State v. Kearney W. Hemp
2014 WI 129
Wis.2014Background
- In 2009 Hemp pleaded guilty to a Class I felony (possession with intent to deliver THC) and the Milwaukee County circuit court granted expungement conditioned on successful completion of 18 months' probation.
- Hemp completed probation and the DOC issued a certificate of discharge dated December 15, 2011 and notified the court of record.
- Hemp was later charged in Walworth County (Oct. 2012) with possession (second/subsequent) based on the Milwaukee conviction, and then filed a CR-266 petition to expunge (Oct. 30, 2012); he did not attach the discharge certificate initially.
- The Milwaukee circuit court denied the petition as untimely, reasoning Hemp had the responsibility to petition and to do so promptly; the court of appeals affirmed, concluding the statute required the defendant to forward the certificate and implied a timing requirement.
- The Wisconsin Supreme Court granted review and reversed, holding (1) successful completion of probation automatically entitles a defendant to expungement when the court ordered expungement at sentencing; (2) the duty to issue and forward the certificate of discharge rests with the detaining/probationary authority, not the defendant; and (3) the sentencing court cannot later revoke its conditional expungement order.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hemp) | Held |
|---|---|---|---|
| Whether successful completion of probation automatically effects expungement when the court granted conditional expungement at sentencing | Not automatic; defendant must petition and court must approve before expungement | Successful completion meets statutory criteria and automatically entitles defendant to expungement when ordered at sentencing | Held: Automatic — once conditions met the defendant is entitled to expungement if court ordered it at sentencing |
| Who bears duty to forward certificate of discharge and whether defendant must petition within a time frame | Defendant must file CR-266 and forward the certificate; statute implies a timeliness requirement | Statute places duty on detaining/probationary authority to issue and forward certificate; no defendant timing requirement | Held: Duty rests with detaining/probationary authority; statute is unambiguous and imposes no timeliness burden on defendant |
| Whether court approval is required after certificate is issued/forwarded | Court approval is necessary to effect expungement | Forwarding by authority "shall have the effect" of expunging the record — no further approval required | Held: No additional court approval required; forwarding effectuates expungement |
| Whether the sentencing court may revisit or revoke its expungement decision after defendant completed sentence | Circuit court may reconsider in light of later conduct | Circuit court lacks authority to revisit conditional expungement once sentence is successfully completed | Held: Court improperly exercised discretion by denying expungement after successful completion and forwarded certificate |
Key Cases Cited
- State v. Matasek, 353 Wis. 2d 601 (2014) (expungement discretion must be exercised at sentencing; successful completion entitles defendant when condition ordered)
- State v. Leitner, 253 Wis. 2d 449 (2002) (expungement intended to give a break to youthful offenders who comply with law)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (2004) (statutory interpretation principles: start with plain language and context)
- Brauneis v. State, Labor & Indus. Review Comm'n, 236 Wis. 2d 27 (2000) (do not read into statute language the legislature did not include)