State v. Westley D. Whitaker ( 2022 )

2022 WI 54SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP29-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Westley D. Whitaker,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 396 Wis. 2d 557, 957 N.W.2d 561PDC No: 2021 WI App 17 - Published
OPINION FILED: July 5, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 9, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Vernon
JUDGE: Darcy Jo Rood
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
ROGGENSACK, J., filed a concurring opinion in which Ziegler,
C.J., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion. HAGEDORN, J., filed a concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Christopher M. Zachar and Zachar Law Office, LLC, La
Crosse. There was an oral argument by Christopher M. Zachar.
For the plaintiff-respondent, there was a brief filed by
Daniel J. O’Brien, assistant attorney general, with whom on the
briefs was Joshua L. Kaul, attorney general. There was an oral
argument by Daniel J. O’Brien.
2022 WI 54NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP29-CR
(L.C. No. 17CF163)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUL 5, 2022
Westley D. Whitaker, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
ROGGENSACK, J., filed a concurring opinion in which Ziegler,
C.J., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion. HAGEDORN, J., filed a concurring opinion.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J. KAROFSKY, J. As a teenager, Westley Whitaker
preyed on his three younger sisters, repeatedly sexually
assaulting them while they all were living in an Amish community
in Vernon County. Whitaker's parents and elders in the
community became aware of the assaults, but failed to protect
the victims by either stopping Whitaker from continuing his
sexual abuse or alerting secular authorities. A decade later,
No. 2020AP29-CR
Whitaker confessed, was charged with six counts of sexual
assault, and pled no contest to one of the charges. The circuit
court1 sentenced Whitaker to two years of initial confinement and
two years of extended supervision.
¶2 During sentencing, the circuit court addressed the
need for the adults in the Amish community to effectively
intervene to protect the girls in the community from sexual
abuse. On appeal, Whitaker contends these statements violated
his rights to religious liberty and association protected by the
First Amendment to the U.S. Constitution, and thus evince the
circuit court's reliance on improper sentencing factors. As a
result, he demands resentencing as a matter of due process under
the Constitution's Fourteenth Amendment.
¶3 We conclude that nothing in the transcript suggests
the circuit court increased Whitaker's sentence solely because
of his religious beliefs or his association with the Amish
community. Instead, the transcript shows each challenged factor
bears a reasonable nexus to proper and relevant sentencing
factors. Thus, we affirm his sentence.
I. BACKGROUND
¶4 Whitaker sexually assaulted three of his sisters
almost daily when he was between the ages of twelve and fifteen.
The abuse started in 2005 when Whitaker began sexually
The Honorable Darcy J. Rood of the Vernon County Circuit
1
Court presided.
2
No. 2020AP29-CR
assaulting his ten-year-old sister, A.B., almost every day.2
During that time period, he also repeatedly assaulted another
sister, C.D., beginning when she was seven years old. Whitaker
threatened to "kill" C.D. if she told anyone about the assaults
and he "threatened to make her life hard if she did not
cooperate with him." Whitaker also sexually assaulted a third
sister, E.F., when she was six or seven years old. At some
point, Whitaker's parents and elders in the Amish community in
which Whitaker lived became aware of his ongoing assaults on his
sisters. Although the elders attempted some form of
intervention, it ultimately failed as Whitaker continued the
assaults. No one reported Whitaker's crimes to the authorities
nor sought help from any resources outside of the community.
Whitaker ended the attacks sometime in 2007.
¶5 Whitaker and his sisters were raised as part of a
conservative family that moved often between churches. At the
time of the assaults, they were part of an Amish community in
Vernon County, Wisconsin, that Whitaker characterized as having
beliefs similar to the "Old Order Amish." The record is sparse
regarding that community and its relationship to the larger
Amish community. Whitaker explained that within his childhood
community, "sex [was] considered off limits and taboo," feelings
of sexual desire were viewed as sinful, and children did not
interact with the opposite sex.
2To protect the dignity and privacy of the victims, we use
initials that do not correspond to their real names.
3
No. 2020AP29-CR
¶6 A decade after the assaults, Whitaker confessed to his
crimes at the urging of his sister, A.B., and was charged with
six counts of first degree sexual assault of a child in
violation of Wis. Stat. § 948.02(1)(e) (2015-16).3 As a result
of plea negotiations, Whitaker pled no contest to one count of
first degree sexual assault of a child and the other five counts
were dismissed and read-in.4
¶7 At sentencing, the circuit court first granted
Whitaker's unopposed motion to be exempted from the sex offender
registration requirement, pointing to Whitaker's young age at
the time of the offense and its belief that Whitaker posed no
current risk to reoffend. The circuit court stated that
Whitaker's behavior was "juvenile" and "in a community and a
family that wasn't protecting the daughters." As for the
appropriate sentence, the victims requested that Whitaker serve
two to five years of initial confinement. The State argued the
crimes' seriousness, their effect on the victims, and the need
for punitive consequences warranted a six-year bifurcated prison
sentence. In turn, Whitaker asked for no incarceration time and
no probation, emphasizing that he was remorseful and took
responsibility for his actions when confronted by his sister.
