State v. David P. Mueller

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.
July 28, 2021
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. 2020AP509-CR Cir. Ct. No. 2017CF57

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID P. MUELLER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: RALPH A. RAMIREZ and JENNIFER R. DOROW, Judges.
Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

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. 2020AP509-CR

¶1 PER CURIAM. David P. Mueller appeals from a judgment
convicting him of homicide by intoxicated use of a vehicle and an order denying
his postconviction motion for resentencing or sentence modification.1 For the
reasons that follow, we affirm

BACKGROUND

¶2 Mueller, then twenty-one years old, drove to work one early January
morning at 7:06 a.m. He had been consuming alcohol for the past thirty-six hours
and his blood-alcohol concentration was 0.317 grams per 100 milliliters. It was
snowing. He lost control of his vehicle, crossed over the center line, and crashed
into an oncoming vehicle. The driver of the other vehicle, M.D., was transported
to the hospital via Flight for Life. M.D. suffered a ruptured diaphragm, broken
ribs, a fractured ankle, a fractured femur, a broken eye socket, several breaks to his
hips, and disrupted internal organs. His injuries left him intubated and unable to
speak. He passed away ten days later.

¶3 Mueller was charged with homicide by intoxicated use of a vehicle,
homicide by negligent operation of a vehicle, and homicide by intoxicated use of a
vehicle with a prohibited alcohol concentration. As part of a negotiated
settlement, Mueller pled guilty to homicide by intoxicated use of a vehicle, and the
other charges were dismissed. The State agreed to recommend ten to twelve years
of initial confinement.

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The Honorable Ralph M. Ramirez presided at sentencing and entered the judgment of
conviction. The Honorable Jennifer R. Dorow heard and decided Mueller’s postconviction
motion.

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¶4 At sentencing, several members of M.D.’s family addressed the
circuit court. His son explained that M.D. was his best friend and was beloved
throughout the community. He told the court that after M.D.’s death, his
two-year-old daughter wandered around her grandfather’s house looking for him.
M.D.’s daughter-in-law described his immense pain and suffering during the ten
days he spent in the hospital prior to his death. She stated that the first thing he
asked her was, “[A]m I dead?”

¶5 M.D.’s brother recounted how M.D. became a father figure after the
unexpected deaths of their parents, calling him “the glue that held our family
together.” M.D.’s daughter explained that she moved in with M.D. when she was
diagnosed with cancer so he could take care of her and her daughter. She stated
that her prognosis became much worse as a result of M.D.’s death and that she had
an estimated six to twelve months to live. M.D.’s wife told the court they had
been planning to celebrate their fortieth wedding anniversary the week after the
crash. She explained that M.D. sometimes went outside after a snowstorm “just to
see who was stuck to see if he could help them get out,” asking nothing in return.
All of them asked that Mueller receive the maximum sentence.

¶6 The defense recommended five years of initial confinement followed
by ten years of extended supervision. Trial counsel explained that Mueller did
everything the court asked of him while the case was pending and willingly
participated in counseling. He also stated that Mueller was physically abused by
his father and resorted to self-harm as early as fourth grade. Mueller’s substance
abuse counselor told the court that he accepted responsibility for his actions and
had made significant progress in counseling. Mueller’s mother explained that her
son always “tries to ensure that no one else is mean to anyone,” and that his goal
now is to become a counselor and help others avoid making the mistake he made.

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No. 2020AP509-CR

Mueller’s mother’s boyfriend, who knew Mueller for nine years, said he was a
“kind, quiet, respectful kid” and had made positive changes since the crash.
Mueller apologized, accepted responsibility, and stated that he hoped to repay the
community by “educating others on the dangers of addiction.” In addition, the
defense provided the court with several letters attesting to Mueller’s work in
recovery since the accident and positive aspects of his character, including his
strong work ethic, honesty, and caring nature. His mother’s coworker wrote that
Mueller assisted her elderly mother with household tasks and frequently visited
group homes to spend time with elderly residents.

¶7 In imposing sentence, the circuit court began its remarks by
determining the crime to be “a serious one,” as reflected by the statutory
maximum. The court considered that Mueller’s BAC was extremely high, that he
engaged in dangerous driving by crossing the center line, and that the accident
occurred at 7:00 a.m., a time when many people are on the road heading to work
or tending to their responsibilities. The court found the time of day to be “an
extremely aggravating factor.” The court also considered Mueller’s age to be an
aggravating factor, especially in light of his use of alcohol to self-medicate and his
mental health problems. The court stated its belief “that this level of intoxication
.317 at 7:00 o’clock in the morning reflects a substantial, major, giant problem
with alcohol. It’s disturbing to see it at his age.”

¶8 The circuit court focused on the crime’s impact, stating that M.D.’s
family and friends had experienced a great loss, and that the offense had “a big
impact on the community as a whole. One of our citizens, a productive and
honest, hard working member of the community who has a big impact on fellow
community members, that’s something that matters.” The court added:

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No. 2020AP509-CR

So, that is a factor that I look at. Quite honestly, a number
of years ago there was a case and the non-lawyers are not
going to know this, Gallion.2 A judge looked at things and
weighed the value of the life of the perpetrator and the life
of the victim, and we have not a dissimilar case here.

