2014 WI 129
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1163-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Kearney W. Hemp,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 353 Wis. 2d 146, 844 N.W.2d 421)
(Ct. App. 2014 – Published)
PDC No.: 2014 WI App 34
OPINION FILED: December 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 7, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jean A. DiMotto
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by James B. Duquette and Seymour Kremer Koch Lochowicz &
Duquette LLP, Elkhorn, and oral argument by James B. Duquette.
For the plaintiff-respondent, the cause was argued by
Christine A. Remington, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was Jill Kastner, Shelia Sullivan,
Erica Seitzer-Beckman, and Elyce Wos on behalf of Legal Action
of Wisconsin.
An amicus curiae brief was filed by Kelli S. Thompson and
Colleen D. Ball on behalf of the Office of the State Public
Defender.
2
2014 WI 129
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1163-CR
(L.C. 2009CF4636)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
DEC 18, 2014
Kearney W. Hemp,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 MICHAEL J. GABLEMAN, J. We review a published
decision of the court of appeals1 affirming the Milwaukee County
circuit court's order denying Kearney Hemp's ("Hemp") petition
for expungement.2 At Hemp's sentencing, the circuit court found
Hemp eligible for expungement conditioned upon his successful
1
State v. Hemp, 2014 WI App 34, 353 Wis. 2d 146, 844 N.W.2d
421.
2
The Honorable Jean A. DiMotto, presiding.
No. 2013AP1163-CR
completion of probation. Hemp petitioned for expungement a year
after successfully completing probation but the circuit court
denied his petition, concluding that not only did Hemp have the
responsibility to petition for expungement, but that he also had
the responsibility to do so in a timely fashion. The circuit
court explained that Hemp's "desire for expungement did not
ripen until he was charged with new offenses in Walworth
County." "The implied time element . . . coupled with the
defendant's tardy action in seeking expungement" led the circuit
court to deny his petition.
¶2 The court of appeals affirmed, concluding the
expungement statute, Wis. Stat. § 973.015 (2009-10)3, required
Hemp to forward his "certificate of discharge" to the circuit
court. State v. Hemp, 2014 WI App 34, ¶10, 353 Wis. 2d 146, 844
N.W.2d 421. The court explained that Hemp's failure to forward
his certificate for over a year after the Department of
Corrections (DOC) discharged him from probation rendered his
petition for expungement tardy. Id.
¶3 Three issues are presented for our consideration:
1) whether Hemp's successful completion of probation
automatically entitled him to expungement; 2) whether Wis. Stat.
§ 973.015 places any burden on Hemp to petition the circuit
court within a certain period of time in order to effectuate
expungement; and 3) whether the circuit court could reverse the
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise noted.
2
No. 2013AP1163-CR
decision it made at sentencing to find Hemp eligible for
expungement conditioned upon the successful completion of his
sentence.
¶4 First, we hold that the successful completion of
probation automatically entitled Hemp to expungement. Second,
we hold Wis. Stat. § 973.015 is unambiguous and places no burden
on Hemp to petition for expungement within a certain period of
time because the duty to forward the certificate of discharge
rests solely with the "detaining or probationary authority."
Finally, we hold the circuit court improperly exercised its
discretion when it reversed the decision it made at sentencing
to find Hemp eligible for expungement. Accordingly, the
decision of the court of appeals is reversed, and we remand to
the circuit court with the instructions that the clerk of courts
expunge Hemp's record.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶5 On October 13, 2009, the Milwaukee County District
Attorney's Office charged Hemp with one count of possession with
intent to deliver THC (tetrahydrocannabinols), 200 grams or
less, contrary to Wis. Stat. § 961.41(1m)(h)1, a Class I felony.
A conviction for a Class I felony subjects a defendant to a
maximum term of imprisonment of three years and six months.4
Wis. Stat. § 939.50(3)(i). Hemp subsequently pleaded guilty.
4
For the purposes of our discussion, we need recite only
the maximum term of imprisonment. A recitation of the potential
fines is unnecessary.
3
No. 2013AP1163-CR
In exchange for Hemp's guilty plea, the State agreed to
recommend probation with 90 days conditional jail time, various
treatment based conditions, and to take no position on
expungement. The circuit court sentenced5 Hemp to one year in
the House of Corrections, consecutive to any other sentence,
stayed for 18 months of probation with 30 days of conditional
jail time. As conditions of probation, the court ordered that
Hemp continue psychological treatment with his counselor,
maintain absolute sobriety, and complete fifty hours of
community service. Further, the circuit court found Hemp
eligible for expungement conditioned upon the successful
completion of probation.6
¶6 On December 9, 2011, the DOC notified Hemp he
successfully completed and was discharged from probation. The
DOC issued Hemp a certificate of discharge, dated December 15,
2011, which it also forwarded to the "court of record." The
5
"Probation itself is generally not a sentence." State v.
