COURT OF APPEALS
DATED AND FILED
June 28, 2011
Acting Clerk of Court of Appeals
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. 2009CM4143
STATE OF WISCONSIN
IN COURT OF APPEALS
State of Wisconsin,
from a judgment and an order of the circuit court for Milwaukee County:
¶1 FINE, J.
¶2 Thompson was arrested after he told the officer who stopped
him for speeding, that he, Thompson, had a gun in his pocket. Only the officer and
¶3 The officer testified that he and his partner were patrolling in an unmarked squad car in an area to which other officers were dispatched because of a “shots fired” complaint,” when he saw the car Thompson was driving going well above the thirty-miles-an-hour speed limit. The officer estimated that Thompson was going some sixty miles an hour; Thompson testified that he believed he was going between forty-five and fifty miles an hour. Thompson admitted that he knew the speed limit in that area was thirty miles an hour and that he was speeding. It was shortly before
¶4 The officer testified that he followed the speeding
Well, based on the totality of the circumstance[s], and
what I mean is coming -- a vehicle traveling at a high rate of speed from an
area, shots fired. It’s in the morning, bar time. Based on those two circumstances and, more
importantly, the vehicle coming to a grinding stop, there’s a lot of stuff
going on. I thought that maybe Mr. -- Mr.
Thompson was maybe going to flee from the vehicle. Based on my training and a
lot of experience, that’s what drivers do when they flee from the vehicle a lot
of times is put the vehicle in park before it stops to have an opportunity to
get out of the vehicle. Based on all
those circumstances, I asked
The officer escorted
[T]he reason for that is [the street on which he
As the officer was escorting
A. Suppression of the gun.
¶5 In reviewing a circuit court’s order refusing to suppress evidence, we uphold a
circuit court’s findings of historical fact unless they are clearly erroneous. State
v. Roberts, 196 Wis. 2d
445, 452, 538 N.W.2d 825, 828 (Ct. App. 1995). Whether a search was unreasonable or violated
the Fourth Amendment, however, is a question of law that we review de novo. State v.
¶6 Thompson contends that the circuit court erred in concluding
that the officer did not violate Thompson’s Fourth Amendment rights by ordering
Thompson to get out of his car following the traffic stop. This is how
(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. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23(2)(a).
(b) The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of s. 942.08(2)(b), (c), or (d), and the person was under the age of 18 when he or she committed it.
1. A Class H felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048(2)(bm), or is a violation of s. 940.32, 948.03(2) or (3), or 948.095.
2. A Class I felony, if the person has, in his or her lifetime, been convicted of a prior felony offense, or if the felony is a violent offense, as defined in s. 301.048(2)(bm), or is a violation of s. 948.23.
(2) 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. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.
Sentencing is within the circuit court’s discretion, and our review is limited to determining whether it erroneously exercised that discretion. McCleary v. State, 49 Wis. 2d 263, 277–278, 182 N.W.2d 512, 519–520 (1971). We apply this standard to a circuit court’s determination whether to expunge a conviction under § 973.015.
¶9 During sentencing, the circuit court considered that
And he said that it’s for his -- to protect himself. You know, I just wonder, what would people do? I mean, I bet seventy-five percent of the people that have [carrying-concealed-weapon] charges say they’re doing it for their protection. Maybe all of them -- I don’t know -- but a large percentage.
I view this [carrying-concealed-weapon] case as a serious charge. I don’t know how else a judge can look at that. You’ve got a loaded -- a loaded .380 caliber Baretta [sic — Beretta] pistol on you, sir, and it’s just not going to be tolerated.
Although these comments were
part of the circuit court’s sentencing rationale, it also applied its view of
the seriousness of
I’m not ordering expungement on a [carrying-concealed-weapon] case. I do understand, if I believe it’s appropriate, if I make the appropriate finding. I cannot make those findings with what I have in front of me.
Clearly, the defendant would benefit if it’s expunged, but I do not believe it’s appropriate to expunge this charge. People are carrying guns for protection. It’s not going to be tolerated in our community.
¶10 In light of the extreme deference we owe to sentencing
determinations, see State v. Mosley, 201 Wis. 2d 36, 43, 547 N.W.2d 806, 809 (Ct.
App. 1996) (“The defendant bears the burden of showing that there was some
unreasonable or unjustifiable basis for the sentence imposed.”), we cannot say that the circuit court
erroneously exercised its discretion in determining that the seriousness of
carrying a concealed fully-loaded gun outweighed the positive aspects of
Thompson’s life and character. Further,
the circuit court’s comment that it would, “if I believe it’s appropriate,”
order the expungement, negates
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 A defendant may appeal the denial of a motion to suppress evidence even though he or she has pled guilty. See Wis. Stat. § 971.31(10).
is thus immaterial that the circuit court erroneously in its initial decision
found that the officer had been dispatched to the area in response to the
“shots fired” complaint. Later, in
ruling on one of
we have seen, the circuit court opined that carrying concealed weapons, even
for protection, was “not going to be tolerated in our community.” Of course, by virtue of Article I, section 25
of the Wisconsin Constitution, not every act of carrying a concealed weapon can
be made criminal, especially when the gun is carried for protection. See State
v. Hamdan, 2003 WI 113, ¶¶5–6, 39–41, 86, 264 Wis. 2d 433, 442-443,
459–461, 489–490, 665 N.W.2d 785, 790, 798–799, 813. Further, we can take judicial notice, see Wis.
Stat. Rule 902.01, that Wisconsin is on the cusp of repealing Wis. Stat. § 941.23 and permitting
persons to carry concealed weapons except in specified places. See
2011 Senate Bill 93 (generally and § 48, repealing § 941.23, and § 49,
creating new § 941.232).
http://legis.wisconsin.gov/2011/data/SB-93.pdf. See also
Jason Stein, Assembly passes
concealed carry bill,
sends to Walker, Milwaukee Journal Sentinel, (June 21, 2011), http://www.jsonline.com/news/statepolitics/124289954.html. Thus, it may very well be that the community-interest calculus identified by the circuit court during its March 25, 2010, sentencing will be soon changed. We express no view, however, whether a motion for sentence modification based on that changed public-interest calculus should or could be granted. See State v. Ralph, 156 Wis. 2d 433, 438, 456 N.W.2d 657, 659 (Ct. App. 1990) (“A trial court may modify a sentence even though no new factors are presented.”). That will have to await circuit court action and appellate review on a full Record.