State v. Travis

340 Wis.2d 639

813 N.W.2d 702

2012 WI App 46

STATE of Wisconsin, Plaintiff–Respondent, ^†

v.Lamont L. TRAVIS, Defendant–Appellant.

No. 2011AP685–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 11, 2012.

Opinion Filed March 14, 2012.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and J.B. Van Hollen, attorney general.

Before BROWN, C.J., REILLY and GUNDRUM, JJ.

REILLY, J.

[340 Wis.2d 642]¶ 1 Lamont L. Travis was charged with one count of attempted first-degree sexual assault of a child under the age of twelve. The complaint and information incorrectly stated that a mandatory minimum sentence of five years in prison was required upon conviction. Throughout the entire proceedings (charging, plea negotiations, entry of plea and sentencing) the circuit court, the State, Travis, and his counsel all thought that a five-year mandatory minimum applied.

¶ 2 After sentencing, Travis's appellate counsel discovered that the five-year mandatory minimum did not apply and brought a motion seeking resentencing, arguing that Travis's due process rights were violated as the crime he was prosecuted on does not have a mandatory minimum prison sentence. Travis argued that as the error affected the entire structure of the judicial proceedings against him, it was a structural error and not subject to a harmless error analysis. At the postconviction hearing, both the prosecutor and court acknowledged the mistake. The court conceded that the mistake was “inaccurately” referenced in the original pleadings, was “carried out” through Travis's plea and sentencing, and “ultimately really pervaded the entire file in this case.”

¶ 3 The circuit court did not consider the error to be structural and applied a harmless error analysis in denying Travis's request for resentencing. In the circuit court's view the mistake “did not have any bearing on sentencing,” as the imposed sentence of eight years in prison followed by ten years of extended supervision “was primarily based” on Travis's prior record, which includes a conviction for attempted second-degree sexual assault.

¶ 4 We disagree and hold that the error was “structural” and thus incapable of being harmless. We reverse and remand for the requested relief of resentencing. Upon remand, we also direct the circuit court to amend the judgment of conviction to reflect that Travis pled guilty to Wis. Stat. § 948.02(1)(e) (2009–10).¹

BACKGROUND

¶ 5 Travis was charged with attempting “to have sexual contact with a child under the age of twelve.” The probable cause portion of the complaint alleged that Travis tried to put his hand down his ten-year-old niece's pants, but she slapped his hand away before he could touch her genital area.

¶ 6 The complaint is not a model of draftsmanship. The statute cited to in the complaint is Wis. Stat. § 948.02(1)(d), which applies to an adult who “has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence.” Conviction for attempt under § 948.02(1)(d) is a Class B felony and provides for up to thirty years in prison with a mandatory minimum prison sentence of five years. SeeWis. Stat. § 939.50(3)(b) (penalty for attempt is halved, seeWis. Stat. § 939.32(1g)(b)); Wis. Stat. § 939.616(2). The State never alleged—in writing or orally—that Travis used or threatened violence or force in his attempt to have sexual contact with his niece. After the complaint was issued, all parties involved moved forward with the misunderstanding that Travis's crime required a mandatory minimum prison term of five years.

¶ 7 The crime described in the complaint conforms to Wis. Stat. § 948.02(1)(e), which applies to anyone who “has sexual contact with a person who has not attained the age of 13 years.” ²Section 948.02(1)(e), unlike § 948.02(1)(d), does not carry a mandatory minimum sentence.

¶ 8 Travis pled guilty to attempted first-degree sexual assault “as charged.” At the plea hearing, the State did not allege that Travis used or threatened violence or force against his niece. When Travis entered his guilty plea, the court asked Travis to explain to the court what he did. Travis's attorney replied that Travis was not prepared to answer such a question. Travis's attorney related that Travis was drunk at the time he tried to put his hand down his niece's pants. The court asked Travis if that was what happened and Travis said “yes.” The court then asked Travis, “You never did actually complete the sexual contact by touching, but you were attempting to reach down?” Travis responded, “Not that I recall, Your Honor, no.” Travis stated that he knew “something happened,” and that he was not questioning his niece's statements.³ The court verified with Travis that Travis understood his plea would result in a minimum of five years in prison.

¶ 9 The court continued the plea hearing by describing to Travis the elements of the crime he was pleading guilty to as: (1) “you attempted to have sexual contact, meaning to touch an intimate part of your niece”; (2) the State would have to prove Travis's niece was under twelve years of age; and (3) “I think there's an element of ‘for purposes of gratification’ in there.” The court did not include the element of “use or threat of force or violence,” as is required for a conviction under Wis. Stat. § 948.02(1)(d).⁴ The plea questionnaire that Travis and his counsel completed was equally sparse. The questionnaire listed the charged statute as § 948.02 (no subsection is listed) and set forth the elements of the crime as: “(1) attempted to (2) have sexual contact with child[,] (3) child was under 13 years of age.” ⁵ The plea questionnaire indicated that Travis's crime provided for a five-year mandatory minimum prison sentence.

¶ 10 The court accepted Travis's guilty plea. The judgment of conviction lists Wis. Stat. § 948.02(1)(d) as the statute Travis violated. Travis was sentenced to eight years in prison followed by ten years of extended supervision.

¶ 11 Travis's postconviction counsel requested resentencing on the grounds that Travis's due process rights were violated by a judicial system that, from start to finish, operated under the belief that a five-year mandatory minimum prison sentence applied to the crime Travis was charged with and pled to. Travis argued that the error affected the very structure of the judicial proceedings against him, and as such could not be “harmless.”

¶ 12 At the postconviction hearing, the State conceded that the information was inaccurate and that the five-year mandatory minimum prison sentence did not apply to Travis.⁶ The circuit court observed that “all parties now recognize” that there is no mandatory minimum sentence for Travis's crime and that the mistake “ultimately really pervaded the entire file in this case.” The court found, however, that the error was harmless, as the mandatory minimum “did not have any bearing on sentencing.” The court commented that it relied “primarily” on Travis's prior record, which included a conviction for attempted second-degree sexual assault. No one at the postconviction hearing moved to amend the judgment of conviction, and Travis remains convicted under Wis. Stat. § 948.02(1)(d) rather than § 948.02(1)(e).

STANDARD OF REVIEW

¶ 13 Constitutional errors at trial fall into two categories: trial errors and structural errors. State v. Hansbrough, 2011 WI App 79, ¶ 10, 334 Wis.2d 237, 799 N.W.2d 887. Trial errors are subject to harmless error analysis while structural errors require automatic reversal. Id. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. (citation omitted). Such errors infect the entire trial process and render it fundamentally unfair. Id. Structural errors “seriously affect the fairness, integrity or public reputation of judicial proceedings and are so fundamental that they are considered per se prejudicial.” Id. (citation omitted). A defendant has a constitutionally protected due process right to be sentenced upon accurate information and a fair sentencing process—one in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information. State v. Tiepelman, 2006 WI 66, ¶¶ 9, 26, 291 Wis.2d 179, 717 N.W.2d 1. Whether a defendant has been denied this due process right is a constitutional issue that we review de novo. Id., ¶ 9.

[340 Wis.2d 648]¶ 14 A defendant who requests resentencing due to the circuit court's use of inaccurate information must show (1) that the information was inaccurate and (2) that the circuit court relied on the inaccurate information. Id., ¶ 26. If the defendant meets both these standards, the burden shifts to the State to prove the error was harmless. Id. An error is harmless if there is no reasonable probability that it contributed to the outcome. State v. Payette, 2008 WI App 106, ¶ 46, 313 Wis.2d 39, 756 N.W.2d 423. A structural error, however, is per se prejudicial and thus is never harmless. Hansbrough, 334 Wis.2d 237, ¶ 10, 799 N.W.2d 887.

DISCUSSION

Was Inaccurate Information Presented to the Circuit Court?

¶ 15 The State on appeal argues that there was no inaccurate information presented to the circuit court as a five-year mandatory minimum prison sentence applies to the charge (Wis. Stat. § 948.02(1)(d)) Travis pled to. The State argues that the complaint is governed by the statute cited to and not the factual allegations. The State finds it “puzzling” that the assistant district attorney and the circuit court accepted Travis's argument that the reference to the mandatory minimum sentence amounted to inaccurate information.⁷

[340 Wis.2d 649]¶ 16 The State has misinterpreted the...