State v. Jordan Alexander LickesState v. Jordan Alexander Lickes
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 394 Wis. 2d 161, 949 N.W.2d 623 PDC No:2020 WI App 59 - Published
JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion in which DALLET, J., joined.
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs filed by Catherine E. White and Hurley Burish, S.C., Madison. There was an oral argument by Catherine E. White.
For the plaintiff-appellant, there was a brief filed by Scott E. Rosenow, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Scott E. Rosenow.
An amicus curiae brief was filed by Susan Lund, Sheila Sullivan, Julie Leary, Jessie Long and Legal Action of Wisconsin, Inc., Milwaukee.
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion in which DALLET, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
Pursuant to
¶2 Lickes raises two principal issues. First, Lickes contends that the phrase “conditions of probation” under
probation,” including DOC-imposed conditions. The circuit court erred in expunging Lickes‘s three convictions because he failed to satisfy DOC‘s “conditions of probation” for all three convictions. We affirm the decision of the court of appeals.4
I. BACKGROUND
¶4 Based on an incident in April 2012, the State charged then 19-year-old Lickes with four counts: (1) fourth-degree sexual assault, in violation of
¶5 Lickes pled guilty to Count 2 and no contest to the other three counts. The circuit court sentenced Lickes in January 2014. For Counts 1 and 3, the circuit court withheld sentence and placed Lickes on probation for 24 mоnths. For Count 2, the circuit court sentenced Lickes to 90 days in county jail with Huber privileges.6
For Count 4, the circuit court imposed and stayed a three-year prison sentence—comprising one year of initial confinement and two years of extended supervision—and placed Lickes on three years of probation.
¶6 For convictions under Counts 1, 3, and 4, the circuit court imposed approximately ten conditions of probation. One of the conditions required Lickes to “enter into, participate [in], and successfully complete sex offender treatment.” The circuit court informed Lickes that if he “successfully complete[d] probation and all the terms,” the circuit court would expunge Lickes‘s convictions on Counts 1, 3, and 4, pursuant to
¶7 On October 6, 2015, Lickes‘s probation agent at DOC sent a document to the circuit court disclosing that “Mr. Lickes has violated his probation multiple times.” In particular, the document stated that “Mr. Lickes has had unapproved sexual contact, has given his agent false information, and has been terminated from Sex Offender Treatment.” The next page of the document contained Lickes‘s signature, along with the statement: “I hereby admit as shown by my signature . . . that I violated the rules and conditions of probation as described on the front [of the document].” The document also indicated that, “in lieu of probation revocation proceedings being initiated, I hereby accept 45 days, as shown by my signature, . . . in the Green County Jail.” The circuit court accepted the agreement between Lickes and
¶8 On January 23, 2016, Lickes completed his term оf probation for his convictions under Counts 1 and 3. On July 8, 2016, Lickes sent a letter to the circuit court requesting expungement for his convictions for Counts 1 and 3, pursuant to
¶9 On January 23, 2017, Lickes completed his term of probation for Count 4. In July 2018, Lickes‘s probation agent sent the circuit court a form entitled “Certification of Discharge and Satisfaction of Probation Conditions for Expungement” regarding Count 4. On this form, the probation agent checked the box stating that “[t]he offender has successfully completed his/her probation” and “[a]ll court ordered conditions have been met.”
¶10 In January 2019, the State filed a brief in circuit court opposing Lickes‘s expungement for convictions under Counts 1, 3, and 4, arguing that Lickes failed to satisfy his “conditions of
probation.” According to the State, Lickes was not entitled to expungement because, as evidenced in the October 2015 document, Lickes violated his conditions of probation established by DOC. The State contended thаt, per
¶11 In March 2019, the circuit court held expungement hearings regarding Counts 1 and 3. The circuit court ordered both of Lickes‘s convictions expunged. The circuit court found Lickes satisfied the sentencing court‘s conditions of probation, and Lickes‘s violations of the DOC conditions did not prevent expungement. In doing so, the circuit court relied, in part, upon the fact that Ozuna was not a unanimous decision and that the legislature‘s “intent” is to not “have so many people having criminal records.”
