State v. Lamont L. Travis

• Court: Wisconsin Supreme Court
• Decided: May 2, 2013
• Docket: 2011AP000685-CR
• Status: Published

Opinion

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

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?

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

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,

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.

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II. DISCUSSION

A. Standard of Review

¶102 Whether the facts alleged in a criminal complaint are

sufficient to show probable cause that the crime stated in the

complaint was committed is a question of law for our independent

review. State v. Robins, 2002 WI 65, ¶20, 253 Wis. 2d 298, 646

N.W.2d 287. Whether an adult who picks up a ten-year-old child

who has moved away from the scene of an attempted sexual assault

and carries her back to the place of that attempt is encompassed

with "use or threat of force or violence" as set out in Wis.

Stat. § 948.02(1)(d) is a question of statutory interpretation

that requires our independent review; however, we benefit from

the prior discussion of the court of appeals and the circuit

court. Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309

Wis. 2d 541, 749 N.W.2d 581.

B. Sufficiency of the Complaint

¶103 To determine whether a criminal complaint is

sufficient, we examine the document to determine "whether there are facts or reasonable inferences [therefrom] set forth that

are sufficient to allow a reasonable person to conclude that a

crime was probably committed and that the defendant probably

committed it." State v. Reed, 2005 WI 53, ¶12, 280 Wis. 2d 68,

695 N.W.2d 315. The complaint is sufficient if it addressed

five questions: "(1) Who is charged?; (2) What is the person

charged with?; (3) When and where did the alleged offense take

place?; (4) Why is this particular person being charged?; and

(5) Who says so? or how reliable is the informant?" Id.

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(internal quotation marks and citation omitted). The test is

one of "minimal adequacy, not in a hypertechnical [evaluation]

but in a common sense evaluation." Evanow v. Seraphim, 40

Wis. 2d 223, 226, 161 N.W.2d 369 (1968).

¶104 Here, the complaint charges Travis with attempted

violation of Wis. Stat. § 948.02(1)(d), sexual contact with a

person under 16 years of age, by the use or threat of force or

violence. The complaint states that the alleged attempted

assaults took place on or about March 24, 2009 in Kenosha,

Wisconsin. It alleges that Travis repeatedly attempted to touch

T.M.G.'s pubic area. When T.M.G. moved away from Travis, he

went to where she had moved and carried her back to the place of

the prior attempted sexual assaults and again attempted to touch

her pubic area. T.M.G. was Travis' niece and ten years old at

the time of the attempted sexual assaults. The complaint was

based on law enforcement reports and citizen informants.

¶105 At neither the plea hearing nor at sentencing did

Travis assert that the complaint was insufficient to support the

charge that he attempted to sexually assault T.M.G. by the use

or threat of force or violence. However, he now assumes that

the facts alleged in the complaint and the reasonable inferences

therefrom are not sufficient to support an alleged use or threat

of force or violence in the attempted sexual assaults of T.M.G.

He does so with no analysis of the complaint. With the

exception of a brief comment at oral argument, the State seems

to give little thought or push-back to his contention.

Accordingly, I construe Wis. Stat. § 948.02(1)(d) to analyze

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whether there are sufficient factual allegations in the

complaint to support this statutory requirement of conviction.

C. Wisconsin Stat. § 948.02(1)(d)

¶106 Wisconsin Stat. § 948.02(1)(d) provides: "Whoever has

sexual contact with a person who has not attained the age of 16

years by use or threat of force or violence is guilty of a Class

B felony if the actor is at least 18 years of age when the

sexual contact occurs." What conduct constitutes "use or

threat of force or violence" can vary depending on the

circumstances under which the sexual assault occurs.