Horn, 226 Wis. 2d 637, 647, 594 N.W.2d 772 (1999). "[I]f a
person is convicted of a crime, the court, by order, may
withhold sentence or impose sentence . . . and stay its
execution, and in either case place the person on probation to
the department for a stated period, stating in the order the
reasons therefor." Wis. Stat. § 973.09(1)(a) (2013-14).
However, in Matasek we concluded that "§ 973.015 [the
expungement statute] itself views probation as a sentence."
State v. Matasek, 2014 WI 27, ¶36, 353 Wis. 2d 601, 846 N.W.2d
811.
6
There is no dispute that at the time of sentencing in
Milwaukee County Hemp was eligible for expungement under Wis.
Stat. § 973.015(1)(a).
4
No. 2013AP1163-CR
circuit court's "Criminal Court Record" entry for January 24,
2012, states: "Notice of case status change" "Probation/Extended
Supervision status: Discharged." The certificate of discharge
informed the parties "You [Hemp] were placed on probation. The
department having determined that you have satisfied said
probation, it is ordered that effective December 9, 2011, you
are discharged absolutely."
¶7 On October 8, 2012, the Walworth County District
Attorney's Office charged Hemp with possession of THC, second or
subsequent offense, contrary to Wis. Stat. § 961.41(3g)(e)
(2011-12), and possession of drug paraphernalia, contrary to
Wis. Stat. § 961.573(1) (2011-12). Realizing the Milwaukee
County Class I felony conviction (possession with intent to
deliver THC, 200 grams or less) had not been expunged, as the
conviction was the basis for the second or subsequent enhancer
in Walworth County, Hemp filed Form CR-266,7 "Petition to Expunge
Court Record of Conviction" with the Milwaukee County circuit
court on October 30, 2012. Hemp did not attach the discharge
certificate issued by the DOC. In response, the circuit court
requested proof that Hemp successfully completed probation and
7
This form is the product of the Wisconsin Records
Management Committee, a committee of the Director of State
Court's Office and a mandate of the Wisconsin Judicial
Conference. Wisconsin Stat. § 758.18(1) (2013-14) requires the
Judicial Conference to "adopt standard court forms for use by
parties and court officials in all civil and criminal actions
and proceedings in the circuit court."
5
No. 2013AP1163-CR
paid his financial obligations; however, Hemp's counsel did not
respond.
¶8 On December 12, 2012, Hemp again petitioned for
expungement and attached the requested proof. In an order dated
January 3, 2013, the circuit court ordered Hemp to submit a
"personal statement" indicating why he thought expungement
should be granted despite the pending charges in Walworth
County. Hemp subsequently filed such a statement and the State
filed a response, arguing Hemp had the responsibility to forward
the certificate of discharge to the circuit court in a timely
manner. On March 4, 2013, the circuit court issued a decision
and order denying expungement. The circuit court explained
Hemp's "desire for expungement did not ripen until he was
charged with new offenses in Walworth County" and "[t]he implied
time element in the expungement statute as argued by the State
coupled with the defendant's tardy action in seeking expungement
[led] the court to deny his petition."
¶9 On July 22, 2013, Hemp appealed this order. On
February 4, 2014, the court of appeals affirmed the circuit
court's order denying expungement. Hemp, 353 Wis. 2d 146, ¶1.
The court of appeals concluded that, per Wis. Stat. § 973.015,
upon the successful completion of probation Hemp had the
responsibility to petition the circuit court for expungement,
using Form CR-266, and to forward his certificate of discharge
to the circuit court. Id., ¶¶13, 15. The court of appeals
further concluded that Wis. Stat. § 973.015 implicitly requires
a defendant seeking expungement to petition the circuit court in
6
No. 2013AP1163-CR
a timely fashion based on the ordinary definition of "upon,"
meaning "immediately following; very soon after." Id., ¶15
(citing to Wis. Stat. § 973.015(2) which states "[u]pon
successful completion of the sentence the detaining or
probationary authority shall issue a certificate of discharge
which shall be forwarded to the court of record and which shall
have the effect of expunging the record"). The court of appeals
further concluded the petition must be approved by the circuit
court before expungement is effectuated. Id. Because Hemp did
not petition the circuit court until a year after his discharge,
the court of appeals affirmed the circuit court's order denying
Hemp expungement. Id., ¶16.
