Expungement / Record Sealing Petition and Eligibility Memo — Wisconsin

Expungement / Record Sealing Petition and Eligibility Memo (WISCONSIN)

Quick-Reference Summary

PART A — ELIGIBILITY MEMO

MEMORANDUM

TO: [CLIENT]
FROM: [ATTORNEY]
DATE: [__/__/____]
RE: Eligibility for Expungement Under Wis. Stat. § 973.015
PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / WORK PRODUCT

I. Executive Summary

Wisconsin's expungement statute, Wis. Stat. § 973.015, is fundamentally different from the post-disposition expungement frameworks of most other states. The expungement decision must be made at the time of sentencing. If a defendant fails to request, or the court fails to grant, expungement at sentencing, the defendant is permanently barred from obtaining expungement under Wisconsin law — regardless of subsequent rehabilitation, time elapsed, or compelling circumstances. See State v. Matasek, 2014 WI 27; State v. Arberry, 2018 WI 7.

Eligibility requires: (i) the offense was committed before the defendant's 25th birthday; (ii) the offense carries a maximum sentence of 6 years or less (misdemeanors, Class H felonies, and Class I felonies — but with categorical exclusions for violent and certain child- and sex-related Class H/I felonies); (iii) the sentencing court finds that the defendant will benefit from expungement AND society will not be harmed; and (iv) the defendant successfully completes the sentence without subsequent conviction or probation violation. Per State v. Lickes, 2021 WI 60, even a probation violation that did not result in revocation can disqualify expungement. Expungement removes the case from the Wisconsin Circuit Court Access Program (CCAP) and from court records but does NOT reach the records of the Wisconsin DOJ Crime Information Bureau, district attorneys, the Department of Corrections, law-enforcement agencies, or the Department of Transportation. The conviction itself is not vacated, reversed, or set aside. State v. Leitner, 2002 WI 77.

This memo therefore addresses two distinct scenarios: (A) pre-sentencing — preparing a motion for the court to order expungement at sentencing; and (B) post-sentence — confirming and effectuating expungement after successful completion.

II. Governing Law

1. Wis. Stat. § 973.015 — primary expungement statute.
2. Wis. Stat. § 973.015(1m)(a)(1) — eligibility (age, maximum penalty, sentencing-court order).
3. Wis. Stat. § 973.015(1m)(a)(3) — excluded offenses.
4. Wis. Stat. § 343.23(2)(a) — DOT records expressly not subject to expungement.
5. Wis. Stat. § 301.048(2)(bm) — violent-offense definition (used in Class H/I exclusion).
6. Wis. Stat. § 948.23(1)(a) — concealing death of a child (Class I exclusion).
7. State v. Matasek, 2014 WI 27, 353 Wis. 2d 601 — expungement decision must be at sentencing.
8. State v. Arberry, 2018 WI 7, 379 Wis. 2d 254 — confirms no postconviction motion for expungement.
9. State v. Hemp, 2014 WI 129, 359 Wis. 2d 320 — expungement is automatic upon successful completion; court records "sealed, destroyed, obliterated, or otherwise removed entirely from view."
10. State v. Lickes, 2021 WI 60, 397 Wis. 2d 586 — probation violation can disqualify expungement even without revocation.
11. State v. Leitner, 2002 WI 77, 253 Wis. 2d 449 — conviction is not vacated; underlying facts remain usable for sentencing and repeater enhancement.
12. State v. Anderson, 160 Wis. 2d 435 (Ct. App. 1991) — expunged conviction not admissible to attack credibility.

III. Eligibility Checklist

IV. Categorical Exclusions (§ 973.015(1m)(a)(3))

Class H Felony Exclusions

A Class H felony is NOT eligible for expungement if any of the following apply:

(a) The defendant has a prior felony conviction (any class);
(b) The offense is classified as violent under Wis. Stat. § 301.048(2)(bm);
(c) The offense is stalking under § 940.32;
(d) The offense is physical abuse of a child under § 948.03;
(e) The offense is sexual assault of a child by school staff or person who works/volunteers with children under § 948.095.

Class I Felony Exclusions

A Class I felony is NOT eligible for expungement if:

(a) The offense is classified as violent under § 301.048(2)(bm); or
(b) The offense is concealing the death of a child under § 948.23(1)(a).

