Submitted on Briefs: oral argument: January 11, 2 017
OF A DECISION OF THE COURT OF APPEALS Reported at 369 Wis.2d
224, 880 N.W.2d 183 (2016 - Unpublished)
Walworth, Kristine E. Drettwan, Judge (L.C. No. 2013CM458)
the defendant-appellant-petitioner, there were briefs and
oral argument by Alisha McKay, assistant state public
defender, with whom on the briefs was Colleen Marion,
assistant state public defender.
the plaintiff-respondent there was a brief and oral argument
by Scott E. Rosenow, assistant attorney general, with whom on
the brief was Brad D. Schimel, attorney general.
amici curiae brief was filed on behalf of Legal Action of
Wisconsin, Inc. by Kori L. Ashley, Christine Donahoe, Susan
Lund, Sheila Sullivan,, and Legal Action of Wisconsin, Lnc.,
MICHAEL J. GABLEMAN, J.
We review an unpublished decision of the court of appeals,
State v. Ozuna, No. 2015AP1877-CR, unpublished slip
op. (Wis. Ct. App. April 13, 2016), affirming the Walworth
County circuit court's orderdenying expungement of the
defendant's misdemeanor convictions.
We affirm the decision of the court of appeals and hold that
the circuit court properly concluded that the defendant was
not entitled to expungement. We do so because the defendant
did not meet the statutory requirements for expungement.
Specifically, in order to be entitled to expungement, a
probationer must "satisf[y] the conditions of
probation." Wis.Stat. § 973.015(lm) (b)
(2013-14). In this case, when the Department of
Corrections ("DOC") notified the circuit court that
the defendant had completed probationary supervision, it
simultaneously notified the court that the defendant had
violated the court's expressly ordered condition that he
neither possess nor consume alcohol. Consequently, the
circuit court ruled that the defendant was not entitled to
expungement, and the court of appeals affirmed. We affirm the
decision of the court of appeals.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 20, 2013, the Walworth County district
attorney's office charged Lazaro Ozuna with one count of
criminal damage to property contrary to Wis.Stat. §
943.01(1) (2011-2012) and one count of disorderly conduct
contrary to Wis.Stat. § 947.01(1) (2011-2012), both
misdemeanors. Ozuna was 17 years old at the time these
charges were filed.
On May 27, 2014, the circuit court held a plea and sentencing
hearing,  at which Ozuna pled guilty to both counts.
The court accepted Ozuna's guilty plea and imposed a
sentence of 120 days' incarceration, but the court stayed
the sentence and placed Ozuna on a period of probationary
supervision for 12 months. As one of the conditions of his
probation, the court ordered Ozuna "[n]ot to possess or
consume alcohol, illegal drugs or paraphernalia."
The court further determined that Ozuna's conviction was
eligible for expungement under Wis.Stat. § 973.015 so
long as Ozuna satisfied the conditions of probation. The
court stated, "I will allow expungement if there is no
violation of probation . . . ." The court asked Ozuna if
he understood that he would have to comply with the
conditions of probation and that the convictions "could
be on your record unless you complete the
sentence'successfully and get it expunged; do
you understand that?" Ozuna answered, "Yes,
Ozuna was placed on probation under the supervision of DOC
for a term of 12 months. After Ozuna was discharged from
probation, DOC filed a form with the circuit court on June 5,
2015, entitled "Verification of Satisfaction of
Probation Conditions for Expungement." On that form, the
probation agent had marked a box labeled "The offender
has successfully completed his/her probation." Further
down on the form, however, the agent had marked the box
labeled, "All court ordered conditions have not
been met." The agent inserted the following explanation:
"[Ozuna] [f]ailed to comply with the no alcohol
condition. Lake Geneva PD went to Harbor Shores Hotel for
noise complaint. Mr. Ozaro [sic] cited for underage drinking
(102 pbt [sic]) and marijuana odor in the halls."
On June 12, 2015, the circuit court entered an order denying
expungement of Ozuna's record. The order noted that Ozuna
had failed to fulfill the obligations of his probation. Ozuna
appealed the circuit court's order, and the court of
appeals affirmed the circuit court. The court of appeals
concluded that "Ozuna was entitled to expungement only
if he successfully completed his sentence. Ozuna did not do
so because he did not satisfy the conditions of
probation." Ozuna, unpublished slip op.,
¶11. The court of appeals noted that the "State
claims-and the DOC form confirms-that Ozuna violated the no
alcohol condition of his probation. Nowhere in the briefs
does Ozuna contest this crucial fact." Id.,
¶9. For these reasons, the court of appeals affirmed the
circuit court's order denying expungement.
