State v. Betters

• Decision Date: 18 June 2013
• Docket Number: No. 2012AP1339–CR.,2012AP1339–CR.
• Citation: 835 N.W.2d 249,2013 WI App 85,349 Wis.2d 428
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Robert J. BETTERS, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

349 Wis.2d 428
835 N.W.2d 249
2013 WI App 85

STATE of Wisconsin, Plaintiff–Respondent,
v.
Robert J. BETTERS, Defendant–Appellant.^†

No. 2012AP1339–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 29, 2013.
Opinion Filed June 18, 2013.

[835 N.W.2d 250]

On behalf of the defendant-appellant, the cause was submitted on the briefs of Byron C. Lichstein, Frank J. Remington Center, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., MANGERSON, J., and THOMAS CANE, Reserve Judge.

MANGERSON, J.

[349 Wis.2d 430]¶ 1 Robert Betters appeals a judgment of conviction and an order denying his postconviction motion. He asserts the sentencing court erroneously relied on religious considerations. We conclude the court did not actually rely on irrelevant or improper factors when sentencing Betters, and affirm.

BACKGROUND

¶ 2 Betters engaged in repeated sexual contact with his girlfriend's two teenage sons, N.H. and G.H. According to the complaint, N.H. told police that Betters recorded him dancing naked and posted the video on the Internet. Later, Betters told N.H. that “a company wanted more videos.” On several occasions in 2009, Betters took N.H. to an area called the “tree farm,” gave N.H. alcohol and marijuana, took nude photographs of N.H., and performed oral sex on him. G.H. told police that in 2009, Betters took him to the tree farm and performed oral sex on G.H. while G.H. recorded the act with Betters's cell phone. G.H. described several similar incidents, as well as an incident in G.H.'s bedroom in which an intoxicated G.H. performed anal intercourse on Betters and recorded it with Betters's cell phone.

¶ 3 Betters entered into a plea agreement with the State. Betters agreed to plead guilty to one count of repeated sexual assault of the same child (N.H.) and one [349 Wis.2d 431]count of possession of child pornography. A third count, repeated sexual assault of the same child (G.H.) was dismissed and read in. As part of the plea colloquy, Betters admitted that the facts of the complaint were essentially true and accurate. The presentence investigation report recommended a sentence of twelve to thirteen years' initial confinement and seven to eight years' extended supervision. The State recommended eight years' initial confinement and ten years' extended supervision.

¶ 4 The court sentenced Betters on June 23, 2011. It first observed the three primary objectives of a sentence are protection of the public, punishment of the defendant, and rehabilitation. It then analyzed Betters's character and the gravity of the offenses. During sentencing, the court remarked that “every child is a gift from God,” and indicated Betters's conduct toward the boys was “an abomination in the sight of God and in the sight of man, and ... totally unacceptable.” The court ultimately sentenced Betters to fifteen years' confinement and ten years' extended supervision on the first count, and ten years' initial confinement and five years' extended supervision on the second count, to run consecutively.

[835 N.W.2d 251]

¶ 5 Betters filed a motion for postconviction relief, arguing that the court erroneously exercised its sentencing discretion by relying on religious considerations. At a hearing on the motion, the court observed that, following Betters's sentencing, it had been admonished by this court for using similar language in an unrelated case involving the sexual assault of a child. See State v. Smith, No. 2011AP1995–CR, unpublished slip op., 2012 WL 832848 (WI App. March 13, 2012), review denied,2012 WI 115, 344 Wis.2d 305, 822 N.W.2d 882. At Betters's postconviction hearing, the court noted that we called [349 Wis.2d 432]its Smith comments “ill-advised,” but also observed that we nonetheless determined the court's religious beliefs were not the basis, or a primary basis, for the Smith defendant's sentence.¹ The court then reviewed Betters's sentencing transcript and concluded it had considered the proper factors and imposed an appropriate sentence.

DISCUSSION

¶ 6 Three primary factors must be considered by the circuit court when fashioning an appropriate sentence: the gravity of the offense, the defendant's character, and the need to protect the public. State v. Harris, 2010 WI 79, ¶ 28, 326 Wis.2d 685, 786 N.W.2d 409. Within this framework, the court may consider a vast number of relevant factors, including the defendant's criminal record, past behavior, and culpability; the nature of the crime; and the rights of the public. Id. “Sentencing courts have considerable discretion as to the weight to be assigned to each factor.” Id.