¶9 In discussing Mueller’s character and background, the circuit court
said it had “no doubt that Mr. Mueller is very sorry for what he has done,” noting
that it had seen the tears and pain on his face during the hearing. The court found
that Mueller’s remorse was “genuine” and “real.” The court also acknowledged
that Mueller had a terrible childhood and suffered from mental health problems,
which led him to turn to alcohol and drugs. The court found that, “Instead of
handling stress and despair prosocially, he isolated himself and turned to alcohol
and drugs.” The court acknowledged that there had been a positive change in
Mueller since “[t]his tragedy” but said “the aggravating part about that is that it
took the death of [M.D.] to bring that change.”

¶10 Before imposing sentence, the circuit court stated:

So, when I impose a sentence in this case, taking those
things into consideration, I do weigh the value of [M.D.] to
Mr. Mueller. We lost a good one. We lost a good one. We
lost a man who not just went to work at 7:00 o’clock in the
morning and paid his bills, but we lost a man who went to
work, paid his bills, stayed committed to his wife, held his
family primary first and foremost. Made his friends his
family. Helped friends. Helped his children’s friends.
Filled in as a father. Did charitable work and many many
more things. So, we lost a good one.

We lost him to somebody who was at the time of the
incident involved in self-pity, wallowing in his own
problems, and medicating those problems with alcohol and
so on. So, the sentence I impose reflects those things.

2
State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.

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No. 2020AP509-CR

¶11 Finally, the sentencing court explained that “the maximum penalties
should be reserved for those who do not take responsibility,” and noted that
Mueller took responsibility. The sentencing court then imposed fourteen years of
initial confinement followed by ten years of extended supervision, which is one
year less than the maximum.

¶12 Postconviction, it was discovered that three additional character
letters written on Mueller’s behalf were never received by the sentencing court.
The letters described additional prosocial and charitable actions Mueller had
taken, such as buying groceries and picking up medication for his mother’s clients,
shoveling the sidewalk, and driving his mother to work in inclement weather.

¶13 Mueller filed a postconviction motion asserting that the new
character letters constituted a new factor warranting sentence modification,
namely, a two-year reduction in his term of initial confinement. Alternatively, he
requested resentencing on grounds that the court relied on an improper factor at
sentencing when it compared his character to M.D.’s character. 3 This comparison,
he asserted, had caused the court to impermissibly increase his sentence because it
believed his life was less valuable than M.D.’s.

¶14 After further briefing, the circuit court denied Mueller’s
postconviction motion from the bench. With regard to the sentence modification
claim, the court determined that though the character letters constituted a new
factor, they did not justify a sentence reduction. As to Mueller’s resentencing

3
Mueller’s postconviction motion also requested that the circuit court reduce the ten-year
ignition interlock period ordered at sentencing down to five years. The court granted this request.

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No. 2020AP509-CR

claim, the court stated that the Gallion case neither prohibits a sentencing court
from looking at a victim’s character, nor does it “explicitly hold that considering
any comparative value of a victim and the defendant’s character is an improper
sentencing factor.” The court declined to rule that weighing the value of a
defendant’s character or life against a victim’s character or life was an improper
sentencing factor, and further determined that the sentencing court had not actually
relied on this allegedly improper factor in sentencing Mueller:

I don’t believe that that’s what Judge Ramirez did. He
relied upon the conduct of Mr. Mueller, he relied upon the
impact of this crime on the family and community, but he
did not weigh Mr. Mueller’s life and his character less in
relationship to [M.D.’s]. That is just not something that he
did.

This appeal follows.

DISCUSSION

The circuit court properly denied Mueller’s postconviction motion
requesting the modification of his sentence.

¶15 Mueller maintains that the circuit court erred in denying his
postconviction motion for a sentence modification. A trial court is permitted to
modify a sentence based on the existence of a new factor. State v. Harbor, 2011
WI 28, ¶¶35, 37-38, 333 Wis. 2d 53, 797 N.W.2d 828. 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 … it was unknowingly overlooked by all of the parties.” Id., ¶¶36, 40.

¶16 A defendant seeking modification of his or her sentence based on a
new factor must demonstrate both the existence of a new factor and that the new

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No. 2020AP509-CR

factor justifies modification of the sentence. Id., ¶38. The existence of a new
factor does not automatically entitle the defendant 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. Though the existence of a
new factor presents a question of law we review de novo, whether and to what
degree a sentence should be modified is a discretionary determination for the
circuit court. Id., ¶¶36-37. A circuit court’s discretionary determination will be
sustained if it examined the proper facts, applied the correct standard of law, and
reached a reasonable conclusion using a rational process. Gaugert v. Duve, 2001
WI 83, ¶44, 244 Wis. 2d 691, 628 N.W.2d 861.

¶17 Assuming for purposes of this decision that the character letters
constituted a new factor, we conclude that the circuit court did not erroneously
exercise its discretion in denying Mueller’s motion for sentence modification.
Here, after looking at the letters in context, the court determined that the
sentencing court emphasized the gravity of the offense, including the impact on
the victims. It reasoned:

So, while the letters do shed light on very positive
attributes of Mr. Mueller’s character, while it can be said
that those are new factors, in my discretion I am finding
that it is not so strong of a factor that would change the
course of sentencing.