He argued that the strict religious culture he grew up in kept
All subsequent references to the Wisconsin Statutes are to
3
the 2015-16 version unless otherwise indicated.
A "read-in" crime is one that either is not charged or is
4
dismissed as part of a plea agreement, but that the defendant
agrees the circuit court may consider at sentencing, along with
the underlying conduct. See Wis. Stat. § 973.20(1g)(b).
4
No. 2020AP29-CR
him from "the education that a child would typically receive"
and that "when you're an adolescent and you're going through
something like this, and you have nobody to talk to, no peers,
no teachers, social workers, health care providers, it's
understandable that a kid in [this] position could have a skewed
view of how to deal . . . with adolescent development." He also
noted "that there were adults who were aware of this conduct
when it was happening . . . and it was recommended that the
allegations remain within the community."
¶8 The circuit court sentenced Whitaker to a four-year
bifurcated prison sentence with two years of initial confinement
and two years of extended supervision. The circuit court
concluded that: Whitaker's current risk of reoffending was
"zero"; he posed no threat to the public; and he needed no
rehabilitation. The circuit court reasoned the State's
recommended six-year sentence would be too long because of
Whitaker's young age at the time of the assaults. It then
stated that "the relevant Galleon [sic][5] factors are
punishment, and also deterrence of others, hopefully deterrence
of others in the Amish community." Expanding on its discussion
of the Amish community, the circuit court stated:
I happen to live in the midst of an Amish community.
They're my neighbors. And sexual assault of sisters
is not something that is accepted. I understand it
often happens and that it is dealt with in the
community. And that's not sufficient. That's not
State
5 v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678
N.W.2d 197.
5
No. 2020AP29-CR
sufficient when it is not a one-time thing and not
when the women, the daughters, the wives in the Amish
community are not empowered to come
forward. . . . [E]very Amish young man is raised in
that type of community, in that situation, and you
aren't seeing them all sexually assault their sisters
night after night after night. . . . I'm hoping that
this sentence deters, as I said, the community.
¶9 The circuit court further emphasized the gravity of
the offenses, stating that this was not "one act. It was a
thousand. It was years of abuse." It detailed the assaults'
effect on A.B. who had been "destroyed" by both the abuse and
the threats from her "beloved older brother," and how she had
not been safe at home, "the one place where [she was] supposed
to feel safety." The circuit court went on to stress that "the
actual facts of this case are abhorrent," and that a sentence of
"no confinement would depreciate the seriousness of this
offense." It continued that "a prison sentence is the only way
to send the message to Mr. Whitaker and to the community that
this is totally unacceptable behavior. And perhaps it now can
help the family heal. And I hope that the elders in the
community pay attention to this." Finally, the court noted that
"punishing Mr. Whitaker for his behavior was critical."
¶10 In reviewing the sentencing transcript, the court of
appeals assumed that Whitaker's constitutional rights were
implicated by the sentencing court's attention to the community
elders' failure to involve secular authorities but concluded
that its nexus to a proper sentencing consideration rendered the
sentence permissible. State v. Whitaker, 2021 WI App 17, 396
Wis. 2d 557, 957 N.W.2d 561. Although the sentencing court
6
No. 2020AP29-CR
identified that consideration as "general deterrence," the court
of appeals identified "protection of the public" as the true
consideration underlying the sentencing court's discussion.
Id., ¶34.
II. STANDARD OF REVIEW AND SENTENCING STANDARDS
¶11 We review a circuit court's sentencing decision for an
erroneous exercise of discretion. State v. Dodson, 2022
WI 5, ¶8, 400 Wis. 2d 313, 969 N.W.2d 225. A circuit court
erroneously exercises its sentencing discretion when it actually
relies on clearly irrelevant or improper factors. Id.Accordingly, a defendant challenging his or her sentence must
prove by clear and convincing evidence that: (1) the challenged
factor is irrelevant or improper; and (2) the circuit court
actually relied on that factor. Id.¶12 Sentencing factors are proper when they inform valid
sentencing objectives including "the protection of the
community, punishment of the defendant, rehabilitation of the
defendant, and deterrence to others." State v. Gallion, 2004
WI 42, ¶40, 270 Wis. 2d 535, 678 N.W.2d 197; see also Wis. Stat.
§ 973.017(2). Primary factors informing those objectives
include the gravity of the offense, the character of the
offender, and the need to protect the public. Dodson, 400
Wis. 2d 313, ¶9. Secondary factors include:
(1) Past record of criminal offense; (2) history of
undesirable behavior pattern; (3) the defendant's
personality, character and social traits; (4) result
of presentence investigation; (5) vicious or
aggravated nature of the crime; (6) degree of the
defendant's culpability; (7) defendant's demeanor at
7
No. 2020AP29-CR
trial; (8) defendant's age, educational background and
employment record; (9) defendant's remorse, repentance
and cooperativeness; (10) defendant's need for close
rehabilitative control; (11) the rights of the public;
and (12) the length of pretrial detention.
Gallion, 270 Wis. 2d 535, ¶43 n.11.
¶13 To prove "actual reliance" on an improper factor, a
defendant must show that the circuit court made the improper
factor a part of the "basis for the sentence." Dodson, 400
Wis. 2d 313, ¶10. We have interpreted this to mean that a
defendant must show that the circuit court "impose[d] 'a harsher
sentence solely because'" of the improper factor. State v.