¶10 The dissent disagreed with the propositions that the
defendant is responsible for forwarding the certificate of
discharge to the circuit court and that the circuit court
retains discretion to deny expungement. Id., ¶¶19, 26 (Curley,
J., dissenting). The dissent noted: "[t]he statute says
absolutely nothing about the person who has successfully
completed his sentence taking any affirmative action to obtain
the expungement." Id., ¶20 (Curley, J., dissenting). Rather,
the dissent argued the detaining or probationary authority bears
the burden of both issuing the certificate and forwarding the
certificate to the circuit court. Id., ¶21 (Curley, J.,
dissenting). The dissent explained it would be unfair to punish
Hemp for not forwarding the discharge certificate because the
statute provides no notice that he is required to do so. Id.,
¶26 (Curley, J., dissenting). According to the dissent, "the
7
No. 2013AP1163-CR
statute's clear and unambiguous wording" states that the
issuance of the certificate by the detaining or probationary
authority "ha[s] the effect of expunging the record." Id.
(Curley, J., dissenting).
¶11 Hemp petitioned this Court for review, which we
granted on June 12, 2014.
II. STANDARD OF REVIEW
¶12 This case requires us to construe Wis. Stat.
§ 973.015. This presents a question of law, which we review de
novo. Vill. of Shorewood v. Steinberg, 174 Wis. 2d 191, 201,
496 N.W.2d 57 (1993).
¶13 Statutory interpretation begins with the language of
the statute, and, if the language is unambiguous, we apply the
statute's plain language to the facts at hand. Id. Statutory
language is examined within the context in which it is used.
Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10, 232
Wis. 2d 587, 605 N.W.2d 515. "Words are ordinarily interpreted
according to their common and approved usage; technical words
and phrases and others that have a particular meaning in the law
are ordinarily interpreted according to their technical
meaning." State v. Matasek, 2014 WI 27, ¶12, 353 Wis. 2d 601,
846 N.W.2d 811. Further, statutes are interpreted to avoid
surplusage, giving effect to each word. Id. "Moreover, words
are given meaning to avoid absurd, unreasonable, or implausible
results and results that are clearly at odds with the
legislature's purpose." Id., ¶13; see also State v.
Hanson, 2012 WI 4, ¶17, 338 Wis. 2d 243, 808 N.W.2d
8
No. 2013AP1163-CR
390 ("'Context and [statutory] purpose are important in
discerning the plain meaning of a statute.' . . . We favor an
interpretation that fulfills the statute's purpose.") (citation
omitted).
¶14 However, if the statute is ambiguous, we examine
extrinsic sources, such as legislative history, to ascertain the
legislature's intent; a statute is ambiguous if the language
reasonably gives rise to two or more different meanings. State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶47,
50-51, 271 Wis. 2d 633, 681 N.W.2d 110.
III. DISCUSSION
¶15 We first consider whether Hemp's successful completion
of probation automatically entitled him to expungement, and
conclude that it did. We then address whether Wis. Stat.
§ 973.015 places any burden on Hemp to petition the circuit
court within a certain time frame in order to effectuate
expungement, and conclude the statutory duty unambiguously rests
with the detaining or probationary authority, not with Hemp.
Finally, we consider whether the circuit court could reverse the
decision it made at sentencing to find Hemp eligible for
expungement conditioned upon the successful completion of his
sentence, and conclude it could not. We therefore reverse the
court of appeals and remand for further proceedings.
A. Hemp's Successful Completion of Probation Automatically
Entitled Him to Expungement.
¶16 We first consider whether Hemp's successful completion
of probation automatically entitled him to expungement. We
9
No. 2013AP1163-CR
conclude that it did. Upon successfully completing probation,
Hemp's expungement could not be revoked and, as we will explain
below, Hemp's "probationary authority" had the duty to take the
necessary steps to effectuate Hemp's expungement.
¶17 The expungement statute, Wis. Stat. § 973.015, is
clear:
(1)(a) . . . when a person is under the age of 25 at
the time of the commission of an offense for which the
person has been found guilty in a court for violation
of a law for which the maximum period of imprisonment
is 6 years or less, 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.
. . .
(2) A person has successfully completed the sentence if
the 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
the sentence the detaining or probationary authority
shall issue a certificate of discharge which shall be
forwarded to the court of record and which shall have
the effect of expunging the record. If the person has
been imprisoned, the detaining authority shall also
forward a copy of the certificate of discharge to the
department.
We have construed this statute to mean "if a circuit court is
going to exercise its discretion to expunge a record, the
discretion must be exercised at the sentencing proceeding."
Matasek, 353 Wis. 2d 601, ¶45.
