2022 WI 54

SUPREME 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 561

PDC 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 54

NOTICE

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,

 v.

Westley D. Whitaker,

 Defendant-Appellant-Petitioner.

FILED

JUL 5, 2022

Sheila T. Reiff

Clerk of Supreme Court

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

2

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 

 

1 The Honorable Darcy J. Rood of the Vernon County Circuit 

Court presided.
No. 2020AP29-CR

3

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.

 

2 To protect the dignity and privacy of the victims, we use 

initials that do not correspond to their real names.
No. 2020AP29-CR

4

¶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 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.

4 A "read-in" crime is one that either is not charged or is

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).
No. 2020AP29-CR

5

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 

 

5 State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 

N.W.2d 197.
No. 2020AP29-CR

6

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 
No. 2020AP29-CR

7

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 
No. 2020AP29-CR

8

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 
No. 2020AP29-CR

9

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").
No. 2020AP29-CR

10

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.
No. 2020AP29-CR

11

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 

 

7 See 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.").

8 Under 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.

9 Whitaker 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."
No. 2020AP29-CR

12

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, 
No. 2020AP29-CR

13

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 
No. 2020AP29-CR

14

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 

 

10 The 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."
No. 2020AP29-CR

15

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.
No. 2020AP29-CR.pdr

1

¶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" 

 

1 Majority op., ¶14. On review, Whitaker claimed that his 

sentence was more harsh because the circuit court improperly 

considered constitutionally protected conduct. 
No. 2020AP29-CR.pdr

2

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 
No. 2020AP29-CR.pdr

3

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 
No. 2020AP29-CR.pdr

4

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 
No. 2020AP29-CR.pdr

5

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. 
No. 2020AP29-CR.rgb

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¶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 extrajurisdictional 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).
No. 2020AP29-CR.rgb

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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 selfincrimination "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 

 

2 Id., ¶¶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.").

3 We 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).
No. 2020AP29-CR.rgb

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factors, an abuse of discretion also results." It 

does not automatically follow, however, that an offhand 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 
No. 2020AP29-CR.rgb

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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 
No. 2020AP29-CR.rgb

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[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.
No. 2020AP29-CR.rgb

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¶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. 

 

4 The "right to challenge restitution arises from our 

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).
No. 2020AP29-CR.rgb

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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.
No. 2020AP29-CR.rgb

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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 extrajurisdictional 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.
No. 2020AP29-CR.rgb

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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.
No. 2020AP29-CR.bh

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¶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.
No. 2020AP29-CR.bh

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