2017 WI 7

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2014AP2840-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Christopher Joseph Allen,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:          February 9, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 20, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Jeffrey A. Wagner

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs (Opinion filed).
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there was a brief
and oral argument by Kaitlin A. Lamb, assistant state public
defender.


       For the plaintiff-respondent the cause was argued by Warren
D. Weinstein, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
                                                                              2017 WI 7
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2014AP2840-CR
(L.C. No.    2013CF670)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                      FILED
      v.
                                                                     FEB 9, 2017
Christopher Joseph Allen,
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the court of appeals.                    Affirmed.



      ¶1      ANN WALSH BRADLEY, J.            Petitioner, Christopher Joseph

Allen ("Allen"), seeks review of a court of appeals decision

affirming a circuit court amended judgment and order denying his

motion for a new sentencing hearing.1                     The court of appeals

determined      that      under   State   v.    Leitner,       2002 WI 77,    253
Wis. 2d 449, 646 N.W.2d 341, a sentencing court is permitted to

consider     all   of     the   facts   underlying      an    expunged       record     of


      1
       State v. Allen, 2015 WI App 96, 366 Wis. 2d 299, 873
N.W.2d 92 (affirming judgment and order entered by the circuit
court for Milwaukee County, Jeffrey A. Wagner, J., presiding).
                                                                         No. 2014AP2840-CR



conviction,    and     not     only    those       facts       underlying       the   crime

itself.

      ¶2    Allen requests a new sentencing hearing, contending

that Leitner prohibited the sentencing court from considering

that he had previously completed supervision in a case where the

record of conviction had been expunged pursuant to Wis. Stat.

§ 973.015 (2013-14).2          Additionally, Allen asserts that his trial

counsel was ineffective for failing to object to references to

Allen's     expunged       record     of    conviction          in     the    pre-sentence

investigation report ("PSI") and at sentencing.

      ¶3    Like     the    circuit        court       and    court     of    appeals,    we

conclude that the sentencing court did not erroneously exercise

its   discretion     when      it    considered         the     fact    that    Allen    had

previously successfully completed supervision in a case where

the record of conviction had been expunged.                            Under Leitner, a

circuit court is permitted to consider not only those facts

underlying     the     crime      itself,        but     also    all     of    the    facts

underlying an expunged record of conviction provided those facts
are   not   obtained       from     expunged     court        records.        Because    the

references to Allen's expunged record of conviction in the PSI

and at sentencing were obtained from sources other than expunged

court records, they are permitted under Leitner.                         Given that any

objections to these references would have been meritless, we



      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                             2
                                                                             No. 2014AP2840-CR



determine that Allen's trial counsel did not perform deficiently

and was not ineffective.

      ¶4    Accordingly, we affirm the decision of the court of

appeals.

                                                  I

      ¶5    The underlying facts in this case are not in dispute.

In 2013, Allen crashed his vehicle into a tree while traveling

at approximately 97 miles per hour, killing one passenger and

severely injuring another.               His blood alcohol concentration at

the time of the collision was .122.

      ¶6    The     State      charged    Allen            with:       (1)     homicide      by

intoxicated       use    of    a    vehicle        in      violation     of       Wis.     Stat.

§ 940.09(1)(a); (2) homicide by intoxicated use of a vehicle

with a prohibited alcohol concentration in violation of Wis.

Stat. § 940.09(1)(b); (3) injury by intoxicated use of a vehicle

resulting   in     great      bodily     harm      in      violation     of       Wis.    Stat.

§ 940.25(1)(a);         (4)   injury     by       intoxicated      use       of    a     vehicle

resulting     in    great      bodily    harm           with   a   prohibited            alcohol
concentration in violation of Wis. Stat. § 940.25(1)(b); and (5)

homicide by negligent operation of a vehicle in violation of

Wis. Stat. § 940.10(1).

      ¶7    Allen entered a no contest plea to count one, homicide

by   intoxicated        use   of   a   vehicle        in    violation    of       Wis.     Stat.

§ 940.09(1)(a) and count three, injury by intoxicated use of a

vehicle resulting in great bodily harm in violation of Wis.