¶12 The circuit court ordered supplemental briefing regarding the conviction for Count 4, held an expungement hearing on Count 4 in May 2019, and granted expungement for that conviction. Despite Lickes violating some of DOC‘s conditions of probation, the circuit court determined he was nevertheless entitled to expungement because, among other reasons, “[Ozuna] does not deal with this situation” and it “declines to expand [Ozuna‘s holding].” The circuit court acknowledged that “Mr.
Lickes did break a rule, but it was not deemed serious by the Department [of Corrections], in that they didn‘t try to revoke probation[.]”
¶13 The State appealed the circuit court‘s decision. The court of appeals reversed the circuit court‘s order granting expungement of Lickes‘s convictions for all
II. STANDARD OF REVIEW
¶14 This case requires us to interpret the expungement statute,
III. DISCUSSION
A. “Conditions of Probation” in Wis. Stat. § 973.015(1m)(b)
¶15 “The Wisconsin statutes empower a circuit court to order certain criminal offenses to be expunged from a person‘s record, if the offender was younger than 25 at the time of the commission of the offense.” Ozuna, 376 Wis. 2d 1, ¶11. Specifically,
[W]hen 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.
(Emphasis added.) “Under the statutory scheme, the determination of a defendant‘s eligibility for expungement must be made at the time of sentencing.” Ozuna, 376 Wis. 2d 1, ¶11 (citing State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811).
¶16 “If the circuit court determines that the defendant is eligible for expungement under
¶17 There is no dispute that Lickes satisfied the first two criteria: he was not convicted of a subsequent offense and his probation was not revoked. Instead, Lickes challenges the scope of the third criterion under
he “satisfied [his] conditions of probation.” Lickes contends that the phrase “conditions of probation” does not encompass the conditions set by DOC but only those conditions ordered by the sentencing court. According to Lickes, he did not need to satisfy DOC‘s conditions of probation in order for the circuit court to determine he satisfied the third criterion and then expunge all three of his convictions. We disagree.
¶18 “[S]tatutоry interpretation ‘begins with the language of the statute. If
¶19 As a foundational matter, the sentencing court and DOC each play a key role in the “imposition of probation,” and both set conditions of probation. As instructed by
¶20 DOC does, therefore, impose “conditions of probation” upon individuals. Closely-related statutes confirm this. In particular,
¶21 Other statutory provisions beyond
relevant part, the statute reads: “The department [of corrections] may require submission to a lie detector test under this subsection as . . . a condition of a sex offender‘s probation.”
¶22 Recognizing that DOC does have the ability to set “conditions of probation,” we turn now to the statute before us. Under
does not limit the phrase “conditions of probation” in any way, much less restrict it to only court-imposed conditions. In contrast,
¶23 In comparison,
¶24 But courts may not add to the text. It is a fundamental maxim of statutory interpretation that we do not “read into [a] statute language that the legislature did not put in.” Matasek, 353 Wis. 2d 601, ¶20 (quoted source omitted); see also Fond du Lac Cnty. v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)
(“One of the maxims of statutory construction is that courts should not add words tо a statute to give it a certain meaning.“) (citation omitted). “Under the omitted-case canon of statutory interpretation, ‘[n]othing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est).‘” State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012)). Given that the legislature did not limit the phrase “conditions of probation” solely to court-imposed conditions or DOC-imposed conditions, we conclude that
¶25 This interpretation of
probationer . . . is within the custody of the DOC and similarly subject to all of the conditions and rules of supervision, the violation of which could be cause for revocation.” State ex rel. Rupinski v. Smith, 2007 WI App 4, ¶20, 297 Wis. 2d 749, 728 N.W.2d 1 (emphasis added).