¶107 The use or threat of force or violence is to be read

in the disjunctive. See State v. Baldwin, 101 Wis. 2d 441, 447-

54, 304 N.W.2d 742 (1981). Conduct or words that attempt to

compel submission of the victim to the acts of the perpetrator

satisfy the standard of the "use or threat of force or

violence." See id. at 451. As we said, "any conduct coming

within that generalized force concept need not be further

particularized." See id. ¶108 What conduct or words may constitute an attempt to

compel the victim to submit will vary, depending on the

circumstances of the assault. Here, the age of the victim is a

factor to be considered. T.M.G. was only ten years old; Travis

was 37 years old. The relationship of the perpetrator to the

victim is also a factor. Travis was T.M.G.'s uncle, whom she

regarded as a father figure, i.e., someone in a position of

authority over her. The relative physical strength of the

perpetrator when compared with that of the victim is also a

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factor. Here, T.M.G. slapped Travis' hand away and then moved

from the place of the attempted sexual assaults. Travis went to

T.M.G.'s chosen location, picked her up and physically carried

her back to his mattress where he attempted a further assault.4

His relationship with T.M.G., as an authority figure, and his

size when compared with ten-year-old T.M.G., permitted him to

overwhelm her choice to move away from him to stop his attempts

at sexual assault. In picking her up and carrying her back to

his mattress, Travis attempted to compel her submission to his

desires. Stated otherwise, picking up a young child involves

the use of force by the adult to overwhelm the choice of the

child to prevent access to her body by physically distancing her

from the abuser.

¶109 Accordingly, when all of the above factors are

evaluated, the facts alleged in the complaint, and the

reasonable inferences therefrom, are sufficient to support

probable cause that Travis attempted to compel T.M.G.'s

submission, thereby coming within the statutory phrase, "by use

or threat of force or violence" of Wis. Stat. § 948.02(1)(d).

4 That Travis attempted further sexual contact at that time is found in the discussion of the circuit court. See ¶95. It is not noted in the complaint, but must have been in the CAC interview that the court reviewed. However, the CAC interview is not in the record. I have assumed that Travis agrees with the circuit court's statements because if he did not, it was his burden to provide the CAC interview for our review. See Lee v. LIRC, 202 Wis. 2d 558, 560 n.1, 550 N.W.2d 449 (Ct. App. 1996); Wis. Stat. § 809.15(1).

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D. Plea Withdrawal

¶110 There is no provision in the statutes nor logical

rationale that supports the conclusion that the circuit court

erred by sentencing on incorrect information when the court

sentenced the defendant for the crime charged, to which he pled

and of which he was convicted. Here, the majority gets around

this problem by saying Travis "pled guilty" to attempting to

violate Wis. Stat. § 948.02(1)(e).5 However, the majority

opinion's attempt to duck Travis' conviction for attempting to

violate § 948.02(1)(d) by saying he pled to a different crime

and then not referring to his actual conviction does not change

the conviction.

¶111 If Travis really believes he attempted to violate only

Wis. Stat. § 948.02(1)(e) and therefore he was incorrectly

sentenced, he must move to withdraw his plea and have the

information charging him with an attempted violation of

§ 948.02(1)(d) amended.

¶112 Travis can withdraw his plea after sentencing only if

permitting the judgment to remain would be a manifest injustice.

See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707

(1997). Generally, if a plea is withdrawn, other charges that

were dismissed at the plea will be reinstated. See State v.

Deilke, 2004 WI 104, ¶2, 274 Wis. 2d 595, 682 N.W.2d 945.

¶113 Given the burdens that follow an attempt to withdraw a

plea after sentencing, one can see why Travis has not moved to

5 Majority op., ¶26.

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withdraw his plea.6 However, the majority opinion is willing to

create new law for Travis, a repeating felon with a record of

sexual assaults, and to order the circuit court to sentence him

for a crime of which he was not convicted. I do not believe

that the law supports the majority opinion's choice.

III. CONCLUSION

¶114 I conclude that Travis was lawfully charged with an

attempted violation of Wis. Stat. § 948.02(1)(d); pled guilty to

sentenced for an attempted violation of § 948.02(1)(d), after

period of confinement in prison. I also conclude that in order

attempting to violate § 948.02(1)(d) and prevail on his motion

Travis was not charged or convicted does not vacate the crime of

court of appeals and affirm the conviction and sentencing of the

circuit court.

¶115 Accordingly, I respectfully dissent from the majority

opinion.

6 Moving to withdraw his plea subsequent to sentencing will require examination of the complaint as I have done and may result in the reinstatement of two charges that were dismissed due to the plea.

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