State v. Hemp

• Decision Date: 18 December 2014
• Docket Number: No. 2013AP1163–CR.,2013AP1163–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Kearney W. HEMP, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

359 Wis.2d 320

856 N.W.2d 811

STATE of Wisconsin, Plaintiff–Respondent

v.Kearney W. HEMP, Defendant–Appellant–Petitioner.

No. 2013AP1163–CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 2014.

Decided Dec. 18, 2014.

For the defendant-appellant-petitioner, there were briefs by James B. Duquette and Seymour Kremer Koch Lochowicz & Duquette LLP, Elkhorn, and oral argument by James B. Duquette.

For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was Jill Kastner, Shelia Sullivan, Erica Seitzer–Beckman, and Elyce Wos on behalf of Legal Action of Wisconsin.

An amicus curiae brief was filed by Kelli S. Thompson and Colleen D. Ball on behalf of the Office of the State Public Defender.

Opinion

MICHAEL J. GABLEMAN, J.

¶ 1 We review a published decision of the court of appeals¹ affirming the Milwaukee County circuit court's order denying Kearney Hemp's (“Hemp”) petition for expungement.² At Hemp's sentencing, the circuit court found Hemp eligible for expungement conditioned upon his successful completion of probation. Hemp petitioned for expungement a year after successfully completing probation but the circuit court denied his petition, concluding that not only did Hemp have the responsibility to petition for expungement, but that he also had the responsibility to do so in a timely fashion. The circuit court explained that Hemp's “desire for expungement did not ripen until he was charged with new offenses in Walworth County.” “The implied time element ... coupled with the defendant's tardy action in seeking expungement” led the circuit court to deny his petition.

¶ 2 The court of appeals affirmed, concluding the expungement statute, Wis. Stat. § 973.015 (2009–10)³ , required Hemp to forward his “certificate of discharge” to the circuit court. State v. Hemp, 2014 WI App 34, ¶ 10, 353 Wis.2d 146, 844 N.W.2d 421. The court explained that Hemp's failure to forward his certificate for over a year after the Department of Corrections (DOC) discharged him from probation rendered his petition for expungement tardy. Id.

¶ 3 Three issues are presented for our consideration: 1) whether Hemp's successful completion of probation automatically entitled him to expungement; 2) whether Wis. Stat. § 973.015 places any burden on Hemp to petition the circuit court within a certain period of time in order to effectuate expungement; and 3) whether the circuit court could reverse the decision it made at sentencing to find Hemp eligible for expungement conditioned upon the successful completion of his sentence.

¶ 4 First, we hold that the successful completion of probation automatically entitled Hemp to expungement. Second, we hold Wis. Stat. § 973.015 is unambiguous and places no burden on Hemp to petition for expungement within a certain period of time because the duty to forward the certificate of discharge rests solely with the “detaining or probationary authority.” Finally, we hold the circuit court improperly exercised its discretion when it reversed the decision it made at sentencing to find Hemp eligible for expungement. Accordingly, the decision of the court of appeals is reversed, and we remand to the circuit court with the instructions that the clerk of courts expunge Hemp's record.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 5 On October 13, 2009, the Milwaukee County District Attorney's Office charged Hemp with one count of possession with intent to deliver THC (tetrahydrocannabinols), 200 grams or less, contrary to Wis. Stat. § 961.41(1m)(h) 1, a Class I felony. A conviction for a Class I felony subjects a defendant to a maximum term of imprisonment of three years and six months.⁴ Wis. Stat. § 939.50(3)(i). Hemp subsequently pleaded guilty. In exchange for Hemp's guilty plea, the State agreed to recommend probation with 90 days conditional jail time, various treatment based conditions, and to take no position on expungement. The circuit court sentenced ⁵ Hemp to one year in the House of Corrections, consecutive to any other sentence, stayed for 18 months of probation with 30 days of conditional jail time. As conditions of probation, the court ordered that Hemp continue psychological treatment with his counselor, maintain absolute sobriety, and complete fifty hours of community service. Further, the circuit court found Hemp eligible for expungement conditioned upon the successful completion of probation.⁶

¶ 6 On December 9, 2011, the DOC notified Hemp he successfully completed and was discharged from probation. The DOC issued Hemp a certificate of discharge, dated December 15, 2011, which it also forwarded to the “court of record.” The circuit court's “Criminal Court Record” entry for January 24, 2012, states: “Notice of case status change” “Probation/Extended Supervision status: Discharged.” The certificate of discharge informed the parties “You [Hemp] were placed on probation. The department having determined that you have satisfied said probation, it is ordered that effective December 9, 2011, you are discharged absolutely.”

