State v. Hemp
844 N.W.2d 421
Wis. Ct. App.2014Background
- Hemp pled guilty to possession with intent to deliver THC under Wis. Stat. § 961.41(lm)(h)1; plea agreement included probation with 90 days conditional jail, treatment-based conditions, and no position on expungement.
- Circuit court sentenced with 30 days conditional jail, 18-month probation with Huber release, and various probation conditions; court announced expungement upon successful completion of probation.
- Hemp filed a CR-266 petition to expunge Milwaukee County conviction on Oct 30, 2012; circuit court required proof of probation completion and financial obligations but Hemp’s counsel did not respond.
- Subsequently, Hemp, represented by new counsel, filed another expungement petition in light of Walworth County charges filed eight months after probation ended; the circuit court ordered a personal statement explaining why expungement should be granted.
- Circuit court denied the expungement petition, finding the petition tardy and influenced by Hemp’s later charges; Hemp appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expungement occurs automatically after probation completion | Hemp; successful completion triggers expungement. | Only discharge certificate forwarding and court action expunge the record. | Not automatic; three-step process required before expungement. |
| Who must forward the discharge certificate and when | Detaining/probationary authority should forward the certificate. | Defendant/petitioner must file petition and provide discharge certificate. | Petitioner must forward discharge certificate within a reasonable time; district authority must forward to the court; timing is essential. |
| Timeliness of Hemp's expungement petition | Petition timely after discharge certificate; timing should not bar expungement due to new charges. | Petition filed a year later, after new charges; timely filing not shown. | Petition untimely; filing must be within a reasonable time after discharge and before new offenses affect consideration. |
Key Cases Cited
- State v. Kalal, 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation framework; avoid absurd results; use plain language first)
- State v. Matasek, 348 Wis. 2d 243 (Ct. App. 2013) (expungement process duty rests on detaining/probationary authority to issue and forward certificate)
- Village of Shorewood v. Steinberg, 174 Wis. 2d 191 (Wis. 1993) (statutory construction and de novo review standard for questions of law)
- Elias v. State, 286 N.W.2d 559 (Wis. 1980) (sentencing discretion and information considerations in imposing penalties)
- Neely v. State, 177 N.W.2d 79 (Wis. 1970) (broad discretion of sentencing judges; consideration of character and behavior)