¶18 Before beginning our analysis we wish to briefly
explain expungement. "It is the intent of [expungement] to
provide an alternative to [the] procedures in the criminal code
10
No. 2013AP1163-CR
relating to conviction and sentencing." Wis. Stat. § 54.01(2)
(1975-76).8 At the heart of the expungement statute lies an
intention "to provide a break to young offenders who demonstrate
the ability to comply with the law" by successfully completing
and being discharged from their sentences. State v.
Leitner, 2002 WI 77, ¶38, 253 Wis. 2d 449, 646 N.W.2d 341.
¶19 Expungement offers young offenders a fresh start
without the burden of a criminal record and a second chance at
becoming law-abiding and productive members of the community.
Expungement allows individual defendants a chance to move past
the barriers that can be created by a criminal record by giving
them "an incentive to rehabilitate," which, in turn, "promotes
the public's safety." Jon Geffen & Stefanie Letze, Chained to
the Past: An Overview of Criminal Expungement Law in Minnesota-
State v. Schultz, 31 Wm. Mitchell L. Rev. 1331, 1335 (2005)
(internal citations omitted). Indeed, expungement allows
"offenders to . . . present themselves to the world—including
8
Wis. Stat. § 973.015 was included as Assembly Substitute
Amendment 1 to 1975 Assembly Bill 222, §711m. The drafting file
for the substitute amendment, which is included in the drafting
file for Laws of 1975, ch. 39, does not contain any statements
concerning why the language was included or even who requested
its inclusion. However, the criteria for a youthful offender
disposition under Ch. 54 and expungement under Wis. Stat.
§ 973.015 were the same——a person under the age of 21, and a
finding that the person will benefit and society will not be
harmed. Compare Wis. Stat. § 54.03(1)(a) and (b) (1975-
76) with Wis. Stat. § 973.015(1). This history, along with
their simultaneous enactment, reflects that the two statutes
were aimed at achieving the same goals for the same type of
offenders.
11
No. 2013AP1163-CR
future employers—unmarked by past wrongdoing." Hemp, 353
Wis. 2d 146, ¶17.
¶20 The legislature, by enacting Wis. Stat. § 973.015, not
only "provide[d] a break to young offenders who demonstrate the
ability to comply with the law" but also "provide[d] a means by
which trial courts may, in appropriate cases, shield youthful
offenders from some of the harsh consequences of criminal
convictions." Leitner, 253 Wis. 2d 449, ¶38 (internal quotation
marks and citations omitted). The subsequent amendments to
§ 973.015 show a consistent legislative effort to expand the
availability of expungement to include a broader category of
youthful offenders. This legislative effort is reflected in the
language of the relevant statute, in that, originally, only
those 21 years or younger who were found guilty of an offense
for which the maximum penalty was one year or less in the county
jail were eligible for expungement. Laws of 1975 ch. 39,
§ 711m. However, Wis. Stat. § 973.015 has since been amended to
apply to those 25 years or younger who are found guilty of an
offense for which the maximum period of imprisonment is six
years or less. Wis. Stat. § 973.015 (1)(a).
¶21 Thus, Wisconsin's expungement statute indicates our
legislature's willingness (as expressed by the plain language of
the statute) to help young people who are convicted of crimes
get back on their feet and contribute to society by providing
them a fresh start, free from the burden of a criminal
conviction. Through expungement, circuit court judges can, in
12
No. 2013AP1163-CR
appropriate circumstances, help not only the individual
defendant, but also society at large.
¶22 With these broad foundational principles in mind, we
now return to the text of the expungement statute. Wisconsin
Stat. § 973.015(2) explains how an individual successfully
completes a sentence. "A person has successfully completed [a]
sentence if the 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."
Wis. Stat. § 973.015(2). Thus, an individual defendant like
Hemp who is on probation successfully completes probation if (1)
he has not been convicted of a subsequent offense; (2) his
probation has not been revoked; and (3) he has satisfied all the
conditions of probation. These (and these alone) are the only
requirements Wis. Stat. § 973.015(2) places on an individual
defendant like Hemp to successfully complete probation.
¶23 If a probationer satisfies these three criteria, he
has earned expungement, and is automatically entitled to
expungement of the underlying charge. See Matasek, 353 Wis. 2d
601, ¶45. Thus, the court of appeals was incorrect when it
concluded a defendant is not automatically entitled to
expungement upon the successful completion of his sentence
because he must first petition for expungement, which the
circuit court must approve. The court of appeals' construction
reads requirements into the statute that simply are not present.
See Brauneis v. State, Labor & Indus. Review Comm'n, 2000 WI 69,
¶27, 236 Wis. 2d 27, 612 N.W.2d 635 ("We should not read into
13
No. 2013AP1163-CR
the statute language that the legislature did not put in."). If
a circuit court finds an individual defendant eligible for
expungement and conditions expungement upon the successful
completion of the sentence, then the plain language of the
statute indicates that once the defendant successfully completes
his sentence, he has earned, and is automatically entitled to,
expungement.
