State v. Lickes
| Decision Date | 15 June 2021 |
| Docket Number | No. 2019AP1272-CR,2019AP1272-CR |
| Citation | 2021 WI 60,960 N.W.2d 855 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Jordan Alexander LICKES, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
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.
¶1 Jordan Lickes seeks review of the court of appeals decision,1 which reversed the Green County Circuit Court's order expunging three of Lickes's convictions.2 Pursuant to Wis. Stat. § 973.015(1m)(a) (2017-18),3 for individuals under the age of 25 at the time of an offense, a court "may order at the time of sentencing that [the individual's] record be expunged upon successful completion of the sentence[.]" If the individual is placed on probation, § 973.015(1m)(b) provides that he "has successfully completed the sentence if ... [he] has satisfied the conditions of probation," among other things.
¶2 Lickes raises two principal issues. First, Lickes contends that the phrase "conditions of probation" under Wis. Stat. § 973.015(1m)(b) does not refer to the conditions set by the Department of Corrections (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 expunge all three of his convictions. Second, Lickes argues that, even if the phrase "conditions of probation" includes conditions set by DOC, circuit courts nonetheless have discretion to determine that an individual "satisfied [his] conditions of probation" despite having violated one or more conditions.
¶3 We hold: (1) the phrase "conditions of probation" in Wis. Stat. § 973.015(1m)(b) means conditions set by both DOC and the sentencing court; and (2) the statute does not give circuit courts discretionary authority to declare an individual has "satisfied [his] conditions of probation" if the record demonstrates an individual has violated one or more "conditions of 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
¶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 Wis. Stat. § 940.225(3m) (hereinafter "Count 1"); (2) sexual intercourse with a child aged 16 or older, in violation of Wis. Stat. § 948.09 (hereinafter "Count 2"); (3) disorderly conduct, in violation of Wis. Stat. § 947.01(1) (hereinafter "Count 3"); and (4) exposing genitals or pubic area, in violation of Wis. Stat. § 948.10(1) (hereinafter "Count 4").5
¶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 months. 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 Wis. Stat. § 973.015(1m).
¶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 DOC, ordering Lickes to serve 45 days in jail with Huber privileges.
¶8 On January 23, 2016, Lickes completed his term of 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 Wis. Stat. § 973.015. In September 2016, Lickes's DOC probation agent sent the circuit court a form entitled "Verification of Satisfaction of Probation Conditions for Expungement" regarding Counts 1 and 3. The form contained conflicting information. On the one hand, Lickes's probation agent checked a box stating that "[t]he offender has successfully completed his/her probation." However, the probation agent also checked a box stating that "[a]ll court ordered conditions have not been met," noting that "Lickes is still currently participating in sex offender treatment." (Emphasis in original.) The probation agent also declined to check the box stating that "[a]ll court ordered conditions have been met."
¶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 that, per Wis. Stat. § 973.015(1m) and this court's decision in State v. Ozuna, 2017 WI 64, 376 Wis. 2d 1, 898 N.W.2d 20, the phrase "conditions of probation" refers to conditions set by both DOC and the sentencing court, and the circuit court must deny expungement if an individual has violated one or more of the conditions—as Lickes had allegedly done. Lickes submitted a brief arguing he was entitled to expungement.
¶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 three counts. We granted Lickes's petition for review.
¶14 This case requires us to interpret the expungement statute, Wis. Stat. § 973.015, and its application to undisputed facts. Statutory interpretation and its application are questions of law we review "independently, while benefiting from the decisions by the court of appeals and circuit court." State v. Stephenson, 2020 WI 92, ¶18, 394 Wis. 2d 703, 951 N.W.2d 819 (quotations and alterations omitted); see also Ozuna, 376 Wis. 2d 1, ¶9, 898 N.W.2d 20.
¶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, 898 N.W.2d 20. Specifically, Wis. Stat. § 973.015(1m)(a) provides:
[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...
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