State v. Allen
873 N.W.2d 92
Wis. Ct. App.2015Background
- In 2013 Christopher Allen drove ~97 mph, crashed, causing one death and one serious injury; his BAC was .122. He pleaded no contest to homicide and injury by intoxicated use of a motor vehicle.
- The State recommended four years of initial confinement (with extended supervision left to the court); the circuit court sentenced Allen to five years initial confinement and four years extended supervision.
- The presentence investigation report (PSI) noted two prior matters: a paid municipal ticket and a 2005 substantial battery conviction for which Allen received a withheld sentence, probation, and completion of sentence conditions; that 2005 conviction was expunged in 2011.
- At sentencing the court referenced Allen’s prior period of supervision (from the expunged case) as evidence he had an opportunity to learn and apparently did not, and said it gave serious consideration to that supervision.
- Allen moved for a new sentencing hearing arguing (1) the court improperly considered his expunged conviction in light of State v. Leitner and (2) ineffective assistance for counsel’s failure to object. The trial court denied relief; Allen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court may consider facts of an expunged record | Allen: Leitner permits only facts about the underlying criminal act, not facts of the expunged record (e.g., prior supervision). | State: Leitner allows consideration of all facts underlying an expunged criminal record, not just the criminal act. | Court: Affirmed — Leitner permits sentencing courts to consider all facts underlying an expunged record (including prior supervision). |
| Whether use of expunged conviction in PSI/sentencing required resentencing | Allen: References to expunged conviction in PSI and sentencing were improper and require a new hearing. | State: References were proper under Leitner because they involved facts underlying the expunged record. | Court: Denied — references were permissible; no resentencing required. |
| Whether counsel was ineffective for not objecting to references | Allen: Counsel ineffective for failing to object to use of expunged record. | State: Any objection would be meritless given Leitner; no ineffective assistance. | Court: Denied — counsel cannot be ineffective for failing to make a meritless objection. |
| Scope and effect of expunction under § 973.015 | Allen: Expunction should shield from consideration of expunged-record facts. | State/Court: Statute intended only to shield from some consequences; sentencing courts still may consider underlying facts in government files. | Court: Expunction does not erase all information; courts may consider facts underlying an expunged record, but not use the expunged record itself for repeater allegations or impeachment. |
Key Cases Cited
- State v. Leitner, 253 Wis. 2d 449 (Wis. 2002) (held sentencing courts may consider the facts underlying an expunged record though not the expunged record itself)
- State v. Gallion, 270 Wis. 2d 535 (Wis. 2004) (standard for reviewing sentencing discretion)
- Ambrose v. Continental Ins. Co., 208 Wis. 2d 346 (Wis. Ct. App. 1997) (de novo review for questions of law in discretionary determinations)
- State v. Toliver, 187 Wis. 2d 346 (Wis. Ct. App. 1994) (counsel is not ineffective for failing to raise meritless objections)
- State v. Blalock, 150 Wis. 2d 688 (Wis. Ct. App. 1989) (cases should be decided on the narrowest grounds)