State v. Whitaker, 2020AP29-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtJILL J. KAROFSKY, J.
Citation402 Wis.2d 735,976 N.W.2d 304,2022 WI 54
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Westley D. WHITAKER, Defendant-Appellant-Petitioner.
Docket Number2020AP29-CR
Decision Date05 July 2022

402 Wis.2d 735
976 N.W.2d 304
2022 WI 54

STATE of Wisconsin, Plaintiff-Respondent,
v.
Westley D. WHITAKER, Defendant-Appellant-Petitioner.

No. 2020AP29-CR

Supreme Court of Wisconsin.

Oral Argument: December 9, 2021
Opinion Filed: July 5, 2022


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.

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.

JILL J. KAROFSKY, J.

402 Wis.2d 738

¶1 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, 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

402 Wis.2d 739

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 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

976 N.W.2d 307

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.

402 Wis.2d 740

¶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.

¶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

402 Wis.2d 741

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 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

976 N.W.2d 308

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:

402 Wis.2d 742
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 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

402 Wis.2d 743

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 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...

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    • July 6, 2022
    ...session. The City's only reason for denying disclosure applies "whenever competitive or bargaining reasons require a closed session." 976 N.W.2d 304 Wis. Stat. § 19.85(1)(e) (emphasis added). But the Common Council never entered into a closed session at the December 19 meeting. How could a ......
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    • July 6, 2022
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