Submitted on Briefs: oral argument: October 20, 2016
court, Milwaukee county, Jeffrey A. Wagner Judge
OF A DECISION OF THE COURT OF APPEALS
the defendant-appellant-petitioner, there was a brief and
oral argument by Kaitlin A. Lamb, assistant state public
the plaintiff-respondent the cause was argued by Warren D.
Weinstein, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
WALSH BRADLEY, J.
Petitioner, Christopher Joseph Allen ("Allen"),
seeks review of a court of appeals decision affirming a
circuit court amended judgment and order denying his motion
for a new sentencing hearing. The court of appeals determined
that under State v. Leitner, 2002 WI 77, 253 Wis.2d
449, 646 N.W.2d 341, a sentencing court is permitted to
consider all of the facts underlying an expunged record of
conviction, and not only those facts underlying the crime
Allen requests a new sentencing hearing, contending that
Leitner prohibited the sentencing court from
considering that he had previously completed supervision in a
case where the record of conviction had been expunged
pursuant to Wis.Stat. § 973.015 (2013-14). Additionally,
Allen asserts that his trial counsel was ineffective for
failing to object to references to Allen's expunged
record of conviction in the pre-sentence investigation report
("PSI") and at sentencing.
Like the circuit court and court of appeals, we conclude that
the sentencing court did not erroneously exercise its
discretion when it considered the fact that Allen had
previously successfully completed supervision in a case where
the record of conviction had been expunged. Under
Leitner, a circuit court is permitted to consider
not only those facts underlying the crime itself, but also
all of the facts underlying an expunged record of conviction
provided those facts are not obtained from expunged court
records. Because the references to Allen's expunged
record of conviction in the PSI and at sentencing were
obtained from sources other than expunged court records, they
are permitted under Leitner. Given that any
objections to these references would have been meritless, we
determine that Allen's trial counsel did not perform
deficiently and was not ineffective.
Accordingly, we affirm the decision of the court of appeals.
The underlying facts in this case are not in dispute. In
2013, Allen crashed his vehicle into a tree while traveling
at approximately 97 miles per hour, killing one passenger and
severely injuring another. His blood alcohol concentration at
the time of the collision was .122.
The State charged Allen with: (1) homicide by intoxicated use
of a vehicle in violation of Wis.Stat. § 940.09(1)(a);
(2) homicide by intoxicated use of a vehicle with a
prohibited alcohol concentration in violation of Wis.Stat.
§ 940.09(1)(b); (3) injury by intoxicated use of a
vehicle resulting in great bodily harm in violation of
Wis.Stat. § 940.25(1) (a); (4) injury by intoxicated use
of a vehicle resulting in great bodily harm with a prohibited
alcohol concentration in violation of Wis.Stat. §
940.25(1)(b); and (5) homicide by negligent operation of a
vehicle in violation of Wis.Stat. § 940.10 (1) .
Allen entered a no contest plea to count one, homicide by
intoxicated use of a vehicle in violation of Wis.Stat. §
940.09(1) (a) and count three, injury by intoxicated use of a
vehicle resulting in great bodily harm in violation of
Wis.Stat. § 940.25(1) (a) . In exchange for Allen's
plea, the State agreed to dismiss and read in count five and
to dismiss the two other counts. Additionally, the State
agreed to recommend four years of initial confinement at
sentencing but to make no recommendation with regard to
The circuit court ordered a PSI. At sentencing, both Allen
and his trial counsel stated that they had reviewed the PSI
but did not offer any additions or corrections. The PSI
indicated that Allen had a prior municipal citation that had
been paid and a 2005 conviction for substantial battery that
had been expunged in 2011.
Under certain circumstances, a young offender's record of
conviction may be expunged pursuant to Wis.Stat. §
973.015(lm)(a)l., which provides in relevant part:
[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.
record of conviction is expunged, the court records for that
case are destroyed by the clerk of court.
Referencing Allen's expunged record for the 2011
substantial battery conviction, the PSI stated:
According to the CIB/FBI Criminal Background report, Mr.
Allen was arrested for Substantial Battery on 5/11/05. Mr.
Allen acknowledges that this incident involved a fight with
another boy at high school and he was charged because the
other boy lost a tooth in the fight and his mother pursued
the case. On 10/07/05, he was given a withheld sentence with
conditions that if he pay restitution in the amount of
$1139.00, complete anger management classes and successfully
completes 9 months of probation, the case shall be expunged.
WICS database reveals that the offender successfully
completed his term of probation on 07/07/06. This case was
officially expunged under SS973.015 on 4/11/11.
State commented on this expunged record of conviction at
sentencing, informing the circuit court that "Mr. Allen
has a substantial battery which was expunged, the State will
grant that, back in '05." Allen's counsel did
not object to the State's reference to the seven-year-old
expunged record of conviction.
In accordance with the plea agreement, the State recommended
four years of initial confinement but did not provide a
recommendation with regard to extended supervision.
Allen's trial counsel likewise took no position on
extended supervision, but recommended that the sentencing
court impose two years of initial confinement. The circuit
court sentenced Allen to five years of initial confinement
and four years of extended supervision.
When sentencing Allen, the circuit court expressed concern
that the defendant failed to learn from his prior court
THE COURT: The court looks at any record of-any record of any
undesirable behavior-behavior problems or any history of
THE COURT: [W]hat I do give serious consideration for is that
you-you were on supervision before, right, and that was
THE COURT: And you had every opportunity to go through
that-that period of supervision with the understanding
that-you know, you've got to comply with certain things,
certainly the rules of law making sure that you don't do