Williams, 2018 WI 59, ¶¶46, 53, 381 Wis. 2d 661, 912 N.W.2d 373(quoting Buckner v. State, 56 Wis. 2d 539, 550, 202 N.W.2d 406(1972)); see, e.g., State v. Dalton, 2018 WI 85, 383 Wis. 2d
147, 914 N.W.2d 120 (holding that a circuit court impermissibly
imposed a harsher sentence solely because the defendant
exercised his constitutional right to refuse to submit to a
warrantless blood draw). To be the "sole" cause of a harsher
sentence, an improper factor must "stand alone as an independent
factor." See Williams, 381 Wis. 2d 661, ¶50. That means a
circuit court's reliance on an improper factor cannot be cured
by additionally relying on other proper, but unrelated,
sentencing considerations. However, if a circuit court's
reference to a challenged factor bears "a reasonable nexus" to a
8
No. 2020AP29-CR
proper sentencing factor, then the circuit court has not imposed
sentence based "solely" on the improper factor.6 Id.6 This case highlights some confusion regarding the correct
approach to evaluating constitutionally protected conduct
considered at sentencing. The court of appeals, following
guidance from federal cases, has applied a "reliable nexus" test
in determining whether consideration of constitutionally
protected conduct at sentencing is "improper." See State v.
Fuerst, 181 Wis. 2d 903, 913, 512 N.W.2d 243 (Ct. App. 1994)
("[A] sentencing court may consider a defendant's religious
beliefs and practices only if a reliable nexus exists between
the defendant's criminal conduct and the defendant's religious
beliefs and practices."). This "reliable nexus" test is applied
under the first prong of the test set out in Alexander——the
improper-factor prong. State v. Alexander, 2015 WI 6, ¶17, 360
Wis. 2d 292, 858 N.W.2d 662.
More recently, this court has applied a "reasonable nexus"
test in the context of the second prong——the actual-reliance
prong. See State v. Dodson, 2022 WI 5, ¶10, 400 Wis. 2d 313,
969 N.W.2d 225 (citing State v. Williams, 2018 WI 59, ¶53, 381
Wis. 2d 661, 912 N.W.2d 373); State v. Harris, 2010 WI 79, ¶4,
326 Wis. 2d 685, 786 N.W.2d 409. But see Dodson, 400
Wis. 2d 313, ¶¶21-23 (Hagedorn, J., concurring) (arguing that
the reasonable nexus analysis more properly goes to whether the
factor was "improper" rather than whether it was "actually
relied" on). In Williams, this court appeared to consider a
nexus to proper sentencing factors under both analytical prongs.
Williams, 381 Wis. 2d 661, ¶¶51, 53 (saying both that when the
"factor is inextricably intertwined with a defendant's character
and lack of remorse, its consideration is proper," and that
"[t]he sole reference to [the alleged improper factor] bore a
reasonable nexus to the relevant factor of Williams' lack of
remorse").
9
No. 2020AP29-CR
III. ANALYSIS
¶14 Whitaker argues that the circuit court relied on an
improper sentencing factor——thereby violating his constitutional
rights——when it: (1) repeatedly referenced Whitaker's childhood
Amish community; and (2) stated its intent to deter others
within that community from failing to report or stop ongoing
sexual assaults. Whitaker's exact constitutional claims are
somewhat nebulous, but they appear to boil down to freedom of
association and the free exercise of religion. As to the
former, Whitaker argues that when the circuit court said it
hoped the sentence would send a message to members of the Amish
community, the court improperly based the sentence on his
protected association with that community. As for the latter,
Whitaker argues that when the court encouraged his childhood
Amish community to report sexual assaults to the secular
authorities, contrary to the community's practice of avoiding
outside societal influence, the circuit court violated his right
to free religious exercise. Because this case can be decided on
Thus, depending on how a court looks at it, a reasonable
nexus to a proper and relevant sentencing factor
either: (1) renders the challenged factor proper because it is
"inextricably intertwined" with a relevant and proper factor; or
(2) indicates that the court was actually relying on the related
relevant and proper factor and not solely relying on the
challenged factor. Either way, the analysis is equivalent. An
appellate court affirms the sentence if the challenged factor is
relevant to proper sentencing considerations rather than a
stand-alone factor untethered to the underlying criminal
conduct. In this case, we continue to follow this court's more
recent guidance and apply the "reasonable nexus" test under the
actual-reliance prong.
10
No. 2020AP29-CR
narrower grounds, as a prudential matter we assume without
deciding that any consideration of Whitaker's childhood Amish
community was improper.7 That said, we hold that Whitaker fails
to prove by clear and convincing evidence that the assumed
improper factor was the sole cause of a harsher sentence because
it bears a reasonable nexus to relevant and proper sentencing
factors.
¶15 We begin with the context in which the circuit court
made the challenged comments. Whitaker pled to only one count
of sexual assault of a minor despite confessing to hundreds more
and received two years of initial confinement.8 In addressing
the egregious facts of this case, and at the behest of the
defendant,9 the circuit court repeatedly considered the enabling
behavior of the elder members of Whitaker's childhood community.
