Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Arberry

Supreme Court of Wisconsin

January 19, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Diamond J. Arberry, Defendant-Appellant-Petitioner.

          Submitted on Briefs: oral argument: November 14, 2017

         Fond du Lac county Circuit Court L.C. No. 2015CF294 Peter L. Grimm Judge

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d 179, 895 N.W.2d 100 PDC NO: 2017 WI.App. 26.

          For the defendant-appellant-petitioner, there were briefs and an oral argument by Ellen J. Krahn, assistant state public defender.

          For the plaintiff-respondent, there was a brief and oral argument by Christine A. Remington, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

          ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of a published decision of the court of appeals, State v. Arberry, 2017 WI.App. 26, 375 Wis.2d 179, 895 N.W.2d 100, affirming the Fond du Lac County circuit court's[1] denial of Diamond J. Arberry's ("Arberry") postconviction motion seeking expunction[2] pursuant to Wis.Stat. § 973.015 (2013-14)[3] vis-a-vis sentence modification under Wis.Stat. § 809.30 (2) (h) .

         ¶2 In a criminal action by the State, Arberry was charged with five crimes relating to an incident of shop-lifting on May 13, 2015: two counts of felony retail theft under Wis.Stat. § 943.50(lm) (d) and (4) (bf) for intentionally concealing merchandise worth between $500 and $5, 000; one count of attempted misdemeanor retail theft under § 943.50(lm)(b) and (4)(a) for intentionally attempting to take merchandise worth less than or equal to $500; one count of obstructing an officer under Wis.Stat. § 946.41(1); and one count of resisting an officer under § 946.41(1). All counts were charged with repeater enhancers.

         ¶3 In the circuit court, Arberry pled no contest to counts one and three; count two was dismissed and counts four and five were dismissed but read in. At the plea hearing, the circuit court accepted Arberry's pleas, found Arberry guilty, and proceeded to sentencing. No mention was made during sentencing of Arberry's eligibility for expunction. After the judgments of conviction were entered and the sentence imposed, Arberry filed a postconviction motion for sentence modification seeking entry of amended judgments of conviction finding that Arberry was eligible for expunction. The circuit court denied the motion, holding that Wis.Stat. § 973.015 requires expunction to be granted at the time of sentencing. Arberry appealed.

         ¶4 The court of appeals affirmed. It held that this court's recent case, State v. Matasek, 2014 WI 27, 353 Wis.2d 601, 846 N.W.2d 811');">846 N.W.2d 811, controlled and directed that the determination regarding expunction "must be made at sentencing." Arberry, 375 Wis.2d 179, ¶l.

         ¶5 We consider one issue on this appeal: whether a defendant may seek expunction after sentence is imposed. We conclude that a defendant may not seek expunction after sentence is imposed because both the language of Wis.Stat. § 973.015 and Matasek require that the determination regarding expunction be made at the sentencing hearing.

         ¶6 Thus, we affirm the decision of the court of appeals.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶7 The State charged Arberry with the following five crimes: (1) retail theft under Wis.Stat. § 943.50(lm) (d) and (4) (bf), for intentionally concealing merchandise worth between $500 and $5, 000 held for resale by Victoria's Secret without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (2) retail theft under § 943.50(lm) (d) and (4) (bf), for intentionally concealing merchandise worth between $500 and $5, 000 held for resale by TJ Maxx without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (3) attempted misdemeanor retail under § 943.50(lm)(b) and (4)(a), for attempting to intentionally take and carry away merchandise worth up to $500 held for resale by the Buckle without the consent of the merchant and with intent to deprive the merchant permanently of possession of the merchandise; (4) obstructing an officer under Wis.Stat. § 946.41(1), for knowingly obstructing an officer while such officer was doing an act in an official capacity and with lawful authority; and (5) resisting an officer under § 946.41(1), for knowingly resisting an officer while such officer was doing an act in an official capacity and with lawful authority.

         ¶8 On August 27, 2015, Arberry pled no contest to count one without the repeater enhancer, and to count three as charged. Count two was dismissed and counts four and five were dismissed but read in. The circuit court accepted Arberry's pleas as to counts one and three and found Arberry guilty.

         ¶9 The circuit court then sentenced Arberry. On count one, for felony retail theft in violation of Wis.Stat. § 943.50(lm)(d), Arberry was sentenced to one year initial confinement and two years extended supervision, to be served concurrently. On count three, for misdemeanor attempted retail theft in violation of § 943.50 (lm) (b), Arberry was sentenced to two years of probation, to be served consecutively to the sentence for count one, with an imposed and stayed sentence of one year of initial confinement and one year of extended supervision. The issue of expunction was not raised during this hearing.

         ¶10 On February 17, 2016, Arberry filed a postconviction motion for sentence modification under Wis.Stat. § 809.30(2) (h) seeking entry of amended judgments of conviction finding that she was eligible for expunction. She argued that the circuit court has inherent power to modify a sentence if there is a "new factor."[4] She then argued that Matasek's "clarification of when the court must exercise its discretion to determine eligibility for [expunction] constitutes a 'new factor' that [the circuit court] may take into consideration" in modifying her sentence because, although it was in existence at the time of the original sentencing, it was "unknowingly overlooked by all of the parties. "[5]

         ¶11 On March 24, 2016, the circuit court held a hearing on Arberry's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.