Submitted on Briefs August 3, 2015
APPEAL from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Cir. Ct. No. 2013CF000670.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Kaitlin A. Lamb, assistant state public defender of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Warren D. Weinstein assistant attorney general.
Before Curley, P.J., Kessler and Brennan, JJ. KESSLER, J. (concurring).
[366 Wis.2d 301] [¶1] Christopher Joseph Allen comes to this court asking for a new sentencing hearing. He contends that State v. Leitner, 2002 WI 77, 253 Wis.2d 449, 646 N.W.2d 341, prohibited the circuit court from considering the fact that Allen had previously completed supervision in a case expunged pursuant to Wis. Stat. § 973.015 (2013-14). In Leitner, the Wisconsin Supreme Court held that a sentencing court could consider " the facts underlying a record of conviction expunged under § 973.015." Leitner, 253 Wis.2d 449, ¶ 48. Allen argues that the " facts" referenced by Leitner are only those facts relating to the crime underlying the expunged conviction, and do not include those facts underlying the expunged criminal record. We disagree. Both the sentencing court's obligation to sentence a defendant based upon the full knowledge of the defendant's character and behavior, see id., ¶ 45, and the legislature's desire in passing the expunction statute to only shield a defendant from [366 Wis.2d 302] some of the harsh consequences of criminal convictions, see id., ¶ 38, require us to read Leitner to permit a sentencing court to consider all the facts underlying the
expunged criminal record. As such, we affirm.
[¶2] On February 3, 2013, Allen crashed his vehicle into a tree. One of the vehicle's passengers died and another passenger suffered serious injuries. Allen was traveling approximately ninety-seven miles per hour and was later found to have a blood alcohol concentration of .122 grams at the time of the crash.
[¶3] Allen pled no contest to one count of homicide by intoxicated use of a motor vehicle, as well as one count of injury by intoxicated use of a motor vehicle. In exchange for Allen's pleas, the State dismissed two other counts, and agreed to dismiss and read in the homicide-by-negligent-operation-of-a-vehicle count. The State also agreed to globally recommend four years of initial confinement, leaving the extended supervision up to the court.
[¶4] At the conclusion of the plea hearing, the circuit court ordered a presentence investigation report (" PSI" ) without a sentencing recommendation. The PSI revealed that Allen had two previous offenses: a municipal citation ticket, which had been paid, and a substantial battery conviction in 2005. As penalty for the substantial battery charge, Allen was given a withheld sentence conditioned on payment of restitution, completion of anger management classes, and completion of nine months of probation. Allen met the conditions, and the substantial battery charge was expunged in 2011.
[¶5] At sentencing, both Allen and his trial attorney stated that they had each reviewed the PSI, and [366 Wis.2d 303] neither offered any additions or corrections to the report. Pursuant to the plea agreement, the State recommended four years of initial confinement with the amount of supervision left to the court.
[¶6] Despite the State's recommendation, the circuit court sentenced Allen to five years of initial confinement and four years of extended supervision. When sentencing Allen, as ...