Ozuna petitioned this court for review, which we granted on
September 15, 2016.
STANDARD OF REVIEW
This case requires us to interpret the expungement statute,
Wis.Stat. § 973.015, which is a question of statutory
interpretation that we review de novo. State v.
Hemp, 2014 WI 129, ¶12, 359 Wis.2d 320, 856 N.W.2d
811. The application of a statute to undisputed facts is also
a question of law for our independent review, benefiting from
the analyses of the circuit court and court of appeals.
State v. Popenhagen, 2008 WI 55, ¶32, 309
Wis.2d 601, 749 N.W.2d 611.
We begin by setting forth the relevant statutory requirements
for expungement and discussing the circuit court's
authority to deny expungement. We then apply these principles
to the facts of this case, and we hold that, because Ozuna
did not satisfy the conditions of probation, the circuit
court properly denied expungement of his conviction. Finally,
we address Ozuna's procedural due process argument, and
we conclude that Ozuna's rights were not violated in this
case. A. A Probationer Must Satisfy the Conditions of
Probation In Order To Be Entitled to Expungement
The Wisconsin statutes empower a circuit court to order
certain criminal offenses to be expunged from a person's
record, if the offender was younger than 25 at the time of
the commission of the offense. The overarching legislative
purpose of the expungement statute is to provide "a
break to young offenders who demonstrate the ability to
comply with the law." Hemp, 359 Wis.2d 320,
¶20 (quoting State v. Leitner, 2002 WI 77,
¶38, 253 Wis.2d 449, 646 N.W.2d 341) . A circuit court
may order expungement "if the court determines the
person will benefit and society will not be harmed by this
disposition." Wis.Stat. § 973.015(lm)(a)l. Under
the statutory scheme, the determination of a defendant's
eligibility for expungement must be made at the time of
sentencing. State v. Matasek, 2014 WI 27, ¶45,
353 Wis.2d 601, 846 N.W.2d 811');">846 N.W.2d 811.
If the circuit court determines that the defendant is
eligible for expungement under Wis.Stat. §
973.015(lm)(a), "the plain language of the statute
indicates that once the defendant successfully completes his
sentence, he has earned, and is automatically entitled to,
expungement." Hemp, 359 Wis.2d 320,
¶23. The statute provides a three-part
definition of what it means to "successfully complete
the sentence" for purposes of earning expungement:
"A person has successfully completed the sentence if 
the person has not been convicted of a subsequent offense
and, if on probation,  the probation has not been revoked
and  the probationer has satisfied the conditions of
probation." § 973.015(lm) (b) (emphasis
added). "If a probationer satisfies these three
criteria, he has earned expungement, and is automatically
entitled to expungement of the underlying charge."
Hemp, 359 Wis.2d 320, ¶23.
We emphasize that, in order to be entitled to expungement,
the probationer must meet all three of the statutory
criteria, including satisfying "all the conditions of
probation." Id., ¶22. Because the three
criteria are distinct, we reject Ozuna's notion that a
probationer has "satisfied the conditions of
probation" under Wis.Stat. § 973.015(lm)(b) simply
because his probation was not revoked. Whether a
probationer's conduct was adequate to avoid revocation is
a question separate and distinct from whether the probationer
"has satisfied all the conditions of
probation." Hemp, 359 Wis.2d 320, ¶22.
To "satisfy" a condition or obligation is to meet
or fulfill it, not merely to avoid the penalty for violating
it. See Satisfy, Webster's Third New
International Dictionary 2017 (2002) ("to conform
to (accepted criteria or requirements): fulfill, meet").
Therefore, the mere fact that a probationer has completed the
term of probationary supervision without revocation does not
necessarily establish that the probationer has also satisfied
the conditions of probation.
Court May Deny Expungement if a Probationer Does Not Satisfy
the Conditions of Probation
Although the expungement statute puts the onus on DOC to
determine whether a probationer has satisfied the conditions
of probation and to notify the court when that occurs,
court has no duty to expunge a probationer's record if
the probationer has not satisfied the conditions of
probation. This is so because a person's statutory
entitlement to expungement depends not on whether the court
receives a particular notice from DOC, but on whether the
probationer meets all of the statutory criteria for the
"successful completion of the sentence."
See Wis. Stat. § 973.015(lm)(b) (providing that
only "[u]pon successful completion of the sentence"
shall a DOC-forwarded certificate of discharge "have the
effect of expunging the record"). In Hemp, we
held that Wis.Stat. § 973.015 (lm) (b) provides for a
"self-executing" expungement process, in which
"the detaining or probationary authority must forward
the certificate of discharge to the court of record upon
the individual defendant's successful completion of his
sentence and at that point the process of expungement is
self-executing." Hemp, 359 Wis.2d 320, ¶25
(emphasis added) . The terms of the statute provide that this
self-executing process is triggered only "[u]pon
successful completion of the sentence, " as the statute
defines that term in § 973.015 (lm) (b) . "In
construing or interpreting a statute the court is not at
liberty to disregard the plain, clear words of the
statute." State v. Pratt, 36 Wis.2d 312, 317,
153 N.W.2d 18 (1967) (internal quotation marks omitted).
Therefore, under the expungement statute, it is proper for
the circuit court to deny expungement if a defendant has not
met all three criteria for the "successful completion of
the sentence" under Wis.Stat. § 973.015(lm)(b),
including satisfying the conditions of
This conclusion is not in conflict with our holding in
Hemp. Although we stated in Hemp that
expungement occurs automatically when DOC "forwards a
certificate of discharge to the court of record, "
Hemp, 359 Wis.2d 320, ¶36, we were resting on
the premise that satisfaction of the conditions of probation
is an indispensable prerequisite to a defendant's
entitlement to expungement. Id., ¶¶22-23.
It was because "Hemp satisfied all the conditions of
probation, " we explained, that his "successful
completion of probation automatically entitled him to
expungement of his conviction." Id., ¶24.
Therefore, Hemp reinforces our understanding that a
probationer's entitlement to expungement turns on whether
the probationer "has satisfied the conditions of
probation, " as is required by Wis.Stat. §
In Hemp, DOC forwarded Hemp's certificate of
discharge to the court, and there was no dispute that Hemp
had successfully completed probation as defined in Wis.Stat.
§ 973.015(lm)(b). "The record clearly indicates
Hemp successfully completed probation, " we concluded,
because Hemp was not convicted of any subsequent offense
while on probation, his probation was not revoked, and
"Hemp satisfied all the conditions of probation."
Hemp, 359 Wis.2d 320, ¶24. In such a scenario,
expungement was "required by statute" and the clerk
of the circuit court accordingly had a duty to expunge the
record upon receiving a copy of the certificate of discharge
from DOC. Id., ¶33 n.ll (quoting SCR 72.06).
But Hemp does not control a case where DOC informs
the circuit court that the probationer violated the
court-ordered conditions of probation. In such a case, where
one of the statutory requirements for the "successful
completion of the sentence" under § 973.015(lm)(b)
has not been met, the probationer has no entitlement to
expungement and the self-executing process we described in
Hemp does not occur.
Our emphasis on the language of the statute is also in accord
with our interpretation of the probation statutes in an
analogous context. In State ex rel. Greer v.
Wiedenhoeft, 2014 WI 19, 353 Wis.2d 307, 845 N.W.2d 373,
where DOC issued a certificate of discharge from probation
before the term of probation had expired, we held that such
certificate did not have the effect of discharging the
probationer. Id., ¶¶41, 51. The statutes
provide that a certificate of discharge is issued
"[w]hen the period of probation for a probationer has
expired, " Wis.Stat. § 973.09(5), but the defendant
relied on two court of appeals decisions which suggested that
the issuance of a certificate was the controlling event that
effectuated discharge. Id., ¶42. We rejected
this argument, explaining that "[n]either decision
stands for the proposition that an erroneously issued
discharge certificate can defeat a valid sentence imposed by
a circuit court." Id. The certificate could not
trump the statute. Similarly, in the expungement context, the
simple fact that DOC forwards a certificate of discharge or
other form to the circuit court does not, by itself,
establish an entitlement to expungement if the record
demonstrates that the probationer has not met the
prerequisites under Wis.Stat. § 973.015(lm)(b).
Circuit Court Properly Denied Expungement
Here, there was never any dispute about the underlying facts
in the record. DOC submitted a form to the court which showed
that Ozuna had violated one of the court-ordered conditions
of his probation. On the form, the probation agent checked a
box marked "All court ordered conditions have
not been met." The agent noted the nature of
the violation, namely, that Ozuna "[f]ailed to comply
with the no alcohol condition, " because he was
"cited for underage drinking." Ozuna has never made
any suggestion that that he did not, in fact, engage in this
conduct during the term of probation.
These facts demonstrate that Ozuna did not meet the criteria
for expungement, because he did not "satisf[y] the
conditions of probation." Wis.Stat. §
973.015(lm)(b). According to his probation agent, Ozuna
engaged in underage drinking in spite of the circuit
court's command to refrain from consuming alcohol. Based
on this clear violation of one of the court-ordered
conditions of probation, Ozuna did not satisfy the conditions
of probation. Therefore, the circuit court properly denied
expungement of Ozuna's record.
