973.015 Special disposition.

(1m)

(a)

1. Subject to subd. 2. and except as provided in subd. 3., when 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. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23 (2) (a).

2. The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of s. 942.08 (2) (b), (c), or (d) or (3), and the person was under the age of 18 when he or she committed it.

3. No court may order that a record of a conviction for any of the following be expunged:

a. A Class H felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048 (2) (bm), or is a violation of s. 940.32, 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4., or 948.095.

b. A Class I felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048 (2) (bm), or is a violation of s. 948.23 (1) (a).

(b) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.

(2m) At any time after a person has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for a violation of s. 944.30, a court may, upon the motion of the person, vacate the conviction, adjudication, or finding, or may order that the record of the violation of s. 944.30 be expunged, if all of the following apply:

(a) The person was a victim of trafficking for the purposes of a commercial sex act, as defined in s. 940.302 (1) (a), under s. 940.302 or 948.051 or under 22 USC 7101 to 7112.

(b) The person committed the violation of s. 944.30 as a result of being a victim of trafficking for the purposes of a commercial sex act.

(c) The person submitted a motion that complies with s. 971.30, that contains a statement of facts and, if applicable, the reason the person did not previously raise an affirmative defense under s. 939.46 or allege that the violation was committed as a result of being a victim of trafficking for the purposes of a commercial sex act, and that may include any of the following:

1. Certified records of federal or state court proceedings.

2. Certified records of approval notices, law enforcement certifications, or similar documents generated from federal immigration proceedings.

3. Official documentation from a federal, state, or local government agency.

4. Other relevant and probative evidence of sufficient credibility in support of the motion.

(d) The person made the motion with due diligence subject to reasonable concern for the safety of himself or herself, family members, or other victims of trafficking for the purposes of a commercial sex act or subject to other reasons consistent with the safety of persons.

(e) A copy of the motion has been served on the office of the district attorney that prosecuted the case that resulted in the conviction, adjudication, or finding except that failure to serve a copy does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.

(f) The court in which the motion was made notified the appropriate district attorney's office of the motion and has given the district attorney's office an opportunity to respond to the motion.

(g) The court determines that the person will benefit and society will not be harmed by a disposition.

(3) A special disposition under this section is not a basis for a claim under s. 775.05.

History: 1975 c. 39; 1975 c. 189 s. 105; 1975 c. 199; 1983 a. 519; 1991 a. 189; 2003 a. 33, 50, 320; 2009 a. 28; 2011 a. 268; 2013 a. 362; 2015 a. 80, 366.

An expunged conviction is not admissible to attack a witness's credibility. State v. Anderson, 160 Wis. 2d 435, 466 N.W.2d 681 (Ct. App. 1991).

This section does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction, nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case. State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, 00-1718. See also State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

A reasonable reading of this section is that the legislature included the words “at the time of sentencing" in sub. (1m) (a) 2. to limit the point in time at which the circuit court is to make a decision about expunction, and that the phrase “at the time of sentencing" means at the proceeding at which the circuit court announces the sanction. State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, 12-1582.

The only requirements sub. (2) [now sub. (1m) (b)] places on an individual defendant to successfully complete probation are that: 1) he or she has not been convicted of a subsequent offense; 2) his or her probation has not been revoked; and 3) he or she has satisfied all the conditions of probation. If a probationer satisfies these 3 criteria, he has earned expungement and is automatically entitled to expungement of the underlying charge. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

This section places no burden upon a person who successfully completes probation to petition the circuit court within a certain period of time in order to effectuate the expungement. The detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant's successful completion of his or her sentence and at that point the process of expungement is self-executing. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

Nothing in this section grants the circuit court the authority to revisit an expungement decision. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, 13-1163.

This section does not apply to civil forfeiture violations. The language of sub. (1) (a) [now sub. (1m) (a) 1.] indicates that law violations for which expunction is available relate to laws that include some “period of imprisonment." Thus, where there is no period of imprisonment associated with a law, that law is not one to which this section applies. Kenosha County v. Frett, 2014 WI App 127, 359 Wis. 2d 246, 858 N.W.2d 397, 14-0006.

The sentencing court did not erroneously exercise its discretion when it considered the fact that the defendant had previously successfully completed supervision in a case in which the record of conviction had been expunged. Leitner allows consideration of all facts underlying an expunged record of conviction, not just the facts underlying the crime itself provided those facts are not obtained from expunged court records. It does not require interrelated facts between the crime underlying a prior expunged record of conviction and the facts underlying a current criminal conviction. Because the references to the defendant's expunged record of conviction in the PSI and at sentencing were obtained from sources other than expunged court records, they were permitted under Leitner. State v. Allen, 2017 WI 7, 373 Wis. 2d 98, 890 N.W.2d 245, 14-2840.

In assessing whether to grant expungement, the sentencing court should set forth in the record the facts it considered and the rationale underlying its decision for deciding whether to grant or deny expungement. In exercising discretion, the sentencing court must do something more than simply state whether a defendant will benefit from expungement and that society will or will not be harmed. State v. Helmbrecht, 2017 WI App 5, 373 Wis. 2d 203, 891 N.W.2d 412, 15-2300.

“At the time of sentencing" in sub. (1m) (a) 1. means only at the time when sentence is imposed and does not also encompass post-sentencing motions for sentence modification. State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832, 16-0866.

The relief of vacating and setting a judgment aside under s. 974.06 (3) (d) is designed to address defects with respect to a conviction or sentence, not to provide a second chance or a fresh start as is intended by this section, the expunction statute. Vacatur invalidates the conviction itself, whereas expunction merely deletes the evidence of the underlying conviction from court records. Expunction does not invalidate a conviction. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

“Expunge" under this section means to strike or obliterate from the record all references to the defendant's name and identity. 67 Atty. Gen. 301.

Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.