SCOWIS to Consider Required Notice for Mandatory Minimum

Late last month, the Wisconsin Supreme Court agreed to decide whether a defendant’s conviction should be set aside when he was not informed either by the complaint or by his lawyer that he would be subject to a twenty-five-year mandatory minimum if convicted.  The unpublished Court of Appeals opinion in State v. Thompson is here, courtesy of On Point.

Thompson apparently went to trial on a sex assault charge without realizing that he faced the long minimum sentence.  Although this seems like a rather big thing to spring on a defendant only after he has been convicted, it is not at all clear there is a viable legal theory to support post-conviction relief on this basis.

The court will consider three possibilities:

Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson’s constitutional due process rights.

Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence, therefore entitling Thompson to a new trial.

Whether the court of appeals exceeded its authority and neglected to adhere to prior precedent when it decided issues of ineffective assistance of counsel.

The difficulty with all of these theories, I think, is that Thompson has presented no evidence of prejudice.  For instance, compare Thompson with the U.S. Supreme Court’s pending case Lafler v. Cooper (No. 10-209):

Cooper was charged with assault with intent to murder. The state offered a deal that would result in a minimum term of imprisonment of 51-85 months. As a result of a misunderstanding about the law, Cooper’s lawyer was apparently optimistic that he could beat the charge at trial. Based on counsel’s advice, Cooper rejected the plea deal. He was convicted as trial and sentenced to a minimum term of 185 months. Now, in federal habeas proceedings, Cooper seeks relief based on ineffective assistance of counsel.

(The summary comes from my earlier post on Lafler.)  Thus, the defendant in Lafler is able to point to an actual favorable plea offer that was unwisely rejected.  Thompson, however, apparently rests on a more general claim that he would have pursued plea negotiations more vigorously if he had really known what was at stake.  I’m not sure how credible this is, though, given that Thompson did know he was facing up to sixty years in prison; given this exposure, why would anyone hold back in plea negotiations?

Depending on the way the U.S. Supreme Court opinion is written, a loss by the defendant in Lafler might knock the legs out from under Thompson’s ineffective assistance argument.  On the other hand, Lafler‘s habeas setting might lead to a narrowly written opinion that gives room for the Wisconsin Supreme Court to head in a different direction.

Of course, whatever happens to the ineffective assistance argument in Lafler, Thompson’s other two claims will still remain to be decided.