COURT OF APPEALS

DECISION

DATED AND FILED

June 8, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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.
No. 2021AP1654-CR

3

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 court4set 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.
No. 2021AP1654-CR

4

¶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. 
No. 2021AP1654-CR

5

¶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 
No. 2021AP1654-CR

6

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.
No. 2021AP1654-CR

7

$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. 
No. 2021AP1654-CR

8

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.
No. 2021AP1654-CR

9

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.
No. 2021AP1654-CR

10

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.