¶24 The record clearly indicates Hemp successfully
completed probation. First, Hemp was not convicted of any
subsequent offense while on probation. Second, Hemp's probation
was not revoked. As the relevant certificate indicates, the DOC
discharged Hemp from probation effective December 9, 2011,
having "satisfied said probation." Finally, Hemp satisfied all
the conditions of probation and paid all his supervision fees.
Nothing in Wis. Stat. § 973.015 authorizes the circuit court to
revisit, impose new requirements, or otherwise reverse its
decision to find an individual eligible for expungement
conditioned upon the successful completion of the sentence.
Matasek, 353 Wis. 2d 601, ¶45. In accordance with the plain
language of Wis. Stat. § 973.015, Hemp's successful completion
of probation automatically entitled him to expungement of his
conviction.
B. The Duty to Forward the Certificate of Discharge Rests with
the Detaining or Probationary Authority.
¶25 Next, we consider whether Wis. Stat. § 973.015 places
any burden upon Hemp to petition the circuit court within a
certain period of time in order to effectuate the expungement.
14
No. 2013AP1163-CR
We conclude it does not. Further, we conclude the detaining or
probationary authority must forward the certificate of discharge
to the court of record upon the individual defendant's
successful completion of his sentence and at that point the
process of expungement is self-executing. Wisconsin Stat.
§ 973.015(2) places no burden on the individual defendant to
forward his certificate of discharge to the court of record and
petition for expungement within a certain period of time.
¶26 Wisconsin Stat. § 973.015(2) requires:
Upon successful completion of the sentence the
detaining or probationary authority shall issue a
certificate of discharge which shall be forwarded to
the court of record and which shall have the effect of
expunging the record. If the person has been
imprisoned, the detaining authority shall also forward
a copy of the certificate of discharge to the
department.
¶27 Once an individual defendant successfully completes
his sentence, the plain language of the expungement statute
mandates a self-executing process. The legislature's use of the
word "shall" indicates that the legislature required the
detaining or probationary authority to both issue a certificate
of discharge and forward the certificate to the court of record.
See Rotfeld v. Wis. Dep't of Natural Res., 147 Wis. 2d 720, 726,
434 N.W.2d 617 (Ct. App. 1988) (explaining the word "may" is
permissive, while "shall" is presumed to indicate mandatory
action). As we will explain below, in this context we interpret
"shall" to be mandatory. Thus, if the circuit court finds a
defendant eligible for expungement at sentencing, once an
15
No. 2013AP1163-CR
individual successfully completes his sentence, the "detaining
or probationary authority shall issue a certificate of
discharge, which shall be forwarded to the court of record and
which shall have the effect of expunging the record." Wis.
Stat. § 973.015(2) (emphasis added). In other words, upon the
successful completion of the defendant's sentence, the detaining
or probationary authority must issue a certificate of discharge,
and must forward that certificate to the court of record as a
matter of course. When this process is completed, expungement
is effectuated. Wis. Stat. § 973.015(2) ("Upon successful
completion of the sentence the detaining or probationary
authority shall issue a certificate of discharge which shall be
forwarded to the court of record and which shall have the effect
of expunging the record.").
¶28 We read statutes to avoid surplusage and the use of
the word "also" in the statute indicates that the detaining or
probationary authority is to forward the certificate to both the
court of record and the DOC. Wis. Stat. § 973.015(2) ("If the
person has been imprisoned, the detaining authority shall also
forward a copy of the certificate of discharge to the
department.") (emphasis added). Here, if we were to accept the
State's interpretation, we would read "also" out of the
sentence. "Also" means "in addition." The American Heritage
Dictionary of the English Language 53 (5th ed. 2011). The use
of the phrase "shall also forward" in describing the "detaining
authority's" responsibility to forward the certificate to the
DOC indicates that, if the "person has been imprisoned," the
16
No. 2013AP1163-CR
detaining authority has the responsibility to forward the
certificate of discharge to the DOC, in addition to forwarding
it to the court of record. See Matasek, 353 Wis. 2d 601, ¶18.
("'[E]very word appearing in a statute should contribute to the
construction of the statute.'") (internal citation omitted).
¶29 Further support for our conclusion is found in Wis.
