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  • WisBar News
    October 28, 2015

    Expert Report is Not a “New Factor” Sufficient to Expunge a Criminal Sentence

    Deborah G. Spanic

    ashamed female defendantOct. 28, 2015 – At her sentencing hearing for possession of heroin, Courtney Sobonya requested expungement of her criminal record. She was 23 when she was charged with five drug-related crimes, and pleaded guilty to heroin possession.

    At the plea and sentencing hearing, the Washington County Circuit Court placed Sobonya on probation for two years and denied her request to expunge her record upon successful completion of her sentence. The court reasoned that the conviction for heroin possession would send a deterrent message that would be undermined if the record were expunged.

    Undeterred, Sobonya engaged a sociology professor to prepare a report to analyze the current state of criminal sentences as deterrents. The report concluded that “the public interest and public safety are best served by lowering barriers to reintegration and granting Ms. Sobonya … expungement upon the completion of her sentence.”

    While the court concluded that the report was a “new factor,” it still denied Sobonya’s motion, which she then appealed.

    A three-judge panel for the District II Court of Appeals, in State v. Sobonya, 2014AP2392-CR (Oct. 21, 2015) agreed with the court’s ultimate decision but wanted to clarify that the professor’s report is not a “new factor” for the purposes of sentence modification.


    Presiding Judge Paul F. Reilly, in drafting the panel’s opinion, noted that the court of appeals substantially defers to the trial court in its sentencing decisions, “That court is in a superior position to observe the demeanor of the defendant, weigh the available evidence, and consider the relevant factors. The trial court also possesses the inherent authority to modify criminal sentences.”

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    Here the issue is not the court’s discretion in modifying a defendant’s sentence, but rather whether the expert’s report is a “new factor” that warranted sentence modification.

    “A ‘new factor’ in the context of sentence modification ‘refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all the parties,” the panel added.

    Sobonya argued that the postsentencing report did not exist at the time of sentencing, its underlying research was unknowingly overlooked by the parties at sentencing, and it is highly relevant because it directly contradicts the court’s belief that granting expungement would harm society.

    “The postsentencing report is not a ‘fact or set of facts’ that were not in existence or unknowingly overlooked by the parties … it is an expert’s opinion based on previously known or knowable facts,” the panel noted. “The report simply offers an opinion that is not shared by the trial court and that the court was entitled to accept or disregard as it deemed appropriate.”

    In concluding its affirmation of the circuit court’s ultimate decision, the panel summarized that an expert’s report, “… is nothing more than a challenge to the trial court’s discretion and does not constitute a ‘new factor’ for sentence modification purposes.”

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