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Expert report challenging sentencing court’s assumption about deterrence is not a “new factor”

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

The expert was Prof. Michael Massoglia, the Vilas Associate Professor of Sociology and Director of the Center for Law, Society and Justice at the University of Wisconsin Law School. His report summarized recent empirical studies showing that the court’s assumptions about the deterrent effect of imposing a harsh sentence for possession of heroin were wrong. He also opined that society was more likely to be harmed by denying Sobonya (in particular) expungement than by granting it.

It seems the circuit court deemed Massoglia’s report and research to be a “new factor”: a fact or set of facts highly relevant to the imposition of sentence but not known to the court at the time of sentencing because it was overlooked by the parties. State v. Harbor, 2011 WI 28, ¶40, 33 Wis. 2d 53, 797 N.W.2d 828.  But the court of appeals nipped that idea in the bud:

Although raised as a motion for sentence modification based on a “new factor,” Sobonya’s challenge is better characterized as a motion for reconsideration. By attacking the trial court’s belief that her conviction could serve as a deterrent to others, Sobonya attacks the heart of the substantial deference we grant a trial court to craft sentences based on the facts of each individual case. See McCleary v. State, 49 Wis. 2d 263, 275, 281, 182 N.W.2d 512 (1971). Deterrence to others has been recognized as a legitimate objective for a trial court to consider and articulate as part of its sentencing decision, see State v. Gallion, 2004 WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197, especially given that the legislature requires that the court find that “society will not be harmed” by the expungement of a criminal record before exercising its discretion under WIS. STAT. § 973.015(1m)(a)1., see Hilber v. State, 89 Wis. 2d 49, 56 & n.9, 277 N.W.2d 839 (1979) . . .

A postsentencing report that expresses an opinion different from that of the trial court regarding the objectives of sentencing (protection, punishment, rehabilitation, and deterrence) is nothing more than a challenge to the trial court’s discretion and does not constitute a “new factor” for sentence modification purposes Slip op. ¶8.

Of course, a court must consider deterrence when selecting a sentence. But in some situations, a harsh sentence may have no deterrent effect at all. That was Sobonya’s point. She offered research on deterrence that no one had mentioned at sentencing. But the court of appeals seems to hold that challenging a trial court’s assumptions about deterrence is now off limits. That doesn’t seem right. A concurrence by C.J. Neubauer adds that even though Massoglia’s report did not exist at the time of sentencing, the social science research that it relied upon did, so Sobonya failed to establish a new factor for that reason as well. Slip op. ¶9.

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