Stat. § 973.09(5)(a) and § 973.09(5)(c). When a probationer is
discharged from probation, the DOC is to complete and send one
of two forms. Wisconsin Stat. § 973.09(5)(a)(1) requires the
issuance of a "certificate of discharge from probation for the
felony for which he or she was placed on probation if, at the
time of discharge, the probationer is on probation or parole for
another felony." Wisconsin Stat. § 973.09(5)(a)(2) requires the
issuance of a certificate of final discharge to a probationer if
the underlying conviction was for a felony and the probationer
is not on probation or parole for another felony. A certificate
of final discharge was issued in the instant case as Hemp was
not on probation or parole for another felony. Further, Wis.
Stat. § 973.09(5)(c) requires the DOC, when the probationer is
discharged from probation, to "[i]n all cases, notify the court
that placed the probationer on probation that the period of
probation has expired." "When two or more statutes are
involved, we seek to construe them so that they are harmonious."
State ex rel. Rupinski v. Smith, 2007 WI App 4, ¶19, 297 Wis. 2d
749, 728 N.W.2d 1 (internal citations omitted). Reading these
statutes together with Wis. Stat. § 973.015(2), we conclude that
once the detaining or probationary authority forwards the
17
No. 2013AP1163-CR
certificate of discharge to the court of record, expungement has
been effectuated. Having already assigned the detaining or
probationary authority the duty to forward the certificate to
the court of record, it would be absurd to construe the statute,
absent any plain language to the contrary, to also require the
defendant to forward to the court of record the very same
certificate. See Kalal, 271 Wis. 2d 633, ¶46 (explaining that
we interpret statutory language "in relation to the language of
surrounding or closely-related statutes").
¶30 The State argues Wis. Stat. § 973.015 uses the passive
voice, leaving the identity of the actors indeterminate. While
the statute does indeed use the passive voice, we cannot agree
that the identity of the actors is indeterminate. As we have
already concluded, the statute places the duty to forward the
certificate with the detaining or probationary authority.9
¶31 If the legislature wished to place the burden on an
individual defendant to petition for expungement and forward his
9
The Division of Community Corrections' Operations Manual
belies the State's argument, that it is the defendant's duty to
forward the certificate, as it directs its agents to forward to
the court of record the certificate of discharge, which has the
effect of expunging the record. DCC Operations Manual, Division
of Community Corrections 01.01.02, 06.26.01-06.26.05 (Oct. 21,
2013), http://doc.wi.gov/community-resources/probation-
parole/dcc-operations-manual ("Within ten days following the
discharge date, the agent shall forward information to the court
indicating whether or not the offender has successfully
completed probation. . . . Upon notification of discharge, the
court will expunge the record."). The Division of Community
Corrections supervises individuals on probation, parole, or
extended supervision.
18
No. 2013AP1163-CR
certificate of discharge it could have easily done so. In two
other expungement statutes, the legislature clearly required an
individual defendant to petition for expungement. See Wis.
Stat. § 165.77(4) (requiring a defendant to petition for the
expungement of DNA records); Wis. Stat. § 938.355(4m)(a) ("A
juvenile who has been adjudged delinquent under s. 48.12, 1993
stats., or s. 938.12 may, on attaining 17 years of age, petition
the court to expunge the court's record of the juvenile's
adjudication."). If we were to follow the State's and court of
appeals' construction we would read language into the statute
which the legislature did not include. "We should not read into
the statute language that the legislature did not put in."
Brauneis, 236 Wis. 2d 27, ¶27. "The more reasonable presumption
is that the legislature chose its terms carefully and precisely
to express its meaning." Ball v. Dist. No. 4, Area Bd. of
Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 539, 345
N.W.2d 389 (1984). If the legislature wished to assign similar
duties to similarly situated defendants, it has already shown it
is capable of doing so. Matasek, 353 Wis. 2d 601, ¶21.
¶32 The statute neither requires, nor suggests, that the
defendant has the duty to petition for expungement. The phrase
"shall have the effect" plainly indicates that once the
certificate of discharge has been forwarded by the detaining or
probationary authority, expungement has been effectuated. Wis.
Stat. § 973.015(2). Thus, the forwarding of the certificate of
discharge to the circuit court is what triggers expungement, not
the filing and approval of a petition. The expungement statute
19
No. 2013AP1163-CR
simply does not require a person who successfully completes his
sentence to take any affirmative action to obtain expungement.
See 67 Wis. Op. Atty. Gen. 301 (1978) ("Subsec. (2) [of Wis.
Stat. § 973.015] must be construed to mean that [once the
detaining or probationary authority has forwarded the
certificate of discharge, its] filing [with the court of record]
will give notice to the clerk of courts to physically strike
from the record all references to the name and identity of the
defendant.").10 After the detaining or probationary authority
forwards the certificate of discharge, expungement has been
effectuated, and the defendant need not take any action.
