State v. Lamont L. Travis , 347 Wis. 2d 142 ( 2013 )

2013 WI 38SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP685-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Lamont L. Travis,
Defendant-Appellant.
REVIEW OF A DECISION BY THE COURT OF APPEALS
340 Wis. 2d 639, 813 N.W.2d 702(Ct. App. 2012 – Published)
PDC No: 2012 WI App 46OPINION FILED: May 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 10, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Wilbur Warren III
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, J., dissents. (Opinion filed.)
NOT PARTICIPATING: PROSSER, J., did not participate.
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Christopher Wren, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief filed by
Suzanne Hagopian, assistant state public defender, and oral
argument by Suzanne Hagopian.
An amicus curiae brief was filed by Anne Bensky, and Garvey
McNeil & Associates, S.C., Madison, for the Wisconsin
Association of Criminal Defense Lawyers.
2013 WI 38NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP685-CR
(L.C. No. 2009CF417)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
MAY 2, 2013
Lamont L. Travis,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of a
published decision of the court of appeals that modified the
judgment of conviction of the Circuit Court for Kenosha County,
Wilbur W. Warren III, Judge, and remanded the matter to the
circuit court for resentencing.1
¶2 The court of appeals ordered the circuit court to
modify the judgment of conviction to list Wis. Stat.
1
State v. Travis, 2012 WI App 46, 340 Wis. 2d 639, 813
N.W.2d 702.
No. 2011AP685-CR
§ 948.02(1)(e) (2009-10),2 rather than § 948.02(1)(d),3 as the
statute the defendant violated. The prosecuting attorney, the
defense counsel, the circuit court, and the defendant agreed at
the hearing on the defendant's postconviction motion that it was
error to charge the defendant with violating § 948.02(1)(d), and
all agreed that the defendant should have been charged with
violating § 948.02(1)(e).
¶3 The State attempted to change its position before the
court of appeals and attempted to prove that the correct charge
was a violation of Wis. Stat. § 948.02(1)(d). The court of
appeals rejected the State's theory that the crime was a
violation of § 948.02(1)(d). State v. Travis, 2012 WI App 46,
2
Wisconsin Stat. § 948.02(1)(e) provides:
Whoever has sexual contact with a person who has not
attained the age of 13 years is guilty of a Class B
felony.
All references to the Wisconsin Statutes are to the 2009-10
version unless otherwise noted.
3
Wisconsin Stat. § 948.02(1)(d) provides:
Whoever has sexual contact with a person who has not
attained the age of 16 years by use or threat of force
or violence is guilty of a Class B felony if the actor
is at least 18 years of age when the sexual contact
occurs.
2
No. 2011AP685-CR
¶15 N.7, ¶19, 813 N.W.2d 702. The State does not challenge this
part of the court of appeals decision before this court.4
¶4 The court of appeals also remanded the case for
resentencing, concluding that resentencing was required because
a structural error occurred when the circuit court imposed the
sentence relying on the penalty provision for a violation of
Wis. Stat. § 948.02(d) instead of the penalty provision for a
violation of § 948.02(e).
4
The State asserted a three-part argument in the court of
appeals: (1) The defendant had pled guilty to a violation of
Wis. Stat. § 948.02(1)(d) that had a mandatory minimum penalty
and therefore the circuit court had no inaccurate information
about the penalty; (2) the alleged error in the penalty provides
a basis for withdrawal of the plea or a claim of ineffective
assistance of counsel, not a basis for resentencing; and (3) the
structural error doctrine does not apply to an inaccurate-
information-at-sentencing claim, citing State v. Tiepelman, 2006
WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, as adopting a harmless
error analysis.
The court of appeals rejected the State's position as
follows:
The State also requests that we assume that a
videotape of a statement by the victim——which is not
included in the appellate record——is proof that Travis
attempted to have sexual contact "by use or threat of
force or violence." As the videotape is not in the
record, and as defense counsel, the assistant district
attorney, and the circuit court all agreed that Wis.
Stat. § 948.02(1)(d) was not the crime Travis should
have been charged with, we are again puzzled by the
Attorney General's Office's argument. We address this
frivolous argument no further, and adopt the findings
of the circuit court that the five-year mandatory
minimum was erroneous and that inaccurate information
was presented to the court.
Travis, 340 Wis. 2d 639, ¶19.
3
No. 2011AP685-CR
¶5 The penalty provisions for Wis. Stat. § 948.02(1)(d)
and for § 948.02(1)(e) are different. Although both are Class B
felonies and carry the same maximum penalty of 30 years'
imprisonment,5 the difference is that § 948.02(1)(d) provides for
a mandatory minimum period of confinement of five years;6
§ 948.02(1)(e) requires no mandatory minimum period of
confinement.
¶6 The defendant moved for resentencing on the ground
that his sentence was based on the inaccurate information that
he was subject to a mandatory minimum five-year period of
confinement. As the circuit court stated, the five-year
mandatory minimum "was inaccurately referenced beginning in the
5
The maximum penalty for a conviction in the present case
under both statutes is 30 years' imprisonment because the
offense charged here is an attempt. An attempt to commit first-
degree sexual assault in violation of § 948.02(1)(d) reduces
each of the periods of imprisonment by half. Wis. Stat.
§ 939.32(1m)(b).
"Penalties for felonies are as follows: . . . (b) For a
Class B felony, imprisonment not to exceed 60 years," Wis. Stat.
§ 939.50(3)(b), with a bifurcated sentence consisting of a
maximum period of initial confinement of forty years, Wis. Stat.
§ 973.01(2)(b), and a maximum period of extended supervision of
twenty years, Wis. Stat. § 973.01(2)(d)1.
6
"If a person is convicted of a violation of s. 948.02
(1)(d) or 948.025 (1)(c), the court shall impose a bifurcated
sentence under s. 973.01. The term of confinement in prison
portion of the bifurcated sentence shall be at least 5 years.
Otherwise the penalties for the crime apply, subject to any
applicable penalty enhancement." Wis. Stat. § 939.616(2).
4
No. 2011AP685-CR
pleadings and carried out through the plea, the sentencing and
ultimately really pervaded the entire file in this case."7
¶7 Nonetheless, the circuit court denied the defendant's
motion for resentencing, viewing the error as harmless.8
¶8 The court of appeals reversed the circuit court and
remanded the case for resentencing, concluding that the error in
sentencing, namely the mistake of law that a mandatory minimum
period of confinement applies, constitutes structural error.
The State focuses its objection on what it describes as the
court of appeals' "unprecedented and radical determination that
reliance on inaccurate sentencing can qualify as structural
error."
¶9 The question of law presented to this court is whether
a circuit court's imposition of a sentence using inaccurate
information that the defendant was subject to a mandatory
minimum five-year period of confinement is structural error or
subject to the application of harmless error analysis.9 If the
latter, the question is whether the error in the present case
was harmless.
7
The citation to the wrong statute carried through the
entire proceeding, namely in the Warrant, the Information, the
Plea Questionnaire/Waiver of Rights, the plea colloquy, the Pre-
Sentence Investigation report, the sentencing hearing, and
finally, the judgment of conviction.
8
Judge Warren presided at all of the proceedings in the
circuit court, including the hearing on the defendant's
postconviction motion requesting resentencing.
9
This court decides questions of law independently of the
circuit court and court of appeals but benefits from their
analyses.
5
No. 2011AP685-CR
¶10 We conclude that imposing a sentence under the
erroneous belief that the defendant was subject to a five-year
mandatory minimum period of confinement is an error subject to a
harmless error analysis. The error is not a structural error,
as the court of appeals stated. We further conclude that the
error in the present case was not a harmless error. We affirm
the decision of the court of appeals, but on different grounds,
and remand the matter for resentencing.
I
¶11 For purposes of this review, the facts of the offense
and the procedural history are not in dispute.
¶12 Lamont L. Travis, the defendant, was charged with one
count of attempted first-degree sexual assault of a child in
violation of Wis. Stat. § 948.02(1)(d). The complaint and
information erred in one very important respect: they charged a
violation of Wis. Stat. § 948.02(1)(d), but did not contain any
allegations supporting the "use or threat of force or violence"
element in § 948.02(1)(d).
¶13 The defendant was convicted on his plea of guilty to a
violation of Wis. Stat. § 948.02(1)(d). As described above, the
court of appeals ordered the judgment of conviction to be
amended in accordance with the agreement of the prosecuting
attorney, defense counsel, the defendant, and the circuit court
to list the correct crime, a violation of Wis. Stat.
