State v. Sobonya

NEUBAUER, C.J.

¶ 9. (concurring). I agree with the majority that Sobonya has failed to establish the existence of a new factor by clear and convincing evidence. Even though the report was not in existence, the social science and criminological literature cited all date from 1948 to 2011. See State v. Ninham, 2011 WI 33, ¶ 91, 333 Wis. 2d 335, 797 N.W.2d 451 (supreme court rejected new factor arguments based on adolescent brain research because, even though the studies proffered might not have been in existence, "the conclusions reached by the studies were already in existence and well reported by the time [the defendant] was sentenced in 2000"); State v. McDermott, 2012 WI App 14, ¶¶ 16-22, 339 Wis. 2d 316, 810 N.W.2d 237 (same). As importantly, the judge noted that he was aware of research on sentencing and deterrence, and that the report's conclusions were not highly relevant to the decision to deny expungement. The court was charged with an individualized determination and was not obligated to accept the report's conclusions, including as applied to Soboyna.