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Notice of Mandatory Minimum

State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90

court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp.

Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years on each count) didn’t violate due process. Therefore, the court rejects his argument that he was prejudiced by inability to make an informed decision as to whether to pursue plea bargaining before proceeding to trial; there is no right to engage in plea bargaining. Weatherford v. Bursey, 429 U.S. 545 (1977), deemed controlling:

¶9        Thompson’s unspoken assumption, like the reasoning rejected in Weatherford, is that he was prejudiced by being tried, rather than having an improved opportunity to negotiate a plea agreement.  Thus, Thompson leans on the same “novel” and invalid argument that he suffered a wrong because he was tried without having a fully informed opportunity to “consider whether plea bargaining might be the best course.”  See id. at 559.  Accordingly, we conclude that Weatherford disposes of the proposition that Thompson had a constitutionally protected right to information that might have affected his decision to pursue a plea agreement and avoid a trial.

Notice of the mandatory minimum before entering a plea of guilty is different, ¶12. The court doesn’t say that a guilty plea defendant would (or would not) be entitled to this notice, just that the procedural rights associated with entering a guilty plea are different than those attending a not guilty plea.

Nor does the complaint’s failure to articulate the mandatory minimum invalidate that document: § 971.26 excuses any defects that don’t prejudice the defendant

¶18      Thompson’s prejudice argument is devoid of specifics and, instead, hinges on generalized speculation.  For example, Thompson did not, in postconviction proceedings, make a record of the plea negotiations that took place.  He also has not suggested any reason why his knowledge of the mandatory minimum sentence would have resulted in more negotiations leading, in turn, to a plea agreement and a shorter sentence.  We note there is no reason to suppose that such knowledge on Thompson’s part would have led the prosecutor to make a more favorable offer.  Common sense suggests that awareness of a mandatory minimum sentence favors the bargaining power of the prosecutor, not of Thompson.  And, there is no reason to believe that Thompson passed up an offer that he might have accepted if only he had known of the mandatory minimum.

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