01/19/94 State Wisconsin V. Michael Fuerst

MYSE, J. 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.