¶33 Here, no doubt exists that Hemp's probationary
authority forwarded his certificate of discharge to the circuit
court. The circuit court's Criminal Court Record reflects that
it received the certificate of discharge. Hemp's case entry for
January 24, 2012, shows "Notice of case status
change: Discharge." Once the probationary authority forwarded
the certificate, expungement was effectuated, and neither Hemp
10
"[A] statutory interpretation by the attorney general 'is
accorded even greater weight, and is regarded as presumptively
correct, when the legislature later amends the statute but makes
no changes in response to the attorney general's opinion.'"
Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶126, 327 Wis. 2d
572, 786 N.W.2d 177 (internal citation omitted). The
expungement statute has been amended eight times since
67 Wis. Op. Atty. Gen. 301 (1978), yet the applicable language
has remained the same. Section 973.015(2) has never been
amended to require any action by an individual defendant.
20
No. 2013AP1163-CR
nor his probationary authority had to take additional action.11
Thus, whether or not Hemp had a "change in circumstances" (as
the State argues) is irrelevant.
¶34 The State, however, suggests that we must look to Form
CR-266, which, in its view, places the responsibility on the
defendant to forward his certificate of discharge to the court
of record and petition for expungement. Form CR-266 is titled
"Petition to Expunge Court Record of Conviction," which the
State argues the defendant must file with the court of record.
However, the State is mistaken as Hemp had no duty to use Form
CR-266, as he was not required to do so by the plain language of
§ 973.015. Form CR-266 is a mechanism that a defendant could
use to petition for expungement should the detaining or
11
Obviously the clerk of the court had to go through and
strike Hemp's name from the records, but this is a mere
formality, as the forwarding of the certificate of discharge by
Hemp's probationary authority had the effect of expunging the
record. Wisconsin Stat. § SCR 72.06 (2013-14) provides the
process for expungement:
SCR 72.06. Expunction. When required by statute or
court order to expunge a court record, the clerk of
the court shall do all of the following:
(1) Remove any paper index and nonfinancial court
record and place them in the case file.
(2) Electronically remove any automated nonfinancial
record, except the case number.
(3) Seal the entire case file.
(4) Destroy expunged court records in accordance with
the provisions of this chapter.
21
No. 2013AP1163-CR
probationary authority fail in its statutory duty to forward the
certificate of discharge, but its use is not mandatory as it is
not required by Wis. Stat. § 973.015. Further, this form
contradicts the statute's plain language, as it attempts to
shift the burden of forwarding the defendant's certificate of
discharge from the detaining or probationary authority, to the
individual defendant. Form CR-266 requires the defendant to
state, under oath, that "[t]he detaining or probationary
authority has issued a certificate of discharge. A copy is
attached." The expungement statute imposes no such duty.
¶35 Accordingly, we direct that form CR-266 be revised
consistent with this opinion. A defendant is not required to
use form CR-266 in order to effectuate expungement. Rather, the
detaining or probationary authority must forward the certificate
of discharge to the clerk of court of the court of record. It
is this forwarding which has the effect of expunging the record.
It would be inconsistent with both the plain language of the
statute and with common sense to expect a (usually)
unrepresented individual seeking expungement, who is (usually)
neither educated in the law nor in legal procedure, to perform
the inspection necessary to ensure that expungement was
effectuated. To be clear, one who has successfully completed
probation need not forward a copy of his certificate of
discharge, as that duty does not rest with him, but with the
detaining or probationary authority.
¶36 The court of appeals also erroneously concluded that
the certificate of discharge must be approved by the circuit
22
No. 2013AP1163-CR
court. Hemp, 353 Wis. 2d 146, ¶13. Once the detaining or
probationary authority forwards a certificate of discharge to
the court of record, expungement is effectuated. By inferring
the necessity of court approval, the court of appeals'
construction of the statute imposes additional requirements that
are contrary to the statute's plain language. See Brauneis, 236
Wis. 2d 27, ¶27 ("We should not read into the statute language
that the legislature did not put in.").
¶37 Finally, we wish to briefly explain that the circuit
court and court of appeals incorrectly determined that Wis.
Stat. § 973.015 contains an implicit time limit. There is no
basis in Wis. Stat. § 973.015 on which the court of appeals or
the circuit court could find such a time limit within which a
defendant must petition for expungement. As we have explained,
a court should not read language into a statute. Matasek, 353
Wis. 2d 601, ¶20.
¶38 Here, the probationary authority did forward the
certificate of discharge, which completed the expungement
process and should have expunged the record. However, for
reasons unknown to us, Hemp's record was not expunged. This
failure led Hemp to bring his petition for expungement, which
the circuit court denied as untimely. The legislature, via Wis.