The sentencing court stated that "the relevant Galleon [sic]
factors are punishment, and also deterrence of others, hopefully
7See Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326
Wis. 2d 300, 786 N.W.2d 15 ("Typically, an appellate court
should decide cases on the narrowest possible grounds.").
8Under Wis. Stat. § 973.01(2)(b)1. and (2)(d)1., a Class B
felony carries a maximum sentence of 40 years initial
confinement and 20 years of extended supervision.
9Whitaker asked the circuit court to consider how his
upbringing affected his socialization as a mitigating factor.
Specifically, Whitaker blamed his upbringing for limiting his
sexual education, isolating him from resources, and contributing
to a "skewed view" of adolescent development. He also said that
it was "important to note that there were adults who were aware
of this conduct when it was happening . . . and it was
recommended that the allegations remain within the community."
11
No. 2020AP29-CR
deterrence of others in the Amish community." It repeated, "I'm
hoping that this sentence deters, as I said, the community," and
continued, "a prison sentence is the only way to send the
message to Mr. Whitaker and to the community that this is
totally unacceptable behavior. . . . And I hope that the elders
in the community pay attention to this."
¶16 Whitaker argues that these references to his childhood
Amish community lack congruity to his offense and therefore lack
a sufficient nexus to relevant and proper sentencing objectives.
We disagree. Read in context, the circuit court's efforts to
encourage Whitaker's childhood community to report child sexual
assaults wholly relate to relevant criminal conduct, both
generally and specifically. The circuit court was not
addressing a failure to report a one-off crime after the fact;
the community elders knew the assaults were ongoing. Their
failure to meaningfully intervene directly enabled Whitaker to
commit hundreds of additional assaults on his sisters and
greatly compounded their harm. As the circuit court stated, it
is insufficient to address these crimes internally in the
community "when it is not a one-time thing and . . . the women,
the daughters, the wives in the Amish community are not
empowered to come forward."
¶17 This reasoning touches on valid considerations of
general deterrence and protection of the public. We have long
accepted that general deterrence is an appropriate sentencing
consideration. See Gallion, 270 Wis. 2d 535, ¶61. Here, the
sentencing court expressed its desire to generally deter others,
12
No. 2020AP29-CR
specifically others in Whitaker's childhood community, from both
committing sexual assaults and refusing to protect victims in
the community from sexual violence. This sentiment was directed
at the community members to encourage them to meaningfully
intervene by reporting sexual abuse and holding abusers
accountable rather than continuing to ignore or conceal the
abuse. Should the community protect victims and hold abusers to
account, future potential abusers are likely to be deterred from
engaging in this type of abusive conduct. In other words, the
community's meaningful intervention directly relates to the
sentencing goal of deterring similar crimes.
¶18 Here, general deterrence logically ties in with a
second sentencing goal: public protection. Much like the goal
of deterrence, public protection can be applied both to the
individual defendant specifically and to the larger community
generally. This means the court may consider: (1) the need to
protect the public from the individual defendant; (2) the need
to protect the public from those like the defendant; or (3)
both. See Id., ¶61 (the court properly "took into account the
need to protect the public from Gallion and others like him").
As with deterrence, the circuit court in this case was focused
on public protection in the general sense. As noted above,
deterring sexual assault through effective community
intervention protects victims. As this case exemplifies,
victims of sexual abuse are often powerless to protect
themselves. And in this case the victims' powerlessness was
compounded when the family and community elders did little to
13
No. 2020AP29-CR
protect A.B., C.D., and E.F. from Whitaker's unrelenting abuse
even after learning of the ongoing assaults. The three victims
were left completely defenseless. The circuit court recognized
that the victims' protection was dependent on help from the
community and encouraged community members to hold offenders
like Whitaker to account. In doing so, the circuit court sought
to protect victims from further trauma and abuse. The circuit
court acted within its discretion to address this failure of
protection in hopes of both preventing others from engaging in
similar abuse and protecting potential victims in that community
from similar conduct.10
¶19 For the sake of completeness, we understand the
remainder of the court's discussion to be addressing the
offenses' seriousness, the effects on the victims, and the need
for punishment. The circuit court repeatedly referenced these
valid considerations, stating that the "relevant Galleon [sic]
factors are punishment, and also deterrence of others," that
"punishing Mr. Whitaker for his behavior was critical," that "no
confinement would depreciate the seriousness of this offense,"
and that "a prison sentence is the only way to send the message
10The sentencing court made other limited references to
Whitaker's childhood community unrelated to general deterrence
or protection of the public. However, Whitaker does not allege
that these limited comments served as anything other than a
basis for leniency. For example, the circuit court exempted
Whitaker from the sex offender registration requirement, in part
because it shifted the blame from Whitaker onto "a community and
a family that wasn't protecting the daughters." It also stated
that "[Whitaker] was in an Amish community. And so . . . I
don't believe he poses a risk."
14
No. 2020AP29-CR
to Mr. Whitaker . . . that this is totally unacceptable
behavior." The circuit court sought to address the sheer number
of crimes Whitaker committed, emphasizing that "[i]t was a
thousand. It was years of abuse." The circuit court also
focused on the victims, calling the facts of their abuse
"abhorrent," saying A.B. was "destroyed" by her brother's
actions, and stating its hope that Whitaker's sentence may "help
the family heal."