§ 948.02(1)(e).
¶14 The defendant has not sought, and does not now seek,
to withdraw his guilty plea. The defendant seeks resentencing.
6
No. 2011AP685-CR
II
¶15 We begin with two basic principles regarding
sentencing:
¶16 First, sentencing decisions are left to the sound
discretion of the circuit court. We review a sentencing
decision to determine whether the circuit court erroneously
exercised its discretion.10 A discretionary sentencing decision
will be sustained if it is based upon the facts in the record
and relies on the appropriate and applicable law.11
¶17 Second, and somewhat related to a proper exercise of
discretion, a defendant has a constitutionally protected due
process right to be sentenced upon accurate information.12 A
defendant has a constitutional right to a fair sentencing
process "in which the court goes through a rational procedure of
10
In State v. McCleary, 49 Wis. 2d 263, 182 N.W.2d 512(1971), the court explained that a sentencing court is to
exercise its discretion on a rational and explainable basis.
McCleary summarized the reasoning process of a sentencing court
that facilitates appellate review of sentencing under the
standard of erroneous exercise of discretion as follows:
[T]he term [discretion] contemplates a process of
reasoning. This process must depend on facts that are
of record or that are reasonably derived by inference
from the record and a conclusion based on a logical
rationale founded upon proper legal standards.
Id. at 277, quoted with approval in State v. Gallion, 2004 WI
42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197.
11
State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375(1999).
12
Tiepelman, 291 Wis. 2d 179, ¶9.
7
No. 2011AP685-CR
selecting a sentence based on relevant considerations and
accurate information."13 When a circuit court relies on
inaccurate information, we are dealing "not with a sentence
imposed in the informed discretion of a trial judge, but with a
sentence founded at least in part upon misinformation of
constitutional magnitude."14 A criminal sentence based upon
materially untrue information, whether caused by carelessness or
design, is inconsistent with due process of law and cannot
stand.15
¶18 It is not the duration or severity of this sentence
that renders it constitutionally invalid; it is the careless or
designed pronouncement of sentence on a foundation so
extensively and materially false, which the prisoner had no
opportunity to correct by the services which counsel would
provide, that renders the proceedings lacking in due process.16
¶19 The defendant's postconviction motion seeking
resentencing alleges that the defendant's due process rights
were violated at sentencing because the circuit court imposed a
13
Id., ¶26, (quoting United States ex rel. Welch v. Lane,
738 F.2d 863, 864-65 (7th Cir. 1984)).
14
United States v. Tucker, 404 U.S. 443, 447 (1972).
15
Townsend v. Burke, 334 U.S. 736, 741 (1948). See also
Tucker, 404 U.S. at 447 (reinforcing the right to accuracy in
sentencing).
For the history of the evolution of this jurisprudence in
Wisconsin, see Tiepelman, 291 Wis. 2d 179, ¶¶9-25.
16
Townsend, 334 U.S. at 741, cited favorably in Tiepelman,
291 Wis. 2d 179, ¶10.
8
No. 2011AP685-CR
sentence based on inaccurate information that he was subject to
a mandatory minimum five-year period of confinement when, in
fact, there was no mandatory minimum penalty applicable to his
offense.
¶20 Whether a defendant has been denied due process is a
constitutional issue which this court decides independently of
the circuit court or court of appeals, benefiting from the
analysis of these courts.17
¶21 State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717
N.W.2d 1, teaches that a defendant is entitled to resentencing
if the defendant meets a two-pronged test: (A) the defendant
shows that the information at the original sentencing was
inaccurate; and (B) the defendant shows that the court actually
relied on the inaccurate information at sentencing.18
¶22 Proving that information is inaccurate is a threshold
question. A defendant "cannot show actual reliance on
inaccurate information if the information is accurate."19 Once a
defendant shows that the information is inaccurate, he or she
must establish by clear and convincing evidence that the circuit
court actually relied on the inaccurate information.20
17
Tiepelman, 291 Wis. 2d 179, ¶9.
18
Id., ¶26 (citing State v. Lechner, 217 Wis. 2d 392, 419,
576 N.W.2d 912 (1998)).
19
State v. Harris, 2010 WI 79, ¶33 n.10, 326 Wis. 2d 685,
786 N.W.2d 409 (relating to sentencing involving race or gender
considerations).
20
Id., ¶¶4, 34.
9
No. 2011AP685-CR
¶23 Once the defendant shows actual reliance on inaccurate
information, the burden then shifts to the State to prove the
error was harmless.21
¶24 We now apply Tiepelman to the facts of the present
case.
III
¶25 We examine the record (A) to identify the inaccurate
information; and (B) to determine whether the sentencing court
actually relied on the inaccurate information.
A
¶26 Addressing the first prong of the Tiepelman analysis,
namely whether there was inaccurate information presented to the
circuit court at sentencing, we note that the case comes before
us from the court of appeals, which directed the circuit court
to amend the judgment of conviction to reflect that the
defendant pled guilty to Wis. Stat. § 948.02(1)(e),22 which does
not provide a mandatory minimum period of confinement. The
circuit court, however, had previously sentenced the defendant
on the basis of a conviction under § 948.02(1)(d), which
provides for a mandatory minimum period of confinement. At
sentencing, the circuit court repeatedly mistakenly stated that
it was required to impose a five-year mandatory minimum period
of confinement, although no such mandatory minimum was
applicable. The circuit court agreed with counsel for the State
21
Tiepelman, 291 Wis. 2d 179, ¶¶2, 9.
22
Travis, 340 Wis. 2d 639, ¶4.
10
No. 2011AP685-CR
and the defendant at the hearing on the postconviction motion
that "there should not have been a mandatory minimum. . . . So
that error . . . pervaded the entire file in this
matter . . . ."
¶27 We conclude, as did the circuit court, the court of
appeals, the prosecuting attorney, the defense counsel, and the
defendant that information relevant to the defendant's
sentencing, namely a mandatory minimum period of confinement,
was inaccurate and was presented to the circuit court at
sentencing.
B
¶28 Addressing the second prong of the Tiepelman analysis,
reliance on inaccurate information, this court, as the reviewing
court, must examine the record to determine whether the circuit
court "actually relied" on the inaccurate information at
sentencing. Whether the circuit court "actually relied" on the
incorrect information at sentencing, according to the case law,
turns on whether the circuit court gave "explicit attention" or
"specific consideration" to the inaccurate information, so that
the inaccurate information "formed part of the basis for the
sentence."23
¶29 A review of the record to determine whether there was
actual reliance by the circuit court on the inaccurate
information can be a difficult task. Sentencing decisions
23
Tiepelman, 291 Wis. 2d 179, ¶14 (quoting United States ex
rel. Welch v. Lane, 738 F.2d 863, 866 (7th Cir. 1984)).
11
No. 2011AP685-CR
depend on a wide array of factors, not all fully explained by
the circuit court. A circuit court might not have explicitly
considered the inaccurate information on the record or the
record may be ambiguous.24
¶30 There are no "magic words" that the circuit court must
use to enable a reviewing court to determine whether the circuit
court gave "explicit attention" to inaccurate information. If a
circuit court expressly paid heed to the inaccurate information,
it is easier for a reviewing court to ascertain the circuit
court's reliance on that information in passing sentence.25 For
a reviewing court to conclude there was actual reliance by the
circuit court, a circuit court need not have stated, "Because of
the existence of this [inaccurate information], you are
sentenced to X years of imprisonment." For a reviewing court to
conclude there was actual reliance in the present case, the
circuit court need not have specifically said, "Because of the
existence of the mandatory minimum, you are sentenced to prison
time equal to or greater than the mandatory minimum."
¶31 In accordance with Tiepelman, we examine the record to
determine whether the circuit court gave "explicit attention" or
"specific consideration" to the inaccurate information so that
the inaccurate information "formed part of the basis for the
sentence."
24
United States ex rel. Welch v. Lane, 738 F.2d 863, 866
(7th Cir. 1984).
25
Id. at 866-67.
12
No. 2011AP685-CR
¶32 In the present case, the circuit court's reference to
the inaccurate penalty information was explicit and repetitive.
At least four times during the sentencing hearing, the circuit
court explained that a mandatory minimum period of confinement
was applicable to the defendant.
¶33 The circuit court opened the sentencing hearing by
summarizing the charge and the penalty, explaining that a period
of confinement of not less than five years applied to the
defendant's conviction, to which the defendant's attorney
replied, "Correct." The circuit court then turned to the
defendant and said "So there's a five-year minimum. You
understood that at the time your plea was given?" To which the
defendant responded, "Yes, your honor." Here is the exchange:
The Court: Good afternoon. The matter is here for
sentencing. The charge is attempted first-degree
sexual assault of a child under the age of 12. I
would presume that the Class B that is reflected here
would be the 30-year maximum term of confinement,
bifurcated. There's a term of confinement, the prison
portion of the bifurcated sentence, of not less than
five years.
Defendant's Attorney: Correct.
The Court: So there's a five-year minimum. You
understood that at the time your plea was given?
The Defendant: Yes, Your Honor.
The Court: So the Court's got an obligation here if a
sentence is to be imposed other than straight
probation that it has to be at least five years. Do
you understand that?
The Defendant: Yes, Your Honor.
13
No. 2011AP685-CR
¶34 The circuit court explained that it had an obligation
if it decided to impose a sentence, other than probation, to
impose at least five years of confinement. The defendant again
responded that he understood.
¶35 After this exchange with the defendant, the circuit
court heard from the prosecuting attorney, the defendant's
mother, the defendant, and defense counsel. The prosecuting
attorney recommended that the sentence include prison time but
did not suggest the length of confinement or whether it should
be concurrent or consecutive with a previously imposed sentence
the defendant was serving.26
¶36 The other speakers at the sentencing hearing addressed
factors the circuit court might consider but did not express any
view on the number of years to be spent in confinement. Defense
counsel recommended a prison sentence concurrent with a
previously imposed sentence of confinement. The presentence
investigation report, which also referred to a five-year
mandatory minimum period of confinement, recommended ten years
of confinement and ten years of extended supervision,
26
Under the plea agreement, the State dismissed charges in
two other cases and agreed to recommend a prison sentence but
agreed not to specify the length or nature of the sentence. The
prosecuting attorney agreed to dismiss the Class H felony charge
of failing to update his sex-offender registration information.
The prosecuting attorney dismissed but read in charges of two
Class A misdemeanors (obstructing an officer and resisting
arrest).
14
No. 2011AP685-CR
consecutive to a previously imposed sentence of nine years of
confinement and four years of extended supervision.27
¶37 The circuit court discussed the defendant's criminal
history and the seriousness of this offense before sentencing
him to "a period of incarceration in the Wisconsin State Prison
System of eight years of initial confinement followed by 10
years of extended supervision." This sentence was imposed
consecutive to a previously imposed sentence of confinement the
defendant was serving. The sentence the circuit court imposed
is well below the maximum penalty under either Wis. Stat.
§ 948.02(1)(d) or § 948.02(1)(e).
¶38 At the circuit court's hearing on the defendant's
postconviction motion requesting resentencing, the circuit court
declared that the inaccurate information was not pertinent to
its sentencing decision. Although conceding that the five-year
mandatory minimum period of confinement was "inaccurately
referenced" and "really pervaded the entire file in the case,"
the circuit court concluded it had no consequence on the
sentence imposed and thus, any error was harmless.
¶39 The circuit court explained at the postconviction
hearing that its sentencing decision was "primarily based" on
27
The defendant's brief referred to information contained
in the Pre-Sentence Investigation report (PSI). No one objected
to the defendant's brief on this ground. This information in
the PSI was not discussed on the record in the circuit court at
the sentencing hearing or at the postconviction motion hearing.
For a recent decision of the court on reference to a PSI in an
appellate brief, see State Public Defender v. Court of Appeals,
2013 WI 31, ___ Wis. 2d ___, ___ N.W.2d ___.
15
No. 2011AP685-CR
the defendant's criminal record; that the sentence was based
"not so much on the fact that there was a mandatory minimum;"
and that "the existence or nonexistence of a mandatory minimum
sentence [was] of no consequence. . . . [,] did not have any
bearing on sentencing and was noted only to meet the statutory
and case law requirements . . . ."
¶40 The circuit court's comments on its sentencing at the
hearing on the defendant's postconviction motion are set forth
in full as follows:
The Court: Did the Court rely on the five-year
minimum that was referenced, which I think all parties
now recognize was inaccurately referenced beginning in
the pleadings and carried out through the plea, the
sentencing and ultimately really pervaded the entire
file in this case. One of the reasons why it's
referenced is because failure to do so is grounds for
a postconviction motion and perhaps reversible error.
Had the Court not made reference to it, at least in
directing the defendant's attention to it, in this
case or in any case where a minimum is available to
the State, defendants have in the past have, and I
suppose Mr. Travis here would be no different in this
situation, have a viable argument to say, "Well, the
Judge gave me X number of years, but I didn't know
that there was a mandatory minimum. I never would
have entered a plea to this case if I knew that there
was a minimum, and no one ever told me there was a
minimum."
So the need to express what has been pled as a
mandatory minimum, at least from a judicial
perspective, is necessary to avoid potential
reversible error and a valid claim for resentencing.
The fact that it was mentioned, not only in the
pleadings but especially by the Court at the time of
sentencing, only goes to reinforce the Court's
obligation to inform the defendant of what the Court
believes is a valid sentencing consequence, a
mandatory minimum.
16
No. 2011AP685-CR
Did the court rely on that mandatory minimum? And
again, this ties in, I suppose, in some roundabout way
with the prejudice argument here, but as far as the
Court's perspective on this, in imposing an eight-year
sentence, that sentence was primarily based, and the
record should reflect this, not so much on the fact
that there was a mandatory minimum perceived to be in
place at the time but that there was, in fact, a
substantial prior record involving, among other
things, prior sexual assault-type offenses. And in
our system of progressive type of consequences for
similar criminal behavior, the Court typically, and I
think this case was no different, would certainly
consider that prior conduct as a substantial factor
when it considers what an appropriate sentence should
be in the instant case.
So from the Court's perspective, the existence or
nonexistence of a mandatory minimum sentence is of no
consequence to this Court in its determination of what
an appropriate sentence were [sic]. Had that been the
case, the Court, I'm sure, would have indicated to the
defendant that, "Because of the mandatory minimum and
the existence of it and the Court's belief, I am going
to give you five years which is the mandatory minimum
here because the law requires that," that certainly
wasn't the case. As counsel points out and certainly
the record reflects, this was an eight-year sentence
of initial incarceration.
And, I don't think it's reasonable to suppose, nor can
this Court support in any way, that the five-year
mandatory minimum, which was believed to be in effect,
had any bearing whatsoever on the imposition of the
eight years of initial confinement. So that said, I
believe the defense is correct in their position here
that there should not have been a mandatory minimum.
The defendant would not have been so informed had it
not been pled and carried through as part of the plea
proceeding, but the sentence would not have changed
because of the existence or nonexistence of the
mandatory minimum.
So that error as it pervaded the entire file in this
matter and the hearings that were held, that error I
believe to be harmless because of the fact that it did
not have any bearing on sentencing and was noted only
to meet the statutory and case law requirements in
17
No. 2011AP685-CR
informing the accused of what consequences are
available, both maximum and minimum sentencing
requirements.
That said, I certainly accept the fact, [defense
counsel], that the error existed in the recitation of
that mandatory minimum, but I believe in the final
analysis at sentencing that the error was harmless
with respect to the entire proceeding and the
sentencing so the motion for resentencing at this
point would be denied for those reasons.
¶41 Now that the facts of the present case are laid out,
for guidance in determining whether the circuit court actually
relied on the inaccurate information at sentencing the Tiepelman
case is again instructive.
¶42 In Tiepelman, 291 Wis. 2d 179, the circuit court read
the defendant's Pre-Sentence Investigation (PSI) report as
stating that the defendant had over 20 prior convictions at the
time of the commission of the offense at issue, and referred to
this "fact" on the record during sentencing. The defendant's
PSI, however, indicated that he had been charged with 20
offenses before he committed the offense at issue, but it also
indicated that only five of those offenses had resulted in
convictions as of that date. The circuit court misread the PSI
and stated inaccurate information on the record at sentencing.28
¶43 The Tiepelman court concluded, based on this one
inaccurate statement by the circuit court, that Tiepelman had
met his burden of showing that the circuit court actually relied
28
Tiepelman, 291 Wis. 2d 179, ¶6.