¶26 Within the context of
sentencing court, this phrase retains an equally expansive meaning in
¶27 In short, DOC may impose conditions of probation upon individuals in addition to the conditions imposed by the sentencing court. Unlike closely-related statutes,
B. Discretion Under Wis. Stat. § 973.015
¶28 Lickes next argues that, even if the phrase “conditions of probation” in
“satisfied [his] conditions of probation” even when an individual has violated one or more “conditions of probation.” We disagreе.
¶29 In order to “satisf[y] the conditions of probation,” an individual must satisfy all the conditions of probation established by both the sentencing court and DOC. As we already explained in Ozuna, in order to successfully complete the sentence, “the probationer must meet all three of the statutory criteria, including satisfying all the conditions of probation.” Ozuna, 376 Wis. 2d 1, ¶13; see also Hemp, 359 Wis. 2d 320, ¶22 (noting that a defendant must meet
¶30 Accordingly, when an individual fails to fulfill all the conditions of his probation set by the sentencing court and DOC, circuit courts do not have discretion to conclude that he “satisfied [his] conditions of probation” for purposes of the third criterion under
at the time of the sentencing proceeding.“); see also State v. Arberry, 2018 WI 7, ¶21, 379 Wis. 2d 254, 905 N.W.2d 832 (“[T]he sentencing hearing . . . [is] the only time at which the circuit court could exercise its discretion to expunge a record under the statute, if it [is] going to do so[.]“). Section
C. Application to Lickes‘s Case
¶31 Applying these principles, we conclude the circuit court erred in expunging all three of Lickes‘s convictions. For Counts 1 and 3, the sentencing court imposed two years of рrobation, which expired on January 23, 2016; for Count 4, the sentencing court imposed three years of probation, which expired on January 23, 2017. As the sentencing court informed Lickes at the time of sentencing, if he “successfully complete[d] probation and all the terms,” the circuit court would expunge Lickes‘s convictions on Counts 1, 3, and 4, pursuant to
¶32 Because Lickes violated DOC-imposed conditions, he failed to satisfy his “conditions of probation” for all three convictions, pursuant to the third criterion under
¶33 Because Lickes admittedly violated his DOC-imposed conditions, he failed to “successful[ly] complet[e] . . . [his]
sentence,” as required by
By the Court.-The decision of the court of appeals is affirmed.
¶34 ANN WALSH BRADLEY, J. (dissenting). When a person is placed оn probation by a court, that person is subject to a vast array of rules. Imposed both by the sentencing court and a Department of Corrections (DOC) agent, these rules set rigid contours for a person‘s life for the duration of the supervision period. They can include everything from the extraordinary to the mundane.
¶35 Indeed, the DOC‘s standard rules of community supervision require that a person meet regularly with the probation agent and obtain approval from the agent prior to moving; changing employment; leaving the state of Wisconsin; purchasing, trading, selling, or operating a motor vehicle; borrowing money; or buying anything on credit.1 The standard rules also broadly require that a person “[c]omply with any court ordered conditions and/or any additional rules established by [their] agent” that are subject to change at any time.2
¶36 Although the conditions of probation may be extensive, for many young people convicted of offenses there can be a significant reward for complying: expungement.3 The desire to insulate young offenders from the harsh consequences of a criminal record is both sensible and practical. In addition to the legal and financial penalties associated with the conviction itself, a criminal conviction carries significant collateral consequences.
¶37 Such consequences often include increased difficulties in obtaining employment,
¶38 Yet the majority opinion places expungement further out of reach for those defendants who would benefit most. Although I agree with the majority that expungement requires satisfaction of conditions imposed by both the sentencing court and DOC, I part ways with the majority when it determines that the circuit court has no discretion to order expungement in the face of any rule violation, no matter how small.
¶39 Does the majority‘s determination mean that if, without agent approval, probationers from the border community of Marinette, Wisconsin cross to Menominee, Michigan to do grocery shopping, that they must be denied expungement? The majority apparently responds, “Yes. Under the standard rules of probation, it is a violation.”
¶40 How about the standard rule of buying nothing on credit? What happens if the probationer, without agent approval, pays for gas with a credit card? “It‘s out of our hands,” responds the majority. The same apparently holds true if the probationer misses a single meeting with the probation agent.