¶20 Having reviewed the entire sentencing transcript, we
conclude that the circuit court's challenged statements bore a
reasonable nexus to the relevant and proper sentencing factors
of general deterrence and protection of the public. Nothing in
the transcript suggests the circuit court increased Whitaker's
sentence solely because of his religious beliefs or his
association with the Amish community. See Williams, 381 Wis. 2d
331, ¶53. Therefore, we will not disturb the circuit court's
wide sentencing discretion. Id., ¶45.
IV. CONCLUSION
¶21 Whitaker fails to prove by clear and convincing
evidence that the sentencing court erroneously exercised its
discretion. His sentence stands.
By the Court.—The decision of the court of appeals is
affirmed.
15
No. 2020AP29-CR.pdr
¶22 PATIENCE DRAKE ROGGENSACK, J. (concurring). There
are two constitutionally protected interests presented by the
matter before us: Whitaker's associational interest in his
childhood community and his interest in the Amish religion.
¶23 The majority opinion assumes, without deciding, that
"any consideration of [Westley D.] Whitaker's childhood Amish
community was improper" but that its "reasonable nexus to
relevant and proper sentencing factors" prevent consideration of
Whitaker's childhood community from being the sole cause of a
harsher sentence.1 Although I join the majority opinion in
affirming the court of appeals' conclusion that Whitaker's
sentence was a proper exercise of the circuit court's sentencing
discretion, I write in concurrence.
¶24 The circuit court identified the secretive
characteristics of the community in which Whitaker was raised.
The circuit court's discussion linked Whitaker's repetitive
sexual assaults to the community association established for
Whitaker by his parents' choice of where to raise their family.
In addition, the circuit court took care to separate the court's
understanding that Amish religious principles did not tolerate
sexual assault of sisters, as the secretive nature of Whitaker's
childhood community had done.
¶25 In this concurrence, I separate what the majority
lumps together and characterizes in a general way as "improper"
1Majority op., ¶14. On review, Whitaker claimed that his
sentence was more harsh because the circuit court improperly
considered constitutionally protected conduct.
1
No. 2020AP29-CR.pdr
consideration into two constitutional interests:
characteristics of association with the secretive community and
Amish religious principles. I do so for two reasons. First, I
conclude that the secretive characteristic of Whitaker's
childhood community is a proper factor to consider at sentencing
because evidence of his association with this childhood
community was relevant to the repetitive nature of the sexual
assaults. Dawson v. Delaware, 503 U.S. 159, 160 (1992)
(explaining that introduction of evidence that Dawson was a
member of the Aryan Brotherhood was prohibited by the First and
Fourteenth Amendments because it had no relevance to the issues
being decided in the proceeding in which the evidence was
admitted). In addition, unless specific evidence about the
secretive characteristics of Whitaker's childhood community are
identified, establishing a sufficient relationship between a
constitutionally protected associational or religious interest
and the crime of conviction would be difficult to prove. As the
United States Supreme Court has explained, "the Constitution
does not erect a per se barrier to the admission of evidence
concerning one's beliefs and associations at sentencing simply
because those beliefs and associations are protected by the
First Amendment." Id. at 165. However, the evidence must be
relevant to the sentencing proceeding. Id.¶26 Second, the difference between associational
characteristics of Whitaker's childhood community and Amish
religious principles is important. The majority opinion's lack
of separation of two constitutionally protected interests could
2
No. 2020AP29-CR.pdr
be interpreted in a way that disparages Amish religious
principles. This could occur even though the circuit court did
not discuss Amish religious principles, except to say that,
"[S]exual assault of sisters is not something that is accepted."
¶27 The freedom to peaceably assemble and to exercise
one's choice of religion are protected by the First and
Fourteenth Amendments of the United States Constitution and by
Article I, Sections 4 and 18 of the Wisconsin Constitution. In
order to introduce evidence of associational characteristics of
Whitaker's childhood community or of religious practices, such
evidence must be relevant to the sentencing proceeding at which
it was introduced. Id. at 160.
¶28 In regard to the association of Whitaker as a child in
the community in which his family placed him, the secretive
characteristics of the community likely had connection to the
repetitive nature of his sexual assaults. Apparently, some
members of the community knew of the assaults when they were
occurring, and they made some attempt to stop them. However,
when their efforts were unsuccessful, they took no further
action. They did not report the assaults to law enforcement or
seek outside help in terminating Whitaker's victimization of his
sisters.
¶29 As Whitaker was sentenced, the circuit court took the
secretive nature of the community into account in the court's
efforts to protect others from similar victimization. The court
explained how harmful community silence had been to A.B. "She's
3
No. 2020AP29-CR.pdr
in bed. She can't go to sleep comfortably in her own house.
Mr. Whitaker can. Her parents can. But [A.B.] couldn't."