18
No. 2011AP685-CR
on inaccurate information in reaching its decision on
sentencing.29
¶44 In the present case, the circuit court did not merely
once mention the inaccurate information. The circuit court
referred to the mandatory minimum four times at the sentencing
hearing and four times during the plea hearing, eight times in
all. The circuit court did not say at sentencing whether the
five-year mandatory minimum period of confinement was or was not
a factor in sentencing.
¶45 In the present case, as in Tiepelman,30 after
sentencing, the sentencing court acknowledged the misinformation
but denied the resentencing motion.
¶46 The standard, as stated in Tiepelman, to determine
whether the circuit court "actually relied" on the incorrect
information at sentencing is based upon whether the circuit
court gave "explicit attention" or "specific consideration" to
it, so that the inaccurate information "formed part of the basis
for the sentence."31 A circuit court's "explicit attention to
the misinformation demonstrates [the circuit court's] reliance
on that misinformation in passing sentence."32
¶47 "[T]he fact that other information might have
justified the sentence, independent of the inaccurate
29
Id., ¶¶4, 30.
30
Id., ¶7.
31
Id., ¶14 (quoting Welch, 738 F.2d at 866).
32
Welch, 738 F.2d at 866-67.
19
No. 2011AP685-CR
information, is irrelevant when the court has relied on
inaccurate information as part of the basis of the sentence."33
¶48 A reviewing court must independently review the record
of the sentencing hearing to determine the existence of any
actual reliance on inaccurate information. A circuit court's
after-the-fact assertion of non-reliance on allegedly inaccurate
information is not dispositive of the issue of actual reliance.34
¶49 We are satisfied, based upon a review of the record,
that the circuit court gave "explicit attention" to the
inaccurate penalty information and that this inaccurate
information thus "formed part of the basis for the sentence."
Thus we conclude that the defendant has met his two-pronged
burden under Tiepelman. The burden shifts to the State to prove
that the error was, nonetheless, harmless.
¶50 The Tiepelman court declined to address the harmless
error issue because it had not been fully briefed or argued, and
the parties agreed that it was appropriate to remand the case
for resentencing.35 The court of appeals in the present case
33
Welch, 738 F.2d at 867, cited with approval in Tiepelman,
291 Wis. 2d 179, ¶14.
34
State v. Groth, 2002 WI App 299, ¶28, 258 Wis. 2d 889,
655 N.W.2d 163 (other language withdrawn in Tiepelman, 291
Wis. 2d 179, ¶¶2, 31). Only when a case is overruled does it
lose all of its precedential value. See Blum v. 1st Auto & Cas.
Ins. Co., 2010 WI 78, ¶56, 326 Wis. 2d 729, 786 N.W.2d 78; see
also Harris, 326 Wis. 2d 685, ¶34 n.12 (discussing the effect of
Tiepelman's withdrawal of language from prior opinions).
35
Tiepelman, 291 Wis. 2d 179, ¶¶30-31.
20
No. 2011AP685-CR
concluded that the error constituted structural error and no
harmless error analysis was needed.36
C
¶51 This court must now determine whether the error in the
present case is a structural error or whether a reviewing court
must conduct a harmless error analysis. Structural errors are
per se prejudicial.37
¶52 The defendant asserts that the court of appeals
correctly concluded the error in the present case was structural
error and that the decision of the court of appeals adheres to
and does not dismantle Tiepelman. According to the defendant,
the court of appeals concluded that the circuit court's
misunderstanding about the mandatory minimum penalty was "akin
to a structural error for which prejudice is presumed" in the
rare case, like the instant case, in which the error was
pervasive.38 The defendant views the court of appeals decision
in the present case as a very narrow holding limited to the
unusual circumstances of the present case. The defendant's
position is that the court of appeals decision regarding
structural error does not apply generally to all cases involving
36
Travis, 340 Wis. 2d 639, ¶¶21-24.
37
Neder v. United States, 527 U.S. 1, 8 (1999); State v.
Ford, 2007 WI 138, ¶¶42-43, 306 Wis. 2d 1, 742 N.W.2d 61; State
v. Harvey, 2002 WI 93, ¶37, 254 Wis. 2d 442, 647 N.W.2d 189.
38
The amicus curiae brief of the Wisconsin Association of
Criminal Defense Lawyers argues that a harmless error analysis
has no place when a defendant proves actual reliance upon
erroneous information at sentencing.
21
No. 2011AP685-CR
inaccurate information in sentencing or even to all cases
involving sentencing with inaccurate information regarding a
mandatory minimum penalty.
¶53 The State acknowledges that error at sentencing can,
in rare instances, qualify as structural error if the error
concerns a defect already recognized as a structural error, such
as denial of counsel at sentencing and delegation of a serious
sentencing decision by a judicial officer to another. The State
asserts that no court other than the court of appeals in the
present case has, to the State's knowledge, classified reliance
on inaccurate information at sentencing as a structural error.
¶54 Structural errors "seriously affect the fairness,
integrity or public reputation of judicial proceedings and are
so fundamental that they are considered per se prejudicial."39 A
structural error is a "defect affecting the framework within
which the trial proceeds, rather than simply an error in the
trial process itself."40 Structural errors "infect the entire
trial process and necessarily render a trial fundamentally
unfair."41
¶55 Constitutional errors may be structural errors or may
be subject to harmless error analysis. Constitutional errors
39
Ford, 306 Wis. 2d 1, ¶42 (quoting State v. Shirley E.,
2006 WI 129, ¶62, 298 Wis. 2d 1, 724 N.W.2d 623).
40
Id. (quoting Arizona v. Fulminante, 449 U.S. 279, 310
(1991)).
41
Id. (quoting Neder v. United States, 527 U.S. 1, 8
(1999)).
22
No. 2011AP685-CR
that are so intrinsically harmful to substantial rights that
they "are not amenable to harmless error analysis" are
classified as structural errors.42
¶56 Although courts have often discussed the concept of
structural error, structural errors have been found in a "very
limited class of cases."43
¶57 The structural error doctrine arose in the context of
trial errors but is applicable to sentencing errors. A
structural error at sentencing includes, for example, a biased
tribunal.44
¶58 The error at issue in the present case——the sentencing
court's actual reliance on inaccurate information about a
mandatory minimum period of confinement——simply does not
resemble the limited number of cases in which an error has been
categorized as a structural error.
¶59 The court of appeals does not cite any case that
supports its conclusion that a structural error requiring
automatic reversal occurred in the present case.
42
Harvey, 254 Wis. 2d 442, ¶37.
43
Ford, 306 Wis. 2d 1, ¶43 & n.4 (quoting Neder, 527 U.S.
at 8; Harvey, 254 Wis. 2d 442, ¶37)).
44
State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771
N.W.2d 385 (structural error when circuit court prejudges a
sentence); State v. Gudgeon, 2006 WI App 143, ¶¶10, 31, 295
Wis. 2d 189, 720 N.W.2d 114 ("When a tribunal predetermines how
it will rule, the error is structural and poisons the entire
proceeding.").
23
No. 2011AP685-CR
¶60 The defendant cites three cases in support of his
position on structural error: State v. Shirley E., 2006 WI 129,
298 Wis. 2d 1, 724 N.W.2d 623; State v. Goodson, 2009 WI App
107, 320 Wis. 2d 166, 771 N.W.2d 385; and Sullivan v. Louisiana,
508 U.S. 275, 281-82 (1993). These cases are significantly
different from the present case.
¶61 In Shirley E., the court concluded that depriving a
parent of the statutory right to counsel in a termination of
parental rights proceeding constituted structural error.45 The
deprivation of counsel during critical stages in criminal
proceedings has long been considered structural error, for which
automatic reversal is required.46 The Shirley E. court held that
depriving a parent in a termination of parental rights
proceeding of the statutory protection of counsel placed the
fairness and integrity of the judicial proceedings in doubt.47
¶62 In Goodson, the sentencing court warned the defendant
that if he violated the terms of extended supervision, the
sentencing court would reconfine him to the maximum time
available. The defendant subsequently violated the terms of
extended supervision and at the reconfinement hearing, the
45
State v. Shirley E., 2006 WI 129, ¶63, 298 Wis. 2d 1, 724
N.W.2d 623.
46
Shirley E., 298 Wis. 2d 1, ¶62 (citing Neder, 527 U.S. at
8); Harvey, 254 Wis. 2d 442, ¶37; State v. Gordon, 2003 WI 69,
¶35, 262 Wis. 2d 380, 663 N.W.2d 765).