Other Exclusions

• Intoxicated-driving offenses (OWI / DUI under § 346.63 and related statutes) are not eligible for expungement.
• Offenses committed at or after age 25 are categorically ineligible.
• Felonies higher than Class H/I (Class A, B, C, D, E, F, G) are categorically ineligible because they carry maximum sentences exceeding 6 years.

V. The At-Sentencing Rule — Practitioner Trap

Per State v. Matasek and State v. Arberry, the court's expungement determination must be made at the sentencing hearing. The Wisconsin Supreme Court has held:

"If a circuit court is going to exercise its discretion to expunge a record, the discretion must be exercised at the sentencing proceeding." State v. Matasek, 2014 WI 27, ¶ 45.

The court has no obligation to raise expungement sua sponte. The burden is on defense counsel (or a pro se defendant) to request expungement at sentencing. If not requested and granted then, expungement is permanently lost.

CRITICAL PRACTICE NOTE: A failure to request expungement at sentencing in an eligible case may constitute ineffective assistance of counsel. The standard analysis under Strickland v. Washington applies; a postconviction motion under § 974.06 may be available if the failure rises to that level — but the remedy is resentencing, not direct expungement.

VI. Discretionary Standard

The court "may" (not "shall") order expungement only if it finds:

(a) The defendant will benefit from expungement, AND
(b) Society will not be harmed.

The court must place its reasoning on the record. Factors typically considered include:

• The nature and severity of the offense;
• The defendant's youth, lack of prior criminal history, and rehabilitative potential;
• Family/community ties; education and employment;
• Educational, vocational, or military aspirations that would be impeded by a conviction record;
• Any victim impact;
• Public-safety considerations.

VII. Successful Completion (§ 973.015(1m)(b))

"Successful completion" means:

(a) Complete service of any term of imprisonment, including extended supervision;
(b) Complete service of any term of probation without revocation;
(c) Per State v. Lickes, 2021 WI 60: NO probation violation, even if the violation did not result in revocation;
(d) No subsequent criminal conviction during the term of probation/extended supervision;
(e) Payment of all court-ordered restitution, fines, costs, and fees.

CRITICAL PRACTICE NOTE: Lickes changed the landscape for clients on probation. Even a missed appointment, a positive UA, or another technical violation — even where the agent did not initiate revocation — can disqualify expungement. Counsel client to maintain spotless compliance and to document any disputed alleged violations contemporaneously.

VIII. Effect of Expungement (§ 973.015(1m)(b); State v. Hemp)

(a) Court records are "sealed, destroyed, obliterated, or otherwise removed entirely from view." Hemp, 2014 WI 129, ¶ 1.

(b) CCAP (Wisconsin Circuit Court Access Program) removes the case from public view; only the case number remains.

(c) The conviction is NOT vacated, set aside, or reversed. Leitner, 2002 WI 77.

(d) Records NOT reached by expungement:

• Wisconsin DOJ Crime Information Bureau (CIB) repository;
• District attorney's office files;
• Department of Corrections files;
• Law-enforcement agency files (police, sheriff);
• Wisconsin Department of Transportation records (§ 343.23(2)(a)).

(e) Employers and licensing agencies running background checks through DOJ-CIB or commercial vendors who source from CIB may still discover the conviction.

(f) Courts may still consider the underlying facts of the expunged offense for sentencing in future cases, repeater enhancement, or character analysis. Leitner.

(g) An expunged conviction is NOT admissible to attack a witness's credibility. State v. Anderson, 160 Wis. 2d 435 (Ct. App. 1991).

IX. Strategic Recommendations

Pre-Sentencing (preferred timing)

1. Identify all eligibility elements (age, offense class, no categorical exclusion) BEFORE the plea.
2. File a written motion for expungement at sentencing (Part B.1 below) and submit a sentencing memorandum addressing the Matasek "benefit/no harm" finding.
3. Negotiate with the prosecutor for non-opposition where possible.
4. Bring evidence to sentencing supporting the discretionary findings (school transcripts; employment letters; military enlistment documents; treatment-completion certificates; family/community letters of support).
5. If the court denies expungement at sentencing, preserve the issue for direct appeal — there is no postconviction remedy.

Post-Sentence (effectuation)

1. Confirm successful completion: probation discharge order; no subsequent convictions; no documented violations.
2. File Notice of Successful Completion with clerk (Part B.2 below).
3. Request order directing CCAP to remove case from public view.
4. Provide certified copy of expungement order to client and explain limits (DOJ-CIB, DOT, DOC, and law-enforcement records remain).

