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  • WisBar News
    May 08, 2013

    Wisconsin Supreme Court Says Harmless Error Analysis Applies to Defendant Who Was Sentenced On Inaccurate Information

    The circuit court and the parties mistakenly believed that mandatory minimum applied; case remanded for resentencing.

    gavelMay 8, 2013 – In the Kenosha County Circuit Court, a criminal complaint charged defendant Lamont Travis with attempt to have sexual contact with a child under age 16 by use or threat of force or violence, a class B felony that carries a five-year mandatory minimum period of initial confinement. Throughout the proceedings, no one – not the judge, the prosecutor, the defense attorney, or the presentence investigation writer – questioned the charge or the penalty. The defendant eventually pleaded guilty as charged. The circuit court, repeatedly referencing the five-year mandatory minimum, sentenced Travis to eight years of initial confinement and 10 years of extended supervision.

    However, postconviction counsel discovered that Travis was mistakenly charged, convicted, and sentenced for the wrong subsection of the statutes, and should not have been subject to a mandatory minimum. Travis moved to amend the judgment of conviction, and requested resentencing.

    At the postconviction hearing, the judge, the prosecutor, and the original defense attorney all agreed that under the facts of the case, Travis should have been charged under Wis. Stat. section 948.02(1)(e), attempted sexual contact with a child under age 16, which is also a class B felony, but which does not have a mandatory minimum term of confinement. However, although the circuit court judge agreed that the error had “pervaded the entire file,” he did not agree that resentencing was necessary, stating that the mandatory minimum did not play a role on his sentencing decision, and that he would have ordered the same sentence regardless of which subsection had been charged.

    Attorney Brian Kinstler is filling in for Legal Writer Joe Forward during his leave. Brian practices state and federal criminal defense in Milwaukee, and blogs on criminal law issues at

    Court of Appeals Finds Structural Error, Reverses and Remands for Resentencing 

    Travis appealed, arguing that he was convicted on the basis of inaccurate information – namely, the applicability of the mandatory minimum. The District II Court of Appeals reversed the circuit court, holding that the error had so compromised the integrity of the proceedings, including the plea negotiations, the plea hearing, and the sentencing, that it was a rare instance of structural error, and that prejudice should be presumed. The court of appeals agreed that the judgment of conviction should be amended to reflect the correct charge, with no mandatory minimum, and remanded for resentencing.

    The state appealed, arguing that the court of appeals was incorrect to find structural error, and that applying the incorrect subsection and penalty should have been subject to harmless error analysis. The state also argued that the error was harmless, because the circuit court said it would have made no difference to the resulting sentence.

    Supreme court applies harmless error, not structural error, but remands for resentencing because error not harmless 

    In State v. Lamont Travis, 2011AP685 (May 2, 2013), the Wisconsin Supreme Court declared that the state was half-right: charging and convicting Travis under the wrong subsection was not a structural error, which presumes prejudice, and was instead subject to harmless error analysis. However, the supreme court also found that the error was not harmless, and remanded for resentencing.

    Chief Justice Abrahamson wrote for the majority, and first focused the opinion on a discussion of sentencing principles and State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, the leading Wisconsin case on resentencing based on inaccurate information. Under Tiepelman, once a defendant can establish by clear and convincing evidence that a sentencing court relied on inaccurate information, the burden shifts to the state to show that the error is harmless.

    The majority also surveyed the major cases addressing structural error, in which prejudice is presumed, versus harmless error, in which prejudice to the defendant must be directly shown. Comparing the case to “the limited class of cases” of structural error – in which the defendant was deprived of counsel, or the court expressed a lack of impartiality, or the jury received incorrect instructions on reasonable doubt – the majority found that the mistake simply did not render the entire process fundamentally unfair.

    The opinion then applied harmless error analysis to the record. Although the circuit court stated emphatically at the postconviction hearing that the mandatory minimum did not play a role in its sentencing decision, the majority found that this was not dispositive. Instead, the majority concluded that the error was harmful, because discussion of the mandatory minimum in the proceedings was pervasive, repetitive, and explicit, and that it would have been arguably improper for the sentencing court not to have taken it into account as a starting point for the sentencing decision. The majority also noted that under truth in sentencing, there is an “enhanced need” for more, and more accurate, information at the time of sentencing, and here, the sentence was based on materially inaccurate information that should have had a significant impact on the sentence.

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