47
Shirley E., 298 Wis. 2d 1, ¶633.
24
No. 2011AP685-CR
circuit court followed through on the promise it had made.48 The
court of appeals, guided by State v. Gudgeon, 2006 WI App 143,
¶¶10, 31, 295 Wis. 2d 189, 720 N.W.2d 114, held that a tribunal
that was not impartial constituted a structural error. In
Gudgeon, the court of appeals concluded that a "biased tribunal,
like the lack of counsel, constitutes a 'structural error.'"49
¶63 In Sullivan, the United States Supreme Court held that
a jury instruction that deprives a defendant of the right to a
jury verdict of guilt beyond a reasonable doubt qualifies as
structural error.50 In Sullivan, the jury instructions provided
a definition of "reasonable doubt" that was essentially
identical to the one held unconstitutional in Cage v. Louisiana,
498 U.S. 39 (1990) (per curiam).51
¶64 The present case is unlike Shirley E., Goodson, or
Sullivan. In the present case, the defendant was not deprived
of counsel (Shirley E.), did not face a biased tribunal (Gudgeon
48
State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771
N.W.2d 385.
49
Gudgeon, 295 Wis. 2d 189, ¶10.
50
Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993).
51
Id. at 277.
25
No. 2011AP685-CR
and Goodson), and was not deprived of his right to a jury
verdict of guilt beyond a reasonable doubt (Sullivan).52
¶65 On the basis of the case law governing structural
error, we conclude that the error in the present case simply
does not fit into the general description of a structural error
and is unlike previously categorized structural errors. We
decline to extend the limited class of structural errors to the
error in the present case, and thus we conclude that the present
52
The defendant relies on State v. Mason, 2004 WI App 176,
276 Wis. 2d 434, 687 N.W.2d 526, and State v. Kleven, 2005 WI
App 66, 280 Wis. 2d 468, 696 N.W.2d 226, for the proposition
that the court of appeals has ordered resentencing with respect
to inaccurate information in sentencing without engaging in a
harmless error analysis. We conclude these cases are
distinguishable.
In Mason, the circuit court erroneously believed the
penalty for the crime was maximum confinement of 40 years. The
correct maximum confinement was 37 years, 6 months. The circuit
court imposed 27 years of confinement. The court of appeals
ordered resentencing, noting the absence of "a viable harmless
error argument from the State." Mason, 276 Wis. 2d 434, ¶1.
We read Mason to conclude not that the application of a
harmless error analysis was not necessary, but rather that the
State had failed to meet its burden to prove the error was
harmless. Mason, 276 Wis. 2d 434, ¶¶1, 24 n.4.
In Kleven, the circuit court improperly calculated the
maximum period of confinement for the defendant's base offense,
without two penalty enhancers. The court of appeals accepted
the State's concession of error and ordered resentencing.
We read Kleven to conclude that while a harmless error
analysis would have been proper, the court of appeals did not
apply it because the State did not argue the error was harmless
and the State affirmatively requested a remand for resentencing.
Kleven, 280 Wis. 2d 468, ¶28 n.8.
26
No. 2011AP685-CR
case does not involve a structural error requiring automatic
reversal.
¶66 Having determined that the circuit court actually
relied upon inaccurate information at sentencing and that the
error is not subject to structural error analysis, we apply a
harmless error analysis. The burden is on the State to prove
that the error is harmless.53
IV
¶67 Harmless error analysis in criminal cases has, for the
most part, been developed and applied to the guilt phase and
less frequently to the sentencing phase. The State sets forth
several formulations of the harmless error analysis and asserts
that under any of the various formulations and alternative
wordings of the harmless error analysis, the error in the
present case is harmless.54
53
Tiepelman, 291 Wis. 2d 179, ¶9 (citing Lechner, 217
Wis. 2d at 419).
54
The State summarizes this court's approach to harmless
error as follows:
"Wisconsin's harmless error rule is codified in Wis.
Stat. § 805.18 and is made applicable to criminal
proceedings by Wis. Stat. § 972.11(1)." State v.
Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750
N.W.2d 500 (citing State v. Harvey, 2002 WI 93, ¶39,
254 Wis. 2d 442, 647 N.W.2d 189) (footnote omitted).
"[I]n order to conclude that an error 'did not
contribute to the verdict' within the meaning of
Chapman, a court must be able to conclude 'beyond a
reasonable doubt that a rational jury would have found
the defendant guilty absent the error.'" State v.
Harvey, 2002 WI 93, ¶48 n.14, 254 Wis. 2d 442, 647
N.W.2d 189 (quoting Neder v. United States, 527 U.S.
1, 18 (1999)) (footnote added). See also State v.
27
No. 2011AP685-CR
Stuart, 2005 WI 47, ¶40 n.10, 279 Wis. 2d 659, 695
N.W.2d 259 (various formulations of harmless-error
test reflect "alternative wording," citing Neder, 527
U.S. at 2-3; State v. Weed, 2003 WI 85, ¶29, 263
Wis. 2d 434, 666 N.W.2d 485; Harvey, 254 Wis. 2d 442,
¶48 n.14). "The standard for evaluating harmless
error is the same whether the error is constitutional,
statutory, or otherwise." Sherman, 310 Wis. 2d 248,
¶8 (citing Harvey, 254 Wis. 2d 442, ¶40). "The
defendant has the initial burden of proving an error
occurred, after which the State must prove the error
was harmless." Id. (citing Tiepelman, 291
Wis. 2d 179, ¶3).
The harmless error rule . . . is an
injunction on the courts, which, if
applicable, the courts are required to
address regardless of whether the parties
do. See Wis. Stat. § 805.18(2) (specifying
that no judgment shall be reversed unless
the court determines, after examining the
entire record, that the error complained of
has affected the substantial rights of a
party).
Harvey, 254 Wis. 2d 442, ¶47 n.12. See Wis. Stat.
§ 805.18 (harmless-error rule, made applicable to
criminal proceedings by Wis. Stat. § 972.11(1));
Harvey, 254 Wis. 2d 442, ¶48 n.14 (harmless-error
test); see also State v. Martin, 2012 WI 96, ¶¶42-46,
343 Wis. 2d 278, 816 N.W.2d 270 (reviewing harmless-
error principles and factors); Stuart, 279
Wis. 2d 659, ¶40 n.10 (various formulations of
harmless-error test reflect "alternative wording").
The harmless-error test applies to claims of [sic]
that a sentencing court relied on inaccurate
information when imposing the sentence. Tiepelman,
291 Wis. 2d 179, ¶31.
The court summarized its approach to harmless error as
follows in State v. Weed, 2003 WI 85, ¶¶28-29, 263 Wis. 2d 434,
666 N.W.2d 485:
In . . . ultimately concluding that any error was
harmless, the court of appeals appeared to employ a
sufficiency of the evidence standard: "Because there
was sufficient evidence, other than Michael's alleged
28
No. 2011AP685-CR
¶68 The State proffers the harmless error test codified in
Wis. Stat. § 805.18(1), which is made applicable to criminal
proceedings by § 972.11(1). Section 805.18(1) provides that
"[t]he court shall, in every stage of an action, disregard any
error or defect in the pleadings or proceedings which shall not
affect the substantial rights of the adverse party."
¶69 The Wisconsin statutory harmless error formulation is
substantially similar to the one set forth in the Federal Rules
hearsay statement, to convict Patricia [Weed] beyond a
reasonable doubt, we hold that any error in the
admission of the Fuerbringers' testimony was
harmless." State v. Weed, No. 01-1476-CR, unpublished
slip op., ¶5 (Wis. Ct. App. May 16, 2002). To the
extent that the court of appeals relied on a
sufficiency of the evidence standard, it was in error.
To assess whether an error is harmless, we focus on
the effect of the error on the jury's verdict.
Harvey, 254 Wis. 2d 442, ¶44, 647 N.W.2d 189; see also
State v. Carlson, 2003 WI 40, ¶87, 261 Wis. 2d 97, 661
N.W.2d 51 (Sykes, J., dissenting). This test is
"'whether it appears "beyond a reasonable doubt that
the error complained of did not contribute to the
verdict obtained."'" Harvey, 254 Wis. 2d 442, ¶44, 647
N.W.2d 189 (quoting Neder, 527 U.S. at 15-16, 119 S.
