                                                                       2013 WI 38

                   SUPREME COURT             OF    WISCONSIN
CASE NO.:               2011AP685-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Lamont L. Travis,
                                  Defendant-Appellant.




                           REVIEW OF A DECISION BY THE COURT OF APPEALS
                                 340 Wis. 2d 639, 813 N.W.2d 702
                                   (Ct. App. 2012 – Published)
                                      PDC No: 2012 WI App 46

OPINION FILED:          May 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 10, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Kenosha
   JUDGE:               Wilbur Warren III

JUSTICES:
   CONCURRED:
   DISSENTED:           ROGGENSACK, J., dissents. (Opinion filed.)
   NOT PARTICIPATING:   PROSSER, J., did not participate.

ATTORNEYS:
       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.
                                                                         2013 WI 38
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2011AP685-CR
(L.C. No.    2009CF417)

STATE OF WISCONSIN                            :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                      FILED
      v.
                                                                  MAY 2, 2013
Lamont L. Travis,
                                                                    Diane M. Fremgen
              Defendant-Appellant.                               Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                 Affirmed.



      ¶1      SHIRLEY S. ABRAHAMSON, C.J.            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.



      1
       State v. Travis, 2012 WI App 46, 340 Wis. 2d 639, 813
N.W.2d 702.
                                                                  No.   2011AP685-CR



§ 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,




     2
         Wisconsin Stat. § 948.02(1)(e) provides:

     Whoever has sexual contact with a person who has not
     attained the age of 13 years is guilty of a Class B
     felony.

     All references to the Wisconsin Statutes are to the 2009-10
version unless otherwise noted.
     3
         Wisconsin Stat. § 948.02(1)(d) provides:

     Whoever has sexual contact with a person who has not
     attained the age of 16 years by use or threat of force
     or violence is guilty of a Class B felony if the actor
     is at least 18 years of age when the sexual contact
     occurs.

                                        2
                                                              No.    2011AP685-CR



¶15 N.7, ¶19, 813 N.W.2d 702.          The State does not challenge this

part of the court of appeals decision before this court.4

     ¶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(d) instead of the penalty provision for a

violation of § 948.02(e).


     4
       The State asserted a three-part argument in the court of
appeals: (1) The defendant had pled guilty to a violation of
Wis. Stat. § 948.02(1)(d) that had a mandatory minimum penalty
and therefore the circuit court had no inaccurate information
about the penalty; (2) the alleged error in the penalty provides
a basis for withdrawal of the plea or a claim of ineffective
assistance of counsel, not a basis for resentencing; and (3) the
structural error doctrine does not apply to an inaccurate-
information-at-sentencing claim, citing State v. Tiepelman, 2006
WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, as adopting a harmless
error analysis.

     The   court    of     appeals   rejected     the   State's     position    as
follows:

     The State also requests that we assume that a
     videotape of a statement by the victim——which is not
     included in the appellate record——is proof that Travis
     attempted to have sexual contact "by use or threat of
     force or violence."    As the videotape is not in the
     record, and as defense counsel, the assistant district
     attorney, and the circuit court all agreed that Wis.
     Stat. § 948.02(1)(d) was not the crime Travis should
     have been charged with, we are again puzzled by the
     Attorney General's Office's argument. We address this
     frivolous argument no further, and adopt the findings
     of the circuit court that the five-year mandatory
     minimum was erroneous and that inaccurate information
     was presented to the court.

Travis, 340 Wis. 2d 639, ¶19.

                                       3
                                                                  No.    2011AP685-CR



      ¶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 difference is 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




      5
       The maximum penalty         for a conviction in the present case
under both statutes is             30 years' imprisonment because the
offense charged here is an         attempt. An attempt to commit first-
degree sexual assault in            violation of § 948.02(1)(d) reduces
each of the periods of             imprisonment by half.     Wis. Stat.
§ 939.32(1m)(b).

     "Penalties for felonies are as follows: . . . (b) For a
Class B felony, imprisonment not to exceed 60 years," Wis. Stat.
§ 939.50(3)(b), with a bifurcated sentence consisting of a
maximum period of initial confinement of forty years, Wis. Stat.
§ 973.01(2)(b), and a maximum period of extended supervision of
twenty years, Wis. Stat. § 973.01(2)(d)1.
      6
       "If a person is convicted of a violation of s. 948.02
(1)(d) or 948.025 (1)(c), 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 5 years.
Otherwise the penalties for the crime apply, subject to any
applicable penalty enhancement." Wis. Stat. § 939.616(2).

                                          4
                                                                    No.       2011AP685-CR



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, concluding that 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.
      7
       The citation to the wrong statute carried through the
entire proceeding, namely in the Warrant, the Information, the
Plea Questionnaire/Waiver of Rights, the plea colloquy, the Pre-
Sentence Investigation report, the sentencing hearing, and
finally, the judgment of conviction.
      8
       Judge Warren presided at all of the proceedings in the
circuit court, including the hearing on the defendant's
postconviction motion requesting resentencing.
      9
       This court decides questions of law independently of the
circuit court and court of appeals but benefits from their
analyses.

                                          5
                                                                              No.    2011AP685-CR



        ¶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.

                                                  I

        ¶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.
                                                  6
                                                                           No.    2011AP685-CR



                                            II

     ¶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


     10
       In State v. McCleary, 49 Wis. 2d 263, 182 N.W.2d 512
(1971), the court explained that a sentencing court is to
exercise its discretion on a rational and explainable basis.
McCleary summarized the reasoning process of a sentencing court
that facilitates appellate review of sentencing under the
standard of erroneous exercise of discretion as follows:

     [T]he term [discretion] contemplates a process of
     reasoning. This process must depend on facts that are
     of record or that are reasonably derived by inference
     from the record and a conclusion based on a logical
     rationale founded upon proper legal standards.

Id. at 277, quoted with approval in State v. Gallion, 2004 WI
42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197.
     11
          State       v.   Spears, 227     Wis. 2d 495,           506,     596    N.W.2d 375
(1999).
     12
          Tiepelman, 291 Wis. 2d 179, ¶9.

                                               7
                                                                             No.    2011AP685-CR



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

     13
       Id., ¶26, (quoting United States ex rel. Welch v. Lane,
738 F.2d 863, 864-65 (7th Cir. 1984)).
     14
          United States v. Tucker, 404 U.S. 443, 447 (1972).
     15
       Townsend v. Burke, 334 U.S. 736, 741 (1948).  See also
Tucker, 404 U.S. at 447 (reinforcing the right to accuracy in
sentencing).

     For the history of the evolution of this jurisprudence in
Wisconsin, see Tiepelman, 291 Wis. 2d 179, ¶¶9-25.
     16
       Townsend, 334 U.S. at 741, cited favorably in Tiepelman,
291 Wis. 2d 179, ¶10.

                                                 8
                                                                No.     2011AP685-CR



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

        17
             Tiepelman, 291 Wis. 2d 179, ¶9.
        18
       Id., ¶26 (citing State v. Lechner, 217 Wis. 2d 392, 419,
576 N.W.2d 912 (1998)).
        19
       State v. Harris, 2010 WI 79, ¶33 n.10, 326 Wis. 2d 685,
786 N.W.2d 409 (relating to sentencing involving race or gender
considerations).
        20
             Id., ¶¶4, 34.

                                           9
                                                                         No.   2011AP685-CR



     ¶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.

                                            III

     ¶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.

                                                A

     ¶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

     21
           Tiepelman, 291 Wis. 2d 179, ¶¶2, 9.
     22
           Travis, 340 Wis. 2d 639, ¶4.

                                            10
                                                                         No.    2011AP685-CR



and the defendant at the hearing on the postconviction motion

that "there should not have been a mandatory minimum. . . . So

that         error . . . pervaded             the     entire           file     in       this

matter . . . ."

        ¶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 minimum period of confinement,

was    inaccurate        and   was       presented    to    the    circuit       court    at

sentencing.

                                              B

       ¶28     Addressing the second prong of the Tiepelman analysis,

reliance on inaccurate information, this court, as the reviewing

court, must examine the record to determine whether the circuit

court        "actually    relied"        on   the     inaccurate         information      at

sentencing.        Whether the circuit court "actually relied" on the

incorrect information at sentencing, according to the case law,

turns on whether the circuit court gave "explicit attention" or

"specific consideration" to the inaccurate information, so that

the inaccurate information "formed part of the basis for the

sentence."23

       ¶29     A review of the record to determine whether there was

actual        reliance    by       the    circuit     court       on    the    inaccurate

information       can    be    a    difficult       task.      Sentencing        decisions


        23
       Tiepelman, 291 Wis. 2d 179, ¶14 (quoting United States ex
rel. Welch v. Lane, 738 F.2d 863, 866 (7th Cir. 1984)).

                                              11
                                                               No.   2011AP685-CR



depend on a wide array of factors, not all fully explained by

the circuit court.          A circuit court might not have explicitly

considered     the   inaccurate   information     on     the   record    or    the

record may be ambiguous.24

      ¶30    There are no "magic words" that the circuit court must

use to enable a reviewing court to determine whether the circuit

court gave "explicit attention" to inaccurate information.                    If a

circuit court expressly paid heed to the inaccurate information,

it is easier for a reviewing court to ascertain the circuit

court's reliance on that information in passing sentence.25                    For

a reviewing court to conclude there was actual reliance by the

circuit court, a circuit court need not have stated, "Because of

the   existence      of   this    [inaccurate     information],         you    are

sentenced to X years of imprisonment."            For a reviewing court to

conclude     there was actual     reliance   in    the    present    case,     the

circuit court need not have specifically said, "Because of the

existence of the mandatory minimum, you are sentenced to prison

time equal to or greater than the mandatory minimum."
      ¶31    In accordance with Tiepelman, we examine the record to

determine whether the circuit court gave "explicit attention" or

"specific consideration" to the inaccurate information so that

the inaccurate information "formed part of the basis for the

sentence."


      24
       United States ex rel. Welch v. Lane, 738 F.2d 863, 866
(7th Cir. 1984).
      25
           Id. at 866-67.

                                     12
                                                                       No.     2011AP685-CR



      ¶32   In the present case, the circuit court's reference to

the inaccurate penalty information was explicit and repetitive.

At least four times during the sentencing hearing, the circuit

court explained that a mandatory minimum period of confinement

was applicable to the defendant.

      ¶33   The    circuit       court      opened     the     sentencing     hearing    by

summarizing the charge and the penalty, explaining that a period

of   confinement     of    not     less     than     five      years   applied    to    the

defendant's       conviction,          to   which      the      defendant's      attorney

replied,    "Correct."           The     circuit       court    then   turned     to    the

defendant    and    said     "So       there's     a    five-year      minimum.         You

understood that at the time your plea was given?"                            To which the

defendant responded, "Yes, your honor."                      Here is the exchange:

      The Court:   Good afternoon.  The matter is here for
      sentencing.    The charge is attempted first-degree
      sexual assault of a child under the age of 12.      I
      would presume that the Class B that is reflected here
      would be the 30-year maximum term of confinement,
      bifurcated. There's a term of confinement, the prison
      portion of the bifurcated sentence, of not less than
      five years.

      Defendant's Attorney:             Correct.

      The Court:    So there's a five-year minimum.                              You
      understood that at the time your plea was given?

      The Defendant:       Yes, Your Honor.

      The Court: So       the Court's got an obligation here if a
      sentence is         to be imposed other than straight
      probation that       it has to be at least five years.   Do
      you understand      that?

      The Defendant:       Yes, Your Honor.



                                             13
                                                                     No.        2011AP685-CR



        ¶34     The circuit court explained that it had an obligation

if it decided to impose a sentence, other than probation, to

impose at least five years of confinement.                     The defendant again

responded that he understood.

        ¶35     After this exchange with the defendant, the circuit

court        heard   from    the      prosecuting       attorney,   the        defendant's

mother, the defendant, and defense counsel.                         The prosecuting

attorney recommended that the sentence include prison time but

did not suggest the length of confinement or whether it should

be concurrent or consecutive with a previously imposed sentence

the defendant was serving.26

     ¶36       The other speakers at the sentencing hearing addressed

factors the circuit court might consider but did not express any

view on the number of years to be spent in confinement.                            Defense

counsel        recommended        a     prison      sentence   concurrent          with   a

previously       imposed      sentence        of    confinement.    The        presentence

investigation         report,         which    also     referred    to     a     five-year

mandatory minimum period of confinement, recommended ten years
of   confinement            and       ten     years    of   extended       supervision,




        26
       Under the plea agreement, the State dismissed charges in
two other cases and agreed to recommend a prison sentence but
agreed not to specify the length or nature of the sentence. The
prosecuting attorney agreed to dismiss the Class H felony charge
of failing to update his sex-offender registration information.
The prosecuting attorney dismissed but read in charges of two
Class A misdemeanors (obstructing an officer and resisting
arrest).

                                               14
                                                                           No.    2011AP685-CR



consecutive to a previously imposed sentence of nine years of

confinement and four years of extended supervision.27

        ¶37       The circuit court discussed the defendant's criminal

history and the seriousness of this offense before sentencing

him to "a period of incarceration in the Wisconsin State Prison

System of eight years of                   initial     confinement         followed     by     10

years        of   extended       supervision."         This       sentence       was   imposed

consecutive to a previously imposed sentence of confinement the

defendant was serving.               The sentence the circuit court imposed

is    well        below    the   maximum     penalty        under    either      Wis.       Stat.

§ 948.02(1)(d) or § 948.02(1)(e).

       ¶38        At    the   circuit     court's     hearing       on    the    defendant's

postconviction motion requesting resentencing, the circuit court

declared that the inaccurate information was not pertinent to

its sentencing decision.                  Although conceding that the five-year

mandatory          minimum       period     of    confinement        was     "inaccurately

referenced" and "really pervaded the entire file in the case,"

the    circuit          court    concluded       it   had    no     consequence        on    the
sentence imposed and thus, any error was harmless.

       ¶39        The     circuit   court    explained        at    the     postconviction
hearing that its sentencing decision was "primarily based" on

        27
       The defendant's brief referred to information contained
in the Pre-Sentence Investigation report (PSI). No one objected
to the defendant's brief on this ground.     This information in
the PSI was not discussed on the record in the circuit court at
the sentencing hearing or at the postconviction motion hearing.
For a recent decision of the court on reference to a PSI in an
appellate brief, see State Public Defender v. Court of Appeals,
2013 WI 31, ___ Wis. 2d ___, ___ N.W.2d ___.

                                                 15
                                                   No.   2011AP685-CR



the defendant's criminal record; that the sentence was based

"not so much on the fact that there was a mandatory minimum;"

and that "the existence or nonexistence of a mandatory minimum

sentence [was] of no consequence. . . . [,] did not have any

bearing on sentencing and was noted only to meet the statutory

and case law requirements . . . ."

     ¶40   The circuit court's comments on its sentencing at the

hearing on the defendant's postconviction motion are set forth

in full as follows:

    The Court:     Did the Court rely on the five-year
    minimum that was referenced, which I think all parties
    now recognize 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.      One of the reasons why it's
    referenced is because failure to do so is grounds for
    a postconviction motion and perhaps reversible error.

    Had the Court not made reference to it, at least in
    directing the defendant's attention to it, in this
    case or in any case where a minimum is available to
    the State, defendants have in the past have, and I
    suppose Mr. Travis here would be no different in this
    situation, have a viable argument to say, "Well, the
    Judge gave me X number of years, but I didn't know
    that there was a mandatory minimum.    I never would
    have entered a plea to this case if I knew that there
    was a minimum, and no one ever told me there was a
    minimum."

    So the need to express what has been pled as a
    mandatory    minimum,    at   least   from    a   judicial
    perspective,    is    necessary    to   avoid    potential
    reversible error and a valid claim for resentencing.
    The fact that it was mentioned, not only in the
    pleadings but especially by the Court at the time of
    sentencing, only goes to reinforce           the   Court's
    obligation to inform the defendant of what the Court
    believes   is   a   valid   sentencing    consequence,   a
    mandatory minimum.

                               16
                                            No.   2011AP685-CR


Did the court rely on that mandatory minimum?       And
again, this ties in, I suppose, in some roundabout way
with the prejudice argument here, but as far as the
Court's perspective on this, in imposing an eight-year
sentence, that sentence was primarily based, and the
record should reflect this, not so much on the fact
that there was a mandatory minimum perceived to be in
place at the time but that there was, in fact, a
substantial   prior  record  involving,   among   other
things, prior sexual assault-type offenses.     And in
our system of progressive type of consequences for
similar criminal behavior, the Court typically, and I
think this case was no different, would certainly
consider that prior conduct as a substantial factor
when it considers what an appropriate sentence should
be in the instant case.

