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COURT OF APPEALS DECISION DATED AND FILED June 10, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Appellant, v. Melody P. M.,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1
BACKGROUND
¶2 In 2000, Melody P.M. was charged with retail theft in
violation of Wis. Stat. § 943.50(1m)
(1999-2000). The charge stemmed from an
incident in which Melody P.M. took from a merchant an item valued at $4.39
without paying for it. Melody P.M. was
seventeen years old at the time.
Pursuant to a plea agreement, Melody P.M. pled no contest to Dane County Ordinance § 32.03,
which adopts § 943.50. The penalty
for violating § 32.03 is limited to a civil forfeiture. See Dane
¶3 On July 28, 2009, Melody P.M. requested that the circuit court expunge her civil conviction pursuant to Wis. Stat. § 973.015. The State contested Melody P.M.’s request, arguing the conviction could not be expunged under § 973.015 because the penalty for violation of Dane County Ordinance § 32.03 was only a forfeiture. The circuit court, however, expressed concern that under the State’s theory, it would have authority to expunge a misdemeanor conviction but not a less severe civil conviction penalized only by forfeiture. The result being that Melody P.M. would still have an offense on record merely because she entered a plea to § 32.03 and not the original misdemeanor charge. Based on this concern and notwithstanding its observation of a likely appeal, the court ordered Melody P.M.’s conviction expunged. The State appeals.[2]
DISCUSSION
¶4 The State contends that the circuit court erred in expunging
Melody P.M.’s civil forfeiture conviction because expungement of a civil
forfeiture is not authorized under Wis.
Stat. § 973.015 since the conduct punishable by the civil
forfeiture is not a crime. The State
relies upon State v. Michaels, 142
¶5 In Michaels, the defendant sought the
expungement of a conviction which was penalized only by a forfeiture. The Michaels court held, however, that Wis. Stat. § 973.015 “applies only
to misdemeanors, not forfeitures.”
973.015 Misdemeanors, special disposition. (1) When a person under the age of 21 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 penalty is imprisonment for one year or less in the county jail, 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.
See id. at 176. In determining that § 973.015 is not
applicable to offenses punishable only by forfeiture, the court in Michaels
focused on the title of the statute, which it observed “can be
persuasive of the statute’s interpretation.”
¶6 Effective June 30, 2009, see 2009 Wis. Act 28, Wis. Stat. § 973.015 was amended to provide as follows:
973.015 Special disposition. (1)(a) Subject to par. (b) and except as provided in par. (c), when 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….
2009 Wis. Act 28, §§ 3384-3385.
¶7 The June 30, 2009 amendment to Wis. Stat. § 973.015, in addition to enlarging the
maximum period of imprisonment a violation may have in order to be eligible for
expungement, eliminated the term “Misdemeanors” from the name of the statute. Absent that term, there is nothing in the
plain language of § 973.015 limiting its application to only misdemeanor
offenses.
¶8 Melody P.M. requested the expungement of her civil conviction on July 30, 2009, approximately thirty days after the effective date of the amendment to Wis. Stat. § 973.015. Because on that date § 973.015 applied to misdemeanors as well as forfeitures, the circuit court was permitted to expunge Melody P.M.’s conviction. We therefore affirm the order of the court expunging Melody P.M.’s 2000 conviction for violation of Dane County Ordinance § 32.03.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(b) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] “We may, at our discretion, summarily reverse if the respondent fails to brief an appeal if we determine that he or she has abandoned the appeal or has acted egregiously or in bad faith.” Daniels v. Wisconsin Chiropractic Examining Bd., 2008 WI App 59, ¶ 3 n.3, 309 Wis. 2d 485, 750 N.W.2d 951. We choose not to do so in this case.