State v. Ozuna

Decision Date22 June 2017
Docket NumberNo. 2015AP1877-CR,2015AP1877-CR
Citation376 Wis.2d 1,898 N.W.2d 20,2017 WI 64
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Lazaro OZUNA, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, there were briefs and oral argument by Alisha McKay, assistant state public defender, with whom on the briefs was Colleen Marion, assistant state public defender.

For the plaintiff-respondent there was a brief and oral argument by Scott E. Rosenow, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

An amici curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Kori L. Ashley, Christine Donahoe, Susan Lund, Sheila Sullivan, and Legal Action of Wisconsin, Inc., Milwaukee.

MICHAEL J. GABLEMAN, J.

¶1 We review an unpublished decision of the court of appeals, State v. Ozuna , No. 2015AP1877-CR, unpublished slip op., 369 Wis.2d 224, 2016 WL 1442489 (Wis. Ct. App. April 13, 2016), affirming the Walworth County circuit court's order1 denying expungement of the defendant's misdemeanor convictions.

¶2 We affirm the decision of the court of appeals and hold that the circuit court properly concluded that the defendant was not entitled to expungement. We do so because the defendant did not meet the statutory requirements for expungement. Specifically, in order to be entitled to expungement, a probationer must "satisf[y] the conditions of probation." Wis. Stat. § 973.015(1m)(b) (2013-14).2 In this case, when the Department of Corrections ("DOC") notified the circuit court that the defendant had completed probationary supervision, it simultaneously notified the court that the defendant had violated the court's expressly ordered condition that he neither possess nor consume alcohol. Consequently, the circuit court ruled that the defendant was not entitled to expungement, and the court of appeals affirmed. We affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶3 On November 20, 2013, the Walworth County district attorney's office charged Lazaro Ozuna with one count of criminal damage to property contrary to Wis. Stat. § 943.01(1) (2011-2012) and one count of disorderly conduct contrary to Wis. Stat. § 947.01(1) (2011-2012), both misdemeanors. Ozuna was 17 years old at the time these charges were filed.

¶4 On May 27, 2014, the circuit court held a plea and sentencing hearing,3 at which Ozuna pled guilty to both counts. The court accepted Ozuna's guilty plea and imposed a sentence of 120 days' incarceration, but the court stayed the sentence and placed Ozuna on a period of probationary supervision for 12 months. As one of the conditions of his probation, the court ordered Ozuna "[n]ot to possess or consume alcohol, illegal drugs or paraphernalia."

¶5 The court further determined that Ozuna's conviction was eligible for expungement under Wis. Stat. § 973.015 so long as Ozuna satisfied the conditions of probation. The court stated, "I will allow expungement if there is no violation of probation...." The court asked Ozuna if he understood that he would have to comply with the conditions of probation and that the convictions "could be on your record unless you complete the sentence [4 ] successfully and get it expunged; do you understand that?" Ozuna answered, "Yes, sir."

¶6 Ozuna was placed on probation under the supervision of DOC for a term of 12 months. After Ozuna was discharged from probation, DOC filed a form with the circuit court on June 5, 2015, entitled "Verification of Satisfaction of Probation Conditions for Expungement." On that form, the probation agent had marked a box labeled "The offender has successfully completed his/her probation." Further down on the form, however, the agent had marked the box labeled, "All court ordered conditions have not been met." The agent inserted the following explanation: "[Ozuna] [f]ailed to comply with the no alcohol condition. Lake Geneva PD went to Harbor Shores Hotel for noise complaint. Mr. Ozaro [sic] cited for underage drinking (102 pbt [sic] ) and marijuana odor in the halls."

¶7 On June 12, 2015, the circuit court entered an order denying expungement of Ozuna's record. The order noted that Ozuna had failed to fulfill the obligations of his probation. Ozuna appealed the circuit court's order, and the court of appeals affirmed the circuit court. The court of appeals concluded that "Ozuna was entitled to expungement only if he successfully completed his sentence. Ozuna did not do so because he did not satisfy the conditions of probation."

Ozuna , unpublished slip op., ¶11. The court of appeals noted that the "State claims—and the DOC form confirms—that Ozuna violated the no alcohol condition of his probation. Nowhere in the briefs does Ozuna contest this crucial fact." Id. , ¶9. For these reasons, the court of appeals affirmed the circuit court's order denying expungement.

¶8 Ozuna petitioned this court for review, which we granted on September 15, 2016.

II. STANDARD OF REVIEW

¶9 This case requires us to interpret the expungement statute, Wis. Stat. § 973.015, which is a question of statutory interpretation that we review de novo. State v. Hemp , 2014 WI 129, ¶12, 359 Wis.2d 320, 856 N.W.2d 811. The application of a statute to undisputed facts is also a question of law for our independent review, benefiting from the analyses of the circuit court and court of appeals. State v. Popenhagen , 2008 WI 55, ¶32, 309 Wis.2d 601, 749 N.W.2d 611.

III. DISCUSSION

¶10 We begin by setting forth the relevant statutory requirements for expungement and discussing the circuit court's authority to deny expungement. We then apply these principles to the facts of this case, and we hold that, because Ozuna did not satisfy the conditions of probation, the circuit court properly denied expungement of his conviction. Finally, we address Ozuna's procedural due process argument, and we conclude that Ozuna's rights were not violated in this case.