¶41 Admittedly, the violations here are more significant than the above examples, but that matters not. The majority interprets “satisfaction” as an all-or-nothing proposition. Thus, in the majority‘s view, regardless of the severity of the violation, the circuit court has no discretion at all in deciding whether to grant or deny expungement. Majority op., ¶30.
¶42 With a mere three paragraphs of analysis on the issue, see id., ¶¶28-30, the majority jettisons the future lives of countless young offenders and their families, who will be harmed by this stunted analysis. And why? The аnswer of the majority is “the legislature made us do this.”
¶43 Nonsense. The legislature did no such thing. The plain text of
¶44 Rather than embracing those determinations, the majority instead embarks upon a misguided and destructive path. Its conclusory determination runs counter to the statutory language, has no basis in the case law the majority cites, and thwarts the purpose of the expungement statute.
¶45 Accordingly, I respectfully dissent.
I
¶46 The legislature has been engaged in a consistent “effort to expand the availability of expungement to include a broader category of youthful offenders.” State v. Hemp, 2014 WI 129, ¶20, 359 Wis. 2d 320, 856 N.W.2d 811. This legislative effort “offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming law-abiding
¶47 I begin by examining the framework for the exercise of judicial discretion enacted by the legislature. This framework provides “a means by which trial courts may, in appropriate cases, shield youthful offenders from some of the harsh consequences of criminal convictions.” State v. Matasek, 2014 WI 27, ¶42, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting State v. Leitner, 2002 WI 77, ¶38, 253 Wis. 2d 449, 646 N.W.2d 341).
¶48 At the sentencing hearing, if certain criteria are fulfilled a circuit court may make the determination that a defendant will be eligible for expungement upon completion of the sentence. Matasek, 353 Wis. 2d 601, ¶45.
¶49 If defendants are made eligible for expungement by the circuit court, they must fulfill the conditions set forth in
¶50 With this framework as a foundation, the majority proceeds to rigidly interpret “satisfaction” in an all-or-nothing fashion. In the majority‘s view the circuit court has no discretion at all in deciding whether to grant or deny expungement. Majority op., ¶30. One would expect a determination of such reach to be supported with more than the majority‘s cursory analysis. And it is an analysis that runs counter to the statutory language, has no basis in the case law the majority cites, and thwarts the purpose of the expungement statute. I address each in turn.
II
¶51 The plain language of the expungement statute does not support the majority‘s conclusion.
¶52 I observe initially that the statute uses the word “satisfy.” Nowhere does it mention a “violation” of a rule as preclusive of receiving expungement. If the legislature had wanted to require perfect compliance with “all” or “every” condition of probation, it certainly could have, but it did not.
¶53 “Satisfy” is ambiguous in the context of
¶54 In deciding which definition to apply, we are guided by the principle that “a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶49, 271 Wis. 2d 633, 681 N.W.2d 110. Indeed, “courts will favor an interpretation
¶55 The definition that makes the most sense is that which permits expungement when an offender has “sufficiently” complied with the terms of probation. Such a definition is clearly more consistent with the purpose of the expungement statute and the legislature‘s continuing quest to broaden its applicаtion. See Hemp, 359 Wis. 2d 320, ¶20; see also State v. Ozuna, 2017 WI 64, ¶62, 376 Wis. 2d 1, 898 N.W.2d 20 (Ann Walsh Bradley, J., dissenting) (explaining that a definition of “satisfy” based on sufficiency “is more consistent with the purpose of the statute than using a definition that would limit expunction to offenders with . . . ‘perfect’ compliance“). In other words, by setting forth a “satisfaction” standard, the expungement statute eschews the “perfection” standard advanced by the majority.
¶56 In determining what is “sufficient” to comply with the terms of probation, the circuit court must use discretion. It must determine whether a person did enough to “satisfy” the conditions of probation. Such an exercise necessarily requires examining the relevant facts, applying a standard of law, and using a demonstrated rational process, i.e., the exercise of discretion. See State v. Walters, 2004 WI 18, ¶¶13-14, 269 Wis. 2d 142, 675 N.W.2d 778.
