District II
March 19, 2014
To:
Hon. James K. Muehlbauer
Circuit Court Judge
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095
Theresa Russell
Clerk of Circuit Court
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Mark Bensen
District Attorney
Washington County
P.O. Box 1986
West Bend, WI 53095-7986
Sarah Burgundy
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Bettyjean Gross 564003
Robert Ellsworth Corr. Cntr
21425-A Spring Street
Union Grove, WI 53182-9408
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Bettyjean Gross (L.C. #2012CF378) |
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Before Neubauer, P.J., Reilly and Gundrum, JJ.
Bettyjean Gross appeals pro se from
an order denying her motion for sentence modification. Based on our review of the briefs and record, we conclude at
conference that this case is appropriate for summary disposition. See
Wis. Stat. Rule 809.21 (2011-12).[1] We affirm the order of the circuit court.
Gross was convicted following a guilty plea to operating
while intoxicated (OWI), fifth or sixth offense, with an alcohol fine
enhancer. The charge stemmed from Gross’s
arrest in October 2012 for driving while intoxicated.
At the time of her arrest, Gross was on extended
supervision for a prior OWI conviction.
Her extended supervision in that case was revoked, and she was sentenced
to eighteen months of confinement.
In the present case, the circuit court sentenced Gross
to two years of initial confinement and three years of extended supervision to run
consecutively to the revocation sentence.
The court further designated Gross to be eligible for the substance
abuse program (SAP) but required her to first serve one year on the sentence in
the present case before she could become eligible.
Shortly after sentencing, Gross wrote a letter to the circuit
court asking that it reduce the restriction on her SAP eligibility from one
year to six months. She explained that prison
staff had informed her that the one-year restriction would leave her remaining
sentence too short for her to participate in the program. The court granted her request.
Gross subsequently wrote several other letters to the
circuit court seeking additional sentence modification. She explained that due to the SAP restriction,
institutional rules prevent her from participating in work release and other
treatment programs while she serves her revocation sentence and first six
months of her consecutive sentence. The
court denied her requests.
Gross eventually filed a formal motion for sentence
modification, reiterating the same reasons she had stated in her letters. The circuit court again denied the
motion. This appeal follows.
On appeal, Gross contends that she is entitled to
sentence modification on the basis of a new factor. Specifically, she maintains that her
discovery that institutional rules prevent her from participating in other
programming during her revocation sentence and first six months of her
consecutive sentence constitutes a new factor.
A circuit court may modify a defendant’s sentence upon
a showing of a new factor. See State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. The
analysis involves a two-step process.
First, the defendant must demonstrate by clear and convincing evidence
that a new factor exists. Id.,
¶36. Second, the defendant must show
that the new factor justifies sentence modification. Id., ¶¶37-38. A new factor is “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 … it was unknowingly overlooked by all of the parties.” Id., ¶40 (quoting Rosado
v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). Whether a fact or set of facts constitutes a
new factor is a question of law that this court decides independently. See id., ¶33. If the fact or set
of facts do not constitute a new factor as a matter of law, we need go no
further in our analysis. Id., ¶38.
Upon review of the record, we conclude that Gross’s inability
to participate in other programming during her revocation sentence and first
six months of her consecutive sentence does not constitute a new factor. At sentencing, the circuit court’s overriding
concern was that Gross continued to drink and drive after having received
substantial counseling and treatment. The
court wanted Gross to spend significant time in confinement to think about her
life and decide whether she wants to stop drinking. The only programming the court discussed and
authorized was SAP, and the court specifically conditioned that authorization
upon Gross first serving a specified time of confinement. In light of the foregoing, Gross cannot
demonstrate her inability to participate in other programming during her
revocation sentence and first six months of her consecutive sentence is a fact
highly relevant to the imposition of her sentence.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is
summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals