949 N.W.2d 623
Wis. Ct. App.2020Background
- In April 2012 Jordan Lickes (age 19) engaged in sexual intercourse with a 16‑year‑old; he pleaded guilty/no contest to four counts and received concurrent probation on Counts 1 and 3 (24 months) and probation with a stayed sentence on Count 4 (three years). The court ordered completion of sex‑offender treatment as a condition for Counts 1, 3, and 4 and stated convictions would be expunged upon "successful completion of the sentence" under Wis. Stat. § 973.015.
- In October 2015 DOC reported multiple probation violations (unapproved sexual contact, false information, termination from treatment); Lickes admitted those violations and accepted 45 days jail as part of an alternative to revocation and return to treatment.
- DOC’s September 2016 form for Counts 1 & 3 indicated probation was completed but "all court ordered conditions have not been met" because treatment was ongoing; Counts 1 & 3 probation ended January 23, 2016.
- DOC’s July 2018 certificate of discharge for Count 4 stated the offender had "successfully completed" probation and that "all court ordered conditions have been met"; Count 4 probation ended January 23, 2017.
- The circuit court granted expungement of Counts 1, 3, and 4; the State appealed. The Court of Appeals reversed, holding Lickes did not satisfy the conditions of probation required for expungement.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lickes) | Held |
|---|---|---|---|
| Scope of "conditions of probation" in § 973.015(1m) | Includes both court‑imposed conditions and DOC rules; violations of either preclude expungement | Means only court‑ordered conditions; DOC rule violations should not bar expungement | Court: "conditions of probation" includes both court‑imposed conditions and DOC rules |
| Must court‑ordered sex‑offender treatment be completed during the probationary term (Counts 1 & 3)? | Yes; failure to complete during the probation term means the statutory requirement was not satisfied | Subsequent completion (as reflected in 2018 DOC form) satisfies the condition and triggers expungement | Court: treatment had to be completed within the applicable probationary period; Counts 1 & 3 not satisfied |
| Effect of a DOC certificate of discharge (self‑executing expungement per Hemp)? | A certificate does not automatically entitle expungement if the record shows statutory prerequisites were not met | Receipt of a certificate of discharge requires the court to self‑execute expungement | Court: Hemp’s self‑execution applies only if the record shows all statutory requirements met; certificate alone is insufficient if violations occurred (Ozuna) |
| Whether courts have discretion to allow expungement despite DOC rule violations | Statute sets objective prerequisites for expungement and leaves no discretion once statutory requirements are unmet | Court should have discretionary ability to weigh minor rule violations against expungement policy | Court: no discretion at the certificate stage; objective statutory criteria control and preclude expungement when not met |
Key Cases Cited
- State v. Ozuna, 376 Wis. 2d 1 (2017) (expungement requires satisfaction of all statutory prerequisites; certificate of discharge does not control if record shows unmet conditions)
- State v. Hemp, 359 Wis. 2d 320 (2014) (describes the statutory "self‑executing" expungement process triggered upon successful completion of the sentence)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (principles of statutory interpretation: plain meaning, context, and avoidance of surplusage)
- State ex rel. Rupinski v. Smith, 297 Wis. 2d 749 (2007) (DOC rule violations may support probation revocation and thus are properly treated as probation "conditions")