State v. Whitaker

• Decision Date: 04 February 2021
• Docket Number: Appeal No. 2020AP29-CR
• Citation: 957 N.W.2d 561,396 Wis.2d 557,2021 WI App 17
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Westley D. WHITAKER, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

396 Wis.2d 557

957 N.W.2d 561

2021 WI App 17

STATE of Wisconsin, Plaintiff-Respondent,

v.Westley D. WHITAKER, Defendant-Appellant.^†

Appeal No. 2020AP29-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: October 16, 2020

Opinion Filed: February 4, 2021

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher M. Zachar of Zachar Law Office, LLC, La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Blanchard, Kloppenburg, and Nashold, JJ.

BLANCHARD, J.

¶1 Westley Whitaker was 26 when he entered a plea of no contest to a charge that he sexually assaulted one of his sisters in January 2007, when he was 14 and she was 12. Before sentencing, Whitaker admitted that this sexual assault was only one of many that he perpetrated against the same girl, and also admitted that during the same time period he had sexual contact with two other younger sisters. These assaults all took place while the siblings lived in a household that was part of an Amish community in Vernon County. The circuit court sentenced Whitaker to four years of imprisonment.

¶2 Whitaker challenges one of the court's rationales for sentencing Whitaker to prison. This rationale was to encourage effective interventions by adults in the pertinent Amish community to protect girls from sexual assaults by family members. One way that the court phrased this was to say that it aimed to encourage elders to refrain from "keep[ing]" the issue of child sexual assaults "within the community," instead of being addressed in the "judicial system." The court based this rationale on the following two factual premises, which were advanced by both parties. First, during the period in which Whitaker was committing the sexual assaults, adults in Whitaker's Amish community became aware of his conduct but failed to take effective steps to end it. Second, this was not an isolated failure, but instead part of an ongoing pattern of similar failures by adults in the same Amish community to prevent child sexual assault.

¶3 Whitaker argues that the sentence: (1) violates his rights under the First Amendment and the Fourteenth Amendment Due Process Clause, because the court considered his religious beliefs as a member of the Amish community and his association with the Amish community for religious purposes; (2) violates his rights under the Eighth Amendment as "cruel and unusual punishment" and his due process rights, primarily because he stopped the sexual assaults when he was a 14-year-old adolescent; and (3) is defective under pertinent case law because the court failed to adequately explain the basis for either major component of the bifurcated sentence, two years of initial confinement and two years of extended supervision.

¶4 On the first issue, we assume without deciding that the circuit court's rationale potentially infringed on constitutionally protected religious beliefs or the right to associate with a religious community. Even with this assumption, we conclude that Whitaker fails to carry his burden of showing by clear and convincing evidence that the court's sentencing rationale was improper. We discern a reliable nexus between the circumstances of Whitaker's sexual assaults and the court's use of the sentence to encourage adults to protect girls in the Amish community from sexual assaults, including if necessary by communicating with authorities outside the community such as social workers or police. Separately, we conclude that the sentence did not violate the Eighth Amendment or the Due Process Clause, and also that the court provided sufficient explanations for both components of the sentence. Accordingly, we affirm the judgment of conviction and the order denying Whitaker's motion for the postconviction relief.

BACKGROUND

¶5 In 2017, the State charged Whitaker, then 25, with three counts of first degree child sexual assault for sexual contact with A.B. when she was under the age of 13, in violation of WIS. STAT. § 948.02(1)(e) (2017-18).¹ The same criminal complaint charged him with three counts of the same offense for sexual contact with C.D., when she was also younger than 13. All six charged offenses were alleged to have occurred during the years 2005 to 2007.

¶6 Whitaker acknowledged in advance of sentencing that the following allegations contained in the complaint were true. A.B., C.D., and a third victim, E.F., are younger sisters of Whitaker. A.B. reported to county human services employees in June 2017 that, during the years 2005 to 2007, Whitaker subjected her to "almost" daily penis-to-vagina sexual intercourse. C.D. reported that, starting in 2005 when she was seven and ending when she was around 10, Whitaker sexually assaulted her on multiple occasions. E.F. reported that when she was six or seven, Whitaker took her to a field, directed her to undress, and tried unsuccessfully to penetrate her vagina with his penis.

