State v. Christopher Joseph Allen ( 2017 )

2017 WI 7
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2840-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Christopher Joseph Allen,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: February 9, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 20, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Wagner
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
and oral argument by Kaitlin A. Lamb, assistant state public
defender.
For the plaintiff-respondent the cause was argued by Warren
D. Weinstein, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
2017 WI 7
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2840-CR
(L.C. No. 2013CF670)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v.
FEB 9, 2017
Christopher Joseph Allen,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the court of appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Petitioner, Christopher Joseph
Allen ("Allen"), seeks review of a court of appeals decision
affirming a circuit court amended judgment and order denying his
motion for a new sentencing hearing.1 The court of appeals
determined that under State v. Leitner, 2002 WI 77, 253
Wis. 2d 449, 646 N.W.2d 341, a sentencing court is permitted to
consider all of the facts underlying an expunged record of
1
State v. Allen, 2015 WI App 96, 366 Wis. 2d 299, 873
N.W.2d 92 (affirming judgment and order entered by the circuit
court for Milwaukee County, Jeffrey A. Wagner, J., presiding).
No. 2014AP2840-CR
conviction, and not only those facts underlying the crime
itself.
¶2 Allen requests a new sentencing hearing, contending
that Leitner prohibited the sentencing court from considering
that he had previously completed supervision in a case where the
record of conviction had been expunged pursuant to Wis. Stat.
§ 973.015 (2013-14).2 Additionally, Allen asserts that his trial
counsel was ineffective for failing to object to references to
Allen's expunged record of conviction in the pre-sentence
investigation report ("PSI") and at sentencing.
¶3 Like the circuit court and court of appeals, we
conclude that the sentencing court did not erroneously exercise
its discretion when it considered the fact that Allen had
previously successfully completed supervision in a case where
the record of conviction had been expunged. Under Leitner, a
circuit court is permitted to consider not only those facts
underlying the crime itself, but also all of the facts
underlying an expunged record of conviction provided those facts
are not obtained from expunged court records. Because the
references to Allen's expunged record of conviction in the PSI
and at sentencing were obtained from sources other than expunged
court records, they are permitted under Leitner. Given that any
objections to these references would have been meritless, we
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2014AP2840-CR
determine that Allen's trial counsel did not perform deficiently
and was not ineffective.
¶4 Accordingly, we affirm the decision of the court of
appeals.
I
¶5 The underlying facts in this case are not in dispute.
In 2013, Allen crashed his vehicle into a tree while traveling
at approximately 97 miles per hour, killing one passenger and
severely injuring another. His blood alcohol concentration at
the time of the collision was .122.
¶6 The State charged Allen with: (1) homicide by
intoxicated use of a vehicle in violation of Wis. Stat.
§ 940.09(1)(a); (2) homicide by intoxicated use of a vehicle
with a prohibited alcohol concentration in violation of Wis.
Stat. § 940.09(1)(b); (3) injury by intoxicated use of a vehicle
resulting in great bodily harm in violation of Wis. Stat.
§ 940.25(1)(a); (4) injury by intoxicated use of a vehicle
resulting in great bodily harm with a prohibited alcohol
concentration in violation of Wis. Stat. § 940.25(1)(b); and (5)
homicide by negligent operation of a vehicle in violation of
Wis. Stat. § 940.10(1).
¶7 Allen entered a no contest plea to count one, homicide
by intoxicated use of a vehicle in violation of Wis. Stat.
§ 940.09(1)(a) and count three, injury by intoxicated use of a
vehicle resulting in great bodily harm in violation of Wis.
Stat. § 940.25(1)(a). In exchange for Allen's plea, the State
agreed to dismiss and read in count five and to dismiss the two
3
No. 2014AP2840-CR
other counts. Additionally, the State agreed to recommend four
years of initial confinement at sentencing but to make no
recommendation with regard to extended supervision.
¶8 The circuit court ordered a PSI. At sentencing, both
Allen and his trial counsel stated that they had reviewed the
PSI but did not offer any additions or corrections. The PSI
indicated that Allen had a prior municipal citation that had
been paid and a 2005 conviction for substantial battery that had
been expunged in 2011.
¶9 Under certain circumstances, a young offender's record
of conviction may be expunged pursuant to Wis. Stat.
§ 973.015(1m)(a)1., which provides in relevant part:
[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.
