State v. Romero M. Watson

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.
April 16, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1971-CR Cir. Ct. No. 2017CF2671

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROMERO M. WATSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
AUDREY SKWIERAWSKI, Judge. Reversed and cause remanded with
directions.

Before Donald, P.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1971-CR

¶1 PER CURIAM. Romero M. Watson appeals from an order of the
postconviction court denying his motion requesting sentence modification based
on a new factor.1 More specifically, Watson argues that the sentencing court
incorrectly stated that Watson was ineligible for the Challenge Incarceration
Program (CIP), see WIS. STAT. § 302.045 (2017-18),2 and the Substance Abuse
Program (SAP), see WIS. STAT. § 302.05, and Watson requests reconsideration of
his eligibility for CIP and SAP. For the reasons set forth below, we reverse the
postconviction court’s order and remand for a hearing addressing the issue of
whether Watson is eligible for CIP or SAP.

BACKGROUND

¶2 This case began when a confidential informant told police that
Watson was selling cocaine, marijuana, and pills from a residence, and the police
organized a controlled buy of cocaine from Watson. The police then obtained and
executed a no-knock search warrant. When the police executed the warrant, they
recovered drug paraphernalia and baggies of cocaine from the living room;
cocaine, marijuana, and pills from a dresser in one of the bedrooms; marijuana,
cocaine, and a loaded semi-automatic handgun from a backpack in a closet; and a
handgun under an SUV near the location where Watson fled the residence at the
time the police executed the warrant.

The Honorable Frederick C. Rosa presided over Watson’s sentencing hearing and
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imposed Watson’s sentence. The Honorable Audrey Skwierawski denied Watson’s
postconviction motion for sentence modification. We refer to Judge Rosa as the sentencing court
and Judge Skwierawski as the postconviction court.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2022AP1971-CR

¶3 Following execution of the warrant, Watson was arrested and
charged with possession with intent to deliver cocaine as a second or subsequent
offense, possession with intent to deliver marijuana as a second or subsequent
offense, possession with intent to deliver methamphetamine as a second or
subsequent offense, and two counts of possession of a firearm by a felon. The
case proceeded to a jury trial, and the jury found Watson guilty as charged.
Watson was subsequently sentenced to a total of thirteen years of initial
confinement and seven years of extended supervision.

¶4 At the time of sentencing, none of the parties requested CIP or SAP,
and when the sentencing court explained Watson’s sentence on the record, it
stated, “Because of the felon firearms, I don’t think I’m able to make you eligible
for programming, so I have to deny Challenge and Substance Abuse Program.”
Thus, Watson was not made eligible for CIP or SAP as part of his sentence.

¶5 Watson filed a postconviction motion requesting sentence
modification based on a new factor. Specifically, he argued that the sentencing
court incorrectly stated that Watson was ineligible for CIP or SAP.3 Watson
further argued that his eligibility is a new factor that justifies sentence
modification, and he requested reconsideration of his eligibility.

¶6 The postconviction court denied his motion in a written order
stating, “At sentencing on October 12, 2018, the court declined to make the
defendant eligible to participate in CIP or SAP. After review of the defendant’s

3
We note that Watson actually requested reconsideration of his eligibility for “the
Earned Release Program.” However, the name of this program was changed to the Substance
Abuse Program (SAP), and therefore, we instead refer to the program as SAP. See WIS. STAT.
§ 302.05; 2011 Wis. Act 38, § 19.

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No. 2022AP1971-CR

requests, this court concludes that altering Judge Rosa’s determination would
unduly depreciate the seriousness of the offenses and would frustrate the
sentencing court’s intent.”

¶7 Watson now appeals.

DISCUSSION

¶8 On appeal, Watson renews his argument that he is entitled to
sentence modification because his eligibility for CIP and SAP is a new factor that
justifies sentence modification.4 In particular, Watson contends that the
sentencing court incorrectly stated that he was ineligible for both programs, and
Watson argues that his eligibility for CIP and SAP should be reconsidered.

¶9 A defendant may seek a modification of his or her sentence “upon
the defendant’s showing of a ‘new factor.’” State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. To do so, the defendant first “has the burden to
demonstrate by clear and convincing evidence the existence of a new factor.” Id.,
¶36. Second, “if a new factor is present, the circuit court determines whether that
new factor justifies modification of the sentence.” Id., ¶37. “Thus, to prevail, the
defendant must demonstrate both the existence of a new factor and that the new
factor justifies modification of the sentence.” Id., ¶38.

