State v. Lamont L. Travis, 832 N.W.2d 491

Lamont Travis was charged with attempted first-degree sexual assault of a child under 16 under Wis. Stat. § 948.02(l)(d); the complaint and information failed to allege the 'use or threat of force or violence' element for that statute.
Travis pled guilty to a violation of Wis. Stat. § 948.02(1)(d); the court of appeals ordered the judgment amended to reflect Wis. Stat. § 948.02(l)(e) instead.
The State initially agreed the l(d) charge was incorrect; all parties agreed the correct charge should be § 948.02(l)(e), which carries no mandatory minimum.
At sentencing, the circuit court repeatedly stated there was a five-year mandatory minimum, based on the l(d) penalty, which later proved inaccurate because the conviction was amended to l(e).
The circuit court sentenced Travis to eight years of initial confinement followed by ten years of extended supervision, a sentence within the applicable ranges under either l(d) or l(e).
On postconviction review, the circuit court treated the five-year minimum error as harmless, while the court of appeals held the error was structural and requiredresentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sentencing based on inaccurate information about a mandatory minimum is structural error.	Travis argues the error is structural, pervasively corrupting the sentencing process.	State contends the error is not structural and should be analyzed for harmless error.	Not structural; harmless-error analysis applies.
Whether the circuit court actually relied on the inaccurate information at sentencing.	Travis contends the court gave explicit attention to the mistaken minimum.	State contends reliance was not demonstrated or was incidental.	The court gave explicit attention to the inaccurate information and it formed part of the sentence basis.
Whether the improper information was harmless to the sentence.	If reliance on false minimum affected the outcome, resentencing is required.	The error was harmless because other factors dictated the sentence.	The error was not harmless; harmless-error analysis applies and remand for resentencing is required.
Remedy for the error (resentencing on the correct charge).	Resentencing should occur for the correct § 948.02(l)(e) conviction.	Resentencing for a crime Travis was not convicted of should be avoided.	Remand for resentencing consistent with the correct charge.

State v. Tiepelman, 291 Wis. 2d 179 (Wis. 2006) (two-pronged test for whether inaccurate information at sentencing requires resentencing)
State v. McCleary, 49 Wis. 2d 263 (Wis. 1971) (reasoning process for proper sentencing discretion)
State v. Harvey, 254 Wis. 2d 442 (Wis. 2002) (harmless-error framework and Chapman/Neder guidance)
State v. Sullivan, 508 U.S. 275 (U.S. 1993) (sentencing error and structural vs. non-structural analysis (due process))
United States v. Tucker, 404 U.S. 443 (U.S. 1972) (cannot rely on potential future outcomes when error occurred at sentencing)
Townsend v. Burke, 334 U.S. 736 (U.S. 1948) (harmless-error formulations and standards)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (establishes standard for whether error contributed to verdict/sentence)
State v. Shirley E., 298 Wis. 2d 1 (Wis. 2006) (structural error when counsel is deprived at critical stage (parens patriae context))
State v. Goodson, 320 Wis. 2d 166 (Wis. 2009) (structural error in sentencing when tribunal prejudges outcome)
State v. Gudgeon, 720 N.W.2d 114 (Wis. 2006) (tribunal impartiality as structural error)
State v. Payette, 313 Wis. 2d 39 (Wis. 2008) (harmless-error framework in Wisconsin appellate practice)
State v. Groth, 258 Wis. 2d 889 (Wis. 2002) (harmless-error considerations in criminal proceedings)