State v. Travis
| Decision Date | 02 May 2013 |
| Docket Number | No. 2011AP685–CR.,2011AP685–CR. |
| Citation | 832 N.W.2d 491,347 Wis.2d 142,2013 WI 38 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Lamont L. TRAVIS, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-respondent-petitioner, the cause was argued by Christopher Wren, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief filed by Suzanne Hagopian, assistant state public defender, and oral argument by Suzanne Hagopian.
An amicus curiae brief was filed by Anne Bensky, and Garvey McNeil & Associates, S.C., Madison, for the Wisconsin Association of Criminal Defense Lawyers.
[347 Wis.2d 147]¶ 1 This is a review of a published decision of the court of appeals that modified the judgment of conviction of the Circuit Court for Kenosha County, Wilbur W. Warren III, Judge, and remanded the matter to the circuit court for resentencing.1
¶ 2 The court of appeals ordered the circuit court to modify the judgment of conviction to list Wis. Stat. § 948.02(1)(e)(2009–10),2 rather than § 948.02(1)(d),3 as the statute the defendant violated. The prosecuting attorney, the defense counsel, the circuit court, and the defendant agreed at the hearing on the defendant's postconviction motion that it was error to charge the defendant with violating § 948.02(1)(d), and all agreed that the defendant should have been charged with violating § 948.02(1)(e).
¶ 3 The State attempted to change its position before the court of appeals and attempted to prove that the correct charge was a violation of Wis. Stat. § 948.02(1)(d). The court of appeals rejected the State's theory that the crime was a violation of § 948.02(1)(d). State v. Travis, 2012 WI App 46, ¶ 15 n. 7, ¶ 19, 340 Wis.2d 639, 813 N.W.2d 702. The State does not challenge this part of the court of appeals decision before this court.4
[347 Wis.2d 149]¶ 4 The court of appeals also remanded the case for resentencing, concluding that resentencing was required because a structural error occurred when the circuit court imposed the sentence relying on the penalty provision for a violation of Wis. Stat. § 948.02(1)(d) instead of the penalty provision for a violation of § 948.02(1)(e).
¶ 5 The penalty provisions for Wis. Stat. § 948.02(1)(d) and for § 948.02(1)(e) are different. Although both are Class B felonies and carry the same maximum penalty of 30 years' imprisonment,5 the differenceis that § 948.02(1)(d) provides for a mandatory minimum period of confinement of five years; 6§ 948.02(1)(e) requires no mandatory minimum period of confinement.
¶ 6 The defendant moved for resentencing on the ground that his sentence was based on the inaccurate information that he was subject to a mandatory minimum five-year period of confinement. As the circuit court stated, the five-year mandatory minimum “was inaccurately referenced beginning in the pleadings and carried out through the plea, the sentencing and ultimately really pervaded the entire file in this case.” 7
¶ 7 Nonetheless, the circuit court denied the defendant's motion for resentencing, viewing the error as harmless.8
¶ 8 The court of appeals reversed the circuit court and remanded the case for resentencing, concludingthat the error in sentencing, namely the mistake of law that a mandatory minimum period of confinement applies, constitutes structural error. The State focuses its objection on what it describes as the court of appeals' “unprecedented and radical determination that reliance on inaccurate sentencing can qualify as structural error.”
¶ 9 The question of law presented to this court is whether a circuit court's imposition of a sentence using inaccurate information that the defendant was subject to a mandatory minimum five-year period of confinement is structural error or subject to the application of harmless error analysis.9 If the latter, the question is whether the error in the present case was harmless.
¶ 10 We conclude that imposing a sentence under the erroneous belief that the defendant was subject to a five-year mandatory minimum period of confinement is an error subject to a harmless error analysis. The error is not a structural error, as the court of appeals stated. We further conclude that the error in the present case was not a harmless error. We affirm the decision of the court of appeals, but on different grounds, and remand the matter for resentencing.
¶ 11 For purposes of this review, the facts of the offense and the procedural history are not in dispute.