¶57 The majority‘s interpretation also violates the maxim thаt we are to avoid interpreting statutes to render absurd or unreasonable results. Kalal, 271 Wis. 2d 633, ¶46. Indeed, the logical consequence of the majority‘s analysis and institution of a “perfection” standard coupled with its conclusion regarding a circuit court‘s lack of discretion is that a circuit court is required to deny expungement if a person violates any condition of probation, no matter how small.
¶58 Looking at the DOC‘s standard conditions, the absurdity of such a proposition is revealed. Miss a single meeting with your agent? No expungement. Use a credit card without prior approval? No expungement. It is certainly unreasonable to condition one‘s future prospects of employment, housing, and education on a single missed meeting or use of a credit card to pay for gas.
III
¶59 The majority‘s conclusion is also out of step with the very case law on which it relies. For example, the majority relies on Ozuna to support a discretionless scheme and the proposition that satisfaction of conditions of probation means completion of all conditions with no slip-ups. Majority op., ¶29. But the Ozuna court held no such thing.
¶60 Rather, in Ozuna the court consistently used language indicative of discretion, determining that “a court has no duty to expunge a probationer‘s record if the probationer has not satisfied the conditions of probation.” Ozuna, 376 Wis. 2d 1, ¶14 (emphasis added). It even entitled one of the section headings in its opinion, “The Court May Deny Expungement if a Probationer Does Not Satisfy the Conditions of Probation.” Id. (emphasis added). Ozuna thus does not compel the majority‘s result.
¶61 The majority‘s citation to Hemp, 359 Wis. 2d 320, ¶22, is similarly unavailing. See majority op., ¶29. In the cited paragraph, the Hemp court simply set forth that a probationer must satisfy all the conditions of probatiоn to receive expungement. Even accepting the court‘s addition of the word “all” where it does not appear in the statutory language, the Hemp court did not analyze the term “satisfy”
IV
¶62 Finally, bestowing the circuit court with discretion to make the determination of whether conditions of probation have been satisfied is consistent with the purpose of the expungement statute. The intent of the expungement statute is “to provide a break to young offenders who demonstrate the ability to comply with the law.” Leitner, 253 Wis. 2d 449, ¶38. Expungement is a powerful tool to improve people‘s lives and open opportunities that would otherwise be closed. This court has previously noted the arc of legislation meant to “expand the availability of expungement to include a broader category of youthful offenders.” Hemp, 359 Wis. 2d 320, ¶20.
¶63 Yet through its destructive holding, the majority forever shuts the door on countless young people who would benefit from the fresh start expungement offers. And for what? To teach them a lesson that they shouldn‘t miss a meeting? Such a minimal violation surely has nothing to say about a person‘s risk to society.
¶64 Moreover, the majority‘s determination could have long-lasting consequences on the lives of those who commit crimes at a young age. Research consistently demonstrates that the brains of adolescents are not fully developed, and that as a result they are prone to risky behavior. See Graham v. Florida, 560 U.S. 48, 68 (2010); Miller v. Alabama, 567 U.S. 460, 471-72 (2012). The majority ensures that expungement will remain out of reach for many of these people and that they will be held back as they attempt to change their lives for the better.6
¶65 As to the specific facts of the instant case, the circuit court determined that Lickes satisfied the conditions of his probation. DOC apparently agreed when it submitted the “Certification of Discharge and Satisfaction of Probation Conditions for Expungement.”7 These are the entities that imposed conditions on Lickes in the first place, so they are in the best position to determine whether the conditions have been satisfied and whether Lickes and the public would be well served by expungement.
¶66 It was the circuit court that placed on Lickes the condition that he “enter into, participate [in], and successfully complete sex offender treatment.” Majority op., ¶6.
¶67 For the foregoing reasons, I respectfully dissent.
¶68 I am authorized to state that Justice REBECCA FRANK DALLET joins this dissent.