¶30 In order to employ constitutionally protected
principles at sentencing for criminal conduct, there must be a
reliable connection between constitutionally protected
principles and the crime of conviction. State v. J.E.B., 161
Wis. 2d 655, 673, 469 N.W.2d 192 (Ct. App. 1991) (explaining
that "the test is whether there is a reliable showing of a
sufficient relationship" between a protected principle and the
crime). This relationship has been referred to as "congruity"
with the crime. Id.¶31 In the case presented, there is nothing in the record
of Whitaker's sentencing that describes Amish religious
principles so as to support a factual foundation for concluding
that there is "congruity" between Amish religious principles and
Whitaker's sexual assaults of his sisters. Furthermore, the
circuit court explained that the court was very familiar with
the Amish community in which Whitaker was raised, and "sexual
assault of sisters is not something that is accepted."
¶32 The circuit court found that the community was
secretive, but the court did not imply that this quality was
grounded in Amish religious principles rather than community
association. There was no expression in the circuit court's
sentencing remarks, either overtly or covertly, that Amish
religious principles tolerated sexual assault of sisters.
¶33 By contrast, the record is replete with evidence of
the secretive characteristics of the community. "So not only
4
No. 2020AP29-CR.pdr
was [A.B] destroyed by these acts night after night after night,
but she was destroyed by the threats of her beloved older
brother. But also she couldn't raise it in her family, or she
would be blamed." The circuit court further explained, "I'm
hoping that this sentence deters, as I said, the community."
¶34 However, notwithstanding the circuit court's
sentencing remarks, the majority concludes by combining both
"his religious beliefs" and "his association with the Amish
community" into one sentence with one conclusion.2 Religious
principles and associational characteristics do not stand on the
equal factual footing in this record. Stated otherwise, there
is no factual foundation in the record for treating community
associational characteristics and Amish religious principles as
interchangeable. Evidence of secretive characteristics of the
community was relevant to Whitaker's sentencing; therefore, it
was properly admitted and employed by the circuit court in its
sentencing decision. Dawson, 503 U.S. at 165. Because the
majority opinion does not address the two constitutional
interests that were identified based on the factual record
presented, I respectfully concur.
¶35 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
2 Majority op., ¶20.
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No. 2020AP29-CR.rgb
¶36 REBECCA GRASSL BRADLEY, J. (concurring). This court
correctly concludes the circuit court did not erroneously
exercise its sentencing discretion. The majority reasons
"nothing in the transcript suggests the circuit court increased
Whitaker's sentence solely because of his religious beliefs or
his association with the Amish community."1 Phrasing a court's
sentencing discretion in such terms suggests a court may
consider religious beliefs, the exercise of any other
constitutional right, or some other improper factor as a basis
for enhancing a sentence. Doing so would be improper. "When
imposing sentence, a circuit court cannot rely on inaccurate
information, race or national origin, gender, alleged extra-
jurisdictional offenses, or the defendant's or victim's
religion." State v. Williams, 2018 WI 59, ¶46, 381 Wis. 2d 661,
912 N.W.2d 373 (citing State v. Alexander, 2015 WI 6, ¶¶18, 23,
360 Wis. 2d 292, 858 N.W.2d 662); see also State v. Dalton, 2018
WI 85, ¶61, 383 Wis. 2d 147, 914 N.W.2d 120 ("Established case
law indicates that [it] is impermissible" for a defendant to be
"criminally punished for exercising his constitutional right");
State v. Ninham, 2011 WI 33, ¶96, 333 Wis. 2d 335, 797
N.W.2d 451 ("[A] circuit court may not base its sentencing
decision upon the defendant's or the victim's religion.").
¶37 To the extent the "solely because of" language could
be misconstrued to sanction a sentencing court's reliance on an
improper factor so long as it is bundled with proper factors, I
1 Majority op., ¶¶3, 20 (emphasis added).
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No. 2020AP29-CR.rgb
disagree with the majority's application of the phrase.2 An
improper factor such as a defendant's religious beliefs or
exercise of a constitutional right may not form even part of the
basis for a sentence, and a bundling approach does not
ameliorate the resulting constitutional infringement.
¶38 We first applied this language in Buckner v. State,
reasoning, "A defendant cannot receive a harsher sentence solely
because he availed himself of one of his constitutional rights."
56 Wis. 2d 539, 550, 202 N.W.2d 406 (1972) (citing Baker v.
United States, 412 F.2d 1069 (5th Cir. 1969), certiorari denied,
396 U.S. 1018 (1970)). In that case, the defendant alleged his
sentence violated his constitutional right against self-
incrimination "due to the trial court's remarks concerning
defendant's exercise of his right to remain silent." Id. We
concluded the trial court's comments about the defendant's
initial failure to cooperate were not an erroneous exercise of
discretion.3 We explained:
"Where the judicial sentencing discretion is exercised
on the basis of clearly irrelevant or improper
2Id., ¶¶3, 20. See also id., ¶14 ("[W]e hold that Whitaker
fails to prove by clear and convincing evidence that the assumed
improper factor was the sole cause of a harsher sentence because
it bears a reasonable nexus to relevant and proper sentencing
factors.").
3We also concluded the circuit court did not erroneously
exercise its discretion by mentioning that the defendant was
from Chicago, because the defendant "cites no authority and
attempts no showing that the trial court relied, in its
determination of the proper sentence," upon that fact, and
because the record showed "the trial court was making a general
protestation against the rise in callousness for human life."