Ct. 1827 quoting in turn Chapman, 386 U.S. at 24, 87
S. Ct. 824). We have held that "in order to conclude
that an error 'did not contribute to the verdict'
within the meaning of Chapman, a court must be able to
conclude 'beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the
error.'" Id., ¶48 n.14 (quoting Neder, 527 U.S. at
18, 119 S. Ct. 1827). In other words, if it is "clear
beyond a reasonable doubt that a rational jury would
have convicted absent the error," then the error did
not "'contribute to the verdict.'" Neder, 527 U.S. at
15, 18, 119 S. Ct. 1827 (citation omitted).
29
No. 2011AP685-CR
of Criminal Procedure Rule 52(a).55 Therefore, federal case law
interpreting Rule 52(a) also provides guidance on this issue.
In a review of a sentencing proceeding, the United States
Supreme Court cited Rule 52(a) in holding that "a remand [for
resentencing] is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was
harmless, i.e., that the error did not affect the [sentencing]
court's selection of the sentence imposed."56
¶70 The State submits that an error is harmless if the
error did not contribute to the sentence,57 that is, if there is
no reasonable probability that the error contributed to the
outcome.58
¶71 The State also offers that for an error to be
harmless, the beneficiary of the error (here the State) must
55
Rule 52(a), Federal Rules of Criminal Procedure:
(a) Harmless Error. Any error, defect, irregularity,
or variance that does not affect substantial rights
must be disregarded.
56
Williams v. United States, 503 U.S. 193, 203 (1992). See
also United States v. Burke, 425 F.3d 400, 417 (7th Cir. 2005)
("An error is harmless only if it did not affect the district
court's choice of sentence.").
57
Chapman v. California, 386 U.S. 18 (1967).
58
State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39,
756 N.W.2d 423; State v. Groth, 2002 WI App 299, ¶22, 258
Wis. 2d 889, 655 N.W.2d 163 (other language withdrawn in
Tiepelman, 291 Wis. 2d 179, ¶¶ 2, 31).
30
No. 2011AP685-CR
prove that it is clear beyond a reasonable doubt that the same
result would have occurred absent the error.59
¶72 The State argues that the error was harmless under any
articulation of the harmless error analysis.
¶73 The State can meet its burden to prove harmless error
by demonstrating that the sentencing court would have imposed
the same sentence absent the error. The State therefore
correctly relies on the transcript of the sentencing proceeding
in making its argument, and correctly refrains from relying on
the circuit court's assertions during the hearing on the
defendant's postconviction motion or speculation about what a
circuit court would do in the future upon resentencing.60
59
Harvey, 254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at
18).
See Tiepelman, 291 Wis. 2d 179, ¶12 ("While not explicitly
addressing the issue of harmless error, the [United States
Supreme Court in Tucker] stated that 'the real question here
is . . . whether the sentence in the 1953 federal case might
have been different if the sentencing judge had known that at
least two of the respondent's previous convictions had been
unconstitutionally obtained.'").
See United States v. Paulus, 419 F.3d 693, 700 (7th Cir.
2005) (when the district court indicates it would have arrived
at the same sentence regardless of which methodology it used to
calculate the sentence, any error is harmless).
60
In State v. Smith, 207 Wis. 2d 258, 262-63, 280, ¶¶2, 3,
37, 558 N.W.2d 379 (1997), the State requested a remand to the
circuit court for a hearing to determine whether the defendant
would have received a different sentence if the prosecutor had
kept his plea agreement promise to make no recommendation on the
sentence. The supreme court rejected the suggestion to remand
for a hearing that "would necessarily involve speculation and
calculation" by the circuit court. Smith, 207 Wis. 2d at 280.
31
No. 2011AP685-CR
¶74 According to the State, the sentencing court focused
on the defendant's extensive juvenile and criminal record and
the few positive aspects of the defendant's life. The State
argues that although the circuit court referred to the mandatory
minimum period of confinement, the sentencing court imposed the
sentence only in light of the factors the circuit court
emphasized at the sentencing proceeding. The State urges that
the error did not affect the circuit court's selection of the
sentence; there is no reasonable probability that the error
contributed to the sentence; and that it is clear beyond a
In United States ex rel. Welch v. Lane, 738 F.2d 863 (7th
Cir. 1984), the prosecutor contended that the factual error in
sentencing was harmless because the defendant would be given the
same sentence upon resentencing. The federal court of appeals
responded that the prosecutor was merely speculating and that it
would have to engage in the same speculation on the potential
outcome. The federal court of appeals explained:
Once it is established that the [trial] court relied
on erroneous information in passing sentence,
reviewing courts cannot speculate as to whether the
same result would again ensue with the error
corrected.
Id. at 868.
The United States Supreme Court rejected a similar "what
would a future court do" approach to harmless error. In United
States v. Tucker, 404 U.S. 443 (1972), the prosecutor argued
that in view of the other detrimental information the sentencing
court possessed about the defendant at the time of sentencing,
it was "highly unlikely" that a different sentence would be
imposed in the future even if the two invalid prior convictions
in the record were not considered. The United States Supreme
Court declared that resentencing was required because it simply
could not be assumed that the sentencing court would again give
the same sentence.
32
No. 2011AP685-CR
reasonable doubt that the same sentence would have been imposed
absent the error.
¶75 We disagree with the State.
¶76 The circuit court in the present case gave explicit
attention to the inaccurate information, repeatedly reminding
itself, the prosecuting attorney, the defendant, and defense
counsel that the conviction subjected the defendant to a five-
year mandatory minimum period of confinement.
¶77 We acknowledge the circuit court's conclusion at the
postconviction motion hearing that the sentence it imposed would
have been the same even if it had not been mistaken about the
mandatory minimum. We are not, however, bound by the circuit
court's retrospective review of its sentencing decision that was
made almost a year before.
¶78 In determining whether the error in the present case
was harmless, we give weight to the fact that the circuit court
believed it was required by law to impose at least a five-year
period of confinement. The mandatory minimum penalty is, by
statute, ordinarily the baseline for any confinement imposed.
The inaccurate information regarding the mandatory minimum in
the present case unnecessarily limited the sentencing court's
discretion.
¶79 If the circuit court did not take this five-year
mandatory minimum penalty into consideration at all, it was
arguably committing an error of law. A sentencing court usurps
the legislature's sentencing role if it refuses to impose a
mandatory penalty. Similarly, it usurps the legislature's
33
No. 2011AP685-CR
sentencing role if it imposes a sentence believing there is a
mandatory minimum when there is none.
¶80 When the circuit court imposes a sentence with the
misunderstanding that a mandatory minimum period of confinement
applies, the framework for sentencing is thrown off, and the
sentencing court cannot properly exercise its discretion based
on correct facts and law. Furthermore, this kind of
misunderstanding of the law violates the defendant's due process
right to a "fair sentencing process" in which the sentencing
"court goes through a rational procedure of selecting a sentence
based on relevant considerations and accurate information."61
¶81 We take another factor into consideration in
determining harmless error in the present case. With the
enactment of truth in sentencing, "judges have an enhanced need
for more complete information upfront, at the time of
sentencing."62 This court has encouraged circuit courts to refer
to information provided by others.63 Yet in the present case,
inaccurate information infused the information the circuit court
received at sentencing from a variety of sources. When the
statements provided to the circuit court at sentencing are based
upon inaccurate information about a mandatory minimum period of
61
Tiepelman, 291 Wis. 2d 179, ¶10 (citing Townsend, 334
U.S. at 741).
62
State v. Gallion, 2004 WI 42, ¶34, 270 Wis. 2d 535, 678
N.W.2d 197.
63
Id., ¶34.
34
No. 2011AP685-CR
confinement, the circuit court does not have the benefit of
recommendations or discussions based on accurate information.
¶82 At sentencing in the present case, the circuit court
heard from the prosecuting attorney, the defendant, defense
counsel, and the defendant's mother. All those who spoke at
sentencing were under the mistaken impression that a five-year
mandatory minimum period of confinement applied to the
defendant's conviction. The circuit court also received a Pre-
Sentence Investigation report (PSI) from the Department of
Corrections. The PSI was based on a five-year mandatory minimum
period of confinement.
¶83 A circuit court's exercise of discretion in sentencing
may be significantly hindered when it has before it statements
based on a universal mistake of law regarding a mandatory
minimum period of confinement.
