COURT OF APPEALS

DECISION

DATED AND FILED

January 10, 2023

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. 2021AP1618-CR Cir. Ct. No. 2018CF508

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JEREMY RAY PEABODY,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

St. Croix County: R. MICHAEL WATERMAN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Jeremy Peabody appeals from a judgment 

convicting him of third-degree sexual assault and from an order denying his 
No. 2021AP1618-CR

2

postconviction motion. Peabody contends that he is entitled to resentencing 

because the circuit court imposed a maximum sentence based solely upon 

Peabody’s refusal to admit guilt. We conclude that Peabody’s sentence was 

properly based upon additional factors and therefore affirm.

BACKGROUND

¶2 The State charged Peabody with incest based upon allegations that, 

on more than one occasion, Peabody drugged and then had sexual intercourse with 

Sarah.1 Peabody eventually entered a no-contest plea to an amended charge of 

third-degree sexual assault. A Department of Corrections probation agent and an 

independent evaluator hired by the defense each prepared a presentence 

investigation report (the PSI and alternate PSI, respectively).

¶3 The PSI stated that Peabody “ardently denies sexually assaulting 

[Sarah]” and explained that “the only reason he took the plea deal is because he 

does not believe his counsel is doing anything to help him” and he “could not 

prove he did not commit [the sexual assault].” The alternate PSI similarly 

included Peabody’s denial that he had any sexual contact with Sarah. 

¶4 At the sentencing hearing, the circuit court first identified a series of 

aggravating factors that made the offense particularly serious. These included 

Peabody’s relationship to Sarah, the number of assaults that had occurred over a 

 

1

 This matter involves the victim of a crime. Pursuant to WIS. STAT. RULE 809.86(4) 

(2019-20), we use a pseudonym instead of the victim’s name. To further protect the victim’s 

identity, we will not identify her relationship to Peabody, other than as a person related to him in 

a degree within which marriage is prohibited in this state and to whom the incest statute would 

apply. See WIS. STAT. § 944.06 (2019-20). All references to the Wisconsin Statutes are to the 

2019-20 version unless otherwise noted.
No. 2021AP1618-CR

3

period of two years, and Sarah’s inability to protect herself after Peabody gave her 

methamphetamine. Nonetheless, the court recognized that Peabody had 

committed the offense during “a very dark place” in his life when he was using 

high levels of methamphetamine and that Peabody had since made significant 

progress toward recovery from his drug addiction. 

¶5 The circuit court next considered the need to protect the public—

including Sarah and other persons related to Peabody—from future harm. In the 

course of its discussion of this factor, the court noted that Peabody’s “denial of 

what occurred here is alarming” because sex offenders who are “in denial” are 

“not receptive to treatment” and therefore, in the court’s view, cannot be 

rehabilitated. The court further stated:

You know, I have to be honest with you, Mr. Peabody, if 

you had told the authors of the PSI, if you had come to 

court today and you said, [y]ou know what? I admit it. 

This is what happened. I sexually assaulted [Sarah] but I 

was in a dark place then and using a lot of 

methamphetamines, I’m a different man today and I’m 

ready to get some help for what occurred, I’d be looking at 

your case very, very differently and I think probation would 

probably be more appropriate. But with you maintaining a 

denial that this ever occurred despite proof beyond a 

reasonable doubt that it did, it tells me that you’re unlikely 

to be rehabilitated and that puts others at risk. 

The court concluded that considering the damage to Sarah and society’s view of 

this type of crime, “nothing short of a maximum sentence would be appropriate” 

and “[a]nything less would unreasonably depreciate the seriousness of 

what ... occurred.” The court then imposed the maximum available sentence of 

five years’ initial confinement followed by five years’ extended supervision. 

¶6 Peabody moved for resentencing, alleging that the circuit court had 

erroneously exercised its discretion by imposing the maximum sentence based 
No. 2021AP1618-CR

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almost entirely upon Peabody’s refusal to admit guilt. At the postconviction 

hearing, the court reiterated its reasoning that Peabody’s denial of responsibility 

went directly to whether Peabody could be successfully rehabilitated or would put 

the community at risk if he were placed on probation. The court then clarified that 

its prior statement that probation “would probably be more appropriate” if 

Peabody had admitted guilt did not mean that the court would, in fact, have 

imposed probation absent Peabody’s denial of guilt. Rather, the court explained 

that it meant only to say that there were other circumstances under which it could 

have envisioned a probationary sentence. The court denied Peabody’s 

postconviction motion. Peabody now appeals. 

DISCUSSION

¶7 When imposing a sentence, a circuit court should take into 

consideration relevant factors such as the severity of the offense and the character 

of the offender and should relate those factors to identified sentencing objectives 

such as the need for punishment, protection of the public, general deterrence, 

rehabilitation, restitution, or restorative justice. See State v. Gallion, 2004 WI 42, 

¶¶39-46, 270 Wis. 2d 535, 678 N.W.2d 197. Generally speaking, a court has 

discretion to determine both what factors are relevant under the circumstances of 

the case and what weight to assign each relevant factor. Ocanas v. State, 70 

Wis. 2d 179, 185, 233 N.W.2d 457 (1975). However, the broad range of a court’s 

sentencing discretion does not include consideration of clearly improper factors. 

State v. Gayton, 2016 WI 58, ¶¶23-24, 370 Wis. 2d 264, 882 N.W.2d 459.

¶8 When a defendant claims that a circuit court relied upon an improper 

factor at sentencing, he or she must prove by clear and convincing evidence 

that: (1) the factor was improper; and (2) the court actually relied upon it. State v. 
No. 2021AP1618-CR

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Harris, 2010 WI 79, ¶¶32-34, 326 Wis. 2d 685, 786 N.W.2d 409. Under the clear 

and convincing evidence standard, a reviewing court must evaluate potentially 

inappropriate comments in the context of the sentencing transcript as a whole, to 

determine whether it is “highly probable or reasonably certain” the circuit court 

actually relied upon an improper factor. Id., ¶¶35, 45.

¶9 Because a defendant has a constitutionally protected right against 

self-incrimination, it is improper to impose a harsher sentence solely because a 

defendant has refused to admit guilt. Scales v. State, 64 Wis. 2d 485, 496-97, 219 

N.W.2d 286 (1974). It is proper to consider a defendant’s refusal to admit guilt in 

the context of assessing other factors such as lack of remorse, however, as long as 

the court does not give “undue” or “almost overwhelming weight” to the refusal to 

admit guilt. Williams v. State, 79 Wis. 2d 235, 239, 255 N.W.2d 504 (1977).

¶10 Here, we conclude that Peabody has failed to demonstrate by clear 

and convincing evidence that the circuit court gave undue or almost overwhelming 

weight at sentencing to Peabody’s failure to admit guilt. To the contrary, the court 

repeatedly emphasized that the primary reason it was imposing the maximum 

sentence was the seriousness of the offense. The court’s consideration of 

Peabody’s refusal to admit guilt was merely part of the court’s assessment of what 

it deemed to be a secondary factor—i.e., the risk Peabody posed to public safety 

due to his low likelihood of rehabilitation. Taken in context, then, the court’s 

comment that probation probably would have been more appropriate if Peabody 

had admitted guilt provided an explanation for why the court decided not to 

deviate downward from the sentence that it otherwise considered appropriate 

based upon the seriousness of the offense. Accordingly, we affirm the judgment 

of conviction and postconviction order.
No. 2021AP1618-CR

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By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.