State v. Jordan Alexander Lickes

2020 WI App 59

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1272-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JORDAN ALEXANDER LICKES,

DEFENDANT-RESPONDENT.†

Opinion Filed: August 20, 2020
Submitted on Briefs: January 22, 2020

JUDGES: Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs
of Scott E. Rosenow, assistant attorney general, and Joshua L. Kaul,
attorney general.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Catherine E. White and Marcus J. Berghahn of Hurley Burish,
S.C., Madison.
2020 WI App 59

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 20, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1272-CR Cir. Ct. No. 2012CF64

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JORDAN ALEXANDER LICKES,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Green County:
JAMES R. BEER, Judge. Reversed.

Before Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

¶1 NASHOLD, J. The State appeals a circuit court order expunging
three of Jordan Lickes’ convictions. The State argues that, because Lickes had not
No. 2019AP1272-CR

“satisfied the conditions of [his] probation,” he was not entitled to expungement
under WIS. STAT. § 973.0151 and State v. Ozuna, 2017 WI 64, ¶¶12-13, 376 Wis.
2d 1, 898 N.W.2d 20. Lickes argues that he has satisfied his “conditions of
probation” and that, once the circuit court received a certificate of discharge from
the Department of Corrections (“DOC”), expungement was self-executing under
State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811. We agree with
the State and reverse the circuit court’s order.

BACKGROUND

¶2 The material facts are undisputed. On April 17, 2012, then 19-year-
old Jordan Lickes had sexual intercourse with a 16-year-old girl. An amended
information charged Lickes with four counts based on this incident: Count 1,
fourth-degree sexual assault; Count 2, sexual intercourse with a child age 16 or
older; Count 3, disorderly conduct; and Count 4, exposing genitals or pubic area
(2009-10 Stats.). Lickes pled guilty to Count 2, and no contest to the other three
counts.

¶3 In January 2014, Lickes was sentenced as follows: on Counts 1 and
3, the court withheld sentence and imposed concurrent 24-month terms of
probation; on Count 2, the court sentenced Lickes to 90 days in jail, with Huber
privileges; and on Count 4, the court imposed and stayed a three-year sentence,
with one year of initial confinement and two years of extended supervision, and
placed Lickes on probation for three years. The court then set a number of “terms

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP1272-CR

and conditions of probation,” including that Lickes “enter into, participate [in] and
successfully complete” sex offender treatment on all three counts for which he was
placed on probation, Counts 1, 3, and 4. The court ordered that, if Lickes
successfully completed probation, his convictions on Counts 1, 3, and 4 would be
expunged pursuant to WIS. STAT. § 973.015.

¶4 In October 2015, the circuit court received a document from Lickes’
probation agent reading, in pertinent part:

Mr. Lickes has violated his probation multiple times. Mr.
Lickes has had unapproved sexual contact, has given his
agent false information, and has been terminated from Sex
Offender Treatment. At this time the Department of
Corrections respectfully requests 45 days conditional jail
time be added to the Judgment of Conviction ... and
imposed upon Mr. Lickes. This is to be part of an
[Alternative To Revocation] that includes returning to Sex
Offender Treatment.

¶5 On the back of the same document, Lickes signed a statement
admitting that he had “violated the rules and conditions of probation as described
on the front,” and agreeing to accept the 45 days of jail time requested by DOC.
Accepting the agreement of the parties, the circuit court ordered Lickes to serve 45
days in jail, with Huber privileges for employment and treatment.

¶6 Lickes’ probationary period on Counts 1 and 3 ended on January 23,
2016. In July 2016, Lickes filed a letter with the circuit court clerk, requesting
expungement on Counts 1 and 3.

¶7 In September 2016, Lickes’ probation agent filed a form with the
circuit court, titled “Verification of Satisfaction of Probation Conditions For
Expungement,” related to Counts 1 and 3 (hereinafter, “the 2016 discharge form”).
The form listed various statements with accompanying checkboxes for the

3
No. 2019AP1272-CR

probation agent to check. In pertinent part, the agent checked boxes indicating
that: (1) “The offender has successfully completed his/her probation”; (2) “The
offender has not been convicted of a subsequent offense”; and (3) “All court
ordered conditions have not been met.... [Lickes] is still currently participating in
sex offender treatment and is expected to complete [treatment] in January 2017.”
Lickes’ probationary period for Count 4 ended on January 23, 2017.