¶ 7 Our review of a sentencing decision is limited to determining whether the circuit court erroneously [349 Wis.2d 433]exercised its discretion. Id., ¶ 30. “Discretion is erroneously exercised when a sentencing court imposes its sentence based on or in actual reliance upon clearly irrelevant or improper factors.” Id. Given our strong public policy against interference with the circuit court's discretion, we afford sentencing decisions a presumption of reasonableness. Id. “Accordingly, the defendant bears the heavy burden of showing that the circuit court erroneously exercised its discretion.” Id. The defendant must establish, under the “clear and convincing” burden of proof, that it is “highly probable or reasonably certain” that the circuit court relied on an irrelevant or improper factor. Id., ¶¶ 34–35.

¶ 8 In State v. Ninham, 2011 WI 33, ¶ 96, 333 Wis.2d 335, 797 N.W.2d 451,cert. denied,––– U.S. ––––, 133 S.Ct. 59, 183 L.Ed.2d 711 (2012), our supreme court concluded “a circuit court may not base its sentencing decision upon the defendant's or the victim's religion.” A similar rule was recognized in State v. Fuerst, 181 Wis.2d 903, 909, 512 N.W.2d 243 (Ct.App.1994), in which the sentencing court observed that the defendant had “very little religious conviction,” did not go to church, and did not believe in religion. We concluded that “the sentencing court's consideration of Fuerst's religious belief system and activities violated Fuerst's right to

[835 N.W.2d 252]

religious freedom....” Id. at 912, 512 N.W.2d 243. As Harris later clarified, Fuerst established that religious belief and church attendance are impermissible factors on which to base a sentence. Harris, 326 Wis.2d 685, ¶¶ 38, 40, 786 N.W.2d 409.

¶ 9 Ninham,Fuerst, and Harris do not directly address Betters's key contention: that his sentence was based in part on the circuit court's notions of religious impropriety. It does not appear any published Wisconsin[349 Wis.2d 434]case has yet addressed this issue. There have, however, been a number of federal cases on the topic.

¶ 10 Betters primarily relies on United States v. Bakker, 925 F.2d 728 (4th Cir.1991). There, when sentencing a televangelist who had oversold partnerships and diverted partnership proceeds, the district court said, “He had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests.” Id. at 731, 740. The court of appeals concluded this comment created the perception that the judge was announcing its “personal sense of religiosity” while punishing the defendant for offending it. Id. at 740. A court's religious beliefs are irrelevant for sentencing purposes, and therefore due process is violated when a judge “impermissibly takes his own religious characteristics into account in sentencing.” Id. In Bakker, the court of appeals was “left with the apprehension that the imposition of a lengthy prison term here may have reflected the fact that the court's own sense of religious propriety had somehow been betrayed.” Id. at 740–41.

¶ 11 Yet the Bakker court was cautious to note that not every “ill-advised word” will form the basis for reversible error. Id. at 741. Indeed, it was reluctant to grant relief even in the face of what it described as the “explicit intrusion of personal religious principles as the basis of a sentencing decision.” See id. (“We remand this case with genuine reluctance....”). Subsequent cases have demonstrated that the mere mention of a religious element during sentencing is generally insufficient to establish a due process violation.

¶ 12 In Gordon v. Vose, 879 F.Supp. 179, 184 (D.R.I.1995), the state sentencing court, referring to the [349 Wis.2d 435]Bible, stated, “no man should take more than he is willing to give.” On federal habeas review, the district court concluded this statement conveyed a secular principle: “that if one commits a serious crime, he must expect to receive a severe punishment.” Id. at 185. The defendant failed to show religious bias because the sentencing court did not express a personal religious preference and then sentence the defendant for violating it. Id.

¶ 13 The sentencing court in United States v. Traxler, 477 F.3d 1243, 1248 (10th Cir.2007), similarly used religious language to express a secular concept. There, the court explicitly referred to the letters of the Apostle Paul, stating, “[G]ood things can come from jail. A guy named Paul was...