State v. Fuerst

• Decision Date: 19 January 1994
• Docket Number: 93-2453-CR,Nos. 93-0973-C,s. 93-0973-C
• Citation: 512 N.W.2d 243,181 Wis.2d 903
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Michael FUERST, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 243

512 N.W.2d 243

181 Wis.2d 903

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Michael FUERST, Defendant-Appellant.

Nos. 93-0973-CR, 93-2453-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 10, 1994.

Opinion Released Jan. 19, 1994.

Opinion Filed Jan. 19, 1994.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Michael Fuerst appeals a judgment convicting him of first-degree sexual assault of a child in violation of § 948.02(1), STATS., and sentencing him to six years in prison and an order denying postconviction relief. Fuerst contends that the trial court erroneously exercised its sentencing discretion by: (1) improperly considering Fuerst's lack of "religious convictions" as evidenced by Fuerst's history of not attending church and (2) improperly considering Fuerst's refusal to confess his guilt. Fuerst argues that his sentence must be vacated because the court, by considering these factors, violated his constitutional rights to freedom of religion, to freedom of conscience and freedom of speech. We conclude that the trial court erroneously exercised its sentencing discretion by weighing for sentencing purposes Fuerst's beliefs system and history of not attending church. We further conclude that the court properly considered Fuerst's lack of remorse as one of several factors. We therefore reverse the order, vacate the sentence and remand the matter for resentencing without consideration of Fuerst's religious beliefs or activities.

A jury found Fuerst guilty of first-degree sexual assault of a child. Throughout his trial, Fuerst maintained his innocence. At sentencing, the state recommended a sentence of five to seven years in prison and Fuerst requested probation plus time served. The court rejected probation, based on its consideration of several factors, including:

[Mr. Fuerst, you] have very little religious conviction[ ].

I say that because you don't go to church. .... I guess I make the distinction between sombody who goes to church every Sunday and sombody who either doesn't go to church or believe in religion, and certainly those are mitigating factors.

The aggravating factors of course certainly are the vulnerability of the child, the fact that it was [while not true incest,] an incest situation. You were placed in trust over a child and [violated] that trust, and certainly there is an element of denial [of guilt] in this case that [raises concerns] that this could be a serious problem in the future.

Fuerst subsequently petitioned the trial court for postconviction relief, based on his assertions that the sentence was unduly harsh and reflected the court's consideration of impermissible factors of Fuerst's beliefs system, decision not to attend church on Sundays and his refusal to admit guilt. The court concluded that the sentence was not unduly harsh and denied Fuerst's motion, stating that Fuerst's constitutional arguments should be addressed by the court of appeals, and reaffirmed his belief that religion is an important consideration at sentencing.

Sentences imposed are deferentially reviewed under an erroneous exercise of discretion standard. State v. J.E.B., 161 Wis.2d 655, 661, 469 N.W.2d 192, 195 (Ct.App.1991). Under the erroneous exercise of sentencing discretion standard, we presume that the trial court acted reasonably unless the defendant shows some unreasonable or unjustifiable basis in the record for the sentence. Id. "Unjustifiable bases for a sentence include irrelevant or improper considerations." Id. (Citation omitted

Fuerst contends that the sentencing court's consideration of a defendant's possession of religious convictions and regular attendance at church as mitigating factors for sentencing purposes violates the right to religious freedom guaranteed under the First Amendment to the United States Constitution and Art. I, § 18, of the Wisconsin Constitution. ¹ We recognize that the United States and Wisconsin Constitutions each afford an independent protection of a person's religious freedom. However, we find it unnecessary to separately consider the state and federal constitutional provisions because the court's consideration of matters of personal conscience offended both provisions.

In State ex rel. Warren v. Nusbaum, 64 Wis.2d 314, 322, 219 N.W.2d 577, 582 (1974), our supreme court adopted the three-pronged test for determining if state action violated a person's right to religious freedom that was promulgated in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971): "First, the [action] must have a secular ... purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster an 'excessive government entanglement with religion.' " (Citation omitted A failure of any one of these three prongs renders the state action unconstitutional. See id. at 613-14, 91 S.Ct. at 2112.

We conclude that, under the circumstances before us, the sentencing court's statement that it considered a defendant's possession of religious convictions and regular attendance at church to be mitigating factors fails the second and third prongs of the Lemon test. The primary effect of a court considering the possession of religious convictions and engagement in religious activity as mitigating factors at sentencing is the advancement of religion. The court emphasized Fuerst's decision not to regularly attend church on Sundays and indicated a tendency to treat more favorably persons who belong to organized religions that conduct their worship services in churches on Sundays. This encourages and advances specific types of religion because under the court's policy, persons who practice those religions are more likely to receive probation than persons who do not. Additionally, the court's announcement of a judicial policy that favors as candidates for probation church-attending defendants over nonchurch-attending defendants not only intrudes into individual citizens' private matters of religion, but impermissibly entangles religious considerations with the secular function of sentencing. We therefore conclude that the sentencing court's consideration of Fuerst's religious belief system and activities violated Fuerst's right to religious freedom under the United States and Wisconsin Constitutions.

We do not hold, however, that sentencing courts can never constitutionally consider a defendant's religious practices at sentencing. The analysis in J.E.B. is applicable in determining whether a sentencing court's consideration of a defendant's religious beliefs and practices is constitutionally permissible.

In J.E.B., 161 Wis.2d at 673, 469 N.W.2d at 200, we adopted the approach the D.C. Circuit Court took in United States v. Lemon, 723 F.2d 922 (D.C.Cir.1983), concerning the question whether a sentencing court, considering a defendant's exercise of his first amendment right of association, was constitutionally impermissible. The Lemon court ruled that due process at sentencing requires that before a court may consider a defendant's associations, there must be some identifiable link between those associations and the crime for which the defendant was convicted. Id. at 936. In J.E.B., we applied the same rationale to a trial court considering the type of books (child pornography) the defendant chose to read. Because J.E.B.'s criminal conduct in having sexual contact with a child paralleled the constitutionally protected activity, we concluded that a reliable showing of a sufficient relationship between the two had been made, and that the sentencing court's consideration of J.E.B.'s reading materials did not violate J.E.B.'s first amendment rights. Id. at 673, 469 N.W.2d at 200.

We therefore conclude that a sentencing cour...