Stat. § 973.015, placed no burden on Hemp to petition at all,
let alone within a certain period of time, and the circuit court
did not have the authority to add such a condition. Hemp's
expungement was effectuated upon the forwarding of his
certificate of discharge by his probationary authority to the
23
No. 2013AP1163-CR
court of record. Wis. Stat. § 973.015(2) ("Upon successful
completion of the sentence the detaining or probationary
authority shall issue a certificate of discharge which shall be
forwarded to the court of record and which shall have the effect
of expunging the record.").
C. The Circuit Court Improperly Exercised its Discretion in
Denying Hemp Expungement.
¶39 Finally, we examine whether the circuit court could
reverse the decision it made at sentencing to find Hemp eligible
for expungement conditioned upon the successful completion of
his sentence. We conclude, in accord with Matasek, that the
circuit court improperly exercised its discretion when it denied
Hemp expungement. Once Hemp successfully completed probation
the circuit court did not have the discretion to refuse to
expunge Hemp's record.
¶40 Nothing in the expungement statute grants the circuit
court the authority to revisit an expungement decision. The
fact that the circuit court cannot re-examine the decision is
emphasized by our decision in Matasek. The only point in time
at which a circuit court may make an expungement decision is at
the sentencing hearing. Matasek, 353 Wis. 2d 601, ¶45. If the
circuit court exercises its discretion in ordering expungement
upon the successful completion of the sentence, and the
defendant successfully completes that sentence, then the
defendant has earned, and is automatically entitled to,
expungement. A circuit court cannot amend its expungement
24
No. 2013AP1163-CR
order, and once the detaining or probationary authority forwards
the certificate of discharge, expungement is effectuated.
¶41 Here the circuit court found Hemp eligible for
expungement at sentencing stating "I'm going to grant
expungement upon successful completion of probation." The
court's Criminal Court Record also states: "Upon successful
completion of probation, the court GRANTS expungement." After
Hemp successfully completed probation and his probationary
authority forwarded his certificate to the court of record, the
circuit court exceeded its authority in denying Hemp
expungement.
¶42 In ordering Hemp to produce a "personal statement" the
court opined:
had the defendant applied for an expungement a year
ago, his petition probably would have been granted.
But now the circumstances are such that he is asking
the court to ignore his recent behavior and to assist
him in the defense of his new charges by ordering
expungement in this case.
Matasek prohibits a circuit court from re-exercising its
discretion under the circumstances of the instant case. Id.,
¶43 ("By deciding expunction at the time of sentencing, a
circuit court creates a meaningful incentive for the offender to
avoid reoffending.") (emphasis added). The circuit court here
disregarded the statute's plain language and improperly
exercised its discretion by asking for a "personal statement,"
giving the State a chance to respond, and ultimately denying
expungement. Once the circuit court realized that expungement
had not been effectuated, it had the plain duty to see to the
25
No. 2013AP1163-CR
completion of the expungement process. Instead, the circuit
court asked for a "personal statement" from Hemp and gave the
State a chance to respond, neither of which it had the authority
to do. Thus, the circuit court incorrectly concluded Hemp's
desire for expungement did not "ripen" until he was charged with
a subsequent offense. Hemp always had the desire for
expungement because its benefits reach much further than
mitigating future offenses. See Leitner, 253 Wis. 2d 449, ¶38.
Wisconsin Stat. § 973.015 does not allow for the kind of "wait
and see" approach taken by the circuit court here.12
V. CONCLUSION
¶43 Therefore, we first hold that the successful
completion of probation automatically entitled Hemp to
expungement. Second, we hold Wis. Stat. § 973.015 is
unambiguous and places no burden on Hemp to petition for
expungement within a certain period of time because the duty to
forward the certificate of discharge rests solely with the
detaining or probationary authority. Finally, we hold the
circuit court improperly exercised its discretion when it
reversed its decision to find Hemp eligible for expungement.
12
"If the legislature allows the circuit court to take
the . . . 'wait-and-see' approach, offenders will be uncertain
whether the circuit court will expunge the record and this
uncertainty might provide a weaker incentive to an offender to
complete his or her sentence successfully." Matasek, 353
Wis. 2d 601, ¶43.
26
No. 2013AP1163-CR
Accordingly, the decision of the court of appeals is reversed,
and we remand to the circuit court with the instructions that
the clerk of courts expunge Hemp's record.
By the Court.-The decision of the court of appeals is reversed,
and the cause is remanded to the circuit court for further
proceedings consistent with this opinion.
27
No. 2013AP1163
1
State v. Kearney W. Hemp
Court: Wisconsin Supreme Court
Date filed: 2014-12-18
Citations: 359 Wis. 2d 320, 2014 WI 129
Copy CitationsCombined Opinion