¶7 In September 2017 and while living outside Wisconsin, Whitaker contacted law enforcement and admitted to conduct generally matching that described in the complaint and summarized above. At a January 2019 plea hearing, the circuit court accepted Whitaker's plea of no contest to first degree sexual assault of a child under the age of 13 by having sexual contact with A.B. on January 1, 2007, in violation of WIS. STAT. § 948.02(1)(e). The other charges involving A.B. and all of the charges involving C.D. were dismissed but read in for sentencing purposes. The parties agreed that they would both be free to recommend any sentence options.

¶8 During the plea hearing, Whitaker and his attorney explained that Whitaker had completed eight years of schooling and that he had grown up in an "Amish community," with beliefs "similar" to that of "Old Order Amish."²

¶9 We pause to note that the record provides only limited information regarding the community of Amish adherents to which Whitaker's family belonged when he was an adolescent or regarding the community's potential continuing existence by the time of sentencing. When we refer to "the Amish community," we mean the particular group or congregation of Amish adherents that Whitaker's parents belonged to when Whitaker was aged around 12-14 (when the sexual assaults occurred) and that apparently continued to exist at the time of Whitaker's sentencing. We are not referring broadly to all persons or groups in the Vernon County area who may have identified as Amish at any time between 2005 and the sentencing. For factual context, we note that our supreme court in 1971 made the general observation that the independent religious sect Amish is "dedicated" "to maintaining the old practices and resisting any capitulation to the sin of worldliness," with the "Old Order Amish" being "the most conservative and traditional of the several branches of the sect." State v. Yoder , 49 Wis. 2d 430, 434-35, 182 N.W.2d 539 (1971), aff'd , Wisconsin v. Yoder , 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). We further note that the circuit court here had access to a statement by Whitaker that, in the Amish "culture" in which he was raised, "children do not interact with the opposite sex," and "sex is considered off limits and taboo ...." "It isn't okay to talk about."

¶10 Returning to our case chronology, in advance of sentencing, the circuit court and the parties had the opportunity to review two confidential documents: a presentence investigation report prepared by the Department of Corrections and an "Estimate of Risk of Sexual Offense Recidivism" prepared by a licensed clinical social worker at Whitaker's request. These documents both concluded that Whitaker presented little or no special risk of committing child sexual assault again. Based primarily on that mutual conclusion, Whitaker moved for an order exempting him from sex offender registration, which was not opposed by the State. See WIS. STAT. § 301.45(1m) (potential exception for underage sexual activity). Whitaker argued that the court would not be "sentencing a twenty-five year old sex offender," but instead a "boy" who inhabited "a world very different from his contemporaries," and who had grown up to become "a pro-social, low-risk father who tried to make his childhood mistakes right by confessing to the police." In granting the motion for exemption from registration, the court described the case as "unusual," and further explained:

Mr. Whitaker committed these very serious offenses, but he was between the ages of 12 to 14. He was in an Amish community. And ... I don't believe he poses a risk. I believe ... this was juvenile, hormone-driven [behavior] in ... a community and [in] a family that wasn't protecting the daughters.

¶11 We now summarize the sentencing recommendations and sentence. A.B. and E.F. each requested a prison sentence of "two to five years."³ The Department of Corrections recommended three years of probation, with a condition of 30 days in jail, emphasizing evidence that Whitaker was not a risk to reoffend. The State recommended three years of initial confinement and three years of extended supervision, emphasizing the harm done to the victims over a long period of time and the fact that Whitaker did not confess to law enforcement until after A.B. made her disclosures to law enforcement. The defense recommended only mandatory costs and fees, emphasizing: that the sexual assaults would have been treated as acts of juvenile delinquency if they had been addressed in the court system when Whitaker was around 14; the long passage of time since the last sexual assault; the lack of evidence that Whitaker was a risk to commit child sexual assault again; his admissions of guilt to police and the court; and the significant negative collateral consequences for him that will arise from a conviction for child sexual assault.

¶12 The court sentenced Whitaker to two years of initial confinement...