¶84 We realize that the defendant was sentenced to eight
years of confinement, which is more confinement than the five-
year mandatory minimum. The fact that the sentence was greater
than the mandatory minimum and within the permissible range is
not determinative of harmless error in the present case. It is
not the actual sentence that determines the constitutionality of
the sentencing procedure in the present case. When the
defendant raises a due process challenge to the sentence, this
court must consider whether the sentence is based on a
35
No. 2011AP685-CR
foundation of such materially inaccurate information that the
proceedings are lacking in due process.64
¶85 We conclude that the error about the mandatory minimum
period of confinement permeated the entire sentencing procedure.
¶86 The State has not met its burden of proving the error
harmless. The State has not demonstrated that the error did not
affect the circuit court's selection of sentence; that there is
no reasonable probability that the error contributed to the
sentence; or that it is clear beyond a reasonable doubt that the
same sentence would have been imposed absent the error.65
¶87 We conclude that imposing a sentence under the
erroneous belief that the defendant was subject to a five-year
mandatory minimum period of confinement is an error subject to a
harmless error analysis. The error is not a structural error,
as the court of appeals stated. We further conclude that the
error in the present case was not a harmless error. We affirm
the decision of the court of appeals, but on different grounds,
and remand the matter for resentencing.
¶88 For the reasons set forth, we affirm the decision of
the court of appeals. The defendant's sentence must be vacated,
and the case must be remanded for resentencing.
64
Tiepelman, 291 Wis. 2d 179, ¶10 (citing Townsend, 334
U.S. at 741).
65
United States v. Schlifer, 403 F.3d 849, 855 (7th Cir.
2005) ("The government ultimately fails to meet its burden of
demonstrating that, if the district court had known that the
guidelines are advisory rather than mandatory, its choice of
sentence would have been the same.").
36
No. 2011AP685-CR
¶89 By the Court.—The decision of the court of appeals is
affirmed.
¶90 Justice DAVID T. PROSSER did not participate.
37
No. 2011AP685-CR.pdr
¶91 PATIENCE DRAKE ROGGENSACK, J. (dissenting). I
conclude that Lamont L. Travis was lawfully charged with an
attempted violation of Wis. Stat. § 948.02(1)(d);1 pled guilty to
attempting to violate § 948.02(1)(d) and was convicted and
sentenced for an attempted violation of § 948.02(1)(d), after
being properly advised that the statute contained a minimum
period of confinement in prison. I also conclude that in order
to resentence Travis, he must move to withdraw his plea of
attempting to violate § 948.02(1)(d), and prevail on his motion
before the circuit court. Resentencing for a crime for which
Travis was not charged or convicted does not vacate the crime of
conviction. Therefore, I would reverse the decision of the
court of appeals and affirm the conviction and sentencing of the
circuit court. Accordingly, I respectfully dissent from the
majority opinion.2
I. BACKGROUND
¶92 Travis was charged with an attempt to have sexual
contact with a child under the age of 16, T.M.G., contrary to
Wis. Stat. § 948.02(1)(d), which is a Class B felony. On
conviction, he faced a sentence of imprisonment not to exceed 30
years. Conviction of that charge, through the provisions of
Wis. Stat. § 939.616(2), subjects a defendant to a bifurcated
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
Although I agree with the majority opinion's conclusion
that no structural error occurred, majority op., ¶65, that
agreement does not change my ultimate conclusion that Travis'
conviction and sentencing should be affirmed.
1
No. 2011AP685-CR.pdr
sentence under Wis. Stat. § 973.01, which includes confinement
in prison for at least five years.
¶93 The criminal complaint set out facts relevant to a
showing of probable cause for the crime charged against Travis,
who was T.M.G.'s uncle. T.M.G. told the officer that she was
sleeping on the floor in her grandmother's living room next to a
mattress where Travis was sleeping. She said she woke up around
one o'clock in the morning and found her jeans unzipped with the
defendant's hand in her pants and that she slapped his hand away
before he touched her "private area." She said that sometime
later she awoke again to find him rubbing the side of her
stomach. She said she then got up and moved away from him to a
couch and pretended to be asleep while he went to the bathroom.
However, when Travis returned, he came to the couch and picked
her up and carried her back to the mattress where he had been
during the prior assault. When that happened, she told Travis
her head hurt and she went into her grandmother's room. T.M.G.
was ten years old at the time of the conduct alleged in the
complaint.
¶94 During the plea hearing, the circuit court went over
some parts of the complaint, pointing out to Travis that there
was a potential of 20 years initial confinement and a five year
minimum period of confinement. When asked if he understood both
of those factors, i.e., the maximum and the minimum, Travis
answered "Yes, I understand, Your Honor." During the plea
hearing, it was also pointed out that in exchange for his plea,
two other pending charges would be dismissed: 08CF643, failing
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to register as a sex offender, and 08CM2317, obstructing or
resisting arrest. Travis acknowledged that he had committed the
conduct underlying those two charges that were being dismissed
but read-in.
¶95 At sentencing, the court reminded Travis once again
that the sentence to be imposed must include at least five years
confinement. The court asked Travis if he understood that, and
again, Travis responded, "Yes, Your Honor." The court then went
through some of the details of the attempted sexual assault,
pointing out that the child involved was only ten years old at
the time. The court, relying on the complaint and the Child
Advocacy Center (CAC) interview,3 said:
When she moved away and went into another room, the
defendant brought her back into the living room area
where they had both previously been laying and made
additional efforts -- or made efforts to touch her at
that point too. She was able to demonstrate the way
he moved his hand down from the top of her shorts to a
location halfway between her waistband to her vagina.
Later in an interview at the CAC, she did confirm that
his hand did, in fact, reach her pubic area.
¶96 The court also talked about Travis' prior record,
which included at least eight prior convictions and three
juvenile adjudications.
¶97 The court said that the penalties for Travis' assault
of T.M.G. could be more severe, except that the State chose to
charge Travis with an attempt, rather than a completed sexual
3
The Child Advocacy Center (CAC) interview with T.M.G. is
not in the record, but the parties agreed the circuit court
could use it. Aside from what is relayed in the circuit court's
sentencing, I do not know what information it contains.
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assault of a child, cutting the maximum penalty in half. The
court pointed out that Travis had "a couple of batteries" and
threats to injure, as well as false imprisonment and second-
degree sexual assault convictions.
¶98 The court explained that Travis' attempted assault of
T.M.G. was a very serious offense and protection of the public
was important. The court said that the conviction required
significant confinement, otherwise the sentence would depreciate
the seriousness of the offense. The court then sentenced Travis
to eight years of initial confinement, followed by ten years of
extended supervision. The court ordered that the sentence be
consecutive to the sentence that he was serving for a 2000
sexual assault conviction. The court also ordered that he have
no further contact with T.M.G.
¶99 Subsequently, Travis moved the court to conclude that
he was sentenced based on inaccurate information because the
crime that he was charged with was not that crime described or
designated in the complaint, but rather, it was a violation of
Wis. Stat. § 948.02(1)(e), which does not include the use or
threat of force or violence and has no minimum period of
confinement. For the first time at that hearing, the State,
with a new district attorney appearing, said there was no
allegation of the use or threat of force or violence. The
complaint was not reviewed, and the court seemed to proceed
based on the assumption of the State and defense counsel.
¶100 The court said that if there were an error in the
factual allegations in the charge, it did not result in an
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erroneous sentence because the court would have given the same
sentence even if there had not been a mandatory minimum for the
crime of conviction. The court explained,
So from the Court's perspective, the existence or
nonexistence of a mandatory minimum sentence is of no
consequence to this Court in its determination of what
was an appropriate sentence [here]. Had that been the
case, the Court, I'm sure, would have indicated to the
defendant that, "Because of the mandatory minimum and
the existence of it and the Court's belief, I am going
to give you five years which is the mandatory minimum
here because the law requires that," and that
certainly wasn't the case. . . . And I don't think
it's reasonable to suppose, nor can this Court support
in any way, that the five-year mandatory minimum,
which was believed to be in effect, had any bearing
whatsoever on the imposition of the eight years of
initial confinement. . . . [T]he sentence would not
have changed because of the existence or nonexistence
of the mandatory minimum.
¶101 The court of appeals reversed. It ordered new
sentencing based on a conviction for another attempted violation
of Wis. Stat. § 948.02(1)(e), without examining the facts set
out in the complaint and without Travis moving to withdraw his
plea. The court of appeals did not discuss what conduct may
encompass the use or threat of force or violence when a child is
the victim and an adult is the perpetrator and whether
reasonable inferences from the facts set forth in the complaint
satisfied statutory requirements of § 948.02(1)(d). The court
of appeals also did not address whether the plea that resulted
in Travis' conviction could be vacated without a motion to do so
by Travis and a determination that manifest injustice would
result if permission to withdraw the plea were not afforded.
