State v. Michael Lee Muehl

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.
March 31, 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 Nos.
2021AP1755-CR Cir. Ct. Nos. 2013CM531
2014CM149
2021AP1758-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL LEE MUEHL,

DEFENDANT-RESPONDENT.

APPEALS from judgments and an order of the circuit court for
Waushara County: GUY D. DUTCHER, Judge. Affirmed.

¶1 GRAHAM, J.1 Michael Muehl appeals judgments of conviction
after revocation and an order denying his motion for sentence modification. He

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.
Nos. 2021AP1755-CR
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argues that his sentence should be modified based on the existence of a new factor.
I disagree and affirm the circuit court.

BACKGROUND

¶2 Muehl was convicted of misdemeanor battery and misdemeanor bail
jumping in 2014. The circuit court placed Muehl on probation for two years, to be
served consecutively to any other sentence. Then, while he was serving his
probation in 2020, Muehl was arrested and charged with multiple new offenses,
including possession of methamphetamine and drug paraphernalia, driving without
a valid license, and violating bond conditions.

¶3 The Department of Corrections (the DOC) revoked Muehl’s
probation as a result of the new charges. The DOC recommended that Muehl be
sentenced to nine months in jail, and it represented that Muehl was eligible for the
challenge incarceration program and the substance abuse program.2 In this
opinion, I occasionally refer to these programs collectively as the “early release
programs.”

¶4 The circuit court held Muehl’s sentencing after revocation hearing in
March 2021. At the hearing, the State argued that the DOC’s recommendation
failed to account for Muehl’s extensive criminal history and depreciated the
seriousness of the 2014 battery charge. The State recommended 18 months of

2
The challenge incarceration program provides counseling, treatment, exercise, and
education, see generally WIS. STAT. § 302.045, and the substance abuse program provides
treatment, see generally WIS. STAT. § 302.05. The circuit court must declare a defendant eligible
for these programs at sentencing. See §§ 302.045(2)(cm) and 302.05(3)(a)2. Upon successful
completion in these programs, a participant may be eligible for early release to extended
supervision.

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initial confinement and six months of extended supervision. Muehl’s attorney
asked for time served, noting that Muehl had already been in custody for 167 days
in connection with the charges.

¶5 In its sentencing remarks, the circuit court discussed Muehl’s
character and rehabilitative needs, the severity of the offense, and the need to
protect the public. It first discussed Muehl’s criminal record, describing it as
“incredible, in a negative way.” The court explained that Muehl had “criminal
convictions that are approaching 25 in number,” including “violence-oriented
types of crimes,” “multiple offenses involving battery, offenses involving sexual
misconduct,” and a “number of crimes related to bail jumping, and an
unwillingness to follow rules.” It acknowledged that Muehl’s offenses were
“dated, in large part,” and that he had not committed “many violent offenses in the
recent past,” but it stated that “the principal reason for that” was Muehl’s lengthy
periods of incarceration.

¶6 The circuit court then noted that Muehl has an “obvious substance
abuse issue” and “pronounced rehabilitative needs.” It emphasized that it was not
sentencing Muehl for the “events that led to his revocation,” but noted that, despite
being extended an alternative to revocation, “you still struggled with the addiction
that is obviously in the picture here to the point where you incurred additional
criminal charges, and you also have found yourself facing the sentencing that we
are now here to talk about.”

¶7 The circuit court then turned to severity of the offenses, and in
particular, the 2014 battery charge. It referenced photographs of the victim’s
injuries, which “all indicate a pretty significant level of violence.” The court
stated that, although Muehl had been charged with a misdemeanor, it was

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“probably pretty close to the point where there might have been some question
about whether it might be a higher level of battery than was actually charged.”
The court also discussed another domestic violence related charge, which had been
dismissed and read in. According to the court, the “public has a right to expect
that there is going to be an appropriate response to that type of criminality.”

¶8 The circuit court sentenced Muehl to 16 months of initial
confinement and six months of extended supervision. After pronouncing sentence,
the court stated: “You are eligible, statutorily, for the challenge incarceration
program and are eligible for the substance abuse program. However, the Court
requires that you not be released to extended supervision until having served no
less than 13 months of initial confinement.”3

¶9 Following sentencing, Muehl asked for clarification about whether
he would be “eligible for release [to extended supervision] after 13 months” if he
did not complete the challenge incarceration program or the substance abuse
program. The circuit court replied: “Programming must be completed before
early release.”

¶10 In September 2021, Muehl filed a motion asking the circuit court to
“reduce the incarceration period of [his] sentence by three months.” The ground
for the motion was that, contrary to the DOC’s representation at the time of
sentencing, Muehl was not statutorily eligible for the early release programs.
Muehl argued that the circuit court had emphasized his substance abuse treatment
needs during sentencing but was unaware that he would be ineligible for treatment

3
The circuit court also found that Muehl was entitled to 167 days of sentence credit.

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through the substance abuse program while incarcerated. Muehl asked the court to
modify his term of initial confinement to 13 months so that he could seek
treatment in the community.