¶ 7 On October 8, 2012, the Walworth County District Attorney's Office charged Hemp with possession of THC, second or subsequent offense, contrary to Wis. Stat. § 961.41(3g)(e) (2011–12), and possession of drug paraphernalia, contrary to Wis. Stat. § 961.573(1) (2011–12). Realizing the Milwaukee County Class I felony conviction (possession with intent to deliver THC, 200 grams or less) had not been expunged, as the conviction was the basis for the second or subsequent enhancer in Walworth County, Hemp filed Form CR–266,⁷ “Petition to Expunge Court Record of Conviction” with the Milwaukee County circuit court on October 30, 2012. Hemp did not attach the discharge certificate issued by the DOC. In response, the circuit court requested proof that Hemp successfully completed probation and paid his financial obligations; however, Hemp's counsel did not respond.

¶ 8 On December 12, 2012, Hemp again petitioned for expungement and attached the requested proof. In an order dated January 3, 2013, the circuit court ordered Hemp to submit a “personal statement” indicating why he thought expungement should be granted despite the pending charges in Walworth County. Hemp subsequently filed such a statement and the State filed a response, arguing Hemp had the responsibility to forward the certificate of discharge to the circuit court in a timely manner. On March 4, 2013, the circuit court issued a decision and order denying expungement. The circuit court explained Hemp's “desire for expungement did not ripen until he was charged with new offenses in Walworth County” and “[t]he implied time element in the expungement statute as argued by the State coupled with the defendant's tardy action in seeking expungement [led] the court to deny his petition.”

¶ 9 On July 22, 2013, Hemp appealed this order. On February 4, 2014, the court of appeals affirmed the circuit court's order denying expungement. Hemp, 353 Wis.2d 146, ¶ 1, 844 N.W.2d 421. The court of appeals concluded that, per Wis. Stat. § 973.015, upon the successful completion of probation Hemp had the responsibility to petition the circuit court for expungement, using Form CR–266, and to forward his certificate of discharge to the circuit court. Id., ¶¶ 13, 15. The court of appeals further concluded that Wis. Stat. § 973.015 implicitly requires a defendant seeking expungement to petition the circuit court in a timely fashion based on the ordinary definition of “upon,” meaning “immediately following; very soon after.” Id., ¶ 15 (citing to Wis. Stat. § 973.015(2) which states “[u]pon 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”). The court of appeals further concluded the petition must be approved by the circuit court before expungement is effectuated. Id. Because Hemp did not petition the circuit court until a year after his discharge, the court of appeals affirmed the circuit court's order denying Hemp expungement. Id., ¶ 16.

¶ 10 The dissent disagreed with the propositions that the defendant is responsible for forwarding the certificate of discharge to the circuit court and that the circuit court retains discretion to deny expungement. Id., ¶¶ 19, 26 (Curley, J., dissenting). The dissent noted: “[t]he statute says absolutely nothing about the person who has successfully completed his sentence taking any affirmative action to obtain the expungement.” Id., ¶¶ 20 (Curley, J., dissenting). Rather, the dissent argued the detaining or probationary authority bears the burden of both issuing the certificate and forwarding the certificate to the circuit court. Id., ¶ 21 (Curley, J., dissenting). The dissent explained it would be unfair to punish Hemp for not forwarding the discharge certificate because the statute provides no notice that he is required to do so. Id., ¶ 26 (Curley, J., dissenting). According to the dissent, “the statute's clear and unambiguous wording” states that the issuance of the certificate by the detaining or probationary authority “ha[s] the effect of expunging the record.” Id. (Curley, J., dissenting).

¶ 11 Hemp petitioned this Court for review, which we granted on June 12, 2014.

II. STANDARD OF REVIEW

¶ 12 This case requires us to construe Wis. Stat. § 973.015. This presents a question of law, which we review de novo. Vill. of Shorewood v. Steinberg, 174 Wis.2d 191, 201, 496 N.W.2d 57 (1993).

¶ 13 Statutory interpretation begins with the language of the statute, and, if the language is unambiguous, we apply the statute's plain language to the facts at hand. Id. Statutory language is examined within the context in which it is used.

Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis.2d 587, 605 N.W.2d 515. “ Words are ordinarily interpreted according...