On Point: 4. Improper factors

State v. Westley D. Whitaker, 2020AP29-CR, 2022WI 54, 7/5/22, affirming a publisher court of appeals opinion, 2021 WI App 17; case activity (including briefs)

As a teenager, Whitaker repeatedly sexually assaulted his sisters. Though aware of the assaults, neither his parents nor the Amish elders reported them to the authorities. Whitaker pleaded to one count of 1st-degree sexual assault of a child. On appeal, he argues that the circuit court improperly sentenced him by referencing his Amish faith and stating an intent to send a message to the Amish community. SCOW affirmed, but the majority and concurrences highlight concerns about how “improper sentencing factor” claims are evaluated.

State v. Octavia W. Dodson, 2022 WI 5, 2018AP1476, 1/26/22, affirming an unpublished per curiam court of appeals decision; case activity (including briefs)

Dodson pleaded guilty to second-degree homicide. He’d shot and killed Freeman, who he (apparently erroneously) believed had earlier rear-ended his car. Dodson had pursued Freeman’s car and Freeman pulled over. Dodson said Freeman had run at him shouting racial epithets; that’s when Dodson shot him.

State v. Westley D. Whitaker, 2020AP29-CR, petition for review of a published decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issues Presented (from the PFR and supreme court order granting review)

1. Does it violate the First and Fourteenth Amendments and Article I, Section 18 of the Wisconsin Constitution to consider a defendant’s religious identity and impose a sentence intended to deter crime solely within his religious community?
2. If a sentencing court may consider a defendant’s religious association to deter other members of a religious community, does the “reliable nexus” test of State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994), and State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991), require congruity between the offense and the activity protected by the First Amendment?
3. Does the sentencing factor/objective of “protection of the public” permit the sentencing court to increase the sentence imposed on the defendant to send a message to an identified set of third parties that they should alter their behavior in the future, apart from generally being deterred from committing offenses like those committed by the defendant? (Added by the supreme court.)

State v. Scott William Forrett, 2021 WI App 31, petition for review granted, 9/14/21, affirmed, 2022 WI 37; case activity (including briefs)

Wisconsin permits a driver’s prior refusal to submit to a warrantless blood test as a criminal penalty enhancer for a subsequent OWI. In an open and shut opinion that is recommended for publication, the court of appeals just declared that statutory scheme unconstitutional based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

State v. Westley D. Whitaker, 2021 WI App 17, petition to review granted, 6/16/21, affirmed, 2022 WI 54; case activity (including briefs)

This appeal raises a hot-button issue likely to interest SCOW. Just last year an investigative journalist reported that Amish communities do not report sexual assaults of children to social workers or police. Parents and church elders strive to address the problem themselves. (NPR story). That’s what happened in Whitaker’s case. He repeatedly sexually assaulted his younger sisters then stopped when he was 14. His crimes went unreported until he was 25, well after he had left the Amish community. He pled to one count of 1st-degree child sexul assault and requested a “fines only” sentence. The circuit court found no risk that he would re-offend and no need for rehabilitation. Yet it imposed a prison sentence in order to “send a message” to the Amish community that this behavior is unacceptable and members need to report it.

State v. Octavia W. Dodson, 2018AP1476-CR, petition for review granted 1/20/21; case activity (including briefs)

Issue presented:

Did the sentencing court violate Dodson’s Second Amendment right to keep and bear arms by considering his status as a lawful gun owner an aggravating factor at sentencing?

State v. Edward L. Body, Sr., 2019AP836, 1/22/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Body appeals the sentence he received after the revocation of his probation. He claims the circuit court erred in considering his gender and unproven allegations contained in the PSI. He also argues the sentence–one year in jail for a repeater disorderly conduct–is unduly harsh. The court of appeals rejects all three claims.

State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)

Issues:

Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?

If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?

Looks like NYU Professor Ann Washington has done the hard work for you. Her new article, How to Argue With an Algorithm: Lessons from the Compass-ProPublica Debate, strives to inform courtroom arguments over the integrity of algorithms used to predict risk during the sentencing process.

State v. Marshawn Terell Johnson, 2017AP2445-CR, District 3, 3/19/19 (not recommended for publication); case activity (including briefs)

In sentencing Johnson for possession of heroin with intent to delivery, the circuit court remarked that he’d traveled to Superior from Chicago to commit his crime. The sentencing court’s consideration of that fact did not violate the Privileges and Immunities Clause of the U. S. Constitution.