4
To the extent that Watson seeks direct review of his sentence, we note that the time to
do so has passed. See State v. Nickel, 2010 WI App 161, ¶¶5, 8, 330 Wis. 2d 750, 794 N.W.2d
765; see also WIS. STAT. § 973.19(1), (5); WIS. STAT. RULE 809.30(2). Additionally, this is
Watson’s second appeal. See State v. Watson, No. 2019AP1982-CR, unpublished slip op. (WI
App Mar. 1, 2022).

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No. 2022AP1971-CR

¶10 The definition of a new factor is well-settled as “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.” Rosado v. State,
70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

¶11 “Whether a fact or set of facts presented by the defendant constitutes
a ‘new factor’ is a question of law” that we review independently. Harbor, 333
Wis. 2d 53, ¶33. However, we review “[t]he determination of whether that new
factor justifies sentence modification” for an erroneous exercise of discretion. Id.

¶12 The State concedes that the sentencing court incorrectly stated that
Watson was ineligible for programming as a result of Watson’s conviction under
WIS. STAT. § 941.29(1m)(a) for possession of a firearm by a felon, and the State
assumes that Watson’s eligibility meets the definition of a new factor. See WIS.
STAT. § 302.045(2)(c) (listing criminal offenses ineligible for CIP); WIS. STAT.
§ 302.05(3)(a)1. (listing criminal offenses ineligible for SAP). We agree, and we
accept the State’s concession. Consequently, we do not address whether Watson’s
eligibility meets the definition of a new factor any further.

¶13 Nevertheless, the State argues that Watson is not entitled to sentence
modification because the postconviction court properly exercised its discretion
when it determined that Watson’s eligibility does not justify sentence
modification. In making this argument, the State contends that making Watson
eligible for early release under CIP or SAP would be inconsistent with the
seriousness of his offenses. The State further emphasizes the sentencing court’s
lengthy remarks at the time of sentencing explaining that Watson had been granted

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No. 2022AP1971-CR

probation in the past and that probation has clearly failed to work given that
Watson has returned with new and serious charges. We disagree.

¶14 “[A]s part of the exercise of its sentencing discretion,” the court
“shall” determine whether “the person being sentenced” is eligible or ineligible to
participate in CIP or SAP. WIS. STAT. § 973.01(3g), (3m). In this case, the
sentencing court at the outset failed to fulfill its mandatory duty to consider
Watson’s eligibility for CIP or SAP because of its incorrect belief that Watson was
ineligible for either program as a result of his conviction under WIS. STAT.
§ 941.29(1m)(a) for possession of a firearm by a felon. See WIS. STAT.
§§ 302.045(2)(c), 302.05(3)(a)1.

¶15 As a result of the sentencing court’s underlying failure to consider
Watson’s eligibility for CIP or SAP, we conclude that the postconviction court
erroneously exercised its discretion when it found that Watson’s eligibility did not
justify sentence modification. See Weborg v. Jenny, 2012 WI 67, ¶41, 341
Wis. 2d 668, 816 N.W.2d 191 (“A circuit court erroneously exercises its discretion
if it applies an improper legal standard or makes a decision not reasonably
supported by the facts of record.” (citation omitted)).

¶16 A defendant’s eligibility for CIP and SAP must be considered at the
time of sentencing. However, the sentencing court made no such determination as
to Watson’s eligibility, and the postconviction court incorrectly stated that the
sentencing court “declined to make the defendant eligible to participate in CIP or
SAP.” Consequently, there was also nothing from the sentencing hearing that the
postconviction court could use to support its finding that making Watson eligible
for CIP or SAP would “unduly depreciate the seriousness of the offenses” or
“frustrate the sentencing court’s intent.”

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No. 2022AP1971-CR

¶17 Accordingly, we conclude that the postconviction court’s findings
amount to an erroneous exercise of discretion and Watson has demonstrated that
his eligibility for CIP and SAP is a new factor that justifies a hearing to determine
whether his sentence should be modified. As a result, we reverse the
postconviction court’s order, and we remand this matter for a hearing at which the
postconviction court can consider whether Watson is eligible for CIP or SAP.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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