¶8 In July 2018, Lickes’ probation agent filed another form, this one
related to Count 4. The form was titled “Certificate of Discharge and Satisfaction
of Probation Conditions for Expungement” (hereinafter, “the 2018 certificate of
discharge”) and also had statements with accompanying checkboxes. Germane to
this appeal, the probation agent checked boxes indicating: (1) “The offender has
successfully completed his/her probation”; and (2) “All court ordered conditions
have been met.”

¶9 In January 2019, the State filed a brief in the circuit court opposing
expungement on the ground that Lickes had not successfully completed his
sentence under WIS. STAT. § 973.015(1m) because he had not “satisfied the
conditions of probation” as required by § 973.015(1m) and Ozuna, 376 Wis. 2d 1.
In support of its position, the State relied on the October 2015 document in which
Lickes admitted violating what that document referred to as “rules and conditions
of probation,” set forth above in paragraph 4. The State argued that “conditions of
probation” as used in § 973.015(1m) and Ozuna includes DOC rules of probation.
Therefore, according to the State, Lickes had not satisfied the conditions of
probation, and was consequently not entitled to expungement on any of the three
counts for which he was placed on probation.

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No. 2019AP1272-CR

¶10 In response, Lickes argued that Ozuna did not bar expungement of
the three counts because, unlike the defendant in Ozuna, Lickes complied with all
court-ordered conditions of probation, and Ozuna should not be extended to bar
expungement for DOC rule violations. Lickes further argued that, once the circuit
court received the 2018 certificate of discharge from DOC, expungement was self-
executing under Hemp, 359 Wis. 2d 320.

¶11 The circuit court held a hearing, at which it granted expungement on
Counts 1 and 3. In granting expungement on these counts, the court appears to
have relied primarily on the fact that Lickes’ letter requesting expungement was
filed in July 2016, prior to the supreme court’s decision in Ozuna.2

¶12 The court ordered additional briefing with respect to Count 4.
Following supplemental briefing and an additional hearing, the court granted
expungement on Count 4, concluding that Ozuna did not address Lickes’ situation

2
With regard to the court’s comments that State v. Ozuna, 2017 WI 64, 376 Wis. 2d 1,
898 N.W.2d 20, was issued after Lickes’ July 2016 request for expungement on Counts 1 and 3,
we note that both the State and Lickes construe the court’s statements as an application of the
nonretroactivity doctrine. See State v. Lagundoye, 2004 WI 4, ¶13, 268 Wis. 2d 77, 674 N.W.2d
526 (“[A] new rule of criminal procedure generally cannot be applied retroactively to cases that
were final before the rule’s issuance under the federal nonretroactivity doctrine announced by the
Supreme Court ....”). However, because Lickes refers to this issue only in a footnote and does not
develop it, we need not consider this argument. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992) (declining to address undeveloped arguments). Further, to the
extent the circuit court meant to base its decision on the nonretroactivity doctrine, we reject that
rationale because we do not construe Ozuna to have announced a “new rule” as required for
application of the nonretroactivity doctrine. See Lagundoye, 268 Wis. 2d 77, ¶13. Instead, we
agree with the State that the Ozuna court merely applied the general rule from the expungement
statute and State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811, to the specific facts
before it. See Ozuna, 376 Wis. 2d 1, ¶15 (“This conclusion is not in conflict with our holding in
Hemp.”).

5
No. 2019AP1272-CR

and declining to extend Ozuna’s holding.3 The circuit court entered a written
order expunging Lickes’ convictions on Counts 1, 3, and 4. This appeal follows.

DISCUSSION

¶13 The sole issue on appeal is whether the circuit court erred in
expunging Lickes’ three convictions under WIS. STAT. § 973.015(1m). The State
argues that Lickes was not entitled to expungement because he did not “satisf[y]
the conditions of probation” as required by § 973.015(1m)(b) and Ozuna. With
respect to Counts 1 and 3, the State contends that Lickes failed to comply with the
court-ordered condition of probation that he complete sex offender treatment.
Further, with respect to all three counts, the State argues that because, by his own
admission in 2015, Lickes violated DOC probation rules, he did not satisfy the
required conditions of probation.

