State v. Thompson

• Decision Date: 12 July 2012
• Docket Number: No. 2009AP1505–CR.,2009AP1505–CR.
• Citation: 342 Wis.2d 674,818 N.W.2d 904,2012 WI 90
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Harry THOMPSON, Defendant–Respondent–Petitioner.
• Court: Wisconsin Supreme Court

342 Wis.2d 674

818 N.W.2d 904

2012 WI 90

STATE of Wisconsin, Plaintiff–Appellant,

v.Harry THOMPSON, Defendant–Respondent–Petitioner.

No. 2009AP1505–CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 2011.

Decided July 12, 2012.

For the defendant-respondent-petitioner there were briefs filed by J.P. La Chapelle and Brazeau, Wefel, Kryshak and Nettesheim, LLP, Wisconsin Rapids, and oral argument by J.P. La Chapelle.

For the plaintiff-appellant the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

DAVID T. PROSSER, J.

[342 Wis.2d 677]¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Thompson, No. 2009AP1505–CR, unpublished slip op., 2010 WL 4751775 (Wis.Ct.App. Nov. 24, 2010), reversing a circuit court order granting Harry Thompson (Thompson) a new trial after a jury found him guilty of one count of first-degree sexual assault of a child under the age of 13.

¶ 2 The predicament presented by this case involves the following facts. Thompson was charged with two counts of first-degree sexual assault of a child under the age of thirteen without great bodily harm, contrary to Wis. Stat. § 948.02(1)(b). The criminal complaint stated that each count was “a Class B Felony.” Each count of the complaint cited Wis. Stat. § 939.50(3)(b),¹ which provided that the penalty “For a Class B felony [is] imprisonment not to exceed 60 years.” Each count stated that “upon conviction [‘the above-named defendant’] may be sentenced to a term of imprisonment not to exceed sixty (60) years.”

¶ 3 From the filing of the complaint on September 26, 2007, until shortly before the date scheduled for Thompson's sentencing (November 6, 2008), the State (represented by the Wood County District Attorney's office),² Thompson's defense attorney,³ the Wood County Circuit Court,⁴ and the defendant were not aware that a violation of Wis. Stat. § 948.02(1)(b) arguably was subject to Wis. Stat. § 939.616(1), which provided a mandatory minimum sentence as follows:

Mandatory minimum sentence for child sex offenses. (1) If a person is convicted of a violation of s. 948.02(1)(b) or (c) or 948.025(1)(a), the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 25 years. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.

(Emphasis added).

¶ 4 Stated differently, all principals in this case were unaware at the initial appearance; the preliminaryexamination; the arraignment; the discussions about a plea bargain if there were any; and the jury trial at which the defendant testified, that the defendant faced a possible mandatory minimum sentence of 25 years in prison on each of the two counts.

¶ 5 Thompson had been charged with placing his finger inside the vagina of a nine-year-old child on September 6, 2007, and doing it again on September 21. He was found guilty of only the first count. It wasn't until the preparation of a pre-sentence investigation (PSI) report following his conviction at trial that all the principals in the case learned that Thompson was subject to a mandatory minimum sentence of 25 years in prison.

¶ 6 The predicament, then, is whether the failure to inform the defendant of the mandatory minimum sentence purportedly attached to a conviction under Wis. Stat. § 948.02(1)(b) violates some right that the defendant may assert and, if so, what remedy, if any, follows from proof of that violation.

¶ 7 Thompson presents three issues for review:

1. Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson's constitutional due process rights.

2. Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence, therefore entitling Thompson to a new trial.

3. Whether the court of appeals exceeded its authority and neglected to adhere to prior precedent when it decided issues of ineffective assistance of counsel.

¶ 8 We reach the following conclusions.

[342 Wis.2d 680]¶ 9 First, there are legitimate questions whether a mandatory minimum sentence of 25 years applies to Thompson in this case. However, we do not decide this issue because the issue has not been briefed and it is better practice not to decide issues that have not been fully briefed. The issue should be considered on remand.

¶ 10 Second, assuming but not deciding that the mandatory minimum sentence applies to Thompson, the failure to inform Thompson of the mandatory minimum sentence violated Wis. Stat. § 970.02(1)(a). Wisconsin Stat. § 970.02(1)(a) requires the judge who presides at an initial appearance to inform the defendant of the charge and furnish the defendant with a copy of the complaint “which shall contain the possible penalties for the offenses set forth therein.” (Emphasis added). “In the case of a felony, the judge shall also inform the defendant of the penalties for the felony with which the defendant is charged.” Id. (emphasis added). The court did not furnish the defendant with a complaint that contained one of “the possible penalties for the offense”—namely, the mandatory minimum penalty of 25 years in prison—and it did not adequately inform the defendant of the possible penalties. Assuming that Thompson is subject to a mandatory minimum penalty, these violations of Wis. Stat. § 970.02(1)(a) by the State and by the circuit court were not corrected at any point in the proceedings.

¶ 11 We conclude that this case must be remanded to the circuit court for a hearing to determine whether Thompson was prejudiced by the violations of Wis. Stat. § 970.02(1)(a). 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.

[342 Wis.2d 681]¶ 12 Third, assuming again but not deciding that the mandatory minimum sentence applies to Thompson, the failure of Thompson's defense attorney to discover this fact, inform Thompson of this fact, and incorporate this fact into his defense strategy, is likely to be assessed as deficient performance if Thompson should file an ineffective assistance of counsel claim. However, if Thompson were to make such a claim, he also would be required to establish prejudice from the deficient performance as the second prong of such a claim. See State v. Domke, 2011 WI 95, ¶ 34, 337 Wis.2d 268, 805 N.W.2d 364. We remand this case to the circuit court, so that all facets of possible prejudice to the defendant may be examined at the same time if an ineffective assistance of counsel claim is made.

¶ 13 Consequently, we reverse the decision of the court of appeals and remand this case to the circuit court for further proceedings consistent with this opinion.

I. STANDARD OF REVIEW

¶ 14 This case presents constitutional questions regarding whether the defendant'sdue process rights were violated. We review determinations of these questions de novo. State v. McGuire, 2010 WI 91, ¶ 26, 328 Wis.2d 289, 786 N.W.2d 227.

¶ 15 Additionally, this case presents several questions of statutory interpretation, which we review de novo. State v. Dinkins, 2012 WI 24, ¶ 28, 339 Wis.2d 78, 810 N.W.2d 787.

II. DISCUSSION

A. Background

¶ 16 When the principals in this case learned from the PSI that Thompson was subject to a mandatory minimum sentence of 25 years, the Wood County Circuit Court, Edward F. Zappen, Jr., Judge, delayed sentencing.

¶ 17 The court briefly examined the statutory history of Wis. Stat. § 939.616 (the mandatory minimum penalty statute) and expressed concern whether Thompson's conviction was valid, or, if it was, what sentence should be applied. At this hearing, on November 6, 2008, the circuit court stated, “If we want to point any fingers, it has to be done with the sloppy legislation that was done that put this law in effect that went past all of us.”

¶ 18 On January 15, 2009, Thompson moved for a new trial on the basis that he was denied his due process rights when “he was not adequately informed of the penalty of said crime prior to going to a jury trial.”

¶ 19 On January 29, 2009, the court held a hearing on that motion.

¶ 20 At the hearing, the assistant district attorney explained that the legislature had passed two bills affecting the applicable statutes. He noted that the bills were signed on the same day and that the bills created “mutually inconsistent” laws. As a result, he asked that the defendant be sentenced without the mandatory minimum.

¶ 21 The circuit court disagreed, stating that “There is a mandatory 25 year minimum mandatory on this case, no ands, ifs and buts.” “It is patently clear that the 25 year mandatory minimum penalty applies to a violation of 948.02(1)(b) as defined in 05 Act 437.”

[342 Wis.2d 683]¶ 22 Based on this holding, the court determined that failure by the district attorney to allege the mandatory minimum sentence in the complaint, combined with Thompson's attorney's failure to inform Thompson of the penalty, was “a very clear violation of due process.” The court did not sentence Thompson. Instead, it granted him a new trial. While the court noted that due process and ineffective assistance of counsel were both issues, the court grounded its new trial ruling on due process.

¶ 23 The court stated: “How can that be any different if a defendant is ... deciding ... to make an intelligent decision whether or not to go to trial or whether or not to perhaps take some other offer? And whether there was [an offer] here is beside the point. But without being notified as to what he's facing he's not in a position to make a decision whether or not to go to trial.”

¶ 24 In the court's order for a new trial, the court included the following findings of fact:

1. Tha...