PART B — MOTION TEMPLATES

B.1 — Motion for Expungement at Sentencing

STATE OF WISCONSIN
CIRCUIT COURT
[COUNTY] COUNTY

DEFENDANT'S MOTION FOR EXPUNGEMENT PURSUANT TO Wis. Stat. § 973.015

Defendant, [DEFENDANT NAME], by and through undersigned counsel, hereby moves this Honorable Court at the time of sentencing to order expungement of the record of the above-captioned case upon Defendant's successful completion of the sentence, pursuant to Wis. Stat. § 973.015(1m)(a)(1), and in support states:

I. Statutory Eligibility

1. Age at offense: Defendant was [AGE] years old at the time the offense was committed, which is before Defendant's 25th birthday. (Date of birth: [__/__/____]; date of offense: [__/__/____].)

2. Offense classification: The offense [or the most serious offense for which the Court will impose sentence] is [OFFENSE NAME], in violation of Wis. Stat. § [CITATION], classified as a [MISDEMEANOR / CLASS H FELONY / CLASS I FELONY], carrying a maximum sentence of [____ months/years], which is six (6) years or less.

3. No categorical exclusion (Class H felony only — strike if not applicable):
   - ☐ Defendant has no prior felony conviction;
   - ☐ The offense is NOT classified as violent under Wis. Stat. § 301.048(2)(bm);
   - ☐ The offense is NOT stalking under § 940.32;
   - ☐ The offense is NOT physical abuse of a child under § 948.03;
   - ☐ The offense is NOT sexual assault by school staff under § 948.095.

4. No categorical exclusion (Class I felony only — strike if not applicable):
   - ☐ The offense is NOT classified as violent under § 301.048(2)(bm);
   - ☐ The offense is NOT concealing the death of a child under § 948.23(1)(a).

5. Not an intoxicated-driving offense: The offense is not a violation of Wis. Stat. § 346.63 or other intoxicated-driving statute.

II. The Court's Discretionary Findings (Matasek, Hemp)

6. Pursuant to Wis. Stat. § 973.015(1m)(a)(1) and State v. Matasek, 2014 WI 27, the Court must determine at sentencing that:

(a) Defendant will benefit from expungement; AND
(b) Society will not be harmed by expungement.

7. Defendant Will Benefit:

(a) Educational aspirations: [DESCRIBE — e.g., enrollment in [SCHOOL], degree program in [FIELD], scholarship eligibility, professional licensing implications]

(b) Employment / vocational impact: [DESCRIBE — current employment with [EMPLOYER]; future career goals; industries/positions barred by a conviction record]

(c) Military service: [DESCRIBE — enlistment plans; conviction would bar enlistment / require waiver]

(d) Housing / family / community: [DESCRIBE — housing applications; family responsibilities; community service involvement]

(e) Rehabilitative trajectory: [DESCRIBE — youthful age; first-time offender status; lack of pattern; demonstrated rehabilitation since arrest, including treatment, counseling, school re-enrollment]

8. Society Will Not Be Harmed:

(a) Nature and circumstances of offense: [BRIEF DESCRIPTION SHOWING LIMITED CULPABILITY / VICTIM IMPACT]

(b) No pattern of criminal conduct: Defendant has no prior criminal history [or has only limited prior history with [DESCRIBE]];

(c) Probation / sentence will provide accountability: The sentence the Court imposes will hold Defendant accountable and provide an opportunity for rehabilitation;

(d) Public safety: [DESCRIBE WHY EXPUNGEMENT WILL NOT POSE A RISK];

(e) Conviction underlying facts remain available: Per State v. Leitner, 2002 WI 77, the underlying facts of the offense will remain available to law enforcement, prosecutors, and future sentencing courts, so the public-safety interest is preserved.

III. Supporting Evidence

9. Attached:
   - ☐ Exhibit A — Sentencing memorandum
   - ☐ Exhibit B — Defendant's letter to the Court
   - ☐ Exhibit C — Letters of support (family, employer, teachers, clergy, community)
   - ☐ Exhibit D — School transcripts / enrollment letters
   - ☐ Exhibit E — Treatment / counseling completion certificates
   - ☐ Exhibit F — Military enlistment / employment offer documentation (if applicable)
   - ☐ Exhibit G — Proof of completed community service / restitution payments

IV. Requested Order

WHEREFORE, Defendant respectfully requests that this Honorable Court:

(a) At the time of sentencing, find that Defendant will benefit from expungement and that society will not be harmed;

(b) Order, pursuant to Wis. Stat. § 973.015(1m)(a)(1), that the record of the above-captioned case shall be expunged upon Defendant's successful completion of the sentence;

(c) Direct that upon successful completion (full service of any term of incarceration, probation, parole, or extended supervision without subsequent conviction and without probation violation), the clerk shall seal, destroy, obliterate, or otherwise remove the record from view per State v. Hemp, 2014 WI 129;

(d) Grant such further relief as is just.

