State v. Cortez Lorenzo Toliver

2014 WI 85

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP393-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Cortez Lorenzo Toliver,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 348 Wis. 2d 263, 831 N.W.2d 824
(Ct. App. 2013 – Unpublished)

OPINION FILED: July 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 3, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Faye M. Flancher

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Jeffrey O. Davis, Matthew C. Vogel, James E. Goldschmidt, and
Quarles & Brady LLP, Milwaukee, and oral argument by James E.
Goldschmidt.

For the plaintiff-respondent, the cause was argued by
Katherine D. Lloyd, assistant attorney general, with whom on the
briefs was J.B. Van Hollen, attorney general.
 2014 WI 85
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP393-CR
(L.C. No. 2009CF459)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 23, 2014
Cortez Lorenzo Toliver,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

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

¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals.1

¶2 The case involves the prosecution of a juvenile

offender in adult court.2 Wisconsin's Juvenile Justice Code

gives adult courts exclusive original jurisdiction over

1
State v. Toliver, No. 2012AP393-CR, unpublished slip op.
(Wis. Ct. App. Apr. 4, 2013).
2
As used in this opinion, "adult court" means a court
operating under the Criminal Procedure Code. "Juvenile court"
refers to a court that is operating under the Juvenile Justice
Code in Wis. Stat. ch. 938.
 No. 2012AP393-CR

juveniles who are alleged to have committed certain serious

offenses. Wis. Stat. § 938.183(1) (2009-10).3 The statute also

gives exclusive original jurisdiction over juveniles who are

alleged to have attempted to commit a violation of Wis. Stat.

§ 940.01 (first-degree intentional homicide). Wis. Stat.

§ 938.183(1)(am).

¶3 A juvenile who is charged in adult court with a

violation of one of the offenses enumerated in § 938.183(1) is

entitled to a preliminary examination under Wis. Stat.

§ 970.032(1). The court must find that "there is probable cause

to believe that the juvenile has committed the violation of

which he or she is accused under the circumstances specified in

s. 938.183(1)(a), (am), (ar), (b), or (c), whichever is

applicable," if the adult court is to retain exclusive original

jurisdiction of the juvenile. Wis. Stat. § 970.032(1) (emphasis

added).

¶4 The issue in this case is whether the record

demonstrates that the adult court made a sufficient probable
cause determination in a § 970.032(1) preliminary hearing when

it said that "there is probable cause to believe a felony has

been committed."

¶5 Cortez Lorenzo Toliver (Toliver) was 16 years old when

he was charged with attempted first-degree intentional homicide

and possession of a dangerous weapon by a person under 18 after

3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

2
 No. 2012AP393-CR

shooting Dontai Gorman (Gorman) in the back. As noted,

attempted first-degree intentional homicide is an offense

enumerated in Wis. Stat. § 938.183(1)(am). Possession of a

dangerous weapon by a person under 18——a misdemeanor——is not.

At the preliminary hearing, Gorman discussed the details of the

shooting, and an investigator with the Racine Police Department

testified that Gorman had identified Toliver as the shooter with

certainty. The circuit court stated that "there is probable

cause to believe a felony has been committed" and ordered a

bindover.

¶6 Toliver later pled guilty to other charges. After

sentencing, Toliver appealed and argued in his reply brief4 that

the circuit court failed to find probable cause of a violation

of the specific crime charged under Wis. Stat. § 938.183(1), as

required by Wis. Stat. § 970.032(1). The court of appeals

declined to address the argument, relying on the rule that

courts generally do not review issues raised for the first time

in reply briefs. Toliver now argues that the circuit court's
probable cause determination was deficient and that the

deficiency may be raised at any point in the proceedings because

it implicates the court's subject matter jurisdiction.

¶7 Although Toliver raises an argument regarding

jurisdiction, we will focus on a narrower issue that disposes of

4
Although Toliver raised the issue of the sufficiency of
the probable cause determination in the circuit court several
months after the preliminary examination, he did not raise the
argument in the court of appeals until his reply brief.

3
 No. 2012AP393-CR

the case. The question we address is whether the record

demonstrates that the circuit court made the requisite finding

of probable cause to believe Toliver committed attempted first-

degree intentional homicide as required by Wis. Stat.

§ 970.032(1).

¶8 We conclude the following.

¶9 First, when a juvenile is charged in adult court with

a violation of one of the offenses enumerated in § 938.183(1),

the juvenile is entitled to a preliminary examination under Wis.

Stat. § 970.032(1) at which the court must find that "there is

probable cause to believe that the juvenile has committed the

violation of which he or she is accused under the circumstances

specified in s. 938.183(1)(a), (am), (ar), (b), or (c),

whichever is applicable," if the adult court is to retain

exclusive original jurisdiction of the juvenile. Wis. Stat.

