State v. Allen

KESSLER, J.

¶ 21. (concurring). I agree with the result reached by the Majority. I write separately because I conclude the Majority has extended Leitner beyond what is necessary to decide the appeal before us.

¶ 22. Allen asked this court to read Leitner as limiting what a subsequent court may consider about an expunged conviction to "only those facts relating to the crime underlying the expunged conviction and do not include those facts underlying the expunged criminal record." Majority, ¶ 1. The court in Leitner described the issue which is pertinent to this appeal as "whether the [trial] court erred in the sentencing proceeding when it considered information about the facts underlying the records of the . . . convictions expunged under Wis. Stat. § 973.015 and therefore require[d] resentencing." Leitner, 253 Wis. 2d 449, ¶ 42 (emphasis added). The court noted that "[t]he facts underlying the record of a conviction expunged under § 973.015 are significant to sentencing [a] defendant because the facts of his prior behavior elucidate his character." Id ., ¶ 44 (emphasis added).

*310¶ 23. Here, all that is before us in this appeal is the trial court's consideration of Allen's behavior— namely that he successfully completed probation in the expunged case. We have no documents which comprise any part of the record of the expunged case. The presentence investigation report (PSI) prepared for this case refers to the sentence imposed in the expunged case. Allen's successful completion of probation in the expunged case is the behavior which the sentencing court considered. See Majority, ¶ 6 (quoting the trial court's explanation of how it viewed Allen's successful probation experience when determining the sentence to impose in this case). Whether the court learned of the successful probation from the PSI or otherwise is immaterial. Allen's behavior in successfully completing probation was evidence of his character.

¶ 24. Consistent with the teachings of Leitner, the trial court properly considered Allen's behavior in connection with the case which had been expunged. Nothing in Leitner, nor the facts presented here, requires us to go further. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (Cases should be decided on the narrowest possible grounds.).

¶ 25. As the court in Leitner explained, innumerable documents in the possession of many government agencies may reflect part of the "record" of the expunged conviction, which makes expunging (i.e., destroying) such records impossible; the statute imposes no such burden of destruction on any government agency except the court. See id., 253 Wis. 2d 449, ¶¶ 40-41. Leitner concluded "that the circuit court may consider, when sentencing an offender, the facts underlying a record of conviction expunged." Id., ¶ 48 *311(emphasis added). Allen's successful completion of probation, to which he was sentenced in the expunged case, is behavior the sentencing court properly considered.