Buckner v. State, 56 Wis. 2d 539, 552, 202 N.W.2d 406 (1972).
2
No. 2020AP29-CR.rgb
factors, an abuse of discretion also results." It
does not automatically follow, however, that an off-
hand reference to a consideration indicates the trial
court must have utilized it in his sentencing
deliberations. The quoted exchange was probably
prompted by defense counsel's plea for a minimal
concurrent sentence. Nowhere is it indicated
"clearly" that the trial court increased defendant's
sentence because the defendant exercised his right to
remain silent.
Id. at 550–51 (quoting McCleary v. State, 49 Wis. 2d 263, 278,
182 N.W.2d 512 (1971)).
¶39 Notably, the only case Buckner cited in support of its
"solely because" language——Baker——neither used those terms nor
stood for that proposition at all. In Baker, two men captured
after a bank robbery pleaded guilty and were given ten year
sentences, while a third man pleaded not guilty and received a
fifteen year sentence for aiding and abetting the robbery.
Baker, 412 F.2d at 1070. The third man challenged his
conviction on multiple grounds, including that he received a
longer sentence because he decided to stand trial. Id. at 1073.
¶40 Declining to review the sentence, the Fifth Circuit
explained, "An accused cannot be punished by a more severe
sentence because he unsuccessfully exercised his constitutional
right to stand trial rather than plead guilty." Id. (citing
Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); United
States v. Martell, 335 F.2d 764 (4th Cir. 1964); United States
v. Wiley, 278 F.2d 500 (7th Cir. 1960)). The court reasoned the
sentence was within the statutory limits and "no showing [was]
made that appellant received a longer sentence because he
required the government to try him. He relies on the fact that
he, an aider and abettor who pleaded not guilty, received a
3
No. 2020AP29-CR.rgb
longer sentence than the two men who pleaded guilty to actually
going into the bank. But an aider and abettor is a principal to
the crime." Id. There is nothing in Baker about the
appellant's exercise of his right to trial forming a basis of
the sentence.
¶41 Despite its suspect origin and overall inaccuracy,
this language persists in some of our sentencing cases. See,
e.g., State v. Dodson, 2022 WI 5, ¶10, 400 Wis. 2d 313, 969
N.W.2d 225 ("Therefore, a defendant will fall short of proving
actual reliance if the transcript lacks clear and convincing
evidence that the factor was the sole cause of a harsher
sentence." (citing Williams, 381 Wis. 2d 661, ¶¶45-46, 53)).
¶42 In this case, the majority relies in part on State v.
Williams, 381 Wis. 2d 661, in which we used the "solely because"
language in the context of restitution. The defendant in
Williams alleged "the sentencing court improperly increased his
sentence because he exercised his right to object to
restitution." Id., ¶1. We held the sentencing court did not
erroneously exercise its discretion "[b]ecause the circuit
court's reference to restitution at Williams' sentencing was
directly linked to a proper sentencing consideration——Williams'
lack of remorse[.]" Id., ¶44. We explained, "[w]hen imposing
sentence, a circuit court cannot rely on inaccurate information,
race or national origin, gender, alleged extra-jurisdictional
offenses, or the defendant's or victim's religion." Id., ¶46
(citing Alexander, 360 Wis. 2d 292, ¶¶18, 23). "In addition, a
circuit court may not impose 'a harsher sentence solely because
4
No. 2020AP29-CR.rgb
[a defendant] availed himself of one of his constitutional
rights,' . . . or vindictively impose a harsher sentence when a
defendant has succeeded in getting his first sentence vacated or
overturned by exercising his appellate rights." Id. (citing
Buckner, 56 Wis. 2d at 550; State v. Church, 2003 WI 74, ¶¶1,
28–39, 262 Wis. 2d 678, 665 N.W.2d 141). "Outside of these
prohibitions, the circuit court has 'wide discretion in
determining what factors are relevant' and what weight to give
to each factor." Id., ¶47 (quoting State v. Gallion, 2004 WI
42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197).
¶43 Williams did not involve the exercise of any
constitutional right, but instead centered on the defendant's
refusal to stipulate to restitution. Because the right to
challenge restitution is statutory, we explained "a sentencing
court should not vindictively increase a defendant's sentence
based solely on his decision to challenge restitution," but
"Williams fail[ed] to demonstrate by clear and convincing
evidence that his position on restitution was an improper
sentencing factor." Id., ¶49 (internal citations omitted). The
circuit court's restitution discussion "did not stand alone as
an independent factor in the sentencing transcript. Rather, the
circuit court's sole reference to restitution came toward the
end of the circuit court's sentencing remarks and was
intertwined with its consideration of Williams' character and
lack of remorse, as evidenced only in part by Williams' position
that he was not responsible for restitution." Id., ¶50.
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No. 2020AP29-CR.rgb
¶44 We emphasized in Williams that "[s]entencing courts
may not vindictively punish a defendant solely for exercising a
constitutional right."4 Id., ¶51 (citing Alabama v. Smith, 490
U.S. 794, 798–801 (1989); Church, 262 Wis. 2d 678, ¶¶28–39).