A. A Probationer Must Satisfy the Conditions of Probation In Order To Be Entitled to Expungement

¶11 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.5 The overarching legislative purpose of the expungement statute is to provide "a break to young offenders who demonstrate the ability to comply with the law." Hemp , 359 Wis. 2d 320, ¶20 (quoting State v. Leitner , 2002 WI 77, ¶38, 253 Wis.2d 449, 646 N.W.2d 341 ). A circuit court may order expungement "if the court determines the person will benefit and society will not be harmed by this disposition." Wis. Stat. § 973.015(1m)(a)1. Under the statutory scheme, the determination of a defendant's eligibility for expungement must be made at the time of sentencing. State v. Matasek , 2014 WI 27, ¶45, 353 Wis.2d 601, 846 N.W.2d 811.

¶12 If the circuit court determines that the defendant is eligible for expungement under Wis. Stat. § 973.015(1m)(a), "the plain language of the statute indicates that once the defendant successfully completes his sentence, he has earned, and is automatically entitled to, expungement."

Hemp , 359 Wis.2d 320, ¶23.6 The statute provides a three-part definition of what it means to "successfully complete the sentence" for purposes of earning expungement: "A person has successfully completed the sentence if [1] the person has not been convicted of a subsequent offense and, if on probation, [2] the probation has not been revoked and [3] the probationer has satisfied the conditions of probation ." § 973.015(1m)(b) (emphasis added). "If a probationer satisfies these three criteria, he has earned expungement, and is automatically entitled to expungement of the underlying charge." Hemp , 359 Wis.2d 320, ¶23.

¶13 We emphasize that, in order to be entitled to expungement, the probationer must meet all three of the statutory criteria, including satisfying "all the conditions of probation." Id. , ¶22. Because the three criteria are distinct, we reject Ozuna's notion that a probationer has "satisfied the conditions of probation" under Wis. Stat. § 973.015(1m)(b) simply because his probation was not revoked. Whether a probationer's conduct was adequate to avoid revocation is a question separate and distinct from whether the probationer "has satisfied all the conditions of probation."7

Hemp , 359 Wis.2d 320, ¶22. To "satisfy" a condition or obligation is to meet or fulfill it, not merely to avoid the penalty for violating it. See Satisfy , Webster's Third New International Dictionary 2017 (2002) ("to conform to (accepted criteria or requirements): fulfill, meet"). Therefore, the mere fact that a probationer has completed the term of probationary supervision without revocation does not necessarily establish that the probationer has also satisfied the conditions of probation.

B. The Court May Deny Expungement if a Probationer Does Not Satisfy the Conditions of Probation

¶14 Although the expungement statute puts the onus on DOC to determine whether a probationer has satisfied the conditions of probation and to notify the court when that occurs,8 a court has no duty to expunge a probationer's record if the probationer has not satisfied the conditions of probation. This is so because a person's statutory entitlement to expungement depends not on whether the court receives a particular notice from DOC, but on whether the probationer meets all of the statutory criteria for the "successful completion of the sentence." See Wis. Stat. § 973.015(1m)(b) (providing that only "[u]pon successful completion of the sentence" shall a DOC-forwarded certificate of discharge "have the effect of expunging the record"). In Hemp , we held that Wis. Stat. § 973.015(1m)(b) provides for a "self-executing" expungement process, in which "the detaining or probationary authority must forward the certificate of discharge to the court of record...

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7 cases
  • State v. Fuerte
    • United States
    • Wisconsin Supreme Court
    • December 19, 2017
    ...requires us to interpret Wis. Stat. §§ 971.08, 971.26, and 805.18. Statutory interpretation is an issue of law we review de novo. State v. Ozuna, 2017 WI 64, ¶9, 376 Wis. 2d 1, 898 N.W.2d 20. However, when a party asks this court to overrule one of its prior decisions interpreting a statute......
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    ...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 ......
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    ...to expungement because he had not "successfully completed" his sentence, as required by expungement statute); State v. Ozuna , 376 Wis.2d 1, 898 N.W.2d 20, 26–27 (2017) (A person is entitled to expungement only if he has "successfully completed the sentence," which requires that the person ......
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2 books & journal articles
  • Weekly Case Digests October 12, 2020 October 16, 2020.
    • United States
    • Wisconsin Law Journal No. 2020, December 2020
    • October 16, 2020
    ...had not "satisfied the conditions of [his] probation," he was not entitled to expungement under WIS. STAT. 973.015 and State v. Ozuna, 2017 WI 64, 12-13, 376 Wis. 2d 1, 898 N.W.2d 20. Lickes argues that he has satisfied his "conditions of probation" and that, once the circuit court received......
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    • Wisconsin Law Journal No. 2020, December 2020
    • October 14, 2020
    ...had not "satisfied the conditions of [his] probation," he was not entitled to expungement under WIS. STAT. 973.015 and State v. Ozuna, 2017 WI 64, 12-13, 376 Wis. 2d 1, 898 N.W.2d 20. Lickes argues that he has satisfied his "conditions of probation" and that, once the circuit court received......

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