Section 970.02(1)(a) imposes several mandatory duties at initial appearance: the judge must inform the defendant of the charge, furnish him with a copy of the complaint, and personally inform him of the penalties for any felonies in the charge; and, the complaint must set forth the possible penalties, ¶62. These obligations apply to any offense in the complaint carrying a mandatory minimum sentence, ¶63.
Thompson was charged with, and convicted after trial on, § 948.02(1)(b), first-degree sexual assault of a child under thirteen without great bodily harm. After trial, but before sentencing, it was determined for the first time that this offense came within § 939.616 and therefore carried a mandatory minimum of 25 years confinement. (As will be seen, this conclusion itself is open to question, but it was taken as given below.) The circuit court then ordered a new trial, on the ground that Thompson’s ignorance of the penalty structure violated due process, the State appealed and the court of appeals reversed on the basis that Thompson couldn’t show he was prejudiced; the supreme court now grants relief. But this gets a bit ahead of the story. Indeed, the decision is noteworthy for the cavalcade of issues the court discusses but does not reach, first and foremost whether the offense does carry a mandatory minimum – if not, then Thompson wouldn’t be entitled to relief against the conviction but would simply proceed to sentencing, without the certainty of a draconian result.
In essence, the same legislative session passed two Acts, 2005 Wis Acts 430 and 437, that appear to assign incompatible penalties to the present offense: one with a mandatory minimum, the other without. As the court acerbically notes, “The legislative history of the applicable statutes is so bizarre that it raises legitimate questions about whether the mandatory minimum sentence applies in this case,” ¶27. (2007 Wis Act 80 fixed the problem going forward, ¶37 n.5, so only a handful of § 948.02(1)(b) were/are affected.) Nonetheless, the issue of whether Thompson’s offense carried a mandatory minimum wasn’t briefed or argued, so the majority declines to reach that issue, leaving its resolution open, ¶40. (Three justices, on the other hand, conclude that Act 437 controls, and that a mandatory minimum doesn’t apply here, ¶94.) With the threshold issue tossed by the wayside, the same fate awaits other issues premised on a mandatory minimum: whether failure to inform Thompson of this penalty structure until after trial violated due process or effective assistance of counsel weren’t briefed and therefore won’t be reached, ¶¶41-60, 86-87. (The court’s rundown of these issues won’t be summarized here, except to say that, because Thompson appears to be challenging his not guilty plea, his argument turns on whether his plea negotiations were impaired; thus, the recent Missouri v. Frye, 566 U.S. __, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 566 U.S. __, 132 S. Ct. 1376 (2012) are mentioned, if little more than that.)
But the court does get around to the merits of at least one argument, whether § 970.02(1)(a) was violated because the complaint failed to articulate, and the judge personally to inform the defendant, of the (possible) mandatory minimum sentence, ¶¶61-85. Or sort of addresses the merits: if there is a mandatory minimum, then the statute was violated; if not, then not. The circuit court will decide the contingency on remand. But there does appear to be at least one holding to take away from the court’s various discussions, namely that not only are the tasks described in § 970.02(1)(a) mandatory, but they apply to mandatory minimum sentences.
¶62 The statute imposes several mandatory duties on the judge:
(1) The judge shall inform the defendant of the charge against the defendant.
(2) The judge shall furnish the defendant with a copy of the complaint.
(3) The complaint furnished by the judge shall contain “the possible penalties” for the offenses set forth in the complaint.
(4) In the case of a felony, the judge shall personally inform the defendant of the penalties for the felony or felonies with which the defendant is charged.
¶63 In this case, the circuit judge performed the first two duties. If a mandatory minimum sentence does not apply to Thompson, the circuit judge performed all four duties. However, if the mandatory minimum sentence in Wis. Stat. § 939.616(1) does apply to the charges against Thompson, the circuit judge did not satisfy his third and fourth obligations. The judge did not furnish the defendant with a complaint that contained “the possible penalties” (a mandatory minimum sentence upon conviction certainly qualifies as a “possible penalty”). The circuit judge also did not personally inform the defendant of the possible penalty of a mandatory minimum sentence. In fact, he inadvertently misled the defendant into relying on the penalty in the complaint.
Not quite done. First, failure to raise a timely objection to a violation of § 970.02(1)(a) may work a forfeiture of the issue per § 970.31 (objections to insufficiency of complaint must be raised before trial or prelim), ¶¶72-78 (the court distinguishing between “waiver” [intentional relinquishment of known right] and “forfeiture” [mere failure to assert right in timely manner]). Here, Thompson didn’t object to the defects in the complaint and initial appearance procedure because of a legislative snafu; in fact, no one discerned the mandatory minimum nature of the charge, therefore, “it would be unreasonable to strictly apply § 971.31 to a situation in which the entire courtroom was operating under a mistaken understanding of the law,” ¶77.
But that still leaves the somewhat perplexing question of how to measure the prejudicial impact of misinformation on a not guilty plea. That crucial matter has been neither briefed nor the subject of evidentiary hearing, so the court has little choice but to punt:
¶85 Assuming without deciding that the mandatory minimum sentence applies to Thompson, we conclude that the failure to inform Thompson of the mandatory minimum sentence violated Wis. Stat. § 970.02(1)(a) and that the error was never corrected. We conclude that this case must be remanded to the circuit court for a hearing to determine whether Thompson was prejudiced by the violation. The prejudice determination must satisfy the traditional standard for overcoming harmless error, that is, there must be a reasonable probability that the error contributed to the outcome of the action or the proceeding at issue. Weborg v. Jenny, 2012 WI 67, ¶68, __ Wis. 2d __, __ N.W.2d __. We expect the circuit court to make a threshold determination whether the mandatory minimum penalty applies to Thompson and if it does, whether the Supreme Court’s recent decisions in Frye and Lafler affect the issue of prejudice.
In the final analysis, then, the holding is exquisitely narrow, but it’s fair to think that underlying issues relating to plea bargaining will bubble to the surface with increasing frequency.