"But when the restitution factor is inextricably intertwined
with a defendant's character and lack of remorse, its
consideration is proper." Id. "The restitution factor at issue
here was not Williams' decision to challenge restitution, or the
fact that his challenge was successful, but rather Williams'
disavowal of responsibility . . . . Under these circumstances,
Williams failed to convince us that the sentencing court's
single reference to restitution constituted an improper factor."
Id.¶45 Although we determined the restitution remark in
Williams did not constitute an improper sentencing factor, we
also concluded "Williams failed to establish actual reliance"
because "[n]othing in the transcript suggests the circuit court
increased Williams' sentence solely because he challenged
restitution." Id., ¶53. Instead, "[t]he sole reference to
restitution bore a reasonable nexus to the relevant factor of
Williams' lack of remorse. In context, the circuit court in no
way tied the length of the sentence to Williams' exercise of his
statutory right to challenge restitution." Id. (citing State v.
The "right to challenge restitution arises from our
4
statutes, not the constitution," but we acknowledged in Williams
that defendants "have a constitutional due process right not to
be sentenced based on improper factors upon which a court
actually relies." State v. Williams, 2018 WI 59, ¶51 n.15, 381
Wis. 2d 661, 912 N.W.2d 373 (citations omitted).
6
No. 2020AP29-CR.rgb
Harris, 2010 WI 79, ¶¶4, 59, 67, 326 Wis. 2d 685, 786
N.W.2d 409).
¶46 With this background in mind, we arrive at the present
case. The majority explains its rationale as follows:
To prove "actual reliance" on an improper factor, a
defendant must show that the circuit court made the
improper factor a part of the "basis for the
sentence." Dodson, 400 Wis. 2d 313, ¶10. We have
interpreted this to mean that a defendant must show
that the circuit court "impose[d] 'a harsher sentence
solely because'" of the improper factor. State v.
Williams, 2018 WI 59, ¶¶46, 53, 381 Wis. 2d 661, 912
N.W.2d 373 (quoting Buckner v. State, 56 Wis. 2d 539,
550, 202 N.W.2d 406 (1972)); see, e.g., State v.
Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120(holding that a circuit court impermissibly imposed a
harsher sentence solely because the defendant
exercised his constitutional right to refuse to submit
to a warrantless blood draw). To be the "sole" cause
of a harsher sentence, an improper factor must "stand
alone as an independent factor." See Williams, 381
Wis. 2d 661, ¶50. That means a circuit court's
reliance on an improper factor cannot be cured by
additionally relying on other proper, but unrelated,
sentencing considerations. However, if a circuit
court's reference to a challenged factor bears "a
reasonable nexus" to a proper sentencing factor, then
the circuit court has not imposed sentence based
"solely" on the improper factor. Id.5
¶47 The majority understandably attempts to cabin the
"solely because of" language in order to avoid implying that the
circuit court may rely on an improper factor in sentencing, but
in the context of a defendant's religious beliefs or exercise of
a constitutional right, the majority's efforts fall short. The
majority's conclusion that "nothing in the transcript suggests
the circuit court increased Whitaker's sentence solely because
5 Majority op., ¶13.
7
No. 2020AP29-CR.rgb
of his religious beliefs or his association with the Amish
community[,]"6 could be misconstrued to authorize a circuit
court's reliance on an improper factor if that factor is not the
only one upon which the sentence is based. The Constitution
does not permit a court to increase a sentence because of a
defendant's exercise of his First Amendment rights——regardless
of how many proper factors contribute to the sentencing
decision.
¶48 In Ninham, this court correctly stated the test: "[A]
circuit court may not base its sentencing decision upon the
defendant's or the victim's religion." Ninham, 333 Wis. 2d 335,
¶96. Even more recently, we said "[w]e have already decided
that certain factors are improper for the circuit court to
consider at sentencing and therefore violate a defendant's right
to due process: race or national origin, gender, alleged extra-
jurisdictional offenses, and the defendant's or
victim's religion. Alexander, 360 Wis. 2d 292, ¶23. Neither
case suggested a circuit court may increase a sentence based on
a defendant's religion so long as the sentencing decision
encompasses valid factors.
¶49 In this case, nothing in the sentencing court's
remarks suggests the court increased Whitaker's sentence because
of his religious beliefs. Far from indicating any hostility
toward the Amish religion, the sentencing judge mentioned that
she lived "in the midst of an Amish community. They're my
neighbors" and "sexual assault of sisters is not something that
6 Id., ¶3.
8
No. 2020AP29-CR.rgb
is accepted." Neither Whitaker nor the State suggests the Amish
religion tolerates either child sexual assault or the failure to
protect children from it. Whitaker was sentenced based on his
conduct, not because he happened to be Amish when he sexually
assaulted his sisters. The circuit court's sentence was
designed to deter others from committing child sexual assaults
or from facilitating such crimes by their silence or inaction—
whether Amish or atheist. There is nothing improper about such
a sentencing objective.
¶50 For the foregoing reasons, I concur.
9
No. 2020AP29-CR.bh
¶51 BRIAN HAGEDORN, J. (concurring). The analytical
framework utilized in sentencing cases like this one deserves a
closer look. Nevertheless, I join the majority opinion because
it correctly applies our precedent and reaches the correct
outcome.
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No. 2020AP29-CR.bh
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