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Charging Document: Notice of Nature of Charge – Element of Force Omitted; Sentencing: Inaccurate Information – Misperceived Mandatory Minimum

State v. Lamont L. Travis, 2012 WI App 46 (recommended for publication), petition for review granted, 9/18/12; case activity

For unsuccessfully trying to put his hand down his 10-year-old niece’s pants, Travis was charged with, and pleaded guilty to, attempted first-degree sexual assault of a child under age 12, §§ 939.32, 948.02(1)(d). However, that particular form of assault requires use or threat of use of force and violence, and no one alleged, nor did Travis concede, that he’d used or threatened force. This detail very much matters here, because among other things the offense of conviction carries a 5-year mandatory minimum prison sentence, whereas the crime that is actually supported by the complaint (sexual contact with someone under 13, without regard to force, § 948.02(1)(e)), doesn’t, ¶¶6-7. The question thus becomes in effect, what was the nature of the charge? Subsection (1)(d) or (1)(e)? The State argues that, notwithstanding the complete absence of admissions or allegations respecting force, Travis nonetheless pleaded guilty to and was therefore convicted of the (1)(d) offense and subject to the mandatory minimum penalty. The court of appeals rejects this argument:

¶16      The State has misinterpreted the law.  For a complaint to pass constitutional muster, it “must contain the ‘essential facts’ constituting the offense charged.”  State v. Williams, 47 Wis. 2d 242, 253, 177 N.W.2d 611 (1970).  It is not enough to list only the language of the criminal statute the defendant allegedly violated, let alone a statutory cite.  See id.  In Travis’s case, the complaint listed Wis. Stat. § 948.02(1)(d), which contains a “use or threat of force or violence” element.  The complaint, however, did not allege that Travis used or threatened force or violence, nor did it list any facts indicating that Travis used or threatened force or violence.  The complaint did not set forth the statutory language of § 948.02(1)(d).  As the complaint did not contain facts that established probable cause that Travis violated § 948.02(1)(d), the complaint did not comply with the Fourth Amendment.  See Williams, 47 Wis. 2d at 253.

Thus, the mandate includes an order “to amend the judgment of conviction to reflect that Travis pled guilty to Wis. Stat. § 948.02(1)(e),” ¶25.

Lack of probable cause to support the charge is one way of looking at it, even if fourth amendment analysis may be a bit of a distraction. (The cited case, Williams, addressed sufficiency of the complaint in the context of whether it supported an arrest warrant – hence, its invocation of the 4th amendment.) To say that the complaint – really, the entire record – failed to establish probable cause is merely to say that the charge wasn’t supported by the facts; that no factual basis exists for a plea to subsec. (1)(d), therefore a (1)(d) conviction simply can’t stand.

Sentencing – Inaccurate Information – Misperceived Mandatory Minimum 

Because the sentencing “court repeatedly relied on the incorrect notion that Travis’s crime required a five-year mandatory minimum prison sentence,” ¶20, Travis is entitled to resentencing as a matter of the due process right to a sentence based on accurate information, State v. Tiepelman, 2006 WI 66, ¶¶9, 26, 291 Wis. 2d 179, 717 N.W.2d 1.

¶23      The circuit court acknowledged that the error “really pervaded the entire file in this case.”  The error was not an isolated mistake that affected just a discretionary decision of the circuit court.  The error infected the charging of Travis; the error infected the plea negotiations; the error infected Travis’s discussions with his trial counsel; the error infected the plea hearing; and the error infected the sentencing of Travis, where all participants acted with the misunderstanding that the starting point for Travis was five years in prison.  We agree with the circuit court that the error affected the entire framework within which Travis was prosecuted.

¶24      We hold that the error affected the fairness, integrity, and the public reputation of the judicial proceedings.  All participantsoperated under the assumption that Travis was going to prison for at least five years, when in reality there was no mandatory minimum sentence required.  It is impossible to measure the breadth of the error.  The error affected the State’s charging decision, Travis’s plea decision, communications and negotiations between the State and Travis, and the circuit court’s basic assumptions as to Travis’s sentence.  Travis’s due process right to be sentenced upon accurate information was violated.  As the pervasive error seriously affected the fairness and integrity of Travis’s sentence, we hold that it was a structural error requiring a reversal of the circuit court’s denial of resentencing.

This appears to be a very narrow result, which is to say, an undisputed mistake that the trial judge himself acknowledged had pervasive effect. Structural error – State v. Hansbrough, 2011 WI App 79, ¶10, 334 Wis. 2d 237, 799 N.W.2d 887 – discussed by the court.

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