If a record of conviction is expunged, the court records for
that case are destroyed by the clerk of court.3
3
SCR 72.06 provides:
When required by statute or court order to expunge a
court record, the clerk of court shall do all of the
following:
(1) Remove any paper index and nonfinancial court
record and place them in the case file.
(continued)
4
No. 2014AP2840-CR
¶10 Referencing Allen's expunged record for the 2011
substantial battery conviction, the PSI stated:
According to the CIB/FBI Criminal Background report,
Mr. Allen was arrested for Substantial Battery on
5/11/05. Mr. Allen acknowledges that this incident
involved a fight with another boy at high school and
he was charged because the other boy lost a tooth in
the fight and his mother pursued the case. On
10/07/05, he was given a withheld sentence with
conditions that if he pay restitution in the amount of
$1139.00, complete anger management classes and
successfully completes 9 months of probation, the case
shall be expunged. WICS database reveals that the
offender successfully completed his term of probation
on 07/07/06. This case was officially expunged under
SS973.015 on 4/11/11.
The State commented on this expunged record of conviction at
sentencing, informing the circuit court that "Mr. Allen has a
substantial battery which was expunged, the State will grant
that, back in '05." Allen's counsel did not object to the
State's reference to the seven-year-old expunged record of
conviction.
¶11 In accordance with the plea agreement, the State
recommended four years of initial confinement but did not
provide a recommendation with regard to extended supervision.
Allen's trial counsel likewise took no position on extended
supervision, but recommended that the sentencing court impose
(2) Electronically remove any automated nonfinancial
record, except the case number.
(3) Seal the entire case file.
(4) Destroy expunged court records in accordance with
the provisions of this chapter.
5
No. 2014AP2840-CR
two years of initial confinement. The circuit court sentenced
Allen to five years of initial confinement and four years of
extended supervision.
¶12 When sentencing Allen, the circuit court expressed
concern that the defendant failed to learn from his prior court
experience:
THE COURT: The court looks at any record of——any
record of any undesirable behavior——behavior problems
or any history of other contacts.
. . .
THE COURT: [W]hat I do give serious consideration for
is that you——you were on supervision before, right,
and that was expunged.
ALLEN: Yes.
THE COURT: And you had every opportunity to go through
that——that period of supervision with the
understanding that——you know, you've got to comply
with certain things, certainly the rules of law making
sure that you don't do bad things because you can be
punished for them if you do.
Having gone through that you would think that that
would be a learning experience for yourself like I
never want to be back in the criminal justice system.
I don't know anything about——quite frankly, about the
case except for what it says in the presentence
investigation report, but the message is——is that I
should this with me [sic], it was expunged which is a
good thing because I do that myself when the
appropriate case comes to the court, expunged so that
wouldn't be wrapped around somebody's neck for the
rest of their lives, especially a felony conviction,
but you had an opportunity to learn something from
that.
That's what the Court's concerned about. I don't know
what was going through your mind going 97 miles an
hour on a city street . . .
6
No. 2014AP2840-CR
¶13 Allen filed a post-conviction motion requesting a new
sentencing hearing on the basis that the circuit court erred
when it considered his expunged record of conviction at
sentencing. Further, he asserted that his trial counsel was
ineffective for failing to object to references to the expunged
record of conviction in the PSI and at sentencing.4 The circuit
court denied Allen's motion for a new sentencing hearing.
¶14 In denying Allen's motion for resentencing, the
circuit court explained that it considered his prior supervision
and his failure to learn from that experience as relevant to an
assessment of the defendant's character and behavior:
The court does not read Leitner to preclude a court
from considering the fact of an offender's prior
supervision and failure to learn from that experience
as part of its duty at sentencing to acquire full
knowledge of the character and behavior of the
defendant. See State v. Hubert, 181 Wis. 2d 333 (Ct.
App. 1993). In fact, that is the only fact the court
assigned any significant weight to regarding the
defendant's prior expunged conviction, and therefore,
the court perceives no violation under Leitner, and
consequently no ineffective assistance on the part of
trial counsel for failing to raise an objection.
¶15 The court of appeals affirmed the circuit court's
judgment and order. State v. Allen, 2015 WI 96, ¶1, 366 Wis. 2d
299, 873 N.W.2d 92. It determined that under Leitner, 253
Wis. 2d 449, a sentencing court is permitted to consider all of
4
Allen also moved for an order vacating a $250 DNA
surcharge, which the circuit court granted. This part of the
circuit court's decision and order was not appealed and is not
before this court.