¶18 Our review of the circuit court’s discretionary decisions is extremely
deferential. “The court’s discretionary determinations are not tested by some
subjective standard, or even by our own sense of what might be a ‘right’ or
‘wrong’ decision in the case.” State v. Jeske, 197 Wis. 2d 905, 913, 541 N.W.2d
225 (Ct. App. 1995). Rather, this court will not overturn the circuit court’s
exercise of discretion “unless it can be said that no reasonable judge, acting on the

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No. 2020AP509-CR

same facts and underlying law, could reach the same conclusion.” Id. Mueller
has not met this high standard.

¶19 In a bid to skirt our deferential review of discretionary decisions,
Mueller asserts that the postconviction court relied on the false assumption “that
the sentencing court did not actually consider the comparative value of Mr.
Mueller’s and M.D.’s respective characters and lives in imposing sentence.” See
State v. Delgado, 223 Wis. 2d 270, 280, 588 N.W.2d 1 (1999) (“A circuit court’s
erroneous view of the facts or the law constitutes an erroneous exercise of
discretion.”). We are not persuaded. The postconviction court applied the correct
legal standard to the facts and explained its decision on the record. This is a
demonstrably proper exercise of discretion with which we will not interfere.

The circuit court did not erroneously exercise its discretion at sentencing.

¶20 Mueller contends that the sentencing court erroneously exercised its
discretion by comparing his character to M.D.’s character. He asserts that such a
comparison is irrelevant to the permissible objectives of sentencing and is
therefore an improper factor.

¶21 It is a well-settled principle of law that sentencing is committed to
the circuit court’s discretion. See State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d
535, 678 N.W.2d 197. On review, we afford the sentencing court a strong
presumption of reasonability, and if discretion was properly exercised, we follow
“a consistent and strong policy against interference” with its determination. Id.,
¶18.

¶22 In fashioning sentence, the circuit court must consider the gravity of
the offense, the character of the offender, and the need to protect the public. State

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No. 2020AP509-CR

v. Ziegler, 2006 WI App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76. The weight to
be given to each factor is committed to the court’s sound discretion. Id. A
sentencing court erroneously exercises its discretion if it actually relies on
irrelevant or improper factors. State v. Harris, 2010 WI 79, ¶66, 326 Wis. 2d 685,
786 N.W.2d 409. To establish error, it is the defendant’s burden to prove by clear
and convincing evidence that the sentencing court actually relied on an improper
factor. Id.

¶23 In support of his argument that the circuit court improperly increased
his sentence based on an irrelevant character comparison, Mueller cites to Gallion,
a factually similar case in which the Wisconsin Supreme Court held that a victim’s
good character and the impact of the victim’s death on his family and community
are proper sentencing factors, as they directly relate to the gravity of the offense.
Gallion, 270 Wis. 2d 535, ¶¶11, 68. In affirming the sentence imposed, the
Gallion court emphasized that a sentencing court has “wide discretion in
determining what factors are relevant to its sentencing decision.” Id., ¶68.

¶24 Mueller has not met his “heavy burden” to show that the circuit
court erroneously exercised its discretion at sentencing. Harris, 326 Wis. 2d 685,
¶30. As in Gallion, the good character of the victim and the impact of his death
on friends and family was relevant to the gravity of the offense and was not given
undue weight. Gallion, 270 Wis. 2d 535, ¶¶52, 63-70. “[I]t is unrealistic to
expect judges to listen to friends and family of the victim and to not consider their
testimony.” Id., ¶68.

¶25 Further, it is beyond dispute that character of the defendant is a
primary sentencing factor, and that in this case, the circuit court considered both
mitigating and aggravating facts concerning Mueller’s character. As Mueller

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No. 2020AP509-CR

concedes, Gallion does not hold that a sentencing court cannot compare the
victim’s character to that of the defendant. To permit a sentencing court to
consider the character of the victim and the defendant but prohibit any character
comparison would be illogical and would elevate form over substance. A
sentencing court must weigh and compare all the relevant sentencing factors in
exercising its discretion. That is precisely what the court did in this case.

¶26 Finally, as the postconviction court recognized, the sentencing court
viewed the gravity of the offense as the most important sentencing factor in this
case. The sentencing court stated, “I believe that a substantial term of initial
confinement is necessary to reflect the enormity of the loss [of M.D.].” The
enormity of the loss has nothing to do with Mueller’s character. Rather, it reflects
the sentencing court’s recognition that M.D. was an exemplary person whose
death devastated his family, friends, and community, and who will no longer be
able to benefit his community through his many positive actions. Simply put, the
importance of Mueller’s character paled in comparison to the gravity of the
offense. Mueller has not shown any “unreasonable or unjustified basis” for his
sentence that would cause us to question its propriety. See State v. Taylor, 2006
WI 22, ¶18, 289 Wis. 2d 34, 710 N.W.2d 466 (quoted source omitted).

By the Court.—Judgment and order affirmed.

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

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