Errata: State v. Melody P. M.
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COURT OF APPEALS
DECISION
DATED AND FILED
June 10, 2010
David R. Schanker
Clerk of Court of Appeals
Appeal No.
2009AP2994
STATE OF WISCONSIN
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2000CM2163
IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
MELODY P. M.,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Dane County:
JULIE GENOVESE, Judge. Affirmed.
¶1
SHERMAN, J.1 The State appeals an order of the circuit court
expunging Melody P.M.’s civil conviction for retail theft in violation of DANE
COUNTY ORDINANCE § 32.03 (June 2003). The State contends that the court did
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2007-08).
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
No. 2009AP2994
not have authority to expunge the civil conviction. We disagree and therefore
affirm.
BACKGROUND
¶2
In 2000, Melody P.M. was charged with retail theft in violation of
WIS. STAT. § 943.50(1m) (1999-2000). The charge stemmed from an incident in
which Melody P.M. took from a merchant an item valued at $4.39 without paying
for it. Melody P.M. was seventeen years old at the time. Pursuant to a plea
agreement, Melody P.M. pled no contest to DANE COUNTY ORDINANCE § 32.03,
which adopts § 943.50. The penalty for violating § 32.03 is limited to a civil
forfeiture. See DANE COUNTY ORDINANCE § 32.09 (June 2003).
¶3
On July 28, 2009, Melody P.M. requested that the circuit court
expunge her civil conviction pursuant to WIS. STAT. § 973.015.
The State
contested Melody P.M.’s request, arguing the conviction could not be expunged
under § 973.015 because the penalty for violation of DANE COUNTY ORDINANCE
§ 32.03 was only a forfeiture. The circuit court, however, expressed concern that
under the State’s theory, it would have authority to expunge a misdemeanor
conviction but not a less severe civil conviction penalized only by forfeiture. The
result being that Melody P.M. would still have an offense on record merely
because she entered a plea to § 32.03 and not the original misdemeanor charge.
Based on this concern and notwithstanding its observation of a likely appeal, the
court ordered Melody P.M.’s conviction expunged. The State appeals.2
2
“We may, at our discretion, summarily reverse if the respondent fails to brief an appeal
if we determine that he or she has abandoned the appeal or has acted egregiously or in bad faith.”
Daniels v. Wisconsin Chiropractic Examining Bd., 2008 WI App 59, ¶ 3 n.3, 309 Wis. 2d 485,
750 N.W.2d 951. We choose not to do so in this case.
2
No. 2009AP2994
DISCUSSION
¶4
The State contends that the circuit court erred in expunging Melody
P.M.’s civil forfeiture conviction because expungement of a civil forfeiture is not
authorized under WIS. STAT. § 973.015 since the conduct punishable by the civil
forfeiture is not a crime. The State relies upon State v. Michaels, 142 Wis. 2d
172, 417 N.W.2d 415 (Ct. App. 1987), wherein the court held that expungement of
a civil forfeiture is not permitted under § 973.015. See Michaels, 142 Wis. 2d at
177.
¶5
In Michaels, the defendant sought the expungement of a conviction
which was penalized only by a forfeiture. The Michaels court held, however, that
WIS. STAT. § 973.015 “applies only to misdemeanors, not forfeitures.” Id. When
Michaels was decided, WIS. STAT. § 973.015 provided as follows:
973.015 Misdemeanors, special disposition. (1)
When a person under the age of 21 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 penalty is imprisonment for one year or less in
the county jail, 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.
See id. at 176.
In determining that § 973.015 is not applicable to offenses
punishable only by forfeiture, the court in Michaels focused on the title of the
statute, which it observed “can be persuasive of the statute’s interpretation.” Id. at
177.
The court found the usage of the word “Misdemeanor” to be a clear
indication that non-criminal actions are not eligible for expungement under
§ 973.015. The court explained, “[a] misdemeanor is any crime other than one
punishable by imprisonment in the state prisons, whereas ‘[c]onduct punishable
3
No. 2009AP2994
only by a forfeiture is not a crime.’” Id. (citations omitted). Thus, according to
the court in Michaels, non-criminal offenses are not eligible for expungement
under § 973.015.
¶6
Effective June 30, 2009, see 2009 Wis. Act 28, WIS. STAT. § 973.015
was amended to provide as follows:
973.015 Special disposition. (1)(a) Subject to par.
(b) and except as provided in par. (c), when 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….
2008 Wis. Act 28, §§ 3384-3385.
¶7
The June 30, 2009 amendment to WIS. STAT. § 973.015, in addition
to enlarging the maximum period of imprisonment a violation may have in order
to be eligible for expungement, eliminated the term “Misdemeanors” from the
name of the statute. Absent that term, there is nothing in the plain language of
§ 973.015 limiting its application to only misdemeanor offenses. See State ex rel.
Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110 (“statutory interpretation ‘begins with the language of the statute. If
the meaning of the statute is plain, we ordinarily stop the inquiry.’”). We therefore
conclude that following the effective date of the amendment to the statute,
§ 973.015 applies not only to misdemeanors, but also to forfeitures.
¶8
Melody P.M. requested the expungement of her civil conviction on
July 30, 2009, approximately thirty days after the effective date of the amendment
to WIS. STAT. § 973.015. Because on that date § 973.015 applied to misdemeanors
4
No. 2009AP2994
as well as forfeitures, the circuit court was permitted to expunge Melody P.M.’s
conviction. We therefore affirm the order of the court expunging Melody P.M.’s
2000 conviction for violation of DANE COUNTY ORDINANCE § 32.03.
By the Court.—Order affirmed.
This opinion will not be published.
809.23(1)(b)4.
5
See WIS. STAT. RULE
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