¶ 12 Lamont L. Travis, the defendant, was charged with one count of attempted first-degree sexual assault of a child in violation of Wis. Stat. § 948.02(1)(d). The complaint and information erred in one very important respect: they charged a violation of Wis. Stat. § 948.02(1)(d), but did not contain any allegations supporting the “use or threat of force or violence” element in § 948.02(1)(d).
¶ 13 The defendant was convicted on his plea of guilty to a violation of Wis. Stat. § 948.02(1)(d). As described above, the court of appeals ordered the judgment of conviction to be amended in accordance with the agreement of the prosecuting attorney, defense counsel, the defendant, and the circuit court to list the correct crime, a violation of Wis. Stat. § 948.02(1)(e).
¶ 14 The defendant has not sought, and does not now seek, to withdraw his guilty plea. The defendant seeks resentencing.
¶ 15 We begin with two basic principles regarding sentencing:
¶ 16 First, sentencing decisions are left to the sound discretion of the circuit court. We review a sentencing decision to determine whether the circuit court erroneously exercised its discretion.10 A discretionary sentencing decision will be sustained if it is based upon the facts in the record and relies on the appropriate and applicable law. 11
¶ 17 Second, and somewhat related to a proper exercise of discretion, a defendant has a constitutionally protected due process right to be sentenced upon accurate information.12 A defendant has a constitutional right to a fair sentencing process “in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information.” 13 When a circuit court relies on inaccurate information, we are dealing “not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude.” 14 A criminal sentence based upon materially untrue information, whether caused by carelessness or design, is inconsistent with due process of law and cannot stand.15
¶ 18 It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.16
¶ 19 The defendant's postconviction motion seeking resentencing alleges that the defendant's due process rights were violated at sentencing because the circuit court imposed a sentence based on inaccurate information that he was subject to a mandatory minimum five-year period of confinement when, in fact, there was no mandatory minimum penalty applicable to his offense.
¶ 20 Whether a defendant has been denied due process is a constitutional issue which this court decides independently of the circuit court or court of appeals, benefiting from the analysis of these courts. 17
¶ 21 State v. Tiepelman, 2006 WI 66, 291 Wis.2d 179, 717 N.W.2d 1, teaches that a defendant is entitled to resentencing if the defendant meets a two-pronged test: (A) the defendant shows that the information at the original sentencing was inaccurate; and (B) the defendant shows that the court actually relied on the inaccurate information at sentencing.18
¶ 22 Proving that information is inaccurate is a threshold question. A defendant “cannot show actual reliance on inaccurate information if the information is accurate.” 19 Once a defendant shows that the information is inaccurate, he or she must establish by clear and convincing evidence that the circuit court actually relied on the inaccurate information. 20
¶ 23 Once the defendant shows actual reliance on inaccurate information, the burden then shifts to the State to prove the error was harmless.21
¶ 24 We now apply Tiepelman to the facts of the present case.
¶ 25 We examine the record (A) to identify the inaccurate information; and (B) to determine whether the sentencing court actually relied on the inaccurate information.
¶ 26 Addressing the first prong of the Tiepelman analysis, namely whether there was inaccurate information presented to the circuit court at sentencing, we note that the case comes before us from the court of appeals, which directed the circuit court to amend the judgment of conviction to reflect that the defendant pled guilty to Wis. Stat. § 948.02(1)(e),22 which does not provide a mandatory minimum period of confinement. The circuit court, however, had previously sentenced the defendant on the basis of a conviction under § 948.02(1)(d), which provides for a mandatory minimum period of confinement. At sentencing, the circuit court repeatedly mistakenly stated that it was required to impose a five-year mandatory minimum period of confinement, although no such mandatory minimum was applicable. The circuit court agreed with counsel for the State and the defendant at the hearing on the postconviction motion that
¶ 27 We conclude, as did the circuit court, the court of appeals, the prosecuting attorney, the defense counsel, and the defendant that information relevant to the defendant's sentencing, namely a mandatory...
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