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Charging under superseded statute was “technical error” that didn’t prejudice defendant

State v. Robert J. Tisland, 2012AP1570-CR, District 4, 1/22/15 (not recommended for publication); case activity

Even if two legislative acts made inconsistent changes to a criminal statute and meant the changes made by the earlier act were superseded by the later one, a charge filed under the provisions of the superseded act was not, under the circumstances of this case, a charge for a crime unknown to law that deprived the circuit court of jurisdiction or competency; instead, it was a technical charging error that didn’t prejudice the defendant.

On the same day in 2006 the legislature enacted 2005 Wis. Act 430 and 2005 Wis. Act 437. Both amended §§ 948.02 and 948.025, but in different ways. Tisland was charged and convicted under the Act 430 version of the statutes. Postconviction, he argued that the Act 430 and Act 437 versions of the statues were inconsistent, and that when separate enactments create statutory inconsistencies, the first act is repealed by implication and the last word of the legislature governs, e.g., State v. Gurnoe, 53 Wis. 2d 390, 406, 192 N.W.2d 892 (1972). Thus, Tisland claimed, the Act 430 version of the statute had been superseded by the Act 437 version, and because the version of the statute he was charged under had ceased to exist, he was charged with an offense not known to law and  the circuit court lacked jurisdiction or, alternatively, competency to convict him, e.g., State v. Bush, 2005 WI 103, ¶18, 283 Wis. 2d 90, 699 N.W.2d 80.

Assuming without deciding that “meaningful inconsistencies” exist between the two acts, and assuming without deciding that Tisland should have been prosecuted under the Act 437 version of the statutes, the court of appeals nonetheless concludes that what happened here was nothing more than a “technical charging error” and that Tisland hasn’t shown he was prejudiced by the error. (¶9)

First, the court says, Tisland was charged with sexual assault of a child under “a then existing statutory scheme,” namely, §§ 948.02 and 948.025, as Act 437 did not repeal all of those statutes but at most made amendments to them that (with an exception noted below dealing with penalties) had no effect on Tisland. (¶10). Thus, the court says, this case is unlike State v. Christensen, 110 Wis. 2d 538, 329 N.W.2d 382 (1983), on which Tisland relied (¶11), because in that case the repeal of a statute cross-referenced by § 940.29(9) “wholly removed the basis for charging a person” under that subsection, while in this case, “Act 437 made changes, but there is no doubt that both §§ 948.02 and 948.025 survived.” (¶12).

Instead, the court finds Tisland’s case to be similar to State v. Wachsmuth, 166 Wis. 2d 1014, 480 N.W.2d 842 (Ct. App. 1992), where the charging document referred to § 948.02, which was created when 1987 Wis. Act 332 moved the child sexual assault crimes from § 940.225 to § 948.02. The trouble was that Wachsmuth’s offense occurred before § 948.02 took effect. However, that didn’t mean he was charged under a statute that didn’t exist at the time of his offense because § 948.02 was “merely the successor statute” to the precursor provisions in § 940.225, both statutes contained identical elements, and the judgment of conviction correctly listed the conviction as being under § 940.225, id. at 1026-27.

¶15      Here, similar to Wachsmuth, the Act 430 amendments to Wis. Stat. §§ 948.02 and 948.025 were, we assume for purposes of this decision, not in effect during the applicable time period. In addition, it appears that the charging error arose both in Wachsmuth and in this case out of the prosecutor’s failure to correctly cite in the charging document the statute in effect during the applicable time period. And, finally, as in Wachsmuth, the charged crime and the “correct” crime were substantively the same—the difference did not cause prejudice. We perceive no meaningful difference between charging that erroneously identifies a nonexistent statute (Wachsmuth) and charging that erroneously references elements with differences that do not matter to the defendant (Tisland).

Once the issue is a “technical charging error” instead of a charge for an offense not known to law, the next step is easy:

¶17      …[U]nder Wis. Stat. § 971.26, “[n]o indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not tend to the prejudice of the defendant.” … Tisland does not claim, let alone argue, that he was prejudiced by the charging error, nor could he. Tisland was put on notice about the charges against him and was given ample information to mount an adequate defense. … Tisland does not dispute that the narrative section of the complaint, the testimony at trial, and the arguments of counsel, all described or related to an alleged violation of the applicable subsections of Wis. Stat. §§ 948.02 and 948.025, under both acts. Tisland does not argue that the allegations in the complaint were insufficient to support the charge of repeated sexual assault of the same child, or that the evidence at trial was insufficient to support his conviction under the statutes as amended by Act 437. Finally, Tisland provides no reason for us to believe that his defense strategy would have changed had the complaint or information referred to the Act 437 amendments or that the State gained some unfair advantage by proceeding under the Act 430 amendments.

The court is perhaps too dismissive of Christensen and too eager to apply Wachsmuth. The repeal at issue in Christensen did make it impossible to prosecute under one subsection of § 940.29 (1975-76), but, as in this case, it didn’t repeal the whole “statutory scheme” of that statute; there were still other ways to violate the statute. Though it may be Christensen couldn’t have been charged with one of those other ways, the point is that a person isn’t charged under a “statutory scheme,” but under a specific part of it, and if that part is effectively repealed, the charge is invalid.

As for Wachsmuth, it relies on the fact that the mischarged statute was a successor statute with identical elements to its precursor, making the charging error virtually indistinguishable from a typographical error; but the Act 437 statute is not a “successor” statute with “identical” elements to the Act 430 version. Instead, the court assumes there were sufficient differences in the Act 430 and Act 437 versions of the statute to make them inconsistent enough for the “last act governs” rule to apply. But once that rule applies, the Act 430 version must be deemed to be repealed. A charge under the repealed statute is a charge for a crime unknown to law, which deprives the court of competency. As the supreme court reminds us today in State v. Harrison, 2015 WI 5, ¶¶84, 87, loss of competency isn’t subject to harmless error analysis. Thus, assessing the erroneous charging of a repealed statute shouldn’t look to whether there’s some other statute—whether new or surviving, whether in the same “statutory scheme” or not—that could’ve been used and is similar enough to say the error is harmless.

Practically speaking, then, the court of appeals’ reliance on Wachsmuth shows it treated the Act 430 and Act 437 versions of §§ 948.02 and 948.025 as not inconsistent, at least as applied to Tisland, and so it doesn’t really apply the “last act governs” rule. One wonders why the court didn’t simply reject Tisland’s challenge on the ground that the changes made by the two Acts weren’t inconsistent when it comes to the elements.

The legislature ultimately fixed the inconsistencies created by the enactment of Act 430 and Act 437 in 2007 Wis. Act 80 (effective March 27, 2008). For anyone handling a case occurring between the date Act 430 and Act 437 were published (June 5, 2006) and the effective date of Act 80, the upshot is this: Figure out whether the charge was issued under the Act 430 or Act 437 version of the statute and compare the elements to see if there are differences that might affect your notice about the charges, the possible defenses, or the sufficiency of the evidence. Most importantly, note that Act 430 created § 939.616(1), which required a 25-year minimum mandatory term of confinement for certain Act 430 charges. Act 437 had no minimum mandatory penalties. In this case the circuit court found the penalty provisions of the Acts to be sufficiently inconsistent that the minimum mandatory shouldn’t apply, and the court of appeals endorses this conclusion. (¶¶5-6, 20). The circuit court had originally sentenced Tisland believing the minimum mandatory applied, so it granted him resentencing. (¶¶6, 20). Not that it mattered: The court imposed 35 years of confinement both times.

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