State v. Lamont L. Travis ( 2013 )


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    2013 WI 38
    SUPREME 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 46
    OPINION 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 38
    NOTICE
    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
    2
    No.    2011AP685-CR.pdr
    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.
    3
    No.   2011AP685-CR.pdr
    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
    4
    No.   2011AP685-CR.pdr
    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.
    5
    No.   2011AP685-CR.pdr
    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
    7
    No.   2011AP685-CR.pdr
    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
    8
    No.   2011AP685-CR.pdr
    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).
    9
    No.   2011AP685-CR.pdr
    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.
    10
    No.   2011AP685-CR.pdr
    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.
    11
    No.   2011AP685-CR.pdr
    1