State v. Anthony S. Barbuto

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT II
November 3, 2021
To:
Hon. James K. Muehlbauer
Circuit Court Judge
Electronic Notice
Theresa Russell
Clerk of Circuit Court
Washington County
Electronic Notice
Mark Bensen
Electronic Notice
Sarah Burgundy
Electronic Notice
Timothy A. Provis
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2020AP1253-CR State of Wisconsin v. Anthony S. Barbuto (L.C. #2016CF189)
Before Gundrum, P.J., Neubauer and Reilly, JJ.
Summary disposition orders may not be cited in any court of this state as precedent or
authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Anthony S. Barbuto appeals from judgments convicting him of fleeing/eluding and
forgery. On appeal, he challenges the circuit court’s refusal to order expungement of his
convictions after he successfully completes probation. Based upon our review of the briefs and
record, we conclude at conference that this case is appropriate for summary disposition. See
WIS. STAT. RULE 809.21 (2019-20).1 We conclude that the issue is not preserved for appeal and,
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

No. 2020AP1253-CR
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even if it were preserved, the circuit court properly exercised its discretion when it declined to
expunge Barbuto’s convictions. We affirm.
We agree with the State that in order to challenge the circuit court’s refusal to expunge
his convictions, Barbuto had to first file a postconviction motion in the circuit court. A
discretionary decision regarding expunction2 is part of the sentencing proceeding. WIS. STAT.
§ 973.015(1m)(a)1; State v. Arberry, 2018 WI 7, ¶¶15, 20, 379 Wis. 2d 254, 905 N.W.2d 832
(expunction is only addressed at the sentencing hearing and is discretionary with the circuit
court). Therefore, a challenge to a circuit court’s refusal to expunge must begin with a
postconviction motion. See State v. Walker, 2006 WI 82, ¶31, 292 Wis. 2d 326, 716 N.W.2d
498 (postconviction motion required to challenge an exercise of discretion at sentencing).3 Even
though Barbuto’s challenge is not properly before us, we will address it.
Although this appeal is taken from convictions for fleeing/eluding and forgery, a total of
six cases were resolved at the same time, including felony bail jumping charges that were read in
at sentencing. The sentencing record shows that the circuit court was aware of and considered
Barbuto’s relentless and disturbing campaign to gain custody of or control over the adult victim
via forged adoption, power of attorney and guardianship documents and his harassing and
2 When used as a noun, expunction and expungement are interchangeable. State v. Arberry,
2018 WI 7, ¶1 n.2, 379 Wis. 2d 254, 905 N.W.2d 832.
3 That Barbuto requested expunction at sentencing did not obviate the requirement that he file a
postconviction motion.

No. 2020AP1253-CR
3
threatening behavior thereafter. While he was on bond for the forgery case,4 Barbuto violated
his bond conditions when he had multiple contacts with the victim and her family. After being
alerted to the contacts, the police located Barbuto who then led police on a high-speed pursuit.
Barbuto was later apprehended in another county.
In urging the circuit court to expunge his convictions, Barbuto argued at sentencing that
he was a few months shy of twenty-five when he committed the crimes, and his convictions
should be expunged if he successfully completes his probation. He also argued that he has
engaged in prosocial activities, some of which the circuit court acknowledged in its sentencing
remarks.
In its sentencing remarks, the circuit court found that Barbuto’s conduct “terroriz[ed]” the
victim and her family over a lengthy period of time, and his conduct was “very grave and very
serious” and dangerous. The victim and her family were significantly impacted by Barbuto’s
conduct and required protection from him. Barbuto’s conduct toward the victim continued
despite prior mental health and other treatment and despite numerous additional consequences
for his repeated violation of court orders in connection with the victim. The court deemed this
behavior a “troubling” part of Barbuto’s character. The court also found very troubling that
Barbuto manipulated events involving the victim’s family such that a S.W.A.T. unit responded to
the victim’s home, which created a dangerous situation.
4 Among the allegations against Barbuto in the forgery and bail jumping cases were that he
forged the signatures of the victim and a circuit court judge on documents he filed to obtain power of
attorney and guardianship over the victim, he filed false adoption documents relating to the victim, and he
engaged in an array of criminal and harassing behavior directed at the victim and her family in an attempt
to gain custody of or control over the victim. At the plea hearing, Barbuto agreed that the circuit court
could rely upon the allegations in the complaints against him as a factual basis for his pleas.

No. 2020AP1253-CR
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Despite significant doubts about whether he would succeed on probation, the circuit court
placed Barbuto on probation.5 While the court acknowledged that Barbuto would benefit if his
convictions were expunged, the court declined to expunge because Barbuto’s crimes were “very
grave, very serious, and very extensive” and “society would be harmed” by expunction.
On appeal, Barbuto argues that the circuit court misused its discretion and did not offer
adequate reasons for declining to expunge his convictions. We disagree. The court stated its
reasons for denying expunction, reasons grounded in its remarks at sentencing. Those reasons
addressed the factors stated in the expunction statute, WIS. STAT. § 973.015(1m)(a)1: a record
may be expunged upon the “successful completion of the sentence if the court determines that
the person will benefit and society will not be harmed by this disposition.”6 In assessing the
harm to society, the court recognized Barbuto’s concerning pattern of conduct, including a
refusal to comport with the law and court orders. The court was free to determine that Barbuto’s
conduct amounted to something other than a youthful mistake that would warrant expunction.
See State v. Hemp, 2014 WI 129, ¶¶19-21, 359 Wis. 2d 320, 856 N.W.2d 811; State v. Matasek,
2014 WI 27, ¶42, 353 Wis. 2d 601, 846 N.W.2d 811 (citation and footnote omitted) (expunction
5 For the forgery, the circuit court imposed and stayed a three and one-half year term in favor of
five years of probation. For fleeing/eluding, the circuit court imposed nine months in jail (which was
time served).
6 WISCONSIN STAT. § 973.015(1m)(a)1. states in pertinent 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.

No. 2020AP1253-CR
5
“provide[s] a break to young offenders” and can “shield youthful offenders from some of the
harsh consequences of criminal convictions”). The circuit court clearly determined that society
would be harmed if Barbuto’s convictions were expunged. Cf. Hemp, 359 Wis. 2d 320, ¶19
(public safety is a consideration in expunction).
The record reflects “the circuit court’s reasoned application of the appropriate legal
standard to the relevant facts of the case.” State v. Helmbrecht, 2017 WI App 5, ¶11, 373
Wis. 2d 203, 891 N.W.2d 412 (citation omitted). The circuit court did not misuse its discretion
when it denied Barbuto’s request to expunge his convictions. Arberry, 379 Wis. 2d 254, ¶20.
Upon the foregoing reasons,
IT IS ORDERED that the judgments of the circuit court are summarily affirmed pursuant
to WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals