State v. Rebecca Sue Ferraro

COURT OF APPEALS
DECISION NOTICE
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 8, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2021AP1654-CR Cir. Ct. No. 2020CF139

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

REBECCA SUE FERRARO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: MARIA S. LAZAR and J. ARTHUR MELVIN, III, Judges.
Affirmed.

¶1 GROGAN, J.1 Rebecca Sue Ferraro appeals from a judgment
entered after she pled no contest to operating a motor vehicle while under the
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1654-CR

influence, third offense, contrary to WIS. STAT. §§ 346.63(1)(a), 346.65(2)(am)3,
and 343.301(1g). She also appeals from a postconviction order denying her
motion seeking sentence modification.2 Ferraro contends that her blood test result,
which came back after her plea/sentence, constitutes a new factor warranting
sentence modification because it showed a lower blood alcohol concentration
(BAC) than her breath test. Because the blood test does not constitute a new
factor that warrants sentence modification, this court affirms.

I. BACKGROUND

¶2 On January 28, 2020, police arrested Ferraro for operating a motor
vehicle while intoxicated, fourth offense. On that date, police received a report
that a female diner had left a Delafield restaurant without paying for her meal.
Police were told the driver left in a white Jeep Cherokee with an Illinois license
plate and that she was staying at a nearby hotel. Police Officer Joseph Walker
responded to the report and proceeded to the hotel where he observed a female in
the driver’s seat of a parked white Jeep Cherokee with Illinois plates. Walker
identified the female as Ferraro, and she told the officer she had been at the
restaurant and had consumed alcohol while there. Walker observed that Ferraro’s
speech was slurred and detected a strong odor of intoxicants on her breath.

¶3 Walker conducted field sobriety tests, which Ferraro failed. Ferraro
submitted to a preliminary breath test (PBT) and blew a .213. Walker arrested
Ferraro for operating while under the influence (OWI) and read her the Informing
the Accused Form. When Ferraro refused to consent to a blood test, she was

2
The Honorable Maria S. Lazar presided over the plea and sentencing hearings. The
Honorable J. Arthur Melvin, III presided over the postconviction motion.

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transported to the hospital. Walker obtained a search warrant, and Ferraro’s blood
was then drawn and sent to the state lab for analysis. The officer reviewed her
driving record and found two prior OWI violations and two prior OWI
convictions. Court records also showed that Ferraro had a pending OWI, third
offense and with a minor passenger, in Rock County for which Ferraro had been
released on a $2,000 signature bond in May 2019 with conditions that she
maintain absolute sobriety and not operate a motor vehicle. 3 Ferraro was
thereafter charged with OWI, fourth offense, and felony bail jumping.

¶4 Ferraro’s initial appearance occurred on January 30, 2020, where the
circuit court4 set bail of $2,500, although it commented that amount may be “too
low” given that Ferraro committed this offense while the Rock County case was
pending and in violation of the terms and conditions set in the Rock County case.
Ferraro was unable to post bond and sent numerous communications to the circuit
court that expressed interest in resolving the case quickly. Her attorney filed a
motion seeking to reduce bail, and at a February 14, 2020 hearing, the circuit court
denied her request, explaining that “$2,500” was “more than fair” given her record
and the pending Rock County OWI. Ferraro’s lawyer made a speedy trial request
at the same hearing. On February 18, 2020, Ferraro waived her preliminary
hearing and, through her attorney, entered a not guilty plea and “ask[ed] for a plea
and sentencing date.” Ferraro asked for a date for plea/sentencing “this week” if
available.

3
Rock County case No. 2019CF496.
4
Here, “circuit court” refers to the court commissioner who handled the initial
appearance.

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No. 2021AP1654-CR

¶5 The State filed an Amended Information on February 20, 2020
changing the OWI, fourth offense, to an OWI, third offense. The Amended
Information set forth the penalties associated with a third offense OWI as: (1) a
fine of not less than $600 but not more than $2,000; and (2) prison time of “not
less than 45 days nor more than one year in the county jail.”

¶6 The plea hearing and sentencing occurred on February 20, 2020.
Ferraro entered into a plea bargain with the State where she agreed to plead no
contest to OWI, third offense, with the felony bail-jumping charge dismissed and
read in. The State agreed to recommend a twelve-month jail sentence, thirty-six
months of driver’s license revocation, installation of an ignition interlock device,
and attendance at a victim impact panel. The State would take no position on the
fine amount except to request that $35 be paid to the Delafield Police Department
to cover the cost of the blood draw.