So from the Court's perspective, the existence or
nonexistence of a mandatory minimum sentence is of no
consequence to this Court in its determination of what
an appropriate sentence were [sic]. Had that been the
case, the Court, I'm sure, would have indicated to the
defendant that, "Because of the mandatory minimum and
the existence of it and the Court's belief, I am going
to give you five years which is the mandatory minimum
here because the law requires that," that certainly
wasn't the case. As counsel points out and certainly
the record reflects, this was an eight-year sentence
of initial incarceration.

And, I don't think it's reasonable to suppose, nor can
this Court support in any way, that the five-year
mandatory minimum, which was believed to be in effect,
had any bearing whatsoever on the imposition of the
eight years of initial confinement.   So that said, I
believe the defense is correct in their position here
that there should not have been a mandatory minimum.
The defendant would not have been so informed had it
not been pled and carried through as part of the plea
proceeding, but the sentence would not have changed
because of the existence or nonexistence of the
mandatory minimum.

So that error as it pervaded the entire file in this
matter and the hearings that were held, that error I
believe to be harmless because of the fact that it did
not have any bearing on sentencing and was noted only
to meet the statutory and case law requirements in
                          17
                                                                    No.     2011AP685-CR


       informing   the accused of   what   consequences  are
       available,   both  maximum and    minimum  sentencing
       requirements.

       That said, I certainly accept the fact, [defense
       counsel], that the error existed in the recitation of
       that mandatory minimum, but I believe in the final
       analysis at sentencing that the error was harmless
       with respect to the entire proceeding and the
       sentencing so the motion for resentencing at this
       point would be denied for those reasons.
       ¶41    Now that the facts of the present case are laid out,

for guidance in determining whether the circuit court actually

relied on the inaccurate information at sentencing the Tiepelman

case is again instructive.

       ¶42    In Tiepelman, 291 Wis. 2d 179, the circuit court read

the    defendant's       Pre-Sentence        Investigation       (PSI)      report    as

stating that the defendant had over 20 prior convictions at the

time of the commission of the offense at issue, and referred to

this "fact" on the record during sentencing.                      The defendant's

PSI,    however,       indicated     that    he     had   been   charged      with    20

offenses before he committed the offense at issue, but it also

indicated      that    only   five    of    those    offenses    had      resulted    in

convictions as of that date.                The circuit court misread the PSI

and stated inaccurate information on the record at sentencing.28

       ¶43    The     Tiepelman    court     concluded,     based      on    this    one

inaccurate statement by the circuit court, that Tiepelman had

met his burden of showing that the circuit court actually relied




       28
            Tiepelman, 291 Wis. 2d 179, ¶6.

                                            18
                                                                              No.     2011AP685-CR



on     inaccurate         information          in   reaching            its      decision      on

sentencing.29

       ¶44     In the present case, the circuit court did not merely

once    mention       the    inaccurate        information.             The    circuit      court

referred to the mandatory minimum four times at the sentencing

hearing and four times during the plea hearing, eight times in

all.        The circuit court did not say at sentencing whether the

five-year mandatory minimum period of confinement was or was not

a factor in sentencing.

       ¶45     In     the     present       case,       as    in        Tiepelman,30        after

sentencing, the sentencing court acknowledged the misinformation

but denied the resentencing motion.

       ¶46     The    standard,      as   stated    in       Tiepelman,          to    determine

whether the circuit court "actually relied" on the incorrect

information         at    sentencing      is    based    upon      whether          the   circuit

court gave "explicit attention" or "specific consideration" to

it, so that the inaccurate information "formed part of the basis

for the sentence."31               A circuit court's "explicit attention to

the misinformation demonstrates [the circuit court's] reliance

on that misinformation in passing sentence."32

       ¶47     "[T]he       fact     that      other         information            might    have

justified           the     sentence,       independent            of      the        inaccurate

       29
            Id., ¶¶4, 30.
       30
            Id., ¶7.
       31
            Id., ¶14 (quoting Welch, 738 F.2d at 866).
       32
            Welch, 738 F.2d at 866-67.

                                               19
                                                                        No.    2011AP685-CR



information,      is      irrelevant        when    the    court       has    relied     on

inaccurate information as part of the basis of the sentence."33

       ¶48    A reviewing court must independently review the record

of   the     sentencing hearing        to    determine         the    existence    of   any

actual reliance on inaccurate information.                           A circuit court's

after-the-fact assertion of non-reliance on allegedly inaccurate

information is not dispositive of the issue of actual reliance.34

       ¶49    We are satisfied, based upon a review of the record,

that    the     circuit     court    gave        "explicit       attention"       to    the

inaccurate       penalty     information           and    that        this     inaccurate

information thus "formed part of the basis for the sentence."

Thus   we conclude        that the     defendant         has    met    his    two-pronged

burden under Tiepelman.         The burden shifts to the State to prove
that the error was, nonetheless, harmless.

       ¶50    The Tiepelman court declined to address the harmless

error issue because it had not been fully briefed or argued, and

the parties agreed that it was appropriate to remand the case

for resentencing.35          The court of appeals in the present case



       33
       Welch, 738 F.2d at 867, cited with approval in Tiepelman,
291 Wis. 2d 179, ¶14.
       34
       State v. Groth, 2002 WI App 299, ¶28, 258 Wis. 2d 889,
655 N.W.2d 163 (other language withdrawn in Tiepelman, 291
Wis. 2d 179, ¶¶2, 31).   Only when a case is overruled does it
lose all of its precedential value. See Blum v. 1st Auto & Cas.
Ins. Co., 2010 WI 78, ¶56, 326 Wis. 2d 729, 786 N.W.2d 78; see
also Harris, 326 Wis. 2d 685, ¶34 n.12 (discussing the effect of
Tiepelman's withdrawal of language from prior opinions).
       35
            Tiepelman, 291 Wis. 2d 179, ¶¶30-31.

                                            20
                                                                        No.     2011AP685-CR



concluded that the error constituted structural error and no

harmless error analysis was needed.36

                                               C

       ¶51    This court must now determine whether the error in the

present case is a structural error or whether a reviewing court

must conduct a harmless error analysis.                        Structural errors are

per se prejudicial.37

       ¶52    The       defendant       asserts      that     the    court     of     appeals

correctly concluded the error in the present case was structural

error and that the decision of the court of appeals adheres to

and does not dismantle Tiepelman.                     According to the defendant,

the    court       of    appeals        concluded     that     the     circuit        court's

misunderstanding about the mandatory minimum penalty was "akin

to a structural error for which prejudice is presumed" in the

rare    case,      like    the     instant     case,     in    which    the     error     was

pervasive.38        The defendant views the court of appeals decision

in the present case as a very narrow holding limited to the

unusual      circumstances         of    the   present      case.      The     defendant's

position      is    that     the    court       of    appeals       decision        regarding

structural error does not apply generally to all cases involving

       36
            Travis, 340 Wis. 2d 639, ¶¶21-24.
       37
       Neder v. United States, 527 U.S. 1, 8 (1999); State v.
Ford, 2007 WI 138, ¶¶42-43, 306 Wis. 2d 1, 742 N.W.2d 61; State
v. Harvey, 2002 WI 93, ¶37, 254 Wis. 2d 442, 647 N.W.2d 189.
       38
       The amicus curiae brief of the Wisconsin Association of
Criminal Defense Lawyers argues that a harmless error analysis
has no place when a defendant proves actual reliance upon
erroneous information at sentencing.

                                               21
                                                                        No.    2011AP685-CR



inaccurate        information    in    sentencing         or    even     to    all    cases

involving       sentencing    with     inaccurate         information         regarding    a

mandatory minimum penalty.

        ¶53     The State acknowledges that error at sentencing can,

in rare instances, qualify              as   structural         error     if    the error

concerns a defect already recognized as a structural error, such

as denial of counsel at sentencing and delegation of a serious

sentencing decision by a judicial officer to another.                           The State

asserts that no court other than the court of appeals in the

present case has, to the State's knowledge, classified reliance

on inaccurate information at sentencing as a structural error.

        ¶54     Structural    errors     "seriously         affect      the     fairness,

integrity or public reputation of judicial proceedings and are

so fundamental that they are considered per se prejudicial."39                             A

structural error is a "defect affecting the framework within

which the trial proceeds, rather than simply an error in the

trial process itself."40              Structural errors "infect the entire

trial        process   and   necessarily         render    a    trial     fundamentally
unfair."41

     ¶55       Constitutional errors may be structural errors or may
be subject to harmless error analysis.                         Constitutional errors


        39
       Ford, 306 Wis. 2d 1, ¶42 (quoting State v. Shirley E.,
2006 WI 129, ¶62, 298 Wis. 2d 1, 724 N.W.2d 623).
        40
       Id. (quoting Arizona v. Fulminante, 449 U.S. 279, 310
(1991)).
        41
       Id.        (quoting    Neder    v.    United       States,      527     U.S.   1,   8
(1999)).

                                            22
                                                                                No.    2011AP685-CR



that are so intrinsically harmful to substantial rights that

they         "are    not   amenable      to        harmless            error    analysis"        are

classified as structural errors.42

        ¶56     Although courts have often discussed the concept of

structural error, structural errors have been found in a "very

limited class of cases."43

        ¶57     The structural error doctrine arose in the context of

trial        errors     but    is     applicable            to     sentencing          errors.    A

structural error at sentencing includes, for example, a biased

tribunal.44

       ¶58      The error at issue in the present case——the sentencing

court's        actual      reliance     on        inaccurate           information       about     a

mandatory           minimum    period        of        confinement——simply             does      not

resemble the limited number of cases in which an error has been

categorized as a structural error.

       ¶59      The    court   of     appeals          does      not    cite    any    case   that

supports        its     conclusion      that           a   structural          error    requiring

automatic reversal occurred in the present case.




        42
             Harvey, 254 Wis. 2d 442, ¶37.
        43
       Ford, 306 Wis. 2d 1, ¶43 & n.4 (quoting Neder, 527 U.S.
at 8; Harvey, 254 Wis. 2d 442, ¶37)).
        44
       State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771
N.W.2d 385 (structural error when circuit court prejudges a
sentence); State v. Gudgeon, 2006 WI App 143, ¶¶10, 31, 295
Wis. 2d 189, 720 N.W.2d 114 ("When a tribunal predetermines how
it will rule, the error is structural and poisons the entire
proceeding.").

                                                  23
                                                                            No.        2011AP685-CR



       ¶60    The     defendant      cites    three      cases       in    support        of    his

position on structural error:                State v. Shirley E., 2006 WI 129,

298 Wis. 2d 1, 724 N.W.2d 623; State v. Goodson, 2009 WI App

107, 320 Wis. 2d 166, 771 N.W.2d 385; and Sullivan v. Louisiana,

508 U.S.       275,      281-82 (1993).           These      cases    are     significantly

different from the present case.

       ¶61    In Shirley E., the court concluded that depriving a

parent of the statutory right to counsel in a termination of

parental rights proceeding constituted structural error.45                                      The

deprivation         of     counsel    during      critical         stages         in     criminal

proceedings has long been considered structural error, for which

automatic reversal is required.46                 The Shirley E. court held that
depriving       a     parent    in     a     termination         of       parental         rights

proceeding of the statutory protection of counsel placed the

fairness and integrity of the judicial proceedings in doubt.47

       ¶62    In Goodson, the sentencing court warned the defendant

that    if    he    violated    the    terms      of    extended          supervision,          the

sentencing         court    would     reconfine        him    to      the     maximum          time

available.          The defendant subsequently violated the terms of

extended      supervision       and    at     the      reconfinement          hearing,          the




       45
       State v. Shirley E., 2006 WI 129, ¶63, 298 Wis. 2d 1, 724
N.W.2d 623.
       46
       Shirley E., 298 Wis. 2d 1, ¶62 (citing Neder, 527 U.S. at
8); Harvey, 254 Wis. 2d 442, ¶37; State v. Gordon, 2003 WI 69,
¶35, 262 Wis. 2d 380, 663 N.W.2d 765).
       47
            Shirley E., 298 Wis. 2d 1, ¶633.

                                             24
                                                              No.    2011AP685-CR



circuit court followed through on the promise it had made.48                 The

court of appeals, guided by State v. Gudgeon, 2006 WI App 143,

¶¶10, 31, 295 Wis. 2d 189, 720 N.W.2d 114, held that a tribunal

that    was    not   impartial   constituted      a   structural    error.    In

Gudgeon, the court of appeals concluded that a "biased tribunal,

like the lack of counsel, constitutes a 'structural error.'"49

       ¶63    In Sullivan, the United States Supreme Court held that

a jury instruction that deprives a defendant of the right to a

jury verdict of guilt beyond a reasonable doubt qualifies as

structural error.50       In Sullivan, the jury instructions provided
a   definition       of   "reasonable        doubt"   that   was    essentially

identical to the one held unconstitutional in Cage v. Louisiana,

498 U.S. 39 (1990) (per curiam).51

       ¶64    The present case is unlike Shirley E., Goodson, or

Sullivan.       In the present case, the defendant was not deprived

of counsel (Shirley E.), did not face a biased tribunal (Gudgeon




       48
       State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771
N.W.2d 385.
       49
            Gudgeon, 295 Wis. 2d 189, ¶10.
       50
            Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993).
       51
            Id. at 277.

                                        25
                                                                      No.     2011AP685-CR



and   Goodson),      and    was    not    deprived      of    his   right     to   a   jury

verdict of guilt beyond a reasonable doubt (Sullivan).52

      ¶65    On   the      basis   of     the    case   law    governing      structural

error, we conclude that the error in the present case simply

does not fit into the general description of a structural error

and   is    unlike   previously          categorized     structural         errors.     We

decline to extend the limited class of structural errors to the

error in the present case, and thus we conclude that the present



      52
       The defendant relies on State v. Mason, 2004 WI App 176,
276 Wis. 2d 434, 687 N.W.2d 526, and State v. Kleven, 2005 WI
App 66, 280 Wis. 2d 468, 696 N.W.2d 226, for the proposition
that the court of appeals has ordered resentencing with respect
to inaccurate information in sentencing without engaging in a
harmless   error analysis.     We  conclude   these  cases  are
distinguishable.

     In Mason, the circuit court erroneously believed the
penalty for the crime was maximum confinement of 40 years. The
correct maximum confinement was 37 years, 6 months. The circuit
court imposed 27 years of confinement.     The court of appeals
ordered resentencing, noting the absence of "a viable harmless
error argument from the State." Mason, 276 Wis. 2d 434, ¶1.

     We read Mason to conclude not that the application of a
harmless error analysis was not necessary, but rather that the
State had failed to meet its burden to prove the error was
harmless. Mason, 276 Wis. 2d 434, ¶¶1, 24 n.4.

     In Kleven, the circuit court improperly calculated the
maximum period of confinement for the defendant's base offense,
without two penalty enhancers.    The court of appeals accepted
the State's concession of error and ordered resentencing.

     We read Kleven to conclude that while a harmless error
analysis would have been proper, the court of appeals did not
apply it because the State did not argue the error was harmless
and the State affirmatively requested a remand for resentencing.
Kleven, 280 Wis. 2d 468, ¶28 n.8.

                                            26
                                                                   No.     2011AP685-CR



case does not involve a structural error requiring automatic

reversal.

       ¶66   Having      determined      that   the     circuit    court     actually

relied upon inaccurate information at sentencing and that the

error is not subject to structural error analysis, we apply a

harmless error analysis.              The burden is on the State to prove

that the error is harmless.53

                                          IV

       ¶67   Harmless error analysis in criminal cases has, for the

most part, been developed and applied to the guilt phase and

less frequently to the sentencing phase.                   The State sets forth

several formulations of the harmless error analysis and asserts

that    under     any    of   the    various    formulations      and    alternative

wordings     of    the    harmless     error    analysis,    the    error     in   the

present case is harmless.54

       53
       Tiepelman,         291       Wis. 2d 179,   ¶9    (citing     Lechner,      217
Wis. 2d at 419).
       54
       The State summarizes this court's approach to harmless
error as follows:

       "Wisconsin's harmless error rule is codified in Wis.
       Stat. § 805.18 and is made applicable to criminal
       proceedings by Wis. Stat. § 972.11(1)."      State v.
       Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248, 750
       N.W.2d 500 (citing State v. Harvey, 2002 WI 93, ¶39,
       254 Wis. 2d 442, 647 N.W.2d 189) (footnote omitted).
       "[I]n order to conclude that an error 'did not
       contribute to the verdict' within the meaning of
       Chapman, a court must be able to conclude 'beyond a
       reasonable doubt that a rational jury would have found
       the defendant guilty absent the error.'"     State v.
       Harvey, 2002 WI 93, ¶48 n.14, 254 Wis. 2d 442, 647
       N.W.2d 189 (quoting Neder v. United States, 527 U.S.
       1, 18 (1999)) (footnote added).     See also State v.
                                          27
                                                   No.   2011AP685-CR




    Stuart, 2005 WI 47, ¶40 n.10, 279 Wis. 2d 659, 695
    N.W.2d 259 (various formulations of harmless-error
    test reflect "alternative wording," citing Neder, 527
    U.S. at 2-3; State v. Weed, 2003 WI 85, ¶29, 263
    Wis. 2d 434, 666 N.W.2d 485; Harvey, 254 Wis. 2d 442,
    ¶48 n.14).     "The standard for evaluating harmless
    error is the same whether the error is constitutional,
    statutory, or otherwise."   Sherman, 310 Wis. 2d 248,
    ¶8 (citing Harvey, 254 Wis. 2d 442, ¶40).         "The
    defendant has the initial burden of proving an error
    occurred, after which the State must prove the error
    was   harmless."     Id.     (citing  Tiepelman,   291
    Wis. 2d 179, ¶3).

         The    harmless   error    rule . . . is  an
         injunction   on   the   courts,   which,  if
         applicable, the courts are required to
         address regardless of whether the parties
         do.   See Wis. Stat. § 805.18(2) (specifying
         that no judgment shall be reversed unless
         the court determines, after examining the
         entire record, that the error complained of
         has affected the substantial rights of a
         party).

    Harvey, 254 Wis. 2d 442, ¶47 n.12.        See Wis. Stat.
    § 805.18 (harmless-error rule, made applicable to
    criminal proceedings by Wis. Stat. § 972.11(1));
    Harvey, 254 Wis. 2d 442, ¶48 n.14 (harmless-error
    test); see also State v. Martin, 2012 WI 96, ¶¶42-46,
    343 Wis. 2d 278, 816 N.W.2d 270 (reviewing harmless-
    error    principles    and    factors);     Stuart,    279
    Wis. 2d 659,   ¶40   n.10   (various    formulations    of
    harmless-error test reflect "alternative wording").
    The harmless-error test applies to claims of [sic]
    that   a   sentencing   court    relied   on    inaccurate
    information when imposing the sentence.         Tiepelman,
    291 Wis. 2d 179, ¶31.

     The court summarized its approach to harmless error as
follows in State v. Weed, 2003 WI 85, ¶¶28-29, 263 Wis. 2d 434,
666 N.W.2d 485:

    In . . . ultimately concluding that any error was
    harmless, the court of appeals appeared to employ a
    sufficiency of the evidence standard:  "Because there
    was sufficient evidence, other than Michael's alleged
                               28
                                                        No.   2011AP685-CR



     ¶68   The State proffers the harmless error test codified in

Wis. Stat. § 805.18(1), which is made applicable to criminal

proceedings   by   § 972.11(1).   Section   805.18(1)    provides    that

"[t]he court shall, in every stage of an action, disregard any

error or defect in the pleadings or proceedings which shall not

affect the substantial rights of the adverse party."

    ¶69    The Wisconsin statutory harmless error formulation is

substantially similar to the one set forth in the Federal Rules




     hearsay statement, to convict Patricia [Weed] beyond a
     reasonable doubt, we hold that any error in the
     admission   of   the    Fuerbringers'   testimony   was
     harmless." State v. Weed, No. 01-1476-CR, unpublished
     slip op., ¶5 (Wis. Ct. App. May 16, 2002).       To the
     extent that the court of appeals relied on a
     sufficiency of the evidence standard, it was in error.

     To assess whether an error is harmless, we focus on
     the effect of the error on the jury's verdict.
     Harvey, 254 Wis. 2d 442, ¶44, 647 N.W.2d 189; see also
     State v. Carlson, 2003 WI 40, ¶87, 261 Wis. 2d 97, 661
     N.W.2d 51 (Sykes, J., dissenting).       This test is
     "'whether it appears "beyond a reasonable doubt that
     the error complained of did not contribute to the
     verdict obtained."'" Harvey, 254 Wis. 2d 442, ¶44, 647
     N.W.2d 189 (quoting Neder, 527 U.S. at 15-16, 119 S.
     Ct. 1827 quoting in turn Chapman, 386 U.S. at 24, 87
     S. Ct. 824). We have held that "in order to conclude
     that an error 'did not contribute to the verdict'
     within the meaning of Chapman, a court must be able to
     conclude 'beyond a reasonable doubt that a rational
     jury would have found the defendant guilty absent the
     error.'"   Id., ¶48 n.14 (quoting Neder, 527 U.S. at
     18, 119 S. Ct. 1827). In other words, if it is "clear
     beyond a reasonable doubt that a rational jury would
     have convicted absent the error," then the error did
     not "'contribute to the verdict.'" Neder, 527 U.S. at
     15, 18, 119 S. Ct. 1827 (citation omitted).

                                  29
                                                                             No.   2011AP685-CR



of Criminal Procedure Rule 52(a).55                         Therefore, federal case law

interpreting Rule 52(a) also provides guidance on this issue.

In   a        review    of    a    sentencing     proceeding,          the    United    States

Supreme Court cited Rule 52(a) in holding that "a remand [for

resentencing]            is       appropriate         unless     the        reviewing      court

concludes,         on    the      record   as     a    whole,        that    the   error     was

harmless, i.e., that the error did not affect the [sentencing]

court's selection of the sentence imposed."56

         ¶70     The State submits that an error is harmless if the

error did not contribute to the sentence,57 that is, if there is

no   reasonable         probability        that       the    error    contributed       to   the

outcome.58

         ¶71     The    State      also    offers       that     for    an     error    to    be

harmless, the beneficiary of the error (here the State) must




         55
              Rule 52(a), Federal Rules of Criminal Procedure:

         (a) Harmless Error. Any error, defect, irregularity,
         or variance that does not affect substantial rights
         must be disregarded.
         56
       Williams v. United States, 503 U.S. 193, 203 (1992). See
also United States v. Burke, 425 F.3d 400, 417 (7th Cir. 2005)
("An error is harmless only if it did not affect the district
court's choice of sentence.").
         57
              Chapman v. California, 386 U.S. 18 (1967).
         58
       State v. Payette, 2008 WI App 106, ¶46, 313 Wis. 2d 39,
756 N.W.2d 423; State v. Groth, 2002 WI App 299, ¶22, 258
Wis. 2d 889,   655  N.W.2d 163 (other language   withdrawn  in
Tiepelman, 291 Wis. 2d 179, ¶¶ 2, 31).

                                                30
                                                           No.    2011AP685-CR



prove that it is clear beyond a reasonable doubt that the same

result would have occurred absent the error.59

       ¶72    The State argues that the error was harmless under any

articulation of the harmless error analysis.

       ¶73    The State can meet its burden to prove harmless error

by demonstrating that the sentencing court would have imposed

the    same    sentence   absent   the    error.    The   State     therefore

correctly relies on the transcript of the sentencing proceeding

in making its argument, and correctly refrains from relying on

the    circuit    court's   assertions     during   the   hearing    on   the

defendant's postconviction motion or speculation about what a

circuit court would do in the future upon resentencing.60


       59
            Harvey, 254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at
18).

     See Tiepelman, 291 Wis. 2d 179, ¶12 ("While not explicitly
addressing the issue of harmless error, the [United States
Supreme Court in Tucker] stated that 'the real question here
is . . . whether the sentence in the 1953 federal case might
have been different if the sentencing judge had known that at
least two of the respondent's previous convictions had been
unconstitutionally obtained.'").

     See United States v. Paulus, 419 F.3d 693, 700 (7th Cir.
2005) (when the district court indicates it would have arrived
at the same sentence regardless of which methodology it used to
calculate the sentence, any error is harmless).
       60
       In State v. Smith, 207 Wis. 2d 258, 262-63, 280, ¶¶2, 3,
37, 558 N.W.2d 379 (1997), the State requested a remand to the
circuit court for a hearing to determine whether the defendant
would have received a different sentence if the prosecutor had
kept his plea agreement promise to make no recommendation on the
sentence.   The supreme court rejected the suggestion to remand
for a hearing that "would necessarily involve speculation and
calculation" by the circuit court. Smith, 207 Wis. 2d at 280.

                                     31
                                                               No.     2011AP685-CR



     ¶74    According to the State, the sentencing court focused

on the defendant's extensive juvenile and criminal record and

the few positive aspects of the defendant's life.                      The State

argues that although the circuit court referred to the mandatory

minimum period of confinement, the sentencing court imposed the

sentence    only    in    light   of   the   factors     the    circuit      court

emphasized at the sentencing proceeding.               The State urges that

the error did not affect the circuit court's selection of the

sentence;   there    is   no   reasonable    probability       that    the   error

contributed   to    the   sentence;    and   that   it   is    clear    beyond   a



     In United States ex rel. Welch v. Lane, 738 F.2d 863 (7th
Cir. 1984), the prosecutor contended that the factual error in
sentencing was harmless because the defendant would be given the
same sentence upon resentencing.   The federal court of appeals
responded that the prosecutor was merely speculating and that it
would have to engage in the same speculation on the potential
outcome. The federal court of appeals explained:

    Once it is established that the [trial] court relied
    on   erroneous   information  in   passing   sentence,
    reviewing courts cannot speculate as to whether the
    same   result  would   again ensue   with  the   error
    corrected.

Id. at 868.

     The United States Supreme Court rejected a similar "what
would a future court do" approach to harmless error. In United
States v. Tucker, 404 U.S. 443 (1972), the prosecutor argued
that in view of the other detrimental information the sentencing
court possessed about the defendant at the time of sentencing,
it was "highly unlikely" that a different sentence would be
imposed in the future even if the two invalid prior convictions
in the record were not considered.    The United States Supreme
Court declared that resentencing was required because it simply
could not be assumed that the sentencing court would again give
the same sentence.

                                       32
                                                                 No.        2011AP685-CR



reasonable doubt that the same sentence would have been imposed

absent the error.

     ¶75    We disagree with the State.

     ¶76    The circuit court in the present case gave explicit

attention to the inaccurate          information,       repeatedly           reminding

itself,    the   prosecuting     attorney,   the    defendant,         and     defense

counsel that the conviction subjected the defendant to a five-

year mandatory minimum period of confinement.

     ¶77    We acknowledge the circuit court's conclusion at the

postconviction motion hearing that the sentence it imposed would

have been the same even if it had not been mistaken about the

mandatory minimum.       We are not, however, bound by the circuit

court's retrospective review of its sentencing decision that was

made almost a year before.

     ¶78    In determining whether the error in the present case

was harmless, we give weight to the fact that the circuit court

believed it was required by law to impose at least a five-year

period of confinement.           The mandatory minimum penalty is, by
statute, ordinarily the baseline for any confinement imposed.

The inaccurate information regarding the mandatory minimum in
the present case unnecessarily limited the sentencing court's

discretion.
     ¶79    If   the   circuit    court    did    not   take     this        five-year

mandatory    minimum    penalty    into    consideration       at      all,    it   was
arguably committing an error of law.              A sentencing court usurps

the legislature's sentencing         role    if    it   refuses        to    impose   a

mandatory    penalty.      Similarly,      it     usurps   the      legislature's
                                      33
                                                                        No.    2011AP685-CR



sentencing role if it imposes a sentence believing there is a

mandatory minimum when there is none.

      ¶80     When the circuit court imposes a sentence with the

misunderstanding that a mandatory minimum period of confinement

applies, the framework for sentencing is thrown off, and the

sentencing court cannot properly exercise its discretion based

on    correct       facts     and     law.          Furthermore,        this    kind    of

misunderstanding of the law violates the defendant's due process

right to a "fair sentencing process" in which the sentencing

"court goes through a rational procedure of selecting a sentence

based on relevant considerations and accurate information."61

      ¶81     We    take      another        factor       into    consideration         in

determining        harmless       error   in      the   present   case.         With   the

enactment of truth in sentencing, "judges have an enhanced need

for    more     complete          information       upfront,      at     the    time    of

sentencing."62       This court has encouraged circuit courts to refer

to information provided by others.63                     Yet in the present case,

inaccurate information infused the information the circuit court
received at sentencing from a variety of sources.                               When the

statements provided to the circuit court at sentencing are based
upon inaccurate information about a mandatory minimum period of



      61
       Tiepelman,           291    Wis. 2d 179,         ¶10   (citing    Townsend,     334
U.S. at 741).
      62
       State v. Gallion, 2004 WI 42, ¶34, 270 Wis. 2d 535, 678
N.W.2d 197.
      63
           Id., ¶34.

                                             34
                                                                       No.       2011AP685-CR



confinement, the circuit            court       does    not    have    the       benefit      of

recommendations or discussions based on accurate information.

        ¶82   At sentencing in the present case, the circuit court

heard    from     the   prosecuting       attorney,       the     defendant,         defense

counsel, and the defendant's mother.                     All those who spoke at

sentencing were under the mistaken impression that a five-year

mandatory        minimum   period     of        confinement        applied          to        the

defendant's conviction.         The circuit court also received a Pre-

Sentence      Investigation     report      (PSI)       from    the        Department         of

Corrections.       The PSI was based on a five-year mandatory minimum

period of confinement.

        ¶83   A circuit court's exercise of discretion in sentencing

may be significantly hindered when it has before it statements

based    on   a    universal   mistake       of    law     regarding         a    mandatory

minimum period of confinement.

        ¶84   We realize that the defendant was sentenced to eight

years of confinement, which is more confinement than the five-

year mandatory minimum.          The fact that the sentence was greater
than the mandatory minimum and within the permissible range is

not determinative of harmless error in the present case.                                 It is
not the actual sentence that determines the constitutionality of

the     sentencing      procedure    in     the    present        case.           When        the
defendant raises a due process challenge to the sentence, this

court     must    consider     whether      the        sentence       is     based       on    a




                                           35
                                                                    No.   2011AP685-CR



foundation of such materially inaccurate information that the

proceedings are lacking in due process.64

      ¶85   We conclude that the error about the mandatory minimum

period of confinement permeated the entire sentencing procedure.

      ¶86   The State has not met its burden of proving the error

harmless.    The State has not demonstrated that the error did not

affect the circuit court's selection of sentence; that there is

no   reasonable    probability    that    the    error       contributed     to   the

sentence; or that it is clear beyond a reasonable doubt that the

same sentence would have been imposed absent the error.65

      ¶87   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.
      ¶88   For the reasons set forth, we affirm the decision of

the court of appeals.        The defendant's sentence must be vacated,
and the case must be remanded for resentencing.

      64
       Tiepelman,     291    Wis. 2d 179,       ¶10       (citing    Townsend,    334
U.S. at 741).
      65
       United States v. Schlifer, 403 F.3d 849, 855 (7th Cir.
2005) ("The government ultimately fails to meet its burden of
demonstrating that, if the district court had known that the
guidelines are advisory rather than mandatory, its choice of
sentence would have been the same.").

                                     36
                                                    No.     2011AP685-CR



     ¶89    By the Court.—The decision of the court of appeals is

affirmed.

    ¶90     Justice DAVID T. PROSSER did not participate.