Respectfully submitted,

_________________________________
[ATTORNEY NAME], SBN [____]
[FIRM NAME]
[ADDRESS]
[PHONE / EMAIL]
Attorney for Defendant

Date: [__/__/____]

B.2 — Notice of Successful Completion / Motion to Effectuate Expungement

STATE OF WISCONSIN
CIRCUIT COURT
[COUNTY] COUNTY

NOTICE OF SUCCESSFUL COMPLETION OF SENTENCE AND MOTION TO EFFECTUATE EXPUNGEMENT PURSUANT TO Wis. Stat. § 973.015 AND STATE v. HEMP

Defendant, [DEFENDANT NAME], by undersigned counsel, hereby provides Notice of Successful Completion of his/her sentence and respectfully moves this Honorable Court to effectuate expungement of the record of the above-captioned case as previously ordered by this Court at sentencing on [__/__/____], and in support states:

I. Prior Expungement Order

1. On [__/__/____], this Court entered judgment in the above-captioned case and ordered, pursuant to Wis. Stat. § 973.015(1m)(a)(1), that the record be expunged upon Defendant's successful completion of the sentence. [Cite to the relevant page of the sentencing transcript or judgment of conviction.]

II. Successful Completion of Sentence

2. Service of incarceration / probation / extended supervision: Defendant has fully served the sentence imposed by this Court, including [DESCRIBE — e.g., the term of incarceration; the term of probation that ended on [__/__/____]; extended supervision; community service]. Documentation attached as Exhibit A.

3. No probation revocation: Defendant was discharged from probation without revocation on [__/__/____]. Probation Discharge Certificate / Order attached as Exhibit B.

4. No probation violation (per State v. Lickes, 2021 WI 60): Defendant did not violate any condition of probation during the term of supervision. [If there were any alleged or technical violations, address them here and explain why they do not disqualify under Lickes.]

5. No subsequent conviction: Defendant has not been convicted of any criminal offense subsequent to the conviction in this case. Current CCAP / WCCA query attached as Exhibit C.

6. Restitution, fines, costs, fees: All court-ordered financial obligations have been paid in full. Receipts attached as Exhibit D.

III. Effect of Successful Completion (per State v. Hemp)

7. Per State v. Hemp, 2014 WI 129, expungement is automatic upon successful completion. The court records relating to this case are required to be "sealed, destroyed, obliterated, or otherwise removed entirely from view." Hemp, ¶ 1.

IV. Requested Order

WHEREFORE, Defendant respectfully requests that this Honorable Court:

(a) Find that Defendant has successfully completed the sentence imposed in the above-captioned case;

(b) Direct the Clerk of Courts to:
(1) Seal, destroy, obliterate, or otherwise remove from view all records relating to the above-captioned case;
(2) Remove the case from public view on the Wisconsin Circuit Court Access Program (CCAP / WCCA), leaving only the case number;
(3) Notify the Wisconsin Department of Justice that the conviction has been expunged for purposes of § 973.015 (acknowledging that DOJ-CIB records are not subject to expungement);

(c) Enter a written order of expungement for Defendant's records;

(d) Grant such further relief as is just.

Respectfully submitted,

_________________________________
[ATTORNEY NAME], SBN [____]
[FIRM NAME]
[ADDRESS]
[PHONE / EMAIL]
Attorney for Defendant

Date: [__/__/____]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this Notice and Motion was served on the District Attorney for [COUNTY] on [__/__/____] via [METHOD].