¶14 Lickes does not dispute that he violated DOC rules of probation.
Instead, he counters that “conditions of probation” within the meaning of WIS.
STAT. § 973.015(1m)(b) does not encompass DOC rules and, instead, means only
those conditions explicitly ordered by the circuit court. Therefore, his argument
proceeds, admitted violations of those rules do not preclude expungement. In the
alternative, Lickes argues that, if this court concludes that the phrase “conditions
of probation” encompasses DOC probation rules, then circuit courts should be
given discretion to determine whether the violations of those rules should preclude

3
The State references other comments the circuit court made in reaching its
determinations on expungement, such as those regarding the persuasive value of the dissent in
Ozuna, and a “bipartisan bill” then pending in the state legislature that proposed expanding
expungement opportunities. We do not view the court’s comments as significant to our
expungement determinations and therefore do not address them.

6
No. 2019AP1272-CR

a defendant from expungement. Lickes further argues that, under the “self-
executing” expungement process explained in Hemp, when the circuit court
received the 2018 certificate of discharge, the court was required to expunge his
record on the three counts for which he was placed on probation, Counts 1, 3, and
4.

¶15 For the reasons that follow, we agree with the State. After setting
forth the applicable legal standards, we explain why we conclude that Lickes
failed to comply with court-ordered conditions of probation with respect to
Counts 1 and 3, resolving the issues on those counts. We next resolve the issue as
to Count 4 in favor of the State based on our conclusion about the meaning of
“conditions of probation” as used in WIS. STAT. § 973.015(1m)(b). Finally, we
turn to the arguments of the parties regarding the nature of the process for
expungement as explained in Hemp and Ozuna.

I. Standard of Review and Principles of Statutory Interpretation

¶16 This case requires us to interpret and apply WIS. STAT.
§ 973.015(1m), the expungement statute, to a set of undisputed facts. We review
the interpretation and application of this statute de novo. Ozuna, 376 Wis. 2d 1,
¶9; Hemp, 359 Wis. 2d 320, ¶12.

¶17 “[T]he purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. Ascertaining the meaning of the statute begins with the
language of the statute. Id., ¶45. “Statutory language is given its common,
ordinary, and accepted meaning, except that technical or specially-defined words
or phrases are given their technical or special definitional meaning.” Id.

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No. 2019AP1272-CR

¶18 “Context is important to meaning.… Therefore, statutory language
is interpreted in the context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46. “Statutory
language is read where possible to give reasonable effect to every word, in order
to avoid surplusage.” Id. If this process of statutory interpretation yields a plain,
clear statutory meaning, then the statute is unambiguous, and we apply its plain
meaning. Id. If, after conducting this analysis, we conclude that the text is
“capable of being understood by reasonably well-informed persons in two or more
senses,” then the statute is ambiguous, and we may consult sources outside of the
statutory text to resolve the ambiguity. See id., ¶¶47, 51.

II. Overview of the Expungement Statute

¶19 When a circuit court sentences a defendant, the court may order that
the record of certain criminal offenses, committed before the defendant was 25
years old, “be expunged upon successful completion of the sentence.” WIS. STAT.
§ 973.015(1m)(a)1.; see also Ozuna, 376 Wis. 2d 1, ¶¶11-12. Pursuant to
§ 973.015(1m)(a)1., a defendant’s “successful completion of the sentence” has
three requirements: “‘[1] the person has not been convicted of a subsequent
offense and, if on probation, [2] the probation has not been revoked and [3] the
probationer has satisfied the conditions of probation.’” Ozuna, 376 Wis. 2d 1,
¶12 (quoting § 973.015(1m)(b) (alterations in original)).

¶20 Upon successful completion of the sentence, the probationary
authority must send a “certificate of discharge” to the court of record. See Hemp,
359 Wis. 2d 320, ¶25; see also WIS. STAT. § 973.015(1m)(b); WIS. STAT.
§ 973.09(5) (listing DOC obligations at end of probationary period). The circuit

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No. 2019AP1272-CR

court’s receipt of the certificate automatically effectuates the expungement,
provided that the record shows that the probationer “meets all of the statutory
criteria for the ‘successful completion of the sentence.’” See Ozuna, 376 Wis. 2d
1, ¶¶14, 16-20, 25.

III. Counts 1 and 3: Violation of Court-Ordered Conditions of Probation

¶21 As set forth above, expungement may be granted only “upon
successful completion of the sentence,” which requires that a probationer
“satisf[y] the conditions of probation.” WIS. STAT. § 973.015(1m); see also
Ozuna, 376 Wis. 2d 1, ¶12. Although, as discussed in more detail below, the
parties dispute whether the phrase “conditions of probation” includes DOC
probation rules, neither party disputes that “conditions of probation” includes, at a
minimum, those conditions expressly ordered by the sentencing court. With
respect to Counts 1 and 3, the State argues that the circuit court erred in granting
expungement because Lickes violated a condition of probation expressly ordered
by the court, namely, that he complete sex offender treatment. As stated, in
placing Lickes on probation for Counts 1, 3, and 4, the court ordered: “You will
enter into, participate [in] and successfully complete sex offender treatment ….”
It is undisputed that Lickes failed to complete sex offender treatment by the end of
his two-year concurrent probationary terms for Counts 1 and 3. Lickes’ probation
on Counts 1 and 3 ended on January 23, 2016. In DOC’s September 2016
discharge form for Counts 1 and 3, Lickes’ probation agent noted: “All court
ordered conditions have not been met.... [Lickes] is still currently participating in

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No. 2019AP1272-CR

sex offender treatment and is expected to complete [treatment] in January 2017.”4
Lickes’ probationary period for Count 4 ended on January 23, 2017.

¶22 Lickes does not specifically address the State’s argument related to
Counts 1 and 3. Instead, he appears to assume that, because he subsequently
completed sex offender treatment as shown in the July 2018 certificate of
discharge for Count 4, this suffices to comply with the court-imposed condition
that he complete sex offender treatment with respect to Counts 1 and 3. Based on
this assumption, he argues that the July 2018 certificate of discharge entitled him
to expungement on all three counts. We disagree. The circuit court’s probation
condition requiring Lickes to “complete” sex offender treatment for Counts 1 and
3 cannot reasonably be construed to mean that Lickes was permitted to complete
the treatment after his probationary period ended for those counts. Because
Lickes did not complete sex offender treatment within the two-year probationary
period for Counts 1 and 3, he did not satisfy a court-ordered condition of
probation. As a result, Lickes did not successfully complete his sentence as
required by the expungement statute and was therefore not entitled to
expungement on Counts 1 and 3. See WIS. STAT. § 973.015(1m)(a)1.; Ozuna,
376 Wis. 2d 1, ¶12.

4
The record does not show exactly when Lickes completed the court-ordered sex
offender treatment. Rather, it shows only that the treatment was completed somewhere between
September 6, 2016, the date of the 2016 discharge form, and July 16, 2018, the filing date of the
2018 certificate of discharge stating that Lickes had complied with all court-ordered conditions
and had successfully completed probation.

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No. 2019AP1272-CR

IV. Count 4: “Conditions of Probation”

¶23 We now turn to the dispute between the parties regarding the scope
of the phrase “conditions of probation” as used in WIS. STAT. § 973.015(1m)(b)
and its application to the requested expungement of Count 4. The State argues
that “conditions of probation” encompasses both court-imposed conditions and
DOC-imposed conditions in the form of rules of probation. Because Lickes
violated DOC probation rules, the State argues, he is not entitled to expungement.
Lickes contends that the phrase “conditions of probation” refers to only court-
imposed conditions, that he satisfied those conditions, and that he is therefore
entitled to expungement on Count 4. For reasons we now explain, we agree with
the State’s interpretation.

A. Language of the Statute

¶24 We begin with the language of the statute. See Kalal, 271 Wis. 2d
633, ¶45. As discussed, one of the requirements for expungement is “successful
completion of the sentence.” See Ozuna, 376 Wis. 2d 1, ¶14 (citing WIS. STAT.
§ 973.015(1m)(b)). The expungement statute provides a definition for “successful
completion of the sentence,” which requires, among other things, “satisf[ying] the
conditions of probation”:

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. Upon successful completion of the sentence the
detaining or probationary authority shall issue a certificate
of discharge which shall be forwarded to the court of record
and which shall have the effect of expunging the record.

WIS. STAT. § 973.015(1m)(b) (emphasis added).

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No. 2019AP1272-CR

¶25 The phrase “conditions of probation” is not defined in either WIS.
STAT. ch. 973, in which the expungement statute appears, or in WIS. STAT.
§ 967.02, which contains definitions of words and phrases for WIS. STAT. chs. 967
to 979. We also note that neither party argues that the phrase “conditions of
probation” in the expungement statute is ambiguous. Instead, each party appears
to suggest that the plain language of the statute supports its own interpretation of
the expungement statute and argues that the other party’s interpretation
impermissibly adds words to the statute. See State v. Simmelink, 2014 WI App
102, ¶11, 357 Wis. 2d 430, 855 N.W.2d 437 (a court “‘should not read into [a]
statute language that the legislature did not put in’” (quoted source omitted)).

