Please ensure Javascript is enabled for purposes of website accessibility
Home / Bench Blog / BENCH BLOG: Heroin case yields not-so discreet test of court’s sentencing discretion

BENCH BLOG: Heroin case yields not-so discreet test of court’s sentencing discretion

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

The District 2 Court of Appeals recently outdid itself for conciseness by issuing a five-page decision.

The issue in question was whether an expert’s opinion about the appropriateness of expunging a heroin conviction constituted a new factor for the purposes of sentence modification.

Charges and sentencing

Courtney Sobonya of Ripon was 23 years old when she was charged with two felony counts of possessing narcotic drugs (heroin), as well as three misdemeanors: possession of THC, possession of a controlled substance and possession of drug paraphernalia.

Within five months of the complaint being filed, she and the state reached an agreement that resulted in her pleading guilty to one count of heroin possession. In return, the court dismissed the remaining four counts but still took them into consideration when determining her sentence.

At sentencing, the defense asked the court not only for probation but also eventual expungement of the record of her conviction. The state indicated it did not oppose expungement. Sobonya, moreover, was younger than 25 and therefore met the threshold requirement for being able to get a felony conviction expunged.

Washington County Circuit Judge Todd Martens placed Sobonya on probation for two years, yet also denied her request for expungement. He reasoned that granting it, while beneficial to Sobonya, would harm society by undermining the deterrent message that is sent by a conviction for heroin possession.

Post-conviction hearing

Thereafter, Sobonya retained a professor of sociology to analyze “the current state of social science and criminological literature” and to see if it shined any new light on Martens’s denial of her request for expungement.

The professor opined in a report that “the relevant research shows that the public interest and public safety are best served by lowering barriers to reintegration and granting Ms. Sobonya … expungement. …”

Sobonya presented this report as a new factor under the Rosado line of cases in support of her motion for sentence modification. Martens accepted the expert’s report as a new factor, yet nonetheless declined to modify the sentence on the matter of expungement.

Sobonya appealed.

Court of Appeals opinion

In an eight-paragraph decision written by Court of Appeals Judge Paul Reilly, the court indicated that although it agreed with Martens’s ultimate decision, it disagreed with his finding that the expert’s report constituted a new factor for the purpose of holding a sentence-modification hearing.

A trial court may not entertain a request for sentence modification unless a new factor has been shown.

A new factor, according to the Wisconsin Supreme Court in the Rosado case, “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 the 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 of the parties.”

Here, the sociology professor’s report was not a new factor. Rather, it was an opinion “based on previously known or knowable facts.” In this respect, Chief Judge Lisa Neubauer noted in her concurrence that “the social science and criminological literature cited all date from 1948 to 2011.”

Reilly wrote that Sobonya’s challenge to Martens’s sentencing decision on expungement was therefore more properly characterized as a motion for reconsideration. The trouble is that such a motion challenged the core of the court’s sentencing discretion, and appellate courts afford “substantial deference” to trial courts’ sentencing decisions.

The four well-recognized sentencing objectives are protection, punishment, rehabilitation and deterrence. Here, Martens considered expungement in light of the deterrence factor. The law requires that society not be harmed by the grant of expungement, and Martens found that society would be harmed because the deterrent effect of his sentence would be undermined.

In conclusion, the expert’s report was found to do nothing more than express an opinion that differed from Martens’s on the objectives of sentencing. For that reason, it not only carried no weight against a trial judge’s exercise of sentencing discretion but also was not a new factor for purposes of sentencing modification.


In a one-paragraph concurrence, Neubauer agreed with the majority that Sobonya had failed to establish a new factor by marshaling clear and convincing evidence. She noted that Martens stated he was aware of the literature on sentencing and deterrence, and that the report’s conclusions were not highly relevant to his denial of expungement.


While post-conviction counsel demonstrated creativity in mustering a challenge to Martens’s decision on expungement, the attempt flew in the face of the long-standing principle that has appellate courts show strong deference to trial judges’ sentencing discretion.

The Court of Appeals succeeded in clarifying that a new factor cannot be introduced simply by producing an opinion that runs contrary to a trial judge’s sentencing analysis. What’s more, the court did so in a compact opinion that contributes to Rosado’s progeny. While short, the opinion is incisive and instructive.

The case also demonstrates the inherent risk in a plea agreement. Although counsel for the parties may concur, the trial court has the ultimate responsibility of exercising its discretion independently in determining a sentence that meets the four sentencing objectives for the individual defendant. Judge Martens did just that, giving more weight to deterrence than rehabilitation. This is a recognized part of his sentencing discretion, much to the chagrin of Sobonya.

Leave a Reply

Your email address will not be published. Required fields are marked *