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State v. Allen

Supreme Court of Wisconsin

February 9, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Christopher Joseph Allen, Defendant-Appellant-Petitioner.

          Submitted on Briefs: oral argument: October 20, 2016

         Circuit court, Milwaukee county, Jeffrey A. Wagner Judge

         REVIEW OF A DECISION OF THE COURT OF APPEALS

         Affirmed.

          For the defendant-appellant-petitioner, there was a brief and oral argument by Kaitlin A. Lamb, assistant state public defender.

          For 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.

          ANN WALSH BRADLEY, J.

         ¶l 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.[1] 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 itself.

         ¶2 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).[2] 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.

         ¶3 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.

         ¶4 Accordingly, we affirm the decision of the court of appeals.

         I

         ¶5 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.

         ¶6 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) .

         ¶7 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 extended supervision.

         ¶8 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.

         ¶9 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.

         If a record of conviction is expunged, the court records for that case are destroyed by the clerk of court.[3]

         ¶10 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.

         The 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.

         ¶11 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.

         ¶12 When sentencing Allen, the circuit court expressed concern that the defendant failed to learn from his prior court experience:

THE COURT: The court looks at any record of-any record of any undesirable behavior-behavior problems or any history of other contacts.
THE COURT: [W]hat I do give serious consideration for is that you-you were on supervision before, right, and that was expunged.
ALLEN: Yes.
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 ...

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