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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                        This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
June 2, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                      petition to review an adverse decision by the
Clerk of Court of Appeals                                              Court of Appeals.   See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. Nos.   2000CM994
Appeal Nos.                                                            2004AP3106-CR
2001CM18
2004AP3107-CR
STATE OF WISCONSIN                                                     IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
DANTE R. VOSS,
DEFENDANT-APPELLANT.
APPEAL  from  an  order  of  the  circuit  court  for  Wood  County:
EDWARD F. ZAPPEN, JR., Judge.  Affirmed.




Nos.   2004AP3106-CR
2004AP3107-CR
¶1                                                                                                 VERGERONT,  J.1    Dante  Voss  appeals  the  order  denying  his
motion  for  sentence  modification.    We  conclude  the  circuit  court  correctly
concluded there was no new factor.   We therefore affirm.2
BACKGROUND
¶2                                                                                                 Voss was sentenced on January 11, 2001, after entering a plea of no
contest  in  three  cases  to  these  charges:    in  case  no.                                    2000CM831,  disorderly
conduct and resisting/obstructing an officer, both enhanced for habitual criminality
under  WIS. STAT.  § 939.62; in case  no.  2000CM994,  the  same  charges,  both
enhanced  under  § 939.62,  and  bail  jumping,  also  enhanced;  and  in  case  no.
2001CM18, disorderly conduct and criminal damage to property, both enhanced
under § 939.62.    In each of the three cases, the court sentenced Voss to two years
in  prison  on  each  count,  concurrent  to  the  other  counts  in  that  case,  but
consecutive to the terms in each of the other two.   However, the court stayed those
sentences and placed Voss on four-years’ probation for each count in each case,
concurrent to the other counts in that case and to the other two cases.   The court
imposed  the  following  conditions  of  probation  on  Voss:                                      (1) counseling  as
necessary; (2) absolute sobriety; (3) take medications as prescribed; (4) obey all
jail rules; and (5) remain in an alcohol program.
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2003-04).
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
2  Voss also argues that the revocation of his probation and imposition of his stayed
prison sentence violate the constitutional prohibition against double jeopardy and the Eighth
Amendment  prohibition  against  cruel  and  unusual  punishment.    We  do  not  address  these
arguments because he did not raise them in the circuit court.
2




Nos.   2004AP3106-CR
2004AP3107-CR
¶3                                                                                                  Voss’s probation was revoked in case no.  20000CM831 after the
Department of Corrections (DOC) determined that Voss had violated a number of
rules  of  probation.    Voss  was  then  incarcerated  until  August                               13,                                                                   2002,  his
mandatory release date.   However, very soon after his release his probation was
again revoked  (in case no.  2000CM831) because of drug and alcohol use and
disorderly conduct.   He was released from prison on April 25, 2003, when the
prison term in 2000CM831 expired, and he began serving probation in the other
two cases.   Probation was revoked in both those cases by order dated November 6,
2003, based on findings of consumption of alcohol and other violations of the
rules of his probation.3
¶4                                                                                                  Just before the order revoking probation was entered, but after the
hearing, Voss filed a motion for sentence modification.    In an accompanying
affidavit he averred that his probation agent had prevented him from getting the
help he needed for his alcohol addiction and mental illness, and, had she allowed
him to get help, he would not have violated the rules of his probation.4   The circuit
court  denied  the  motion  without  a  hearing,  concluding  that  the  motion  and
affidavit  did  not  show  grounds  upon  which  the  court  could  modify  Voss’s
sentence.
3  Voss’s appeal of the probation revocation orders are pending before this court.
4  Voss also averred that he had a daughter for whom he needed to pay child support and
financial obligations related to his convictions and it was in the best interest of the community
that his sentence be modified to allow him to pay these obligations.   However, he makes no
argument on appeal concerning these averments and we therefore do not address them.
3