¶26 For its part, the State contends that Lickes’ interpretation of
“conditions of probation” as including only court-imposed conditions improperly
changes the phrase “conditions of probation” into something along the lines of
“conditions of probation expressly mentioned by the court.” Lickes’ rejoinder is
that it is the State that is reading words into the statute by effectively changing the
statutory language from “conditions of probation” into “conditions and rules and
regulations of probation.” However, in response to Lickes’ contention, the State
argues that its view does not insert the words “rules and regulations” into the
expungement statute but, instead, simply interprets the phrase “conditions of
probation” to include DOC probation rules along with the conditions of probation
expressly mentioned by a sentencing court. As the parties’ dispute on this point
shows, the fundamental question here is whether the phrase “conditions of
probation” in the expungement statute includes DOC probation rules. Based on
our discussion below, we conclude that it does.

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No. 2019AP1272-CR

B. Closely Related Statutes

¶27 “[S]tatutory language is interpreted in the context in which it is used;
not in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes ....” Kalal, 271 Wis. 2d 633, ¶46. We agree with the State
that its interpretation of the expungement statute is supported by closely related
statutes.

¶28 As noted by the State, WIS. STAT. § 973.10(2), which appears in the
same chapter as the expungement statute, uses the same phrase, “conditions of
probation,” used in the expungement statute, WIS. STAT. § 973.015(1m). Section
973.10(2) provides that, “[i]f a probationer violates the conditions of probation,
the department of corrections may initiate a [probation revocation] proceeding”
(emphasis added). The State argues, and Lickes does not dispute, that the phrase
“conditions of probation” in § 973.10(2) has never been interpreted to include only
conditions that have been expressly set by a court. To the contrary, although
§ 973.10(2) makes no specific reference to DOC rules, this court has held that a
probationer’s violation of either a court-imposed condition or a DOC-imposed rule
may lead to revocation. See, e.g., State ex rel. Rupinski v. Smith, 2007 WI App 4,
¶20, 297 Wis. 2d 749, 728 N.W.2d 1 (2006). Therefore, the State contends,
“conditions of probation,” as used in § 973.10(2), means both court-imposed
conditions and DOC-imposed rules. This is significant to our interpretation of
§ 973.015(1m) because “‘[w]hen the same term is used throughout a chapter of the
statutes, it is a reasonable deduction that the legislature intended that the term
possess an identical meaning each time it appears.’” See Winebow, Inc. v.
Capitol-Husting Co., 2018 WI 60, ¶29, 381 Wis. 2d 732, 914 N.W.2d 631
(quoting Bank Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74, ¶31, 326 Wis. 2d
521, 785 N.W.2d 462).

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No. 2019AP1272-CR

¶29 Lickes agrees with the State that a rule violation can lead to
revocation. However, Lickes appears to argue that, because the State does not cite
a case that explicitly interprets the phrase “conditions of probation” in WIS. STAT.
§ 973.10(2) as including DOC probation rules, the State’s interpretation of
§ 973.10(2) should be rejected.

¶30 We agree with the State, however, that, when a court upholds a
decision revoking probation due to a violation of a DOC probation rule, it
necessarily relies on WIS. STAT. § 973.10(2) as the source of the court’s authority
for the revocation because that is the statutory provision authorizing probation
revocation proceedings. Notably, as the State points out, Lickes has not explained
what other statute might authorize probation revocation proceedings. Thus, we
conclude that “conditions of probation” as used in § 973.10(2) encompasses both
court-imposed conditions and DOC-imposed rules of probation. This weighs in
favor of giving the same meaning to “conditions of probation” as used in WIS.
STAT. § 973.015(1m)(b). See Winebow, 381 Wis. 2d 732, ¶29.

¶31 Although not cited by the parties, we further note that WIS. STAT.
§ 973.09(3)(d) likewise supports the State’s interpretation of “conditions of
probation” to include rules and conditions set by DOC. Section 973.09(3)(d)
states that “[t]he court may modify a person’s period of probation and discharge
the person from probation” if certain delineated criteria are met. Included in the
criteria are that “[t]he probationer has satisfied all conditions of probation that
were set by the sentencing court,” § 973.09(3)(d)3., and that “[t]he probationer has
satisfied all rules and conditions of probation that were set by the department [of
corrections],” § 973.09(3)(d)4. Because the phrase “conditions of probation” in
§ 973.09(3)(d) is used to refer to both conditions imposed by a court and to those

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No. 2019AP1272-CR

conditions imposed by DOC, this is another ground for interpreting “conditions of
probation” similarly in the expungement statute.

¶32 Based on the foregoing, we conclude that the State’s interpretation
of the expungement statute is supported by the “language of surrounding or
closely-related statutes.” See Kalal, 271 Wis. 2d 633, ¶46.5 Accordingly, the
circuit court erred in ordering expungement on Count 4.6

C. Rule of Lenity

¶33 Lickes also contends that, if there is any doubt about the legislature’s
intent, the rule of lenity requires that we resolve the doubt in his favor. “The rule
of lenity provides that when doubt exists as to the meaning of a criminal statute, ‘a
court should apply the rule of lenity and interpret the statute in favor of the

5
The parties also rely on WIS. STAT. § 973.10(1) for their respective interpretations of
the expungement statute. This provision states that a court’s imposition of probation “shall
subject the defendant to the control of [DOC] under conditions set by the court and rules and
regulations established by [DOC].” Sec. 973.10(1). We are not persuaded that § 973.10(1)
clearly supports either party’s position, particularly given that, unlike WIS. STAT. §§ 973.10(2)
and 973.09(3)(d), this statute (§ 973.10(1)) does not contain the exact phrase “conditions of
probation.”

In addition, the State argues that Lickes’ interpretation of WIS. STAT. § 973.015(1m)
leads to unreasonable results. Because the State prevails on other grounds, we need not address
this argument. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d
436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the
parties when one issue is dispositive.”).
6
We recognize that, with respect to Counts 1 and 3, the State made two alternative
arguments as to why Lickes was not entitled to expungement, i.e., because he violated both court-
imposed and DOC-imposed “conditions of probation.” Because we have concluded that Lickes’
violation of a court-ordered probation condition is dispositive of the expungement issue with
respect to Counts 1 and 3, we need not decide whether expungement was also precluded on
Counts 1 and 3 due to Lickes’ violation of DOC probation rules. See Barrows, 352 Wis. 2d 436,
¶9. Nevertheless, we observe that the same reasoning that we apply to Count 4 would equally
apply to Counts 1 and 3.

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No. 2019AP1272-CR

accused.’” State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d
400 (quoted source omitted). “Application of the rule of lenity ensures that
criminal statutes will provide fair warning concerning conduct rendered illegal and
strikes the appropriate balance between the legislature, the prosecutor, and the
court in defining criminal liability.” Liparota v. United States, 471 U.S. 419, 427
(1985).

¶34 We conclude that the rule of lenity is inapplicable to the issue here.
First, as noted by the State, it is questionable whether the rule of lenity applies to
interpretation of the expungement statute because this statute does not define any
conduct as criminal. Further, even if the expungement statute were the type of
criminal statute that is subject to the rule of lenity, the rule is limited to instances
in which “a ‘grievous ambiguity’ remains after a court has determined the statute’s
meaning by considering statutory language, context, structure and purpose, such
that the court must ‘simply guess’ at the meaning of the statute.” See Guarnero,
363 Wis. 2d 857, ¶27 (quoted source omitted). Based on the statutory analysis
conducted above, we conclude that there is no “grievous ambiguity” and that we
are doing more than “simply guess[ing]” at the meaning of the statute. As such,
the rule of lenity is inapplicable here.

V. Exercise of Discretion

¶35 Lickes argues that, even if this court determines that “conditions of
probation” includes DOC-imposed probation rules, we should conclude that circuit
courts have discretion to determine whether a DOC-imposed rule violation
warrants denial of expungement. Lickes contends that a bright-line rule
prohibiting expungement upon proof of a violation of even the most minor DOC
rule would run contrary to the legislative purpose of the expungement statute,

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No. 2019AP1272-CR

which is “to provide ‘a break to young offenders who demonstrate the ability to
comply with the law.’” Ozuna, 376 Wis. 2d 1, ¶11 (quoting Hemp, 359 Wis. 2d
320, ¶20). According to Lickes, this court should review the circuit court’s
decision for an erroneous exercise of discretion, the same standard used for
reviewing a circuit court’s initial decision made at sentencing to qualify a
defendant for expungement. See State v. Helmbrecht, 2017 WI App 5, ¶8,
373 Wis. 2d 203, 891 N.W.2d 412 (2016).