_________________________________
[ATTORNEY NAME]

PART C — FILING CHECKLIST

C.1 — Pre-Sentencing Diligence

☐ Confirm date of birth and calculate age at offense (must be under 25)
☐ Confirm offense class (must be misdemeanor, Class H, or Class I)
☐ Confirm maximum sentence is 6 years or less
☐ Verify NOT an intoxicated-driving offense
☐ For Class H felony: confirm no prior felony; confirm not violent under § 301.048(2)(bm); confirm not stalking, child abuse, or sexual assault by school staff
☐ For Class I felony: confirm not violent under § 301.048(2)(bm); confirm not § 948.23(1)(a)
☐ Pull defendant's CCAP/WCCA record and DOJ-CIB rap sheet
☐ Confirm no prior felony conviction
☐ Discuss expungement strategy with prosecution during plea negotiations

C.2 — Sentencing-Stage Filing

☐ Draft and file Motion for Expungement (Part B.1) prior to sentencing
☐ Prepare sentencing memorandum addressing Matasek "benefit / no harm" findings
☐ Gather supporting evidence (letters of support, school records, employment offers, treatment certificates)
☐ Prepare defendant to address the Court directly on expungement
☐ Be prepared to address Court's questions about future risk, recidivism, and rehabilitation
☐ If the Court denies expungement: preserve issue for direct appeal — no postconviction remedy

C.3 — During Sentence

☐ Counsel client to maintain PERFECT compliance with all probation conditions
☐ Document any disputed alleged probation violations contemporaneously
☐ Advise client of State v. Lickes, 2021 WI 60 — even a non-revocation violation can disqualify
☐ Counsel client to avoid any contact with law enforcement
☐ Monitor probation status; obtain copies of progress reports
☐ Pay all restitution, fines, costs, fees timely

C.4 — Post-Completion Effectuation

☐ Obtain probation discharge order / certificate of release from supervision
☐ Obtain certificate of completion from Department of Corrections (if applicable)
☐ Pull current CCAP/WCCA showing no subsequent convictions
☐ Compile receipts for all financial obligations paid
☐ Confirm no probation violations during supervision (per Lickes)
☐ File Notice of Successful Completion and Motion to Effectuate (Part B.2)
☐ Serve District Attorney

C.5 — Post-Order Counseling

☐ Provide client with certified copy of expungement order
☐ Explain that CCAP/WCCA will show only case number; full record removed from public view
☐ Explain limits of expungement:

• Conviction is NOT vacated (Leitner)
• DOJ-CIB rap sheet retains record
• DOT records retain record (§ 343.23(2)(a))
• DOC, district attorney, law-enforcement files retain record
• Future sentencing courts may consider underlying facts
  ☐ Advise that for most employment/housing/licensing background checks, only CCAP-sourced or court-sourced reports will be affected; CIB-sourced reports will still show the conviction
  ☐ Advise client to submit certified order to private background-check vendors
  ☐ Per State v. Anderson, 160 Wis. 2d 435 (1991): expunged conviction not admissible to attack credibility
  ☐ Counsel client that expungement does NOT remove conviction for federal firearms, immigration, or military disclosure purposes

C.6 — Ineffective-Assistance Considerations

☐ If a prior attorney failed to request expungement at sentencing in an eligible case: evaluate § 974.06 ineffective-assistance claim
☐ Remedy is resentencing, NOT direct expungement
☐ Apply Strickland v. Washington / State v. Pitsch framework
☐ Document the prejudice (defendant was clearly eligible; reasonable probability court would have granted)

SOURCES AND REFERENCES

• Wis. Stat. § 973.015: https://docs.legis.wisconsin.gov/statutes/statutes/973/015
• Wis. Stat. § 301.048(2)(bm) (violent offense definition): https://docs.legis.wisconsin.gov/statutes/statutes/301/048
• Wis. Stat. § 948.23 (concealing death of a child): https://docs.legis.wisconsin.gov/statutes/statutes/948/23
• Wis. Stat. § 343.23 (DOT records): https://docs.legis.wisconsin.gov/statutes/statutes/343/23
• State v. Hemp, 2014 WI 129: https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=131915
• State v. Matasek, 2014 WI 27: https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=110340
• State v. Arberry, 2018 WI 7: https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=205749
• State v. Lickes, 2021 WI 60: https://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=350547
• State v. Leitner, 2002 WI 77: https://www.wicourts.gov/html/ca/00/00-1718.htm
• Wisconsin Legislative Council, 2021 Issue Brief on Expungement: https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2021/courts_and_criminal_law/ib_expungement_ph_2021_01_26
• National Reentry Resource Center, Wisconsin Adult Convictions Profile: https://nationalreentryresourcecenter.org/cleanslate/states/wisconsin/policies/wi-c-1
• Wisconsin State Public Defender, Expungement Resources: https://www.wispd.gov/
• Wisconsin Circuit Court Access (CCAP/WCCA): https://wcca.wicourts.gov/