¶11 The circuit court denied Muehl’s motion by letter the following day,
explaining as follows:

The Court has considered Mr. Muehl’s request for
sentence modification and it is denied. Mr. Muehl does not
introduce any information that would have impacted the
Court’s determination that a 16-month term of Initial
Confinement was appropriate. His eligibility/ineligibility
for the [substance abuse program] had no bearing upon this
decision, whatsoever. Mr. Muehl’s treatment needs will be
addressed through Extended Supervision.

Muehl appeals.

DISCUSSION

¶12 A sentencing court has inherent authority to modify a defendant’s
sentence based on a “new factor.” State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d
53, 797 N.W.2d 828 (quoted source omitted). It is undisputed that Muehl was not
statutorily eligible for either of the early release programs that the circuit court
mentioned during sentencing, and on appeal, Muehl maintains that his ineligibility
for these programs constitutes a new factor warranting sentence modification.

¶13 “Deciding a motion for sentence modification based on a new factor
is a two-step inquiry.” Id., ¶36. The defendant must first demonstrate the
existence of a new factor by clear and convincing evidence. Id. A new factor is
“a fact or set of facts” that is “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

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unknowingly overlooked by all of the parties.” Id., ¶40 (quoted source omitted).
The existence of a new factor is a question of law. Id., ¶36. If a new factor is
present, the court must determine “whether that new factor justifies modification
of the sentence.” Id., ¶37.

¶14 A circuit court may deny a motion for sentence modification based
on the defendant’s failure to demonstrate the existence of a new factor, or it may
deny the motion because it determines that the alleged new factor would not
justify sentence modification. Id., ¶38. On appeal, I independently review
whether the defendant has proven the existence of a new factor, and I review the
circuit court’s decision about whether any new factor justifies sentence
modification for erroneous exercise of discretion. See id., ¶¶36-37.

¶15 I conclude that Muehl has not established the existence of a “new
factor,” as that term is used in Harbor. To be sure, Muehl’s ineligibility for the
early release programs is a “fact or set of facts” that was “not known to the trial
judge at the time of sentencing.” See id., ¶40. However, not all unknown facts
constitute a new factor—the unknown fact must also be “highly relevant to the
imposition of sentence.” See id.

¶16 Under other circumstances, a defendant’s ineligibility for a program
might be “highly relevant to the imposition of sentence.” Here, however, the
record plainly reveals Muehl’s ineligibility for the programs was not “highly
relevant” to the court’s sentencing decision. As the circuit court explained when it
denied the motion for sentence modification, Muehl’s “eligibility/ineligibility for
the [substance abuse program] had no bearing upon [the court’s sentencing]
decision,” and knowledge that Muehl was actually ineligible for the program

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would not have “impacted the Court’s determination that a 16-month term of
Initial Confinement was appropriate.”

¶17 The sentencing transcript supports this conclusion. Although the
circuit court noted Muehl’s treatment needs during sentencing, the treatment needs
were not the focus of the court’s exercise of sentencing discretion. On the
contrary, the transcript reveals that the court rejected the DOC’s recommendation
and imposed a 16-month period of initial confinement primarily due to Muehl’s
extensive criminal history and the seriousness of his offenses. The court explained
that “[t]he public has a right to expect that there is going to be an appropriate
response to that type of criminality.”

¶18 It was not until after the circuit court sentenced Muehl to 16 months
initial confinement that it discussed his eligibility for early release under the
challenge incarceration program and the substance abuse program. And in so
doing, the court stated that, despite the potential for early release to extended
supervision, Muehl would not be eligible for release until he served “no less than
13 months of initial confinement.” The words used by the court demonstrate that
it was not focused on incentivizing Muehl’s participation in treatment with the
possibility of release after 13 months—it instead wanted to ensure that Muehl
would not be released without serving a minimum of 13 months initial
confinement, despite any progress he made in treatment.

¶19 Muehl cites to State v. Yanda, No. 2018AP412, unpublished slip op.
(WI App June 18, 2019), but that decision does not lend support to his argument.
In Yanda, as here, the sentencing court declared that the defendant was eligible for
certain programing, and the defendant then learned that he was ineligible after he
began serving his sentence. Id., ¶¶6-7. The circuit court accepted the parties’

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stipulation that Yanda’s ineligibility for programming was a new factor, but it
determined that the new factor did not warrant sentence modification. Id.,
¶¶17-18. We affirmed the court’s exercise of discretion. Id., ¶¶21-23. Yanda
does not establish that a defendant’s eligibility for programming is always a new
factor.

¶20 Accordingly, I conclude that Muehl has not met his burden to show
the existence of a new factor that is highly relevant to the circuit court’s sentence.4

By the Court.—Judgments and order affirmed.

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

4
Given this conclusion, which is dispositive, I need not address the other arguments
raised by the parties, including their disagreement about whether this appeal is moot because
Muehl has now completed his term of initial confinement. “An appellate court need not address
every issue raised by the parties when one issue is dispositive.” Barrows v. American Fam. Ins.
Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013).

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