¶36 However, as Lickes himself acknowledges, and as set forth in the
standard of review described above, application of the expungement statute to
undisputed facts presents a question of law, which this court reviews de novo. See
Ozuna, 376 Wis. 2d 1, ¶9; Hemp, 359 Wis. 2d 320, ¶12. And as Ozuna makes
clear, a sentencing court may deem a defendant qualified for expungement only if
the requirements of the expungement statute are met. See WIS. STAT.
§ 973.015(1m); Ozuna, 376 Wis. 2d 1, ¶15. As stated above, expungement may
occur only “upon successful completion of the sentence,” which has three
requirements. See § 973.015(1m). Included in these requirements is that a
probationer has “satisfied the conditions of probation.” See § 973.015(1m)(b);
Ozuna, 376 Wis. 2d 1, ¶15 (“[S]atisfaction of the conditions of probation is an
indispensable prerequisite to a defendant’s entitlement to expungement.”).
Because we interpret “conditions of probation” in the expungement statute to
include DOC rules, and because the record indisputably shows that Lickes violated
DOC probation rules, the circuit court was without discretion to expunge Lickes’
criminal record. Said otherwise, the legislature could have left this decision to the
circuit court’s discretion but, instead, it has established clear objective standards

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No. 2019AP1272-CR

that leave no room for the court’s exercise of discretion at that stage of the
process.7

VI. “Self-Executing” Expungement Process

¶37 Lickes also argues that, pursuant to Hemp, the circuit court’s receipt
of the 2018 certificate of discharge—which indicated that Lickes had
“successfully completed his/her probation” and that “court ordered conditions
have been met”— automatically entitled Lickes to expungement on all three
counts, notwithstanding his admitted violations of DOC-imposed rules. For the
reasons that follow, we conclude that the 2018 certificate of discharge does not
entitle Lickes to expungement on any count.

¶38 As stated, WIS. STAT. § 973.015(1m)(b) provides, in pertinent part,
that “[u]pon successful completion of the sentence the detaining or probationary
authority shall issue a certificate of discharge which shall be forwarded to the
court of record and which shall have the effect of expunging the record.” As

7
Lickes also offers a cursory and confusing argument to the effect that interpreting
“conditions of probation” in the expungement statute to encompass both court-imposed
conditions and DOC-imposed rules would render the “no-revocation” requirement in that statute
superfluous. This is so, he argues, because “the only way probation can be revoked is as a result
of a violation of the conditions, regulations, or rules.” See Hemp, 359 Wis. 2d 320, ¶13 (we
interpret statutes “to avoid surplusage, giving effect to each word”). We reject this argument as
undeveloped. See Pettit, 171 Wis. 2d at 646-47 (declining to address undeveloped arguments).
To the extent that we track this argument, Lickes fails to show how his interpretation of
“conditions of probation” would solve whatever surplusage problem he argues exists under the
alternative interpretation. That is, because revocation may result from either the violation of a
court-imposed condition or a DOC-imposed rule, the statute would equally suffer from a
surplusage problem under Lickes’ construction of the statute as it would under the State’s. Also,
Lickes cites no authority for the proposition that statutory language is rendered superfluous
simply because a defendant’s conduct might result in the violation of more than one statutory
requirement.

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No. 2019AP1272-CR

relevant to this case, our supreme court has interpreted this language in two cases:
Hemp and Ozuna.

¶39 In Hemp, the defendant completed his probation and DOC
forwarded a certificate of discharge to the circuit court, indicating that the
defendant had “satisfied said probation.” Hemp, 359 Wis. 2d 320, ¶6. Following
the circuit court’s receipt of the certificate, the defendant was charged with
another crime, at which point he filed a petition to expunge his conviction. Id., ¶7.
The circuit court denied the petition, concluding that the defendant’s petition was
not timely filed. See id., ¶8.

¶40 As pertinent here, the supreme court concluded that the circuit court
erred in denying the defendant’s petition because “successful completion of
probation automatically entitled” him to expungement. See id., ¶¶3-4. The court
determined that the expungement statute imposes no obligation upon a defendant
to effectuate his or her expungement, and that, “[o]nce an individual defendant
successfully completes his sentence, the plain language of the expungement statute
mandates a self-executing process.” Id., ¶27. The court explained this self-
executing process as follows: “[U]pon the successful completion of the
defendant’s sentence, the detaining or probationary authority must issue a
certificate of discharge, and must forward that certificate to the court of record as a
matter of course. When this process is completed, expungement is effectuated.”
Id.