¶7 The circuit court held a plea colloquy with Ferraro and explained the
minimum and maximum penalties, which were consistent with the Amended
Information. Ferraro agreed to the circuit court using the Amended Information
and the Complaint as the factual basis for the charge. The court emphasized to
Ferraro that there were “sufficient facts alleged in the amended information and
the underlying complaint by which a trier of fact” could find her guilty of OWI,
third offense. Ferraro personally acknowledged that she understood. The court
accepted the plea and found Ferraro guilty of OWI. When the court asked Ferraro
whether there was “any reason why [she] should not go to sentencing[,]” Ferraro
personally responded, “No, your Honor.” The court advised Ferraro that she had
“20 days … in which to appeal the sentence” and that “20 means 20.” Ferraro said
she understood.

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No. 2021AP1654-CR

¶8 The matter proceeded immediately to sentencing. The State
acknowledged mitigating factors as: (1) the distance Ferraro drove while
intoxicated was short (only .3 miles), and there were “no reports of bad driving”;
and (2) she was cooperative with police. The State saw the .213 PBT as an
aggravating factor—“more aggravated than a regular third offense OWI.” But the
State noted “the most aggravating factor” was that “at the time of her arrest, at the
time that she decided to get behind the wheel while under the influence … she was
out of custody, subject to conditions of bail in … Rock County, where she had
been charged with third offense OWI with a minor passenger.” The State pointed
out that Ferraro had “very simple rules” in the Rock County case—“absolute
sobriety and absolutely no driving.”

¶9 Ferraro’s attorney then addressed the circuit court, acknowledging
that “Ferraro does have an alcohol problem. She admits to that.” Her attorney
told the court that she “had been doing very well after being charged in Rock
County[,]” but that her employer “needed her to work here in Waukesha[,]” and
she chose to drive there from Green County, where she lived. He also said that
Ferraro “admit[s] that it’s likely … had we gotten all the evidence in this case and
what the blood alcohol actually was through the testing, that it’s likely that she
could have been found guilty, so that’s why she’s here taking responsibility for
that.” Defense counsel asked for probation because probation would allow her to
get treatment, noting she had been going to classes to address her alcohol problem.
Defense counsel also asked that Ferraro be transferred to Green County and have
work release privileges.

¶10 Ferraro personally addressed the court and explained she had been
sober for 233 days before this incident and that she voluntarily had been trying to

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No. 2021AP1654-CR

deal with her alcoholism by going to Alcoholics Anonymous and getting a
sponsor.

¶11 The circuit court then gave its sentencing remarks. It said it “looked
to the Third Judicial District OWI/PAC Sentencing Guidelines for information and
standards as amended in 2018 and first looks at mitigating and aggravating
factors.” It agreed with the defense that this case has “one big mitigating factor”
and “one big aggravating factor, aside from the BAC of .213.”5 It went on to
describe the aggravating factor as Ferraro being out on bond from another pending
OWI third charge. It noted that Ferraro should not have even been driving, she
should “not have been drinking[,]” and she “definitely” should not have been
“drinking and driving.” The court saw the mitigating factor as the short
distance—about .3 miles—driven between the restaurant and the hotel with no bad
driving reported. Despite this, the court expressed concern that Ferraro
nevertheless “could have seriously injured, killed, or hurt someone or [her]self.”
The court also repeated its concern that Ferraro did this while the Rock County
case was pending.

¶12 Based on these factors, plus Ferraro’s “verifiable period of
consistent sobriety,” her record of two prior OWIs, and the third OWI currently
pending, the circuit court rejected both the State’s and the defense’s sentence
recommendations. It sentenced Ferraro to 250 days in jail with work release
privileges, 36 months’ revocation of her driver’s license, 36 months’ ignition
interlock installation, and ordered “the lowest fee, which is still a high amount,

5
This referred to the breath test, not the blood test, as the blood test results had not come
back yet.

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No. 2021AP1654-CR

$1,800, plus $35 for the blood draw fee.” The court told Ferraro she would be
transferred to Green County.

¶13 Four days later, the police department received the blood-draw test
results from the state lab, and the results showed Ferraro’s BAC at the time of the
draw to be .167. Ferraro filed a postconviction motion to modify her sentence,
alleging the lower BAC constituted a new factor warranting sentence
modification. The postconviction court denied the motion, ruling that the blood
test result did not constitute a new factor and that even if it did, the result did not
warrant sentence modification.6 Ferraro now appeals.

II. DISCUSSION

¶14 The issue on appeal is whether the circuit court erred in denying
Ferraro’s sentence modification motion alleging the blood test result constituted a
new factor. “Deciding a motion for sentence modification based on a new factor
is a two-step inquiry.” State v. Harbor, 2011 WI 28, ¶36, 333 Wis. 2d 53, 797
N.W.2d 828. Whether a “fact or set of facts” “constitutes a ‘new factor’ is a
question of law.” Id. 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, even though it
was then in existence, it was unknowingly overlooked by all of the parties.”
Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). The defendant

6
The court notes the record reflects that Judge Lazar, who imposed the sentence, initially
granted Ferraro’s first motion for sentence modification. However, pursuant to Ferraro’s request,
Judge Lazar vacated that order in conjunction with granting her prior counsel’s motion to
withdraw and substitute in new counsel. Ferraro’s new counsel then re-filed a motion seeking
sentence modification, which was decided by Judge Melvin due to judicial rotation. Ferraro
acknowledges that this appeal involves a review of Judge Melvin’s postconviction decision.

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No. 2021AP1654-CR

bears the burden of establishing the existence of a new factor “by clear and
convincing evidence[.]” Harbor, 333 Wis. 2d 53, ¶36.

¶15 If a new factor exists, the defendant is not automatically entitled to
sentence modification. Id., ¶37. “Rather, if a new factor is present, the circuit
court determines whether that new factor justifies modification of the sentence.”
Id. Whether a new factor justifies sentence modification is within the circuit
court’s discretion. Id. When the circuit court concludes as a matter of law that
there is no new factor, it is unnecessary to “determine whether, in the exercise of
its discretion, the sentence should be modified.” Id., ¶38. “[I]f the court
determines that in the exercise of its discretion, the alleged new factor would not
justify sentence modification,” it is unnecessary for the court to “determine
whether the facts asserted by the defendant constitute a new factor as a matter of
law.” Id.

¶16 A new factor is defined as a fact unknown at the time of sentence
that is highly relevant to the imposition of the sentence. Ferraro contends the
lower BAC fits that definition. This court disagrees. Although the actual blood
test result was unknown to the circuit court at the time of sentencing, that court
knew that: (1) Ferraro had been driving while intoxicated; (2) her PBT was .213;
(3) Ferraro had admitted she drank and drove; (4) she had failed field sobriety
tests; and (5) she had violated the bond conditions set in her pending Rock County
OWI case. Although the blood test showed a lower alcohol concentration than the
PBT, it was still more than two times the legal limit.7 The blood test result also
7
Although Ferraro did not specifically waive use of the blood test results, based on the
record, she was unquestionably aware at the time of her plea and sentencing that the blood test
results had not yet been returned. Additionally, it is unclear from this record how much time had
elapsed between the time of Ferraro’s arrest and when her blood was actually drawn.

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No. 2021AP1654-CR

confirmed what the sentencing court already knew—that Ferraro drove while very
intoxicated. Moreover, the sentencing court’s concern focused primarily on the
fact that Ferraro committed this offense while out on bond from another OWI,
third offense, and while she was ordered not to drive at all. Ferraro’s decision to
drink and drive in violation of the Rock County bond order, together with the fact
that Ferraro repeatedly violated OWI law, motivated the sentence imposed.

¶17 Even if the lower BAC qualified as a new factor, the postconviction
court did not erroneously exercise its discretion when it concluded the lower result
did not justify sentence modification. The blood test alcohol concentration,
though lower than the breath test, was still more than twice the legal limit. The
sentence Ferraro received was within the penalties statutorily prescribed for an
OWI, third offense, and the Amended Information notified Ferraro of those
specific penalties. Further, Ferraro sought to resolve this case quickly, as
evidenced by her lawyer’s request for a speedy trial, Ferraro’s repeated
communications to the circuit court while she was in jail, and a request for a
plea/sentencing hearing the same week she waived her preliminary hearing. It is
clear from the plea transcript that the parties knew the state lab had not yet
provided the blood test result but that even absent this information, Ferraro wanted
to resolve this case. Ferraro certainly could have delayed the sentence to wait for
those results. When the sentencing court asked her directly if there was any
reason to postpone sentencing, Ferraro responded that there was not. Based on all
of these factors, the postconviction court did not erroneously exercise its discretion
when it determined the lower blood test result, which came back postsentencing,
did not warrant sentence modification.

By the Court.—Judgment and order affirmed.

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No. 2021AP1654-CR

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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