Failure to Inform Defendant of Mandatory Sentence Could Be Prejudicial

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 9, 2012 – Some child sex offenders are subject to a minimum mandatory prison sentence of 25 years, but nobody told that to a criminal defendant who was charged, tried, and convicted for sexually assaulting a child under the age of 13.

Although Harry Thompson knew he could face up to 60 years per charge (he faced two charges, but was only convicted on one), he argued that he did not know, before he went to trial, that an underlying mandatory minimum sentence could ultimately impact a potential sentence.

In State v. Thompson, 2012 WI 90 (July 12, 2012), a Wisconsin Supreme Court majority concluded that failing to inform a defendant of all possible penalties violates state law, and remanded Thompson’s case to determine whether he was prejudiced by a potential violation.

“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,” wrote Justice David Prosser for a unanimous court.

The court left another important question open: Whether two recent U.S. Supreme Court cases, Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S. Ct. 1376 – impact the due process rights of defendants outside the context of ineffective assistance of counsel claims.

Under those decisions, defendants can bring ineffective assistance of counsel claims for defense counsel errors during the plea bargaining process.

Thompson argued that his due process rights were violated because the sentencing information was necessary to make decisions in the plea bargaining stage. The circuit court agreed, and granted a new trial. The court of appeals reversed, concluding that Thompson’s due process rights were not violated because defendants don’t have a right to plea bargain.

But the appeals court made that decision before Missouri and Lafler came down.

“Because these cases focus on the course of legal representation by the defendant’s attorney, it is unclear whether the principles stated in the two cases have any application to other key actors in the criminal justice system,” wrote Justice Prosser, reversing the appeals court.

However, the supreme court noted the issue “should not be decided without thorough input from counsel, especially if this court can dispose of the case on less impactful grounds.” It asked the circuit court, on remand, to reconsider the due process issue in light of Missouri and Lafler.

Confusion and Less Impactful Grounds

Wis. Stat. section 970.02(1)(a) states that a complaint, furnished to the defendant, must contain “the possible penalties for the offenses set forth therein.” For felonies, “the judge shall also inform the defendant of the penalties for the felony with which the defendant is charged.”

The complaint furnished to Thompson only listed the penalty for a “Class B Felony,” the type of felony attributed to violations of section 948.02(1)(b) for sexual assault of a child under age 13 without great bodily harm, a provision promulgated by 2005 Wisconsin Act 437.

It did not list the sentence under the statute that imposes a mandatory minimum sentence of 25 years for violations of section 948.02(1)(b). The trial judge learned about the mandatory sentence through a presentence investigation report, prompting the judge to note the “sloppy legislation that was done that put this law in effect that went past all of us.”

Apparently, the 2005 Wisconsin Legislature amended section 948.02(1)(b) inconsistently through two different acts. In other words, 2005 Wisconsin Acts 430 and 437, contained inconsistent language for the same statute now at issue.

Act 430 created the mandatory minimum sentencing statutes for child sex offenders.

“The approval of Act 437, which amended the same statutory section that Act 430 had amended, raises the question whether both provisions existed – as fraternal twins – at the time Thompson was prosecuted,” Justice Prosser wrote, noting that “there are legitimate questions whether a minimum sentence of 25 years applies to Thompson in the case.”

Assuming but not deciding that the mandatory minimum sentence does apply, the court ruled that “failure to inform Thompson of the mandatory minimum sentence violated section 970.02(1)(a).” The majority noted that nobody corrected the violation at any point, and failure to discover the violation and inform Thompson “is likely to be assessed as deficient performance if Thompson should file an ineffective assistance of counsel claim.”

The supreme court remanded the case for a determination of whether the mandatory minimum sentencing statute applies to Thompson’s case. “If it does not, the State did not err in drafting the complaint, the circuit judge did not err in performing his statutory duties, and defense counsel did not err when he did not inform Thompson that he was facing the possibility of two mandatory minimum terms of 25 years in prison,” Justice Prosser wrote.

“On the other hand, if the mandatory minimum penalty applies, the prosecutor erred, the court erred, and defense counsel erred, and we must explore the consequences,” he explained.

Concurrence

Justice Annette Ziegler wrote a concurring opinion (joined by Justice Michael Gableman), agreeing that the court of appeals decision should be reversed. But she argued that the supreme court should have decided the issue of whether the mandatory minimum sentencing statute, Wis. Stat. section 939.616(1), applied in the case.

“In particular, because Thompson was charged under the version of Wis. Stat. § 948.02(1)(b) that did not carry a mandatory minimum sentence of 25 years, I would conclude that the mandatory minimum sentence does not apply to Thompson,” Justice Ziegler wrote.