¶41 Ozuna clarified the nature of the “self-executing” expungement
process. In Ozuna, our supreme court addressed whether the defendant was
entitled to expungement following the circuit court’s receipt of a contradictory
certificate of discharge, which indicated that “[t]he offender has successfully

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No. 2019AP1272-CR

completed his/her probation” but that “[a]ll court ordered conditions have not
been met.” Ozuna, 376 Wis. 2d 1, ¶6. The Ozuna court concluded that the
defendant was not entitled to expungement upon receipt of the certificate of
discharge because the record indicated that he had violated the court-ordered
probation condition that he not possess or consume alcohol and had thus failed one
of the statutory requirements for expungement. See id., ¶¶2, 10-13.

¶42 Relying on Hemp, Lickes argues that, upon receiving the 2018
certificate of discharge, the circuit court was obligated to expunge his record on all
three counts as part of the expungement statute’s “self-executing” process. See
Hemp, 359 Wis. 2d 320, ¶¶25-38. Lickes also argues that Ozuna does not control
the issue in the instant case because, in Ozuna, the certificate of discharge
contained contradictory information, whereas the 2018 certificate of discharge
here indicates that Lickes satisfied all of the conditions of probation.

¶43 We first observe that, in making this argument, Lickes fails to note
that the 2018 certificate of discharge pertains only to Count 4. As previously
explained, the 2016 discharge form regarding Counts 1 and 3, while stating that
Lickes had “successfully completed [his] probation,” further stated that “[a]ll court
ordered conditions have not been met” because Lickes had not yet completed sex
offender treatment and was expected to do so by January 2017. With respect to
Counts 1 and 3, therefore, this case is distinguishable from Hemp because, unlike
in Hemp, the record here does not contain an unequivocal certificate of discharge
for Counts 1 and 3 stating that Lickes satisfied all of the conditions of probation.
In fact, insofar as Counts 1 and 3 are concerned, Lickes’ situation is nearly
identical to the defendant’s in Ozuna, in that the discharge forms in both cases,
while containing some contradictory information, clearly indicated that all court-
ordered conditions had not been met. Ozuna, 376 Wis. 2d 1, ¶6. Thus, even

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No. 2019AP1272-CR

assuming we agreed with Lickes’ interpretation of the self-expungement process
described in Hemp and Ozuna, Lickes would not be entitled to that process with
regard to Counts 1 and 3.

¶44 However, even if the 2018 certificate of discharge could somehow
be construed as applying to Counts 1 and 3, we further conclude that Lickes is not
entitled to expungement for any of the three counts under the “self-executing”
expungement process set forth in Hemp and Ozuna because, as explained below,
that process is triggered only if the record indicates that the defendant successfully
completed his or her sentence.

¶45 The expungement statute, as recognized in discussion in Hemp,
clearly indicates that a defendant is entitled to expungement, and the “self-
executing” process is triggered, only “[u]pon successful completion of the
sentence,” which entails meeting all three of the statutory requirements listed in
WIS. STAT. § 973.015(1m)(b). See Hemp, 359 Wis. 2d 320, ¶¶25-38. Here,
because Lickes violated multiple DOC-imposed rules, he did not meet all of the
statutory requirements for “successful completion of the sentence.”

¶46 Hemp establishes this point. But we also note that, to the extent that
Hemp could have left any doubt about the relationship between the certificate of
discharge and the self-executing expungement process, Ozuna conclusively
resolved the issue:

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

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No. 2019AP1272-CR

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. § 973.015(1m)(b).

Ozuna, 376 Wis. 2d 1, ¶15. The Ozuna court further explained that, “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(1m)(b).” Id., ¶17. Against this backdrop,
the error of Lickes’ reliance on the 2018 certificate of discharge is clear. Because
Lickes did not satisfy his conditions of probation, the 2018 certificate of discharge
that DOC sent to the circuit court did not entitle Lickes to expungement for any of
the three counts.

CONCLUSION

¶47 We conclude that Lickes did not satisfy his “conditions of
probation” and was therefore not entitled to expungement under WIS. STAT.
§ 973.015(1m). Accordingly, we reverse.

By the Court.—Order reversed.

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