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Bucher Law Group, LLC

Sexual assault sentence, charged under wrong crime, warranted reversal

A defendant has a constitutional right to be sentenced based on accurate information in the criminal complaint against him or her. Although a criminal complaint filed by the prosecution is not required to use the exact language of the criminal statute under which the defendant is charged, the complaint must still include the essential facts that make up the offense charged.

If a complaint is missing those essential facts or has mistakenly charged the wrong crime, a conviction may need to be reversed, as in the Wisconsin Court of Appeals case of State v. Travis.

Defendant Pleads to the Wrong Charge

The defendant was charged with attempted first-degree sexual assault of a child under the age of 12, based on an alleged incident in which the defendant purportedly attempted to reach inside his niece's pants, but his hand was slapped away before he touched her genital area.

The defendant pled guilty to the offense as charged, and at the plea hearing the court questioned the defendant as to the incident. His counsel explained that the defendant was drunk during the time of the incident. When asked if he completed the sexual contact, the defendant answered, "not that I recall, Your Honor, no." The prosecution alleged no use or threat of violence in the case. The court also verified that the defendant understood the plea agreement would lead to a minimum of five years in prison. The court then accepted the guilty plea.

Later, the defendant's post-conviction attorney pointed out that the judgment of conviction had actually listed the wrong statute violation. Under the statute charged, the victim had to be under the age of 16 and a defendant must have used or threatened violence.

At the post-conviction hearing, it was noted that the statutory-mandated minimum prison sentence of five years did not apply to the defendant's case, and the court noted that the mistake "ultimately really pervaded the entire file in this case." However, the court held the error to be harmless, and the defendant appealed the decision.

Essential Facts of the Crime Required

The Wisconsin Court of Appeals noted that under the law, for a complaint to meet constitutional standards, the complaint must contain the essential facts that make up the offense charged.

The complaint in this case listed a statute which required the use or threat of violence as an element, but the complaint did not allege any violence. The complaint also did not set forth the statutory language of the crime charged.

Since the complaint did not contain facts that established probable cause that the defendant had violated the sexual assault law charged, the complaint violated the defendant's constitutional rights. The error impacted the fairness and integrity of the judicial proceedings and required reversal of the lower court's denial of the re-sentencing of the defendant.

Protect Your Freedom and Reputation

If you are accused of a sexual assault crime, you may be facing severe penalties as well as consequences in all areas of your life. Seek an attorney with the depth of knowledge and experience necessary to aggressively defend you and protect your rights and reputation

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