¶ 89. {concurring). I agree with the majority's mandate reversing the decision of the court of appeals that reversed the circuit court's order granting Harry Thompson's motion for a new trial and remanding the cause to the circuit court. See majority op., ¶ 13. However, I do not join the majority opinion because unlike the majority, see id., ¶¶ 9, 40, I would decide the issue of whether the mandatory minimum sentence of 25 years, as set forth in Wis. Stat. § 939.616(1) (2005-06),1 applies to Thompson. In particular, because Thompson was charged under the version of Wis. Stat. § 948.02(1)(b) that did not carry a mandatory minimum sentence of 25 years, I would conclude that the mandatory minimum sentence does not apply to Thompson. I would therefore reverse the decision of the court of appeals and remand the cause to the circuit court for sentencing consistent with this concurrence.
¶ 90. As explained by the majority, see id., ¶¶ 27-39, as well as the assistant district attorney at the January 29, 2009, hearing on Thompson's motion for a new trial, see id., ¶ 20, the legislature simultaneously enacted two acts: 2005 Wis. Act 430, which created a mandatory minimum sentence of 25 years for those persons convicted of a violation of Wis. Stat. § 948.02(l)(b), and 2005 Wis. Act 437, which did not create such a mandatory minimum sentence. In this case, the State charged Thompson under the version of § 948.02(l)(b) that did not carry a mandatory minimum sentence.
¶ 91. Both Act 430 and Act 437 renumbered Wis. Stat. § 948.02(1) (2003-04) as Wis. Stat. § 948.02(l)(b) and amended its language. See 2005 Wis. Act 430, § 3; *7072005 Wis. Act 437, § 1. The two versions of § 948.02(1), while enacted on the very same day, are mutually inconsistent. See note to § 948.02(1). Act 430 renumbered Wis. Stat. § 948.02(1) (2003-04) as Wis. Stat. § 948.02(l)(b) and amended it to read: "Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony." 2005 Wis. Act 430, § 3 (emphasis added). By contrast, Act 437 renumbered Wis. Stat. § 948.02(1) (2003-04) as Wis. Stat. § 948.02(l)(b) and amended it to read: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of one of the following:... (b) If the sexual contact or sexual intercourse did not result in great bodily harm to the person, a Class B felony." 2005 Wis. Act 437, § 1 (emphasis added).
¶ 92. For our purposes today, it is significant that Act 430 created Wis. Stat. § 939.617, since renumbered to Wis. Stat. § 939.616,2 effecting a mandatory minimum sentence of 25 years for those persons convicted of either Wis. Stat. §§ 948.02(l)(b) or (c) or 948.025(l)(a). See 2005 Wis. Act 430, § 1. Act 437, however, did not create such a mandatory minimum sentence. See note to Wis. Stat. § 939.616(1) (clarifying that the citations in §939.616(1) to Wis. Stat. §§ 948.02(l)(b) and 948.025(l)(a) are those "affected by 2005 Wis. Act 430").
¶ 93. As the majority aptly notes, the legislature's approval of Act 437, which renumbered and amended the very same statute that Act 430 had renumbered and amended but which did not create a mandatory mini*708mum sentence applicable to such statute, "raises the question whether both provisions existed — as fraternal twins — at the time Thompson was prosecuted." Majority op., ¶ 37. In other words, we are left with the "legitimate questionü" of whether the mandatory minimum sentence of 25 years applies to Thompson in the first instance. See id., ¶ 27.
¶ 94. Unlike the majority, see id., ¶¶ 9, 40, I would definitively answer that legitimate question. To determine whether the mandatory minimum sentence applies to Thompson, I would begin by assessing the allegations of the complaint and information. Because Thompson was charged under the version of Wis. Stat. § 948.02(l)(b) renumbered and amended by Act 437, the act that did not create a mandatory minimum sentence of 25 years, I would conclude that the mandatory minimum sentence does not apply to Thompson.
¶ 95. The State charged Thompson with two counts of first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(l)(b), alleging that on September 6, 2007, and again on September 21, 2007, Thompson had "sexual intercourse with a child under the age of thirteen, [T.L.G., born June 4, 1998], which did not result in great bodily harm to said child." The complaint advised Thompson that a violation of § 948.02(l)(b) is a Class B felony which, pursuant to Wis. Stat. § 939.50(3)(b), subjects Thompson to a term of imprisonment not to exceed 60 years.
¶ 96. The State's allegation that Thompson twice violated Wis. Stat. § 948.02(l)(b) by having sexual intercourse with a child under the age of 13 years, which did not result in great bodily harm to the child, informs us that the State charged Thompson under the version of § 948.02(l)(b) renumbered and amended by Act 437, rather than Act 430. This is so because the version of § 948.02(l)(b) renumbered and amended by Act 437 is *709the version that applies to a victim under the age of 13 years and that differentiates between sexual intercourse that resulted in great bodily harm to the victim and sexual intercourse that did not result in great bodily harm to the victim. See 2005 Wis. Act 437, § 1.
¶ 97. Moreover, it is clear from the record that nobody involved in the case was under the impression that the mandatory minimum sentence applied to Thompson. Specifically, the record indicates that the district attorney did not intend to charge Thompson under the version of Wis. Stat. § 948.02(l)(b) that carried a mandatory minimum sentence, defense counsel was unaware of the mandatory minimum sentence, the circuit court did not advise Thompson of the mandatory minimum sentence, and Thompson was not otherwise aware of the mandatory minimum sentence.
¶ 98. Because I would conclude that the mandatory minimum sentence of 25 years does not apply to Thompson, I would not address the remaining issues of whether the failure to inform Thompson of the mandatory minimum sentence violated either his right to due process or Wis. Stat. § 970.02(l)(a), and if so, whether Thompson was prejudiced by the violation. I further would not address whether defense counsel's failure to discover and inform Thompson of the fact of the mandatory minimum sentence constituted deficient performance. Instead, I would remand the cause to the circuit court for sentencing consistent with this concurrence.
¶ 99. For the foregoing reasons, I respectfully concur.
¶ 100. I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
Because 2005 Wis. Act 433, enacted the very same day as both Act 430 and Act 437, created a different statute that was also numbered Wis. Stat. § 939.617, see 2005 Wis. Act 433, § 15, the Revisor of Statutes Bureau renumbered as Wis. Stat. § 939.616 the Wis. Stat. § 939.617 created by Act 430, pursuant to its authority under Wis. Stat. § 13.93(l)(b). See third note to Wis. Stat. § 939.616.