Ozuna disagrees, arguing that the "fact that [his] agent
forwarded the Verification Form to the circuit court
communicates her determination that [he] met the
requirements" for expungement. However, looking beyond
the title of the form ("Verification of Satisfaction of
Probation Conditions for Expungement") to its substance
reveals that DOC determined Ozuna had violated one of the
court-ordered conditions of probation. Although we held in
Hemp that a court has no discretion to deny
expungement if a probationer "successfully completed
probation and his probationary authority forwarded
his certificate to the court of record, " Hemp,
359 Wis.2d 320, ¶41 (emphasis added), there was no
dispute in Hemp that the probationer had, in fact,
met the statutory requirements for the successful completion
of probation, including satisfying all the conditions of
probation, id., ¶24. Nothing in Hemp
dictates that the mere receipt of a form from DOC stating
that the probationer "successfully completed"
probation automatically entitles the probationer to
expungement where, as here, the very same form contains a
contradictory determination by DOC that the probationer
violated one of the court-ordered conditions of probation.
Because Ozuna did not satisfy the court-ordered condition
that he abstain from alcohol while on probation, his reliance
on Hemp is unavailing. D. Ozuna's Due Process
Rights Were Not Violated
Finally, we turn to Ozuna's argument that the circuit
court deprived him of his constitutional right to procedural
due process by denying expungement without notice and an
opportunity to be heard. We conclude that Ozuna's due
process rights were not violated.
"The Fourteenth Amendment to the United States
Constitution and art. I, § 1 of the Wisconsin
Constitution prohibit government actions that deprive any
person of life, liberty, or property without due process of
law." Aicher ex rel. LaBarge v. Wis. Patients Comp.
Fund, 2000 WI 98, ¶80, 237 Wis.2d 99, 613 N.W.2d
849. The first step in a procedural due process analysis is
to "examine whether the person has established that a
constitutionally protected property or liberty interest is at
Where a liberty interest has been "initially recognized
and protected by state law, . . . the procedural guarantees
of the Fourteenth Amendment apply whenever the State seeks to
remove or significantly alter that protected status."
Paul v. Davis, 424 U.S. 693, 710-11 (1976) . We note
that "[r]eputation by itself is neither liberty nor
property within the meaning of the due process clause of the
fourteenth amendment." Weber v. City of
Cedarburg, 129 Wis.2d 57, 73, 384 N.W.2d 333 (1986) .
Rather, "a person's reputation is protected by
procedural due process only when damage to the reputation is
accompanied by the alteration or elimination of a right or
status previously recognized by state law."
Stipetich v. Grosshans, 2000 WI.App. 100, ¶24,
235 Wis.2d 69, 612 N.W.2d 346. "In such a case, due
process would accord an opportunity to refute the charge . .
. ." Bd. of Regents of State Colls, v. Roth,
408 U.S. 564, 573 (1972) . "The purpose of such notice
and hearing is to provide the person an opportunity to clear
his name." Id. at 573 n.12.
Here, Ozuna argues that he had a protected liberty interest
in expungement of his record because the circuit court
ordered, at the time of Ozuna's sentencing, that his
conviction was eligible for expungement. The expungement
statute, Ozuna argues, "creates a substantive right
under state law" to have the stigma of a criminal
conviction removed. He relies on our statement in
Hemp that "once the defendant successfully
completes his sentence, he has earned, and is automatically
entitled to, expungement." Hemp, 359 Wis.2d
320, ¶23. Ozuna further argues that he was deprived of
this right without due process of law, because the circuit
court did not provide him with notice and an opportunity to
be heard before it denied expungement. Ozuna analogizes a
denial of expungement to a revocation of probation. This
court has recognized that due process requires an evidentiary
hearing before the State may revoke probation, State ex
rel. Johnson v. Cady, 50 Wis.2d 540, 548, 185 N.W.2d 306
(1971), and Ozuna argues that the same rule should apply to a
denial of expungement.
We disagree with Ozuna and hold that he did not have a
protected liberty interest in expungement in this case. The
reason that a probationer has a protected liberty interest in
remaining on probation is because the probationer has already
been granted a conditional right to freedom. See
Johnson, 50 Wis.2d at 548 ("After one has
gained the conditional freedom of a probationer . . .
the state cannot summarily revoke such status . . . .")
(emphasis added). By contrast, Ozuna cannot claim that he
gained any entitlement to expungement, because the record
shows that he did not meet the statutory criteria for
"successful completion ...