7
No. 2014AP2840-CR
the facts underlying an expunged record of conviction, and not
only those facts underlying the crime itself. Id., ¶18.
Additionally, it concluded that trial counsel was not
ineffective because the references to Allen's expunged record of
conviction in the PSI and at sentencing are permitted under
Leitner. Id., ¶20.
II
¶16 We are asked to determine whether Leitner prohibited
the sentencing court from considering the fact that Allen
previously completed supervision in a case where the record of
conviction had been expunged pursuant to Wis. Stat. § 973.015.
If so, then we must also determine whether Allen's trial counsel
was ineffective for failing to object to references to the
expunged record of conviction in the PSI and at sentencing.
¶17 This court reviews a circuit court's sentencing
decision for an erroneous exercise of discretion. State v.
Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. A
circuit court erroneously exercises its discretion when it
imposes a sentence based on an error of law. State v. Harris,
119 Wis. 2d 612, 625, 350 N.W.2d 633 (1984). When reviewing a
circuit court's discretionary determination involving a question
of law, we review the question of law independently of the
determinations rendered by the circuit court and the court of
appeals. Abrose v. Cont'l Ins. Co., 208 Wis. 2d 346, 356, 560
N.W.2d 309 (Ct. App. 1997).
¶18 Whether counsel's actions constitute ineffective
assistance presents a mixed question of fact and law. State v.
8
No. 2014AP2840-CR
Tourville, 2016 WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735. We
will not reverse the circuit court's findings of fact unless
they are clearly erroneous. Id. This court reviews
independently, as a matter of law, whether trial counsel's
conduct breached the defendant's right to effective assistance
of counsel. Id.
III
¶19 We address first Allen's assertion that Leitner
prohibited the sentencing court from considering the fact that
he had previously completed supervision in a case where the
record of conviction had been expunged pursuant to Wis. Stat.
§ 973.015.
¶20 In Leitner, the defendant entered a no contest plea to
reckless driving causing great bodily harm. 253 Wis. 2d 449,
¶4. Leitner's PSI stated that in 1997 he was convicted of
misdemeanor hit and run and operating a motor vehicle while
intoxicated causing injury. Id., ¶6. The information in the
PSI about Leitner's prior convictions came from the district
attorney's case files. Id. Both of these records of
convictions had been expunged. Id. However, the fact that the
records of the convictions had been expunged was not mentioned
in the PSI. Id.
¶21 The prosecutor agreed not to refer to Leitner's 1997
convictions because the court records of these convictions had
been expunged. Id., ¶7. Yet, at sentencing the prosecutor
discussed the facts underlying the expunged records of
9
No. 2014AP2840-CR
convictions by relying on information contained in the police
reports and district attorney's case files. Id.
¶22 In determining Leitner's sentence, the circuit court
referred to and considered facts underlying his expunged records
of convictions:
You say you have no problem with alcohol and yet this
is the second incident that you have been involved in
that has resulted in your being charged with an
alcohol-related offense, although it was not charged
in this particular case, but certainly alcohol was
involved.
Id., ¶9.
¶23 On appeal, Leitner asserted that the sentencing court
erred when it considered information about the facts underlying
the records of the expunged convictions. Id., ¶42. This court
disagreed, concluding that "the circuit court may consider, when
sentencing an offender, the facts underlying a record of
conviction expunged under § 973.015." Id., ¶48. The Leitner
court emphasized the need of a sentencing court to have
available relevant information:
When Wis. Stat. § 973.015 is read in the context of
the objectives of a sentencing proceeding, it is clear
that the legislature did not intend § 973.015 to
deprive sentencing courts of relevant information
regarding an offender when that information is in
government files relating to a record of conviction
expunged under § 973.015.
Id., ¶47. Thus, Leitner reasoned that it does not make sense to
prohibit a circuit court from considering the underlying facts
of an expunged record of conviction if those facts are located
10
No. 2014AP2840-CR
in a file of a district attorney or law enforcement agency that
is not required to be expunged. Id., ¶46.
¶24 In this case, Allen asserts that he is not seeking to
overturn or modify Leitner. Instead, he contends that Leitner
should be interpreted to permit consideration only of the facts
or behaviors underlying the crime itself, rather than all of the
facts underlying the expunged record of conviction. Further,
Allen argues that a sentencing court may consider only facts
underlying a prior expunged record of conviction if those facts
are interrelated to the facts underlying the current offenses
for which a defendant is being sentenced.
¶25 Allen relies on the portion of Leitner in which this
court determined that the "facts underlying the record of a
conviction expunged under § 973.015 are significant to
sentencing this defendant . . . ." Id., ¶44. Leitner explained
that "the facts of his prior behavior elucidate his character,
including the escalating harms caused by his interrelated
intoxication and hit and run accidents." Id. Thus, Allen
asserts that Leitner requires interrelated facts between the
expunged record of conviction and the current conviction, which
he contends are not present here.
¶26 According to Allen, the facts of this case are
distinguishable from Leitner because the sentencing court did
not consider the underlying behaviors that led to his expunged
battery conviction. Unlike Leitner, the underlying facts of
Allen's expunged battery conviction are not interrelated to his
current convictions for homicide by intoxicated use of a vehicle
11
No. 2014AP2840-CR
and injury by intoxicated use of a vehicle. Specially, there is
no evidence in the record that the expunged battery conviction
involved alcohol or a motor vehicle.
¶27 We disagree with Allen because he reads Leitner too
narrowly. As set forth more fully below, a defendant's behavior
on supervision is relevant to a sentencing court's consideration
of his future behavior and overall character. Leitner does not
require interrelated facts between the crime underlying a prior
expunged record of conviction and the facts underlying a current
criminal conviction. It 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.
¶28 Allen also contends that his previous successful
completion of supervision in a case where the record of
conviction had been expunged does not inform the sentencing
court about his individual character. According to Allen,
expunction requires the successful completion of a sentence or
probation in every case. See Wis. Stat. § 973.015. Thus, Allen
asserts that consideration of his prior successful completion of
supervision is not individualized because it is equally
applicable to every sentencing in which a defendant has an
expunged record of conviction.
¶29 Individualized sentencing, as Allen correctly asserts,
"has long been a cornerstone to Wisconsin's criminal justice
jurisprudence." Gallion, 270 Wis. 2d 535, ¶48. However, we
agree with the court of appeals that allowing sentencing courts
12
No. 2014AP2840-CR
to consider the facts of an expunged record of conviction in
addition to the facts of the underlying crime allows sentencing
courts to better perform their duty to make informed sentencing
decisions.
¶30 It is well-established that sentencing courts must
acquire "full knowledge of the character and behavior pattern of
the convicted defendant before imposing sentence." Leitner, 253
Wis. 2d 449, ¶45 (citing Elias v. State, 93 Wis. 2d 278, 285,
286 N.W.2d 559 (1980)); see also Wasman v. United States, 468
U.S. 559, 563 (1984) ("The sentencing court . . . must be
permitted to consider any and all information that reasonably
might bear on the proper sentence for the particular defendant,
given the crime committed."). Thus, a sentencing court may
consider uncharged and unproven offenses and facts related to
offenses for which the defendant has been acquitted. Leitner,
253 Wis. 2d 449, ¶45. To ensure that a circuit court has full
information, "prosecutors may not keep relevant information from
a sentencing court." Id.
¶31 As Gallion explained, judges have a need for more
complete information at the time of sentencing. 270
Wis. 2d 535, ¶34. In addition, under Gallion, sentencing courts
are encouraged "to refer to information provided by others."
Id., ¶47. When imposing a sentencing, a circuit court must also
explain "how the sentence's component parts promote the
sentencing objectives." Id., ¶46. "By stating this linkage on
the record, courts will produce sentences that can be more
easily reviewed for a proper exercise of discretion." Id.
13
No. 2014AP2840-CR
¶32 We also agree with the State that consideration of a
defendant's prior successful completion of supervision in a case
where a record of conviction had been expunged may often benefit
defendants. For example, a sentencing court may determine that
a defendant who has previously complied with the terms of
probation is at a low-risk for reoffending while on probation or
supervision. In that case, a sentencing court may consider the
fact that a defendant has previously successfully completed
supervision in order to determine whether to divert an offender
to a non-prison alternative.
¶33 Here the sentencing court properly considered
information provided in the PSI that was obtained from a CIB/FBI
Criminal Background report.5 As Leitner determined, a circuit
court may consider the underlying facts of an expunged record of
conviction if those facts are located somewhere other than in
the court records that must be destroyed with the case file
pursuant to SCR 72.06. 253 Wis. 2d 449, ¶46.
¶34 A defendant's behavior on supervision is relevant to
his overall character. The sentencing court in this case
referenced the fact of Allen's prior successful completion of
supervision in the context of considering Allen's possible
future behavior and his failure to learn a lesson.
5
Allen does not contend that the PSI writer possessed
information that should have been destroyed pursuant to SCR
72.06.
14
No. 2014AP2840-CR
¶35 In accord with Leitner, the sentencing court explained
that it "looks at any record of——any record of any undesirable
behavior——behavior problems or any history of other contacts."
It explained that it considered Allen's prior supervision as
relevant to Allen's character because of his failure to learn
from the opportunity of having his prior record of conviction
expunged:
THE COURT: And you had every opportunity to go
through that——that period of supervision with the
understanding that——you know, you've got to comply
with certain things, certainly the rules of law making
sure that you don't do bad things because you can be
punished for them if you do.
Having gone through that you would think that that
would be a learning experience for yourself like I
never want to be back in the criminal justice system.
The sentencing court used the fact of Allen's prior supervision
to impose a sentence based upon his character and behavior,
including his failure to learn the consequences of breaking the
law.
¶36 Additionally, as required by Gallion, the circuit
court explained its reasoning for considering Allen's
supervision for the expunged conviction at sentencing. In every
case where the facts underlying an expunged record of
conviction are included in a PSI, the court will be aware of the
fact that the defendant successfully completed a sentence or
probation. Rather than ask sentencing courts to turn a blind
eye to relevant facts before them, pursuant to Gallion, we
expect that courts explain the facts considered when imposing a
15
No. 2014AP2840-CR
sentence. That is what the sentencing court did here when it
explained that it was considering Allen's behavior in
successfully completing probation.
¶37 We turn next to Allen's argument that the sentencing
court's consideration of Allen's successful completion of
supervision in a prior case where the record of conviction had
been expunged contravenes the purposes of expunction. As Allen
correctly observes, expunction "offers young offenders a fresh
start without the burden of a criminal record and a second
chance at becoming law-abiding and productive members of the
community." State v. Hemp, 2014 WI 129, ¶19, 359 Wis. 2d 320,
856 N.W.2d 811. It is "intended to provide a break to young
offenders who demonstrate the ability to comply with the law."
Leitner, 253 Wis. 2d 449, ¶38.
¶38 However, expunction provides a means by which
sentencing courts may shield youthful offenders from some of the
future consequences of criminal convictions. Id. The Leitner
court determined that only court records, rather than all
government records regarding expunged convictions need to be
destroyed. It explained that "nothing in the language or
history of § 973.015 indicates that the legislature intended
record expunction . . . to wipe away all information relating to
an expunged record of a conviction or to shield a [defendant]
from all of the future consequences of the facts underlying a
record of a conviction expunged . . . ." Id.
¶39 Concluding that expunction required the destruction of
only court records, Leitner explained that "district attorneys
16
No. 2014AP2840-CR
and law enforcement agencies have significant ongoing interests
in maintaining case information, even when a court record of a
conviction has been expunged . . . ." Id., ¶40. For example,
case information from an expunged record of conviction may
assist police and prosecutors in a variety of ways:
Case information may assist in identifying suspects,
determining whether a suspect might present a threat
to officer safety, investigating and solving similar
crimes, anticipating and disrupting future criminal
actions, informing decisions about arrest or pressing
charges, making decisions about bail and pre-trial
release, making decisions about repeater charges, and
making recommendations about sentencing.
Id.
¶40 Furthermore, expunging the court record continues to
provide substantial advantages to an offender. As Leitner
explained, an expunged record of a conviction cannot be
considered at a subsequent sentencing or used for impeachment at
trial under § 906.09(1) and is not available for repeater
sentence enhancement. Id., ¶39. Expunction allows "offenders
to . . . present themselves to the world——including future
employers——unmarked by past wrongdoing." Hemp, 359 Wis. 2d 320,
¶19 (internal citations omitted).