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II. DISCUSSION
A. Standard of Review
¶102 Whether the facts alleged in a criminal complaint are
sufficient to show probable cause that the crime stated in the
complaint was committed is a question of law for our independent
review. State v. Robins, 2002 WI 65, ¶20, 253 Wis. 2d 298, 646
N.W.2d 287. Whether an adult who picks up a ten-year-old child
who has moved away from the scene of an attempted sexual assault
and carries her back to the place of that attempt is encompassed
with "use or threat of force or violence" as set out in Wis.
Stat. § 948.02(1)(d) is a question of statutory interpretation
that requires our independent review; however, we benefit from
the prior discussion of the court of appeals and the circuit
court. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309
Wis. 2d 541, 749 N.W.2d 581.
B. Sufficiency of the Complaint
¶103 To determine whether a criminal complaint is
sufficient, we examine the document to determine "whether there
are facts or reasonable inferences [therefrom] set forth that
are sufficient to allow a reasonable person to conclude that a
crime was probably committed and that the defendant probably
committed it." State v. Reed, 2005 WI 53, ¶12, 280 Wis. 2d 68,
695 N.W.2d 315. The complaint is sufficient if it addressed
five questions: "(1) Who is charged?; (2) What is the person
charged with?; (3) When and where did the alleged offense take
place?; (4) Why is this particular person being charged?; and
(5) Who says so? or how reliable is the informant?" Id.6
No. 2011AP685-CR.pdr
(internal quotation marks and citation omitted). The test is
one of "minimal adequacy, not in a hypertechnical [evaluation]
but in a common sense evaluation." Evanow v. Seraphim, 40
Wis. 2d 223, 226, 161 N.W.2d 369 (1968).
¶104 Here, the complaint charges Travis with attempted
violation of Wis. Stat. § 948.02(1)(d), sexual contact with a
person under 16 years of age, by the use or threat of force or
violence. The complaint states that the alleged attempted
assaults took place on or about March 24, 2009 in Kenosha,
Wisconsin. It alleges that Travis repeatedly attempted to touch
T.M.G.'s pubic area. When T.M.G. moved away from Travis, he
went to where she had moved and carried her back to the place of
the prior attempted sexual assaults and again attempted to touch
her pubic area. T.M.G. was Travis' niece and ten years old at
the time of the attempted sexual assaults. The complaint was
based on law enforcement reports and citizen informants.
¶105 At neither the plea hearing nor at sentencing did
Travis assert that the complaint was insufficient to support the
charge that he attempted to sexually assault T.M.G. by the use
or threat of force or violence. However, he now assumes that
the facts alleged in the complaint and the reasonable inferences
therefrom are not sufficient to support an alleged use or threat
of force or violence in the attempted sexual assaults of T.M.G.
He does so with no analysis of the complaint. With the
exception of a brief comment at oral argument, the State seems
to give little thought or push-back to his contention.
Accordingly, I construe Wis. Stat. § 948.02(1)(d) to analyze
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whether there are sufficient factual allegations in the
complaint to support this statutory requirement of conviction.
C. Wisconsin Stat. § 948.02(1)(d)
¶106 Wisconsin Stat. § 948.02(1)(d) provides: "Whoever has
sexual contact with a person who has not attained the age of 16
years by use or threat of force or violence is guilty of a Class
B felony if the actor is at least 18 years of age when the
sexual contact occurs." What conduct constitutes "use or
threat of force or violence" can vary depending on the
circumstances under which the sexual assault occurs.
¶107 The use or threat of force or violence is to be read
in the disjunctive. See State v. Baldwin, 101 Wis. 2d 441, 447-
54, 304 N.W.2d 742 (1981). Conduct or words that attempt to
compel submission of the victim to the acts of the perpetrator
satisfy the standard of the "use or threat of force or
violence." See id. at 451. As we said, "any conduct coming
within that generalized force concept need not be further
particularized." See id.¶108 What conduct or words may constitute an attempt to
compel the victim to submit will vary, depending on the
circumstances of the assault. Here, the age of the victim is a
factor to be considered. T.M.G. was only ten years old; Travis
was 37 years old. The relationship of the perpetrator to the
victim is also a factor. Travis was T.M.G.'s uncle, whom she
regarded as a father figure, i.e., someone in a position of
authority over her. The relative physical strength of the
perpetrator when compared with that of the victim is also a
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factor. Here, T.M.G. slapped Travis' hand away and then moved
from the place of the attempted sexual assaults. Travis went to
T.M.G.'s chosen location, picked her up and physically carried
her back to his mattress where he attempted a further assault.4
His relationship with T.M.G., as an authority figure, and his
size when compared with ten-year-old T.M.G., permitted him to
overwhelm her choice to move away from him to stop his attempts
at sexual assault. In picking her up and carrying her back to
his mattress, Travis attempted to compel her submission to his
desires. Stated otherwise, picking up a young child involves
the use of force by the adult to overwhelm the choice of the
child to prevent access to her body by physically distancing her
from the abuser.
¶109 Accordingly, when all of the above factors are
evaluated, the facts alleged in the complaint, and the
reasonable inferences therefrom, are sufficient to support
probable cause that Travis attempted to compel T.M.G.'s
submission, thereby coming within the statutory phrase, "by use
or threat of force or violence" of Wis. Stat. § 948.02(1)(d).
4
That Travis attempted further sexual contact at that time
is found in the discussion of the circuit court. See ¶95. It
is not noted in the complaint, but must have been in the CAC
interview that the court reviewed. However, the CAC interview
is not in the record. I have assumed that Travis agrees with
the circuit court's statements because if he did not, it was his
burden to provide the CAC interview for our review. See Lee v.
LIRC, 202 Wis. 2d 558, 560 n.1, 550 N.W.2d 449 (Ct. App. 1996);
Wis. Stat. § 809.15(1).
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D. Plea Withdrawal
¶110 There is no provision in the statutes nor logical
rationale that supports the conclusion that the circuit court
erred by sentencing on incorrect information when the court
sentenced the defendant for the crime charged, to which he pled
and of which he was convicted. Here, the majority gets around
this problem by saying Travis "pled guilty" to attempting to
violate Wis. Stat. § 948.02(1)(e).5 However, the majority
opinion's attempt to duck Travis' conviction for attempting to
violate § 948.02(1)(d) by saying he pled to a different crime
and then not referring to his actual conviction does not change
the conviction.
¶111 If Travis really believes he attempted to violate only
Wis. Stat. § 948.02(1)(e) and therefore he was incorrectly
sentenced, he must move to withdraw his plea and have the
information charging him with an attempted violation of
§ 948.02(1)(d) amended.
¶112 Travis can withdraw his plea after sentencing only if
permitting the judgment to remain would be a manifest injustice.
See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707(1997). Generally, if a plea is withdrawn, other charges that
were dismissed at the plea will be reinstated. See State v.
Deilke, 2004 WI 104, ¶2, 274 Wis. 2d 595, 682 N.W.2d 945.
¶113 Given the burdens that follow an attempt to withdraw a
plea after sentencing, one can see why Travis has not moved to
5
Majority op., ¶26.
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withdraw his plea.6 However, the majority opinion is willing to
create new law for Travis, a repeating felon with a record of
sexual assaults, and to order the circuit court to sentence him
for a crime of which he was not convicted. I do not believe
that the law supports the majority opinion's choice.
III. CONCLUSION
¶114 I conclude that Travis was lawfully charged with an
attempted violation of Wis. Stat. § 948.02(1)(d); pled guilty to
attempting to violate § 948.02(1)(d) and was convicted and
sentenced for an attempted violation of § 948.02(1)(d), after
being properly advised that the statute contained a minimum
period of confinement in prison. I also conclude that in order
to resentence Travis, he must move to withdraw his plea of
attempting to violate § 948.02(1)(d) and prevail on his motion
before the circuit court. Resentencing for a crime for which
Travis was not charged or convicted does not vacate the crime of
conviction. Therefore, I would reverse the decision of the
court of appeals and affirm the conviction and sentencing of the
circuit court.
¶115 Accordingly, I respectfully dissent from the majority
opinion.
6
Moving to withdraw his plea subsequent to sentencing will
require examination of the complaint as I have done and may
result in the reinstatement of two charges that were dismissed
due to the plea.
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