a third count, exposing genitals in a public area, Lickes said he did not violate any court-ordered terms of probation, only Corrections Department probation conditions. He said “conditions of probation” in the statute means only court-ordered conditions.

    The appeals court panel ruled that the phrase “conditions of probation” that must be satisfied include Corrections Department probation rules.

    “[A]lthough § 973.10(2) makes no specific reference to DOC rules, this court has held that a probationer’s violation of either a court-imposed condition or a DOC-imposed rule may lead to revocation,” Judge Nashold wrote.

    Expungement is not the same as probation revocation, but the panel concluded that the phrase “condition of probation” should be interpreted the same as a related statute.

    “[W]e conclude that the State’s interpretation of the expungement statute is supported by the language of surrounding or closely-related statutes,” Judge Nashold wrote.

    The panel also declined to apply the rule of lenity, which says any doubt about the legislature’s intent with a criminal statute should be interpreted in the accused’s favor. The panel concluded that the rule only applies to “grievous ambiguities.”

    “[W]e conclude that there is no ‘grievous ambiguity’ and that we are doing more than ‘simply guess[ing]’ at the meaning of the statute,” Judge Nashold wrote.

    Finally, the panel ruled that courts have no discretion to decide whether violation of a Corrections Department-imposed condition of probation bars expungement.

    “Said otherwise, the legislature could have left this decision to the circuit court’s discretion but, instead, it has established clear objective standards that leave no room for the court’s exercise of discretion at that stage of the process,” Judge Nashold wrote.

    Expungement is self-executing when a defendant has successfully completed the sentence, including the conditions of probation, and the court receives a “verification of satisfaction of probation conditions for expungement” form.

    The panel said Lickes was not entitled to a self-executing expungement because the he did not complete or violated the terms of this probation on all three counts.

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