¶41 Finally, we address Allen's concern that allowing
consideration of a defendant's prior successful completion of
supervision contravenes Leitner's statement, set forth in the
paragraph above, that an expunged record of conviction cannot be
considered at a subsequent sentencing. As discussed in Leitner,
expunction requires the destruction of the court record of
17
No. 2014AP2840-CR
conviction. It is the court record, with all of its contents,
which cannot be considered at a subsequent sentencing. The
facts underlying an expunged record of conviction, if obtained
from a source other than a court record, may be considered at
sentencing. Leitner, 253 Wis. 2d 449, ¶47.
¶42 For the foregoing reasons, we determine that
consideration of the fact that a defendant previously
successfully completed probation does not contravene the purpose
of expunction. The benefits of expunction shield a defendant
from some, but not all, of the future consequences of a prior
conviction. A defendant is offered a fresh start when a
conviction is expunged, but when he returns to the criminal
justice system the facts of that expunged record of conviction
are not erased and may be properly considered at sentencing.
¶43 Accordingly, we conclude that the sentencing court did
not erroneously exercise its discretion when it considered the
fact that Allen had previously successfully completed
supervision in a case where the record of conviction had been
expunged. Under Leitner, a circuit court is permitted to
consider not only those facts underlying the crime itself but
also all of the facts underlying an expunged record of
conviction provided those facts are not obtained from expunged
court records.
IV
¶44 Having concluded that the circuit court did not
erroneously exercise its discretion when it considered the fact
that Allen had previously successfully completed supervision in
18
No. 2014AP2840-CR
a case where the record of conviction had been expunged, we
briefly address Allen's claim that his trial counsel was
ineffective for failing to object to references to his expunged
record of conviction in the PSI and at sentencing.
¶45 In order to succeed on an ineffective assistance of
counsel claim, a defendant must show both (1) that his counsel's
representation was deficient and (2) that this deficiency
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984). Allen cannot succeed on his claim here because he
cannot show that his counsel's representation was deficient.
¶46 It is well-established that trial counsel could not
have been ineffective for failing to make meritless arguments.
See, e.g., State v. Toliver, 187 Wis. 2d 346, 360, 523
N.W.2d 113 (Ct. App. 1994); see also State v. Maloney, 2005 WI
74, ¶37, 281 Wis. 2d 595, 698 N.W.2d 583; State v. Harvey, 139
Wis. 2d 353, 380, 407 N.W.2d 235 (1987); State v. Luedtke, 2014
WI App 79, ¶28, 355 Wis. 2d 436, 851 N.W.2d 837. Because the
references to Allen's expunged record of conviction in the PSI
and at sentencing were obtained from sources other than expunged
court records, they are permitted under Leitner. Any objection
from trial counsel to these references would have been
meritless. Thus, trial counsel's performance was not deficient
and consequently Allen could not have been prejudiced as a
result of counsel's performance. See Strickland, 466 U.S. 668.
Accordingly, we conclude that Allen's trial counsel was not
ineffective.
19
No. 2014AP2840-CR
V
¶47 In sum, we conclude that the sentencing court did not
erroneously exercise its discretion when it considered the fact
that Allen had previously successfully completed supervision in
a case where the record of conviction had been expunged. Under
Leitner, a circuit court is permitted to consider not only those
facts underlying the crime itself, but also all of the facts
underlying an expunged record of conviction provided those facts
are not obtained from expunged court records. Because the
references to Allen's expunged record of conviction in the PSI
and at sentencing were obtained from sources other than expunged
court records, they are permitted under Leitner. Given that any
objections to these references would have been meritless, we
determine that Allen's trial counsel did not perform deficiently
and was not ineffective because the references to Allen's
expunged record of conviction in the PSI and at sentencing are
permitted under Leitner.
¶48 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
20
No. 2014AP2840-CR.ssa
¶49 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
majority opinion, although it is an extension of Leitner. See
State v. Allen, 2015 WI App 96, ¶¶21-25, 366 Wis. 2d 299, 873
N.W.2d 92 (Kessler, J., concurring).
¶50 The legislature's goal in expunction is to "to provide
a break to young offenders who demonstrate the ability to comply
with the law." State v. Leitner, 2002 WI 77, ¶38, 253
Wis. 2d 449, 646 N.W.2d 341.
¶51 I am concerned that the court's permitting more
extensive use of the facts underlying the expunged record of
conviction chips away at the purpose of expunction.
¶52 For me, the test to apply to the interpretation and
application of the expunction statute in different factual
situations is whether the court is making it harder for young
offenders to escape the shadows of their past. The instant case
is a close call.
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No. 2014AP2840-CR.ssa
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