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Repeated Sexual Assault of Same Child, § 948.025(1)(a) – Mandatory Minimum Sentence – Jury Instructions

State v. Carlos G. Comas, 2010AP2687-CR, District 4, 9/29/11

court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity

Although Comas was charged with § 948.025(1)(a), repeated sexual assault of the same child by acts of sexual intercourse, the case was in effect tried under § 948.025(1)(ar) ,which requires acts of sexual intercourse or contact. Comas received a confinement term of 25 years, conforming to the sentencing judge’s understanding that subs. (1)(a) carries a mandatory minimum confinement of 25 years. The court now holds that, because the guilty verdict was premised on a theory of guilt under subs. (1)(ar), the sentence to a mandatory minimum under subs. (1)(a) can’t be sustained. Comas is entitled to be resentenced under (1)(ar) without regard to a mandatory minimum.

¶7        …  The gist of Comas’s argument is that, although he was charged under § 948.025(1)(a), a crime requiring proof of multiple acts of sexual intercourse, Comas’s jury was instructed, and he was actually convicted, in accordance with a different subsection, § 948.025(1)(ar), a crime that requires proof of multiple acts of sexual intercourse or sexual contact.  It is undisputed by the parties here that the latter crime does not carry with it a mandatory minimum. According to Comas, it follows that the jury’s verdict does not support application of the mandatory minimum sentence.  We agree, and now explain in greater detail.

¶9        At trial, although the jury was told that Comas was charged under Wis. Stat. § 948.025(1)(a), the jury was instructed in accordance with § 948.025(1)(ar). …

¶10      Consistent with this instruction, the testimony and argument at trial focused on “sexual contact.”  Significant portions of the victim’s testimony at trial concerned Comas “rubbing” the child’s vagina with his fingers and with his penis, acts clearly constituting sexual contact, but not clearly constituting sexual intercourse.  Although there was a videotaped interview played at trial in which the child indicated that there had been penetration, and the prosecutor briefly argued in his closing arguments that there was some evidence of penetration, the majority of the prosecutor’s argument was focused on the “sexual contact” testimony about Comas’s “rubbing” of the child’s vagina.

¶12      It is readily apparent that, even granting the State the assumptions discussed above, before the 25-year mandatory minimum confinement provision could apply to Comas, his jury would have needed to find that Comas committed three or more acts of sexual intercoursewith the child, as required by Wis. Stat. § 948.025(1)(a).  It is equally clear that the instructions underlying the jury’s verdict did not require that the jury find that Comas engaged in one act of sexual intercourse, much less three or more acts of sexual intercourse.  Thus, the jury’s verdict did not support a violation of § 948.025(1)(a) as amended by Act 430 and, consequently, did not support imposing on Comas the 25-year mandatory minimum.[8]

Entitlement to that relief is certainly self-evident, but the precise rationale may not be. Comas argued that he was entitled to resentencing as a matter accurate information and due process. (Br.-in-Ch., p. 17: “Comas was sentenced on the basis of inaccurate information, because the parties and the court believed that he was subject to a 25-year mandatory minimum.”) That’s as good a candidate as any, even if the court didn’t explicitly adopt it as such. Note that an Apprendi argument can’t be applied without qualification, in light of Harris v. U.S., 536 U.S. 545, 557 (2002) (Apprendi doesn’t apply to “a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding”). The argument would have to be that Harris doesn’t apply because the jury verdict did not authorize the mandatory minimum. But then we would be in danger of arguing in circles, illustrating the virtue of Comas’ approach to relief: elegant in its simplicity.

Now for the really fun part, the issue the court did not reach, though it’s been kicking around awhile. Does § 948.025(1)(a) actually have a mandatory minimum? There are good reasons to think not, in view of the legislature’s near-simultaneous enactment of inconsistent provisions, one with a mandatory minimum (2005 Wis Act 430) and one without (2005 Wis Act 437). The court summarizes the argument, ¶6 (terming it “complex”), but declines to “weigh in on this topic,” in view of the grant of requested relief on the ground noted above. The details won’t be canvassed here, but if you have a client coming within § 948.025(1)(a) then you’d be well-advised to familiarize yourself with that argument, which you’ll find in Comas’ briefs at the “case activity” link above. One final aside: the court refers to its recent decision in State v. Thompson, No. 2009AP1505-CR, unpublished slip op. (WI App Nov. 24, 2010), ¶5 n. 2, in which the parties agreed, and the court of appeals did not dispute, that the mandatory minimum does apply. It is mentioned here only to note that the case is currently pending in the supreme court. It is possible, though far from certain, that the supreme court will precedentially resolve this issue, so you’ll want to keep an eye on that case if you’re tracking the issue.

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