Nos.   2004AP3106-CR
2004AP3107-CR
ANALYSIS
¶5                                                                                         A  defendant  may  obtain  modification  of  a  sentence  if  the  court
determines that a new factor exists and that the new factor justifies a modification
of the sentence.   Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).   A
new factor is a fact or set of facts highly relevant to the imposition of a sentence
but not known to the circuit court at the time of sentencing, either because the fact
was not then in existence or because it was unknowingly overlooked by all parties.
Id.    A new factor is one that frustrates the purpose of the original sentence.   State
v. Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524.   Whether a fact
or set of facts constitute a new factor presents a question of law, which we review
de novo; whether a new factor warrants a sentence modification is committed to
the circuit court’s discretion, subject to our deferential standard of review for
discretionary decisions.   Id., ¶10.
¶6                                                                                         This appeal implicates the first inquiry:    whether there is a new
factor.   Voss argues that his agent’s refusal to let him obtain the help he needed to
stay sober is a new factor that frustrated the purpose of the original sentence.   He
asserts that, when the circuit court sentenced him, the court took into account a
report on his drug and alcohol abuse and mental health problems, and the court’s
purpose in staying the prison sentence and imposing the probation conditions
recited in paragraph 2 was to allow Voss to get help with his problems and to have
his probation agent help him get the help he needed.   This purpose was thwarted,
Voss contends, because his probation agent put him on electronic monitoring and
did not allow him to go to any treatment programs or give him money for his
medications.
4




Nos.   2004AP3106-CR
2004AP3107-CR
¶7                                                                                                       We will accept Voss’s assertions that one of the court’s purposes in
staying the prison sentences and ordering probation on the terms it did was to give
Voss the opportunity to obtain help in the community for his substance abuse and
mental health problems.5   However, there is nothing in the record that shows the
circuit court intended that the condition that Voss maintain complete sobriety was
dependent upon having any particular assistance from his probation agent, or that
the  circuit  court  intended  that  the  probation agent,  rather  than  Voss,  had the
responsibility to get the treatment and the medication he needed.   Indeed, in the
court’s order denying Voss’s request for relief by certiorari from the November
2003 order revoking his probation, the court expressly stated its view that “Voss
himself has the responsibility to get the requested treatment and medication.”
¶8                                                                                                       We  also  observe  that  the  transcript  of  the  probation  revocation
hearing to which Voss cites does not support his assertion that his probation agent
denied him the opportunity to obtain his medications or to obtain treatment.   There
is nothing in the record suggesting that anyone deprived him of medication he
needed or that a lack of medication was related to his consumption of alcohol or
the other behaviors that led to his revocation.   Voss’s agent testified that every
time she supervised him in the community she would refer him to treatment for
Alcohol and Other Drug Abuse issues, but he would do something that led to
5  A complete transcript of the sentencing is not in the record of these two consolidated
appeals, nor in the record shared with 2004AP1466 and 2004AP1467; the transcript stops at page
16, during the plea colloquy.  Voss did bring a motion to add a transcript of a hearing held on July
23, 2003, on an earlier motion to modify his sentence.  We denied that motion on the ground that
Voss had already submitted a statement saying no transcripts were necessary for this appeal and
that he had not adequately explained why a transcript from a hearing on an earlier sentence
modification motion was necessary for this appeal.    In Voss’s motion for the transcript, he
asserted that at that hearing the court stated its reasons for the sentence it imposed and the court’s
statements support his argument that the court granted him probation to “help rehabilitate him for
his mental health issues and AODA problems.”
5




Nos.   2004AP3106-CR
2004AP3107-CR
revocation before that could be followed through with.   She also testified that he
repeatedly denied that he was consuming alcohol, and that in response to his
alcohol violations she tightened his restrictions when he was in the community,
including placing him on electronic monitoring and a “sobrieter unit.”   In addition,
the transcript shows that Voss was seeing a psychotherapist in group meetings and
individually for sexual offender treatment.   Finally, Voss’s own testimony was
that in the past he did not want to stop drinking and did not understand the twelve
steps of AA, but now he wanted to change.   He also testified that he wanted to go
to AA meetings but could not go because he was on electronic monitoring.   On
cross-examination he acknowledged that his agent talked to him about AODA
treatment and that he did not remember ever asking for a list of AA places and
being told he could not go.   What the record shows, then, is that Voss was on
electronic  monitoring  because  of  his  own  behavior,  he  did  not  want  AODA
treatment in the past; and more recently he wanted it but could not get there
because of the electronic monitoring.   Accepting Voss’s testimony as true, it does
not support a basis for concluding that he made efforts to obtain medication or
treatment that his agent thwarted.
¶9                                                                                      Our de novo review leads us to conclude that there is no new factor
for purposes of sentence modification.   Accordingly, the circuit court correctly
denied Voss’s motion.
By the Court.—Order affirmed.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)4.
6

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