State v. Arberry

379 Wis.2d 254

905 N.W.2d 832

2018 WI 7

STATE of Wisconsin, Plaintiff–Respondent,

v.Diamond J. ARBERRY, Defendant–Appellant–Petitioner.

No. 2016AP866-CR

Supreme Court of Wisconsin.

Oral Argument: November 14, 2017

Opinion Filed: January 19, 2018

For the defendant-appellant-petitioner, there were briefs and an oral argument by Ellen J. Krahn, assistant state public defender.

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

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of a published decision of the court of appeals, State v. Arberry, 2017 WI App 26, 375 Wis. 2d 179, 895 N.W.2d 100, affirming the Fond du Lac County circuit court's¹ denial of Diamond J. Arberry's ("Arberry") postconviction motion seeking expunction² pursuant to Wis. Stat. § 973.015 (2013–14)³ vis-à -vis sentence modification under Wis. Stat. § 809.30(2)(h).

¶ 2 In a criminal action by the State, Arberry was charged with five crimes relating to an incident of shop-lifting on May 13, 2015: two counts of felony retail theft under Wis. Stat. § 943.50(1m)(d) and (4)(bf) for intentionally concealing merchandise worth between $500 and $5,000; one count of attempted misdemeanor retail theft under § 943.50(1m)(b) and (4)(a) for intentionally attempting to take merchandise worth less than or equal to $500; one count of obstructing an officer under Wis. Stat. § 946.41(1) ; and one count of resisting an officer under § 946.41(1). All counts were charged with repeater enhancers.

¶ 3 In the circuit court, Arberry pled no contest to counts one and three; count two was dismissed and counts four and five were dismissed but read in. At the plea hearing, the circuit court accepted Arberry's pleas, found Arberry guilty, and proceeded to sentencing. No mention was made during sentencing of Arberry's eligibility for expunction. After the judgments of conviction were entered and the sentence imposed, Arberry filed a postconviction motion for sentence modification seeking entry of amended judgments of conviction finding that Arberry was eligible for expunction. The circuit court denied the motion, holding that Wis. Stat. § 973.015 requires expunction to be granted at the time of sentencing. Arberry appealed.

¶ 4 The court of appeals affirmed. It held that this court's recent case, State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, controlled and directed that the determination regarding expunction "must be made at sentencing." Arberry, 375 Wis. 2d 179, ¶ 1, 895 N.W.2d 100.

¶ 5 We consider one issue on this appeal: whether a defendant may seek expunction after sentence is imposed. We conclude that a defendant may not seek expunction after sentence is imposed because both the language of Wis. Stat. § 973.015 and Matasek require that the determination regarding expunction be made at the sentencing hearing.

¶ 6 Thus, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 The State charged Arberry with the following five crimes: (1) retail theft under Wis. Stat. § 943.50(1m)(d) and (4)(bf), for intentionally concealing merchandise worth between $500 and $5,000 held for resale by Victoria's Secret without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (2) retail theft under § 943.50(1m)(d) and (4)(bf), for intentionally concealing merchandise worth between $500 and $5,000 held for resale by TJ Maxx without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (3) attempted misdemeanor retail under § 943.50(1m)(b) and (4)(a), for attempting to intentionally take and carry away merchandise worth up to $500 held for resale by the Buckle without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (4) obstructing an officer under Wis. Stat. § 946.41(1), for knowingly obstructing an officer while such officer was doing an act in an official capacity and with lawful authority; and (5) resisting an officer under § 946.41(1), for knowingly resisting an officer while such officer was doing an act in an official capacity and with lawful authority.

¶ 8 On August 27, 2015, Arberry pled no contest to count one without the repeater enhancer, and to count three as charged. Count two was dismissed and counts four and five were dismissed but read in. The circuit court accepted Arberry's pleas as to counts one and three and found Arberry guilty.

¶ 9 The circuit court then sentenced Arberry. On count one, for felony retail theft in violation of Wis. Stat. § 943.50(1m)(d), Arberry was sentenced to one year initial confinement and two years extended supervision, to be served concurrently. On count three, for misdemeanor attempted retail theft in violation of § 943.50(1m)(b), Arberry was sentenced to two years of probation, to be served consecutively to the sentence for count one, with an imposed and stayed sentence of one year of initial confinement and one year of extended supervision. The issue of expunction was not raised during this hearing.

¶ 10 On February 17, 2016, Arberry filed a postconviction motion for sentence modification under Wis. Stat. § 809.30(2)(h) seeking entry of amended judgments of conviction finding that she was eligible for expunction. She argued that the circuit court has inherent power to modify a sentence if there is a "new factor."⁴ She then argued that Matasek's"clarification of when the court must exercise its discretion to determine eligibility for [expunction] constitutes a ‘new factor’ that [the circuit court] may take into consideration" in modifying her sentence because, although it was in existence at the time of the original sentencing, it was "unknowingly overlooked by all of the parties."⁵

¶ 11 On March 24, 2016, the circuit court held a hearing on Arberry's postconviction motion. The circuit court held:

[T]he Court is constrained by the statute. It does require the matter to be granted at the time of sentencing. ...

Granted, no one brought it up. I didn't bring it up. I don't think as a judge, I have to say no when no one has asked me to say no or asked me to grant it. So I think technically the motion is barred by the case law that's been rendered.^{[6 ]}

On April 4, 2016, the circuit court entered its order denying Arberry's postconviction motion.

¶ 12 On April 22, 2016, Arberry appealed. On March 8, 2017, the court of appeals affirmed the circuit court. See Arberry, 375 Wis. 2d 179, 895 N.W.2d 100. The court of appeals held that, under Matasek, "the determination of [expunction] must be made at sentencing." Id., ¶ 1. It further held that there was no factual support for a new factor analysis because "Arberry was sentenced well after Matasek was decided"⁷ and "[t]here is no indication that the court, much less the prosecutor, or even Arberry's counsel, overlooked [expunction]." Id., ¶ 4.

¶ 13 On April 7, 2017, Arberry filed a petition for review in this court. On June 12, 2017, we granted the petition.

II. STANDARD OF REVIEW

¶ 14 "The interpretation and application of a statute present questions of law that this court reviews de novo while benefitting from the analyses of the court of appeals and circuit court." State v. Alger, 2015 WI 3, ¶ 21, 360 Wis. 2d 193, 858 N.W.2d 346. Whether Wis. Stat. § 973.015 permits a circuit court to decide the issue of expunction after sentence is imposed is a question of statutory interpretation. See Matasek, 353 Wis. 2d 601, ¶ 10, 846 N.W.2d 811. Thus, we review de novo whether § 973.015 requires a circuit court to decide the issue of expunction at the sentencing hearing.

III. ANALYSIS

¶ 15 We consider one issue on this appeal: whether a defendant may seek expunction after sentence is imposed. We conclude that a defendant may not seek expunction after sentence is imposed because both the language of Wis. Stat. § 973.015 and Matasek require that the determination regarding expunction be made at the sentencing hearing.

¶ 16 Arberry argues that expunction may be raised in a postconviction motion for sentence modification as a "new factor" because sentence modification is a "time of sentencing" under Wis. Stat. § 973.015 and eligibility for expunction is a "new factor" where it was unknowingly overlooked and highly relevant to the sentence. The State argues that expunction can never be a new factor because it is not relevant to sentencing; that is, it is not a factor that circuit courts take into consideration in determining the sentence to be imposed, and thus, expunction may only be raised and addressed at the sentencing hearing. We do not address the "new factor" arguments because we conclude that a post-sentencing motion seeking expunction is procedurally barred.⁸ See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (holding that an appellate court need not decide an issue if the resolution of another issue is dispositive).

¶ 17 "[S]tatutory interpretation begins with the language of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin Stat. 973.015 states in relevant part as follows:

[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.

Wis. Stat. § 973.015(1m)(a)1. (emphasis added). The question before us is whether "at the time of sentencing" means only at the time when sentence is imposed or whether it also encompasses post-sentencing motions for sentence modification. We conclude that "at the time of...