Stat. § 940.25(1)(a).              In exchange for Allen's plea, the State
agreed to dismiss and read in count five and to dismiss the two
                                              3
                                                             No. 2014AP2840-CR



other counts.      Additionally, the State agreed to recommend four

years    of   initial   confinement   at   sentencing   but    to   make    no

recommendation with regard to extended supervision.

     ¶8       The circuit court ordered a PSI.      At sentencing, both

Allen and his trial counsel stated that they had reviewed the

PSI but did not offer any additions or corrections.                    The PSI

indicated that Allen had a prior municipal citation that had

been paid and a 2005 conviction for substantial battery that had

been expunged in 2011.

     ¶9       Under certain circumstances, a young offender's record

of   conviction      may   be   expunged    pursuant    to      Wis.     Stat.

§ 973.015(1m)(a)1., which provides in relevant 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.


If a record of conviction is expunged, the court records for

that case are destroyed by the clerk of court.3



     3
         SCR 72.06 provides:

     When required by statute or court order to expunge a
     court record, the clerk of court shall do all of the
     following:

     (1)      Remove any paper index and nonfinancial            court
              record and place them in the case file.
                                                                (continued)
                                      4
                                                                 No. 2014AP2840-CR



    ¶10    Referencing       Allen's      expunged      record   for      the    2011

substantial battery conviction, the PSI stated:

    According to the CIB/FBI Criminal Background report,
    Mr. Allen was arrested for Substantial Battery on
    5/11/05.   Mr. Allen acknowledges that this incident
    involved a fight with another boy at high school and
    he was charged because the other boy lost a tooth in
    the fight and his mother pursued the case.          On
    10/07/05, he was given a withheld sentence with
    conditions that if he pay restitution in the amount of
    $1139.00,   complete  anger  management   classes  and
    successfully completes 9 months of probation, the case
    shall be expunged.    WICS database reveals that the
    offender successfully completed his term of probation
    on 07/07/06. This case was officially expunged under
    SS973.015 on 4/11/11.
The State commented on this expunged record of conviction at

sentencing, informing the circuit court that "Mr. Allen has a

substantial battery which was expunged, the State will grant

that, back in '05."            Allen's counsel did not object to the

State's   reference     to   the     seven-year-old       expunged     record      of

conviction.

    ¶11    In     accordance    with   the    plea      agreement,     the      State

recommended     four   years    of   initial       confinement      but    did    not

provide a recommendation with regard to extended supervision.

Allen's   trial    counsel     likewise     took   no    position    on    extended

supervision, but recommended that the sentencing court impose


    (2)    Electronically remove any automated nonfinancial
           record, except the case number.

    (3)    Seal the entire case file.

    (4)    Destroy expunged court records in accordance with
           the provisions of this chapter.


                                        5
                                                         No. 2014AP2840-CR



two years of initial confinement.        The circuit court sentenced

Allen to five years of initial confinement and four years of

extended supervision.

    ¶12   When   sentencing   Allen,    the   circuit   court   expressed

concern that the defendant failed to learn from his prior court

experience:

    THE COURT: The court looks at any record of——any
    record of any undesirable behavior——behavior problems
    or any history of other contacts.

                                . . .

    THE COURT: [W]hat I do give serious consideration for
    is that you——you were on supervision before, right,
    and that was expunged.

    ALLEN: Yes.

    THE COURT: And you had every opportunity to go through
    that——that    period    of   supervision   with    the
    understanding that——you know, you've got to comply
    with certain things, certainly the rules of law making
    sure that you don't do bad things because you can be
    punished for them if you do.

    Having gone through that you would think that that
    would be a learning experience for yourself like I
    never want to be back in the criminal justice system.

    I don't know anything about——quite frankly, about the
    case except for what it says in the presentence
    investigation report, but the message is——is that I
    should this with me [sic], it was expunged which is a
    good thing because I do that myself when the
    appropriate case comes to the court, expunged so that
    wouldn't be wrapped around somebody's neck for the
    rest of their lives, especially a felony conviction,
    but you had an opportunity to learn something from
    that.

    That's what the Court's concerned about. I don't know
    what was going through your mind going 97 miles an
    hour on a city street . . .
                                  6
                                                                          No. 2014AP2840-CR



       ¶13       Allen filed a post-conviction motion requesting a new

sentencing hearing on the basis that the circuit court erred

when       it    considered       his      expunged     record     of     conviction    at

sentencing.            Further, he asserted that his trial counsel was

ineffective for failing to object to references to the expunged

record of conviction in the PSI and at sentencing.4                          The circuit

court denied Allen's motion for a new sentencing hearing.

       ¶14       In    denying    Allen's        motion    for     resentencing,       the

circuit court explained that it considered his prior supervision

and his failure to learn from that experience as relevant to an

assessment of the defendant's character and behavior:

       The court does not read Leitner to preclude a court
       from considering the fact of an offender's prior
       supervision and failure to learn from that experience
       as part of its duty at sentencing to acquire full
       knowledge of the character and behavior of the
       defendant.   See State v. Hubert, 181 Wis. 2d 333 (Ct.
       App. 1993). In fact, that is the only fact the court
       assigned any significant weight to regarding the
       defendant's prior expunged conviction, and therefore,
       the court perceives no violation under Leitner, and
       consequently no ineffective assistance on the part of
       trial counsel for failing to raise an objection.
       ¶15       The   court     of    appeals     affirmed      the    circuit   court's

judgment and order.             State v. Allen, 2015 WI 96, ¶1, 366 Wis. 2d
299,       873 N.W.2d 92.         It   determined     that    under    Leitner,    253
Wis. 2d 449, a sentencing court is permitted to consider all of


       4
       Allen also moved for an order vacating a $250 DNA
surcharge, which the circuit court granted.   This part of the
circuit court's decision and order was not appealed and is not
before this court.


                                               7
                                                                        No. 2014AP2840-CR



the facts underlying an expunged record of conviction, and not

only    those     facts    underlying        the     crime      itself.         Id.,      ¶18.

Additionally,        it    concluded          that      trial       counsel      was      not

ineffective because the references to Allen's expunged record of

conviction in the PSI and at sentencing are permitted under

Leitner.      Id., ¶20.

                                             II

       ¶16    We are asked to determine whether Leitner prohibited

the    sentencing     court         from   considering        the    fact     that     Allen

previously completed supervision in a case where the record of

conviction had been expunged pursuant to Wis. Stat. § 973.015.

If so, then we must also determine whether Allen's trial counsel

was    ineffective      for    failing       to   object      to    references       to    the

expunged record of conviction in the PSI and at sentencing.

       ¶17    This   court      reviews       a      circuit       court's    sentencing

decision for an erroneous exercise of discretion.                                State v.

Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197.                                  A

circuit      court   erroneously           exercises     its       discretion    when      it
imposes a sentence based on an error of law.                          State v. Harris,

119 Wis. 2d 612, 625, 350 N.W.2d 633 (1984).                          When reviewing a

circuit court's discretionary determination involving a question

of    law,   we   review      the    question      of   law    independently         of   the

determinations rendered by the circuit court and the court of

appeals.      Abrose v. Cont'l Ins. Co., 208 Wis. 2d 346, 356, 560
N.W.2d 309 (Ct. App. 1997).

       ¶18    Whether      counsel's         actions       constitute         ineffective
assistance presents a mixed question of fact and law.                            State v.
                                              8
                                                                          No. 2014AP2840-CR



Tourville, 2016 WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735.                               We

will not reverse the circuit court's findings of fact unless

they    are    clearly          erroneous.             Id.       This     court       reviews

independently,        as    a     matter    of       law,     whether   trial       counsel's

conduct breached the defendant's right to effective assistance

of counsel.        Id.

                                             III

       ¶19    We     address       first     Allen's          assertion      that     Leitner

prohibited the sentencing court from considering the fact that

he had previously completed supervision in a case where the

record of conviction had been expunged pursuant to Wis. Stat.

§ 973.015.

       ¶20    In Leitner, the defendant entered a no contest plea to

reckless driving causing great bodily harm.                             253 Wis. 2d 449,

¶4.     Leitner's PSI stated that in 1997 he was convicted of

misdemeanor hit and run and operating a motor vehicle while

intoxicated causing injury.                 Id., ¶6.           The information in the

PSI about Leitner's prior convictions came from the district
attorney's         case    files.          Id.         Both     of   these     records     of

convictions had been expunged.                   Id.     However, the fact that the

records of the convictions had been expunged was not mentioned

in the PSI.        Id.

       ¶21    The prosecutor agreed not to refer to Leitner's 1997

convictions because the court records of these convictions had

been expunged.            Id., ¶7.         Yet, at sentencing the prosecutor

discussed      the        facts     underlying          the     expunged      records      of


                                                 9
                                                                 No. 2014AP2840-CR



convictions by relying on information contained in the police

reports and district attorney's case files.              Id.

    ¶22     In determining Leitner's sentence, the circuit court

referred to and considered facts underlying his expunged records

of convictions:

    You say you have no problem with alcohol and yet this
    is the second incident that you have been involved in
    that has resulted in your being charged with an
    alcohol-related offense, although it was not charged
    in this particular case, but certainly alcohol was
    involved.
Id., ¶9.

    ¶23     On appeal, Leitner asserted that the sentencing court

erred when it considered information about the facts underlying

the records of the expunged convictions.               Id., ¶42.        This court

disagreed, concluding that "the circuit court may consider, when

sentencing    an   offender,   the        facts    underlying     a     record    of

conviction expunged under § 973.015."                Id., ¶48.        The Leitner

court   emphasized   the   need      of     a     sentencing    court     to     have

available relevant information:

    When Wis. Stat. § 973.015 is read in the context of
    the objectives of a sentencing proceeding, it is clear
    that the legislature did not intend § 973.015 to
    deprive sentencing courts of relevant information
    regarding an offender when that information is in
    government files relating to a record of conviction
    expunged under § 973.015.

Id., ¶47.    Thus, Leitner reasoned that it does not make sense to

prohibit a circuit court from considering the underlying facts

of an expunged record of conviction if those facts are located



                                      10
                                                                       No. 2014AP2840-CR



in a file of a district attorney or law enforcement agency that

is not required to be expunged.              Id., ¶46.

    ¶24     In this case, Allen asserts that he is not seeking to

overturn or modify Leitner.              Instead, he contends that Leitner

should be interpreted to permit consideration only of the facts

or behaviors underlying the crime itself, rather than all of the

facts underlying the expunged record of conviction.                           Further,

Allen argues that a sentencing court may consider only facts

underlying a prior expunged record of conviction if those facts

are interrelated to the facts underlying the current offenses

for which a defendant is being sentenced.

    ¶25     Allen relies on the portion of Leitner in which this

court determined that the "facts underlying the record of a

conviction       expunged        under      § 973.015     are      significant        to

sentencing this defendant . . . ."                 Id., ¶44.      Leitner explained

that "the facts of his prior behavior elucidate his character,

including    the    escalating        harms      caused     by    his    interrelated

intoxication     and   hit   and     run    accidents."          Id.     Thus,      Allen
asserts   that     Leitner       requires    interrelated        facts   between      the

expunged record of conviction and the current conviction, which

he contends are not present here.

    ¶26     According       to     Allen,    the    facts    of     this     case    are

distinguishable from Leitner because the sentencing court did

not consider the underlying behaviors that led to his expunged

battery conviction.          Unlike Leitner, the underlying facts of

Allen's expunged battery conviction are not interrelated to his
current convictions for homicide by intoxicated use of a vehicle
                                            11
                                                                        No. 2014AP2840-CR



and injury by intoxicated use of a vehicle.                        Specially, there is

no evidence in the record that the expunged battery conviction

involved alcohol or a motor vehicle.

    ¶27     We disagree with Allen because he reads Leitner too

narrowly.     As set forth more fully below, a defendant's behavior

on supervision is relevant to a sentencing court's consideration

of his future behavior and overall character.                         Leitner does not

require interrelated facts between the crime underlying a prior

expunged record of conviction and the facts underlying a current

criminal    conviction.          It   allows         consideration         of    all       facts

underlying an expunged record of conviction, not just the facts

underlying      the    crime     itself     provided        those      facts         are     not

obtained from expunged court records.

    ¶28     Allen      also     contends     that       his     previous         successful

completion      of    supervision     in    a        case     where    the       record       of

conviction    had     been     expunged    does       not   inform     the       sentencing

court   about    his     individual       character.           According         to    Allen,

expunction requires the successful completion of a sentence or
probation in every case.           See Wis. Stat. § 973.015.                    Thus, Allen

asserts that consideration of his prior successful completion of

supervision      is     not     individualized          because       it        is    equally

applicable    to      every    sentencing       in    which    a    defendant          has    an

expunged record of conviction.

    ¶29     Individualized sentencing, as Allen correctly asserts,

"has long been a cornerstone to Wisconsin's criminal justice

jurisprudence."         Gallion, 270 Wis. 2d 535, ¶48.                          However, we
agree with the court of appeals that allowing sentencing courts
                                           12
                                                                           No. 2014AP2840-CR



to consider the facts of an expunged record of conviction in

addition to the facts of the underlying crime allows sentencing

courts to better perform their duty to make informed sentencing

decisions.

       ¶30   It     is    well-established           that    sentencing      courts     must

acquire "full knowledge of the character and behavior pattern of

the convicted defendant before imposing sentence."                           Leitner, 253
Wis. 2d 449, ¶45 (citing Elias v. State, 93 Wis. 2d 278, 285,

286 N.W.2d 559 (1980)); see also Wasman v. United States, 468
U.S. 559,      563     (1984)       ("The    sentencing        court . . . must        be

permitted to consider any and all information that reasonably

might bear on the proper sentence for the particular defendant,

given the crime committed.").                       Thus, a sentencing court may

consider uncharged and unproven offenses and facts related to

offenses for which the defendant has been acquitted.                               Leitner,

253 Wis. 2d 449, ¶45.              To ensure that a circuit court has full

information, "prosecutors may not keep relevant information from

a sentencing court."             Id.
       ¶31   As     Gallion       explained,        judges   have    a    need    for   more

complete       information         at     the       time     of   sentencing.           270
Wis. 2d 535, ¶34.              In addition, under Gallion, sentencing courts

are encouraged "to refer to information provided by others."

Id., ¶47.      When imposing a sentencing, a circuit court must also

explain      "how        the    sentence's          component     parts      promote     the

sentencing objectives."                Id., ¶46.       "By stating this linkage on

the    record,      courts      will    produce       sentences     that    can    be   more
easily reviewed for a proper exercise of discretion."                            Id.
                                               13
                                                                       No. 2014AP2840-CR



       ¶32        We also agree with the State that consideration of a

defendant's prior successful completion of supervision in a case

where a record of conviction had been expunged may often benefit

defendants.            For example, a sentencing court may determine that

a   defendant          who    has    previously     complied    with   the    terms   of

probation is at a low-risk for reoffending while on probation or

supervision.             In that case, a sentencing court may consider the

fact       that    a     defendant     has    previously     successfully    completed

supervision in order to determine whether to divert an offender

to a non-prison alternative.

       ¶33        Here       the     sentencing      court     properly      considered

information provided in the PSI that was obtained from a CIB/FBI

Criminal Background report.5                   As Leitner determined, a circuit

court may consider the underlying facts of an expunged record of

conviction if those facts are located somewhere other than in

the court records that must be destroyed with the case file

pursuant to SCR 72.06.                253 Wis. 2d 449, ¶46.

       ¶34        A defendant's behavior on supervision is relevant to
his    overall         character.        The    sentencing     court   in    this   case

referenced the fact of Allen's prior successful completion of

supervision            in    the    context    of   considering   Allen's     possible

future behavior and his failure to learn a lesson.




       5
       Allen does not contend that the PSI writer possessed
information that should have been destroyed pursuant to SCR
72.06.


                                               14
                                                                No. 2014AP2840-CR



       ¶35    In accord with Leitner, the sentencing court explained

that it "looks at any record of——any record of any undesirable

behavior——behavior problems or any history of other contacts."

It explained that it considered Allen's prior supervision as

relevant to Allen's character because of his failure to learn

from the opportunity of having his prior record of conviction

expunged:

       THE COURT:     And you had every opportunity to go
       through that——that period of supervision with the
       understanding that——you know, you've got to comply
       with certain things, certainly the rules of law making
       sure that you don't do bad things because you can be
       punished for them if you do.

       Having gone through that you would think that that
       would be a learning experience for yourself like I
       never want to be back in the criminal justice system.

The sentencing court used the fact of Allen's prior supervision

to impose a sentence based upon his character and behavior,

including his failure to learn the consequences of breaking the

law.

       ¶36    Additionally,      as   required      by   Gallion,   the    circuit
court       explained    its     reasoning         for   considering       Allen's

supervision for the expunged conviction at sentencing.                    In every

case    where     the    facts    underlying        an   expunged    record     of

conviction are included in a PSI, the court will be aware of the

fact that the defendant successfully completed a sentence or

probation.       Rather than ask sentencing courts to turn a blind

eye    to    relevant   facts    before    them,    pursuant   to   Gallion,    we
expect that courts explain the facts considered when imposing a

                                          15
                                                                       No. 2014AP2840-CR



sentence.      That is what the sentencing court did here when it

explained      that      it     was    considering         Allen's       behavior         in

successfully completing probation.

    ¶37     We turn next to Allen's argument that the sentencing

court's     consideration        of    Allen's         successful      completion        of

supervision in a prior case where the record of conviction had

been expunged contravenes the purposes of expunction.                           As Allen

correctly observes, expunction "offers young offenders a fresh

start   without    the    burden      of   a    criminal      record     and   a    second

chance at becoming law-abiding and productive members of the

community."     State v. Hemp, 2014 WI 129, ¶19, 359 Wis. 2d 320,

856 N.W.2d 811.        It is "intended to provide a break to young

offenders who demonstrate the ability to comply with the law."

Leitner, 253 Wis. 2d 449, ¶38.

    ¶38     However,          expunction       provides       a    means       by     which

sentencing courts may shield youthful offenders from some of the

future consequences of criminal convictions.                       Id.     The Leitner

court   determined       that     only     court       records,    rather      than      all
government     records    regarding        expunged      convictions       need     to    be

destroyed.        It   explained      that      "nothing      in   the     language      or

history   of   § 973.015        indicates       that    the   legislature       intended

record expunction . . . to wipe away all information relating to

an expunged record of a conviction or to shield a [defendant]

from all of the future consequences of the facts underlying a

record of a conviction expunged . . . ."                   Id.

    ¶39     Concluding that expunction required the destruction of
only court records, Leitner explained that "district attorneys
                                           16
                                                                            No. 2014AP2840-CR



and law enforcement agencies have significant ongoing interests

in maintaining case information, even when a court record of a

conviction has been expunged . . . ."                           Id., ¶40.     For example,

case    information      from    an    expunged          record      of     conviction      may

assist police and prosecutors in a variety of ways:

       Case information may assist in identifying suspects,
       determining whether a suspect might present a threat
       to officer safety, investigating and solving similar
       crimes, anticipating and disrupting future criminal
       actions, informing decisions about arrest or pressing
       charges, making decisions about bail and pre-trial
       release, making decisions about repeater charges, and
       making recommendations about sentencing.

Id.
       ¶40    Furthermore, expunging the court record continues to

provide      substantial    advantages           to    an       offender.       As    Leitner

explained,       an   expunged        record      of        a    conviction     cannot      be

considered at a subsequent sentencing or used for impeachment at

trial    under    § 906.09(1)         and    is       not       available    for     repeater

sentence enhancement.           Id., ¶39.             Expunction allows "offenders

to . . . present         themselves         to     the          world——including       future

employers——unmarked by past wrongdoing."                          Hemp, 359 Wis. 2d 320,
¶19 (internal citations omitted).

       ¶41    Finally,     we   address          Allen's         concern    that     allowing

consideration of a defendant's prior successful completion of

supervision contravenes Leitner's statement, set forth in the

paragraph above, that an expunged record of conviction cannot be

considered at a subsequent sentencing.                          As discussed in Leitner,
expunction     requires     the       destruction           of    the   court      record    of


                                            17
                                                                             No. 2014AP2840-CR



conviction.         It is the court record, with all of its contents,

which cannot be considered at a subsequent sentencing.                                     The

facts underlying an expunged record of conviction, if obtained

from a source other than a court record, may be considered at

sentencing.         Leitner, 253 Wis. 2d 449, ¶47.

       ¶42    For        the     foregoing        reasons,         we   determine          that

consideration         of       the      fact    that      a       defendant       previously

successfully completed probation does not contravene the purpose

of expunction.            The benefits of expunction shield a defendant

from some, but not all, of the future consequences of a prior

conviction.          A    defendant       is   offered        a   fresh      start    when    a

conviction is expunged, but when he returns to the criminal

justice system the facts of that expunged record of conviction

are not erased and may be properly considered at sentencing.

       ¶43    Accordingly, we conclude that the sentencing court did

not erroneously exercise its discretion when it considered the

fact    that        Allen        had      previously          successfully         completed

supervision in a case where the record of conviction had been
expunged.       Under          Leitner,    a   circuit        court     is    permitted      to

consider not only those facts underlying the crime itself but

also    all    of     the       facts     underlying      an       expunged       record     of

conviction provided those facts are not obtained from expunged

court records.

                                               IV

       ¶44    Having       concluded       that     the       circuit     court      did    not

erroneously exercise its discretion when it considered the fact
that Allen had previously successfully completed supervision in
                                               18
                                                                          No. 2014AP2840-CR



a case where the record of conviction had been expunged, we

briefly      address     Allen's       claim      that      his   trial      counsel    was

ineffective for failing to object to references to his expunged

record of conviction in the PSI and at sentencing.

       ¶45   In order to succeed on an ineffective assistance of

counsel claim, a defendant must show both (1) that his counsel's

representation         was   deficient         and    (2)     that    this     deficiency

prejudiced him.          Strickland v. Washington, 466 U.S. 668, 687

(1984).       Allen    cannot     succeed       on    his    claim    here    because       he

cannot show that his counsel's representation was deficient.

       ¶46   It is well-established that trial counsel could not

have been ineffective for failing to make meritless arguments.

See,    e.g.,    State       v.      Toliver,        187 Wis. 2d 346,       360,    523
N.W.2d 113 (Ct. App. 1994); see also State v. Maloney, 2005 WI
74, ¶37, 281 Wis. 2d 595, 698 N.W.2d 583; State v. Harvey, 139
Wis. 2d 353, 380, 407 N.W.2d 235 (1987); State v. Luedtke, 2014
WI App 79, ¶28, 355 Wis. 2d 436, 851 N.W.2d 837.                             Because the

references to Allen's expunged record of conviction in the PSI
and at sentencing were obtained from sources other than expunged

court records, they are permitted under Leitner.                           Any objection

from    trial    counsel        to     these      references         would    have     been

meritless.      Thus, trial counsel's performance was not deficient

and    consequently      Allen       could   not      have    been    prejudiced       as    a

result of counsel's performance.                  See Strickland, 466 U.S. 668.

Accordingly,     we     conclude      that     Allen's       trial    counsel    was    not

ineffective.


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                                                                No. 2014AP2840-CR



                                      V

      ¶47    In sum, we conclude that the sentencing court did not

erroneously exercise its discretion when it considered the fact

that Allen had previously successfully completed supervision in

a case where the record of conviction had been expunged.                    Under

Leitner, a circuit court is permitted to consider not only those

facts underlying the crime itself, but also all of the facts

underlying an expunged record of conviction provided those facts

are   not   obtained    from    expunged   court   records.          Because    the

references to Allen's expunged record of conviction in the PSI

and at sentencing were obtained from sources other than expunged

court records, they are permitted under Leitner.                Given that any

objections to these references would have been meritless, we

determine that Allen's trial counsel did not perform deficiently

and   was    not    ineffective   because    the       references    to   Allen's

expunged record of conviction in the PSI and at sentencing are

permitted under Leitner.

      ¶48    Accordingly, we affirm the decision of the court of
appeals.

      By    the    Court.—The   decision    of   the    court   of    appeals    is

affirmed.




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                                                               No.   2014AP2840-CR.ssa


       ¶49   SHIRLEY S. ABRAHAMSON, J.              (concurring).          I join the

majority opinion, although it is an extension of Leitner.                          See

State v. Allen, 2015 WI App 96, ¶¶21-25, 366 Wis. 2d 299, 873
N.W.2d 92 (Kessler, J., concurring).

       ¶50   The legislature's goal in expunction is to "to provide

a break to young offenders who demonstrate the ability to comply

with   the   law."          State   v.   Leitner,       2002 WI 77,    ¶38,   253
Wis. 2d 449, 646 N.W.2d 341.

       ¶51   I   am   concerned      that     the   court's      permitting        more

extensive use of the facts underlying the expunged record of

conviction chips away at the purpose of expunction.

       ¶52   For me, the test to apply to the interpretation and

application      of   the    expunction       statute    in    different      factual

situations is whether the court is making it harder for young

offenders to escape the shadows of their past.                   The instant case

is a close call.




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