                                 37
                                                                            No.      2011AP685-CR.pdr


        ¶91     PATIENCE          DRAKE      ROGGENSACK,             J.     (dissenting).             I

conclude       that Lamont          L. Travis          was     lawfully      charged         with    an

attempted violation of Wis. Stat. § 948.02(1)(d);1 pled guilty to

attempting          to    violate     § 948.02(1)(d)               and    was       convicted       and

sentenced for an attempted violation of § 948.02(1)(d), after

being       properly       advised    that     the       statute         contained       a   minimum

period of confinement in prison.                        I also conclude that in order

to   resentence           Travis,    he     must       move    to   withdraw          his    plea    of

attempting to violate § 948.02(1)(d), and prevail on his motion

before the circuit court.                    Resentencing for a crime for which

Travis was not charged or convicted does not vacate the crime of

conviction.              Therefore, I       would       reverse      the     decision         of    the

court of appeals and affirm the conviction and sentencing of the

circuit court.              Accordingly, I respectfully dissent from the

majority opinion.2

                                       I.     BACKGROUND

       ¶92      Travis      was     charged    with       an    attempt         to    have    sexual

contact with a child under the age of 16, T.M.G., contrary to

Wis.        Stat.   § 948.02(1)(d),          which       is    a    Class       B    felony.        On

conviction, he faced a sentence of imprisonment not to exceed 30

years.         Conviction of that charge, through the provisions of

Wis. Stat. § 939.616(2), subjects a defendant to a bifurcated


        1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
        2
       Although I agree with the majority opinion's conclusion
that no structural error occurred, majority op., ¶65, that
agreement does not change my ultimate conclusion that Travis'
conviction and sentencing should be affirmed.

                                                   1
                                                                 No.      2011AP685-CR.pdr


sentence under Wis. Stat. § 973.01, which includes confinement

in prison for at least five years.

        ¶93    The criminal complaint set out facts relevant to a

showing of probable cause for the crime charged against Travis,

who was T.M.G.'s uncle.              T.M.G. told the officer that she was

sleeping on the floor in her grandmother's living room next to a

mattress where Travis was sleeping.                   She said she woke up around

one o'clock in the morning and found her jeans unzipped with the

defendant's hand in her pants and that she slapped his hand away

before he touched her "private area."                     She said that sometime

later    she    awoke       again   to   find   him    rubbing      the    side   of    her

stomach.       She said she then got up and moved away from him to a

couch and pretended to be asleep while he went to the bathroom.

However, when Travis returned, he came to the couch and picked

her up and carried her back to the mattress where he had been

during the prior assault.                When that happened, she told Travis

her head hurt and she went into her grandmother's room.                           T.M.G.

was ten years old at the time of the conduct alleged in the

complaint.

     ¶94       During the plea hearing, the circuit court went over

some parts of the complaint, pointing out to Travis that there

was a potential of 20 years initial confinement and a five year

minimum period of confinement.              When asked if he understood both

of those       factors, i.e.,        the   maximum      and   the    minimum,     Travis

answered       "Yes,    I    understand,    Your      Honor."       During     the     plea

hearing, it was also pointed out that in exchange for his plea,

two other pending charges would be dismissed:                       08CF643, failing

                                            2
                                                            No.    2011AP685-CR.pdr


to register as a sex            offender,      and   08CM2317,    obstructing or

resisting arrest.           Travis acknowledged that he had committed the

conduct underlying those two charges that were being dismissed

but read-in.

        ¶95    At sentencing, the court reminded Travis once again

that the sentence to be imposed must include at least five years

confinement.         The court asked Travis if he understood that, and

again, Travis responded, "Yes, Your Honor."                The court then went

through some of the details of the attempted sexual assault,

pointing out that the child involved was only ten years old at

the time.        The court, relying on the complaint and the Child

Advocacy Center (CAC) interview,3 said:

        When she moved away and went into another room, the
        defendant brought her back into the living room area
        where they had both previously been laying and made
        additional efforts -- or made efforts to touch her at
        that point too.   She was able to demonstrate the way
        he moved his hand down from the top of her shorts to a
        location halfway between her waistband to her vagina.
        Later in an interview at the CAC, she did confirm that
        his hand did, in fact, reach her pubic area.
        ¶96    The   court    also    talked   about   Travis'    prior   record,
which       included   at    least    eight    prior   convictions     and   three

juvenile adjudications.
     ¶97      The court said that the penalties for Travis' assault

of T.M.G. could be more severe, except that the State chose to

charge Travis with an attempt, rather than a completed sexual


        3
       The Child Advocacy             Center (CAC) interview with T.M.G. is
not in the record, but               the parties agreed the circuit court
could use it. Aside from              what is relayed in the circuit court's
sentencing, I do not know            what information it contains.

                                           3
                                                                          No.   2011AP685-CR.pdr


assault of a child, cutting the maximum penalty in half.                                       The

court pointed out that Travis had "a couple of batteries" and

threats to injure, as well as false imprisonment and second-

degree sexual assault convictions.

       ¶98      The court explained that Travis' attempted assault of

T.M.G. was a very serious offense and protection of the public

was important.             The    court      said     that       the    conviction      required

significant confinement, otherwise the sentence would depreciate

the seriousness of the offense.                      The court then sentenced Travis

to eight years of initial confinement, followed by ten years of

extended supervision.                 The court ordered that the sentence be

consecutive        to    the     sentence     that      he   was       serving    for    a   2000

sexual assault conviction.                   The court also ordered that he have

no further contact with T.M.G.

       ¶99      Subsequently, Travis moved the court to conclude that

he was sentenced based on inaccurate information because the

crime that he was charged with was not that crime described or

designated in the complaint, but rather, it was a violation of

Wis. Stat. § 948.02(1)(e), which does not include the use or

threat     of      force   or     violence       and    has       no    minimum     period      of

confinement.            For the first time at that hearing, the State,

with   a     new    district          attorney       appearing,         said    there    was   no

allegation of the use or threat of force or violence.                                          The

complaint       was     not reviewed,         and     the    court       seemed    to    proceed

based on the assumption of the State and defense counsel.

       ¶100 The court said that if there were an error in the

factual      allegations         in    the   charge,        it    did    not    result    in   an

                                                 4
                                                                  No.   2011AP685-CR.pdr


erroneous sentence because the court would have given the same

sentence even if there had not been a mandatory minimum for the

crime of conviction.             The court explained,

        So from the Court's perspective, the existence or
        nonexistence of a mandatory minimum sentence is of no
        consequence to this Court in its determination of what
        was an appropriate sentence [here]. Had that been the
        case, the Court, I'm sure, would have indicated to the
        defendant that, "Because of the mandatory minimum and
        the existence of it and the Court's belief, I am going
        to give you five years which is the mandatory minimum
        here because the law requires that," and that
        certainly wasn't the case.   . . .  And I don't think
        it's reasonable to suppose, nor can this Court support
        in any way, that the five-year mandatory minimum,
        which was believed to be in effect, had any bearing
        whatsoever on the imposition of the eight years of
        initial confinement. . . .   [T]he sentence would not
        have changed because of the existence or nonexistence
        of the mandatory minimum.
        ¶101 The       court     of   appeals    reversed.         It    ordered     new

sentencing based on a conviction for another attempted violation

of Wis. Stat. § 948.02(1)(e), without examining the facts set

out in the complaint and without Travis moving to withdraw his

plea.     The court of appeals did not discuss what conduct may

encompass the use or threat of force or violence when a child is

the     victim     and      an   adult   is     the    perpetrator       and   whether

reasonable inferences from the facts set forth in the complaint

satisfied statutory requirements of § 948.02(1)(d).                         The court

of appeals also did not address whether the plea that resulted

in Travis' conviction could be vacated without a motion to do so

by    Travis     and    a   determination       that   manifest     injustice      would

result if permission to withdraw the plea were not afforded.



                                            5
                                                             No.   2011AP685-CR.pdr


                                 II.    DISCUSSION

                            A.    Standard of Review

      ¶102 Whether the facts alleged in a criminal complaint are

sufficient to show probable cause that the crime stated in the

complaint was committed is a question of law for our independent

review.     State v. Robins, 2002 WI 65, ¶20, 253 Wis. 2d 298, 646

N.W.2d 287.     Whether an adult who picks up a ten-year-old child

who has moved away from the scene of an attempted sexual assault

and carries her back to the place of that attempt is encompassed

with "use or threat of force or violence" as set out in Wis.

Stat. § 948.02(1)(d) is a question of statutory interpretation

that requires our independent review; however, we benefit from

the prior discussion of the court of appeals and the circuit

court.      Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309

Wis. 2d 541, 749 N.W.2d 581.

                     B.    Sufficiency of the Complaint

      ¶103 To       determine      whether    a      criminal      complaint    is

sufficient, we examine the document to determine "whether there
are facts or reasonable inferences [therefrom] set forth that

are sufficient to allow a reasonable person to conclude that a

crime was probably committed and that the defendant probably

committed it."       State v. Reed, 2005 WI 53, ¶12, 280 Wis. 2d 68,

695 N.W.2d 315.           The complaint is sufficient if it addressed

five questions:        "(1) Who is charged?; (2) What is the person

charged with?; (3) When and where did the alleged offense take

place?; (4) Why is this particular person being charged?; and

(5)   Who    says   so?    or    how   reliable   is   the   informant?"       Id.

                                          6
                                                                             No.       2011AP685-CR.pdr


(internal quotation marks and citation omitted).                                        The test is

one of "minimal adequacy, not in a hypertechnical [evaluation]

but   in     a    common      sense       evaluation."              Evanow       v.    Seraphim,     40

Wis. 2d 223, 226, 161 N.W.2d 369 (1968).

       ¶104 Here,           the     complaint        charges         Travis        with      attempted

violation of Wis. Stat. § 948.02(1)(d), sexual contact with a

person under 16 years of age, by the use or threat of force or

violence.             The    complaint         states        that    the     alleged         attempted

assaults         took      place    on    or    about         March 24,      2009       in     Kenosha,

Wisconsin.            It alleges that Travis repeatedly attempted to touch

T.M.G.'s pubic area.                  When T.M.G. moved away from Travis, he

went to where she had moved and carried her back to the place of

the prior attempted sexual assaults and again attempted to touch

her pubic area.               T.M.G. was Travis' niece and ten years old at

the time of the attempted sexual assaults.                                   The complaint was

based on law enforcement reports and citizen informants.

       ¶105 At         neither      the    plea      hearing        nor     at     sentencing       did

Travis assert that the complaint was insufficient to support the

charge that he attempted to sexually assault T.M.G. by the use

or threat of force or violence.                              However, he now assumes that

the facts alleged in the complaint and the reasonable inferences

therefrom are not sufficient to support an alleged use or threat

of force or violence in the attempted sexual assaults of T.M.G.

He    does       so    with    no    analysis           of    the    complaint.              With   the

exception of a brief comment at oral argument, the State seems

to    give       little        thought         or    push-back         to        his     contention.

Accordingly,           I    construe      Wis.      Stat.      § 948.02(1)(d)             to    analyze

                                                    7
                                                                       No.   2011AP685-CR.pdr


whether     there      are       sufficient          factual     allegations           in     the

complaint to support this statutory requirement of conviction.

                      C.    Wisconsin Stat. § 948.02(1)(d)

     ¶106 Wisconsin Stat. § 948.02(1)(d) provides:                            "Whoever has

sexual contact with a person who has not attained the age of 16

years by use or threat of force or violence is guilty of a Class

B felony if the actor is at least 18 years of age when the

sexual    contact      occurs."          What       conduct     constitutes            "use    or

threat    of      force     or     violence"         can    vary    depending          on     the

circumstances under which the sexual assault occurs.

    ¶107 The use or threat of force or violence is to be read

in the disjunctive.           See State v. Baldwin, 101 Wis. 2d 441, 447-

54, 304 N.W.2d 742 (1981).                 Conduct or words that attempt to

compel submission of the victim to the acts of the perpetrator

satisfy     the    standard        of    the        "use   or    threat      of    force       or

violence."        See id. at 451.              As we said, "any conduct coming

within    that     generalized          force       concept     need    not       be   further

particularized."           See id.
     ¶108 What conduct or words may constitute an attempt to

compel    the     victim      to     submit         will    vary,     depending        on     the

circumstances of the assault.                  Here, the age of the victim is a

factor to be considered.                T.M.G. was only ten years old; Travis

was 37 years old.             The relationship of the perpetrator to the

victim is also a factor.                 Travis was T.M.G.'s uncle, whom she

regarded as a father figure, i.e., someone in a position of

authority      over    her.        The   relative          physical     strength       of     the

perpetrator when compared with that of the victim is also a

                                                8
                                                              No.   2011AP685-CR.pdr


factor.    Here, T.M.G. slapped Travis' hand away and then moved

from the place of the attempted sexual assaults.                    Travis went to

T.M.G.'s chosen location, picked her up and physically carried

her back to his mattress where he attempted a further assault.4

His relationship with T.M.G., as an authority figure, and his

size when compared with ten-year-old T.M.G., permitted him to

overwhelm her choice to move away from him to stop his attempts

at sexual assault.      In picking her up and carrying her back to

his mattress, Travis attempted to compel her submission to his

desires.     Stated otherwise, picking up a young child involves

the use of force by the adult to overwhelm the choice of the

child to prevent access to her body by physically distancing her

from the abuser.

     ¶109 Accordingly,       when     all    of    the    above      factors     are

evaluated,    the    facts   alleged        in    the    complaint,        and   the

reasonable    inferences     therefrom,      are    sufficient        to    support

probable     cause   that    Travis     attempted        to    compel      T.M.G.'s

submission, thereby coming within the statutory phrase, "by use

or threat of force or violence" of Wis. Stat. § 948.02(1)(d).




     4
       That Travis attempted further sexual contact at that time
is found in the discussion of the circuit court. See ¶95. It
is not noted in the complaint, but must have been in the CAC
interview that the court reviewed.    However, the CAC interview
is not in the record.    I have assumed that Travis agrees with
the circuit court's statements because if he did not, it was his
burden to provide the CAC interview for our review. See Lee v.
LIRC, 202 Wis. 2d 558, 560 n.1, 550 N.W.2d 449 (Ct. App. 1996);
Wis. Stat. § 809.15(1).

                                       9
                                                                            No.   2011AP685-CR.pdr


                                      D.    Plea Withdrawal

        ¶110 There         is    no     provision        in   the    statutes       nor   logical

rationale that supports the conclusion that the circuit court

erred       by    sentencing       on      incorrect      information         when      the   court

sentenced the defendant for the crime charged, to which he pled

and of which he was convicted.                          Here, the majority gets around

this problem by saying Travis "pled guilty" to attempting to

violate          Wis.    Stat.     § 948.02(1)(e).5                 However,      the     majority

opinion's attempt to duck Travis' conviction for attempting to

violate § 948.02(1)(d) by saying he pled to a different crime

and then not referring to his actual conviction does not change

the conviction.

       ¶111 If Travis really believes he attempted to violate only

Wis.        Stat.    § 948.02(1)(e)          and        therefore      he    was     incorrectly

sentenced,          he    must   move       to    withdraw      his    plea       and   have   the

information             charging      him        with    an    attempted          violation     of

§ 948.02(1)(d) amended.

       ¶112 Travis can withdraw his plea after sentencing only if

permitting the judgment to remain would be a manifest injustice.

See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707

(1997).          Generally, if a plea is withdrawn, other charges that

were dismissed at the plea will be reinstated.                                     See State v.

Deilke, 2004 WI 104, ¶2, 274 Wis. 2d 595, 682 N.W.2d 945.

        ¶113 Given the burdens that follow an attempt to withdraw a

plea after sentencing, one can see why Travis has not moved to



        5
            Majority op., ¶26.

                                                   10
                                                                 No.   2011AP685-CR.pdr


withdraw his plea.6         However, the majority opinion is willing to

create new law for Travis, a repeating felon with a record of

sexual assaults, and to order the circuit court to sentence him

for a crime of which he was not convicted.                       I do not believe

that the law supports the majority opinion's choice.

                                   III. CONCLUSION

        ¶114 I conclude that Travis was lawfully charged with an

attempted violation of Wis. Stat. § 948.02(1)(d); pled guilty to

attempting       to    violate     § 948.02(1)(d)     and    was       convicted      and

sentenced for an attempted violation of § 948.02(1)(d), after

being       properly    advised    that   the   statute     contained      a   minimum

period of confinement in prison.                I also conclude that in order

to   resentence        Travis,    he   must   move   to   withdraw      his    plea    of

attempting to violate § 948.02(1)(d) and prevail on his motion

before the circuit court.               Resentencing for a crime for which

Travis was not charged or convicted does not vacate the crime of

conviction.           Therefore,   I   would    reverse    the    decision      of    the

court of appeals and affirm the conviction and sentencing of the

circuit court.

      ¶115 Accordingly, I respectfully dissent from the majority

opinion.




        6
       Moving to withdraw his plea subsequent to sentencing will
require examination of the complaint as I have done and may
result in the reinstatement of two charges that were dismissed
due to the plea.

                                          11
    No.   2011AP685-CR.pdr




1