§ 970.032(1) (emphasis added). This means that the court should

make a specific finding on the record that there is probable

cause to believe the juvenile committed the specific Wis. Stat.
§ 938.183(1) crime charged in the complaint.

¶10 Second, if an adult court's determination of probable

cause in a preliminary examination under Wis. Stat. § 970.032

relates to an unspecified felony and the facts are undisputed,

an appellate court may review the record independently to

determine whether the court did find "probable cause to believe

that the juvenile has committed the violation of which he or she

is accused under the circumstances specified in s.
938.183(1)(a), (am), (ar), (b), or (c), whichever is
4
 No. 2012AP393-CR

applicable." Wis. Stat. § 970.032(1). A reviewing court may

inspect the record ab initio to determine whether there is

sufficient evidence to support a finding of probable cause. Cf.

State v. Roger Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601

(1981). The principal purpose of the specific probable cause

finding is to ensure that the adult court has exclusive original

jurisdiction over the juvenile. This purpose is served if,

under the totality of the circumstances, the court implicitly

finds probable cause for a Wis. Stat. § 938.183(1) crime charged

in the complaint, and the record demonstrates there is probable

cause for that specific offense.

¶11 Third, although the articulation of the probable cause

determination in this case should have been more precise, the

preliminary hearing transcript demonstrates that the circuit

court found probable cause that Toliver committed attempted

first-degree intentional homicide. Gorman testified that

Toliver held a gun to his head, threatened to shoot him, and

then shot him in the back. Toliver did not introduce any
evidence of mitigating circumstances. The circuit court had the

complaint and the information, both of which listed Toliver's

date of birth at the top and contained only one felony charge

and a charge for possession of a dangerous weapon by a person

under 18. Toliver did not object that the court's probable

cause be more specific, and the court did not discharge Toliver

as would be required if it failed to find probable cause for the

specific offense. Thus, the record demonstrates that when the
court found probable cause to believe Toliver committed a
5
 No. 2012AP393-CR

felony, the felony to which the court referred was attempted

first-degree intentional homicide, the only felony with which

Toliver was charged.

¶12 Because we conclude that the circuit court made the

finding required by Wis. Stat. § 970.032(1), we need not reach

the jurisdictional issue. See State v. Castillo, 213

Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (citation omitted) ("An

appellate court should decide cases on the narrowest possible

grounds."). Accordingly, the bindover and prosecution of

Toliver in adult court were not improper.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶13 According to the complaint, on April 11, 2009, Toliver

called Gorman and asked him to play dice so that Toliver could

try to win back money that he lost to Gorman two days earlier.

They met and shot dice for a couple of hours, during which

Gorman won almost all of Toliver's money. According to Gorman,

Toliver said he needed his money to get to Milwaukee and

demanded that Gorman return it. Toliver then produced a handgun
and "racked the slide."5 Gorman turned to run away, and Toliver

shot him once in the middle of the back. Toliver fled, leaving

Gorman lying on the ground with no feeling in his legs. At the

time of the shooting, Toliver was a little over 16 years old.

Gorman was 23.
5
The court of appeals explained that racking the slide
"manually loads the chamber and cocks a semi-automatic pistol."
State v. Toliver, No. 2012AP393-CR, unpublished slip op., ¶2.
Racking the slide puts the round in the chamber so that the gun
is ready to fire and arguably makes an "intimidating sound."
See United States v. Morales, 684 F.3d 749, 753 (8th Cir. 2012).
6
 No. 2012AP393-CR

¶14 About 8:56 p.m., City of Racine police officers were

dispatched to the location of the shooting in Racine. When

Investigator Don Nuttall (Investigator Nuttall) arrived, he

found Gorman on the sidewalk. Gorman told Investigator Nuttall

that "Cortez did this over a dice game." Investigator Nuttall

found Toliver's phone at the scene of the incident and called

Toliver's mother. Soon after Investigator Nuttall spoke with

Toliver's mother on April 12, Toliver called and agreed to come

to the Racine Police Department. When he was informed of his

Miranda6 rights, Toliver asked for an attorney and was arrested.

¶15 Gorman identified Toliver in a photograph array and

said that he was certain that it was Toliver who shot him. On

April 13, 2009, the State filed a complaint charging Toliver

with attempted first-degree intentional homicide contrary to

Wis. Stat. §§ 940.01(1)(a), 939.50(3)(a), and 939.32. The

complaint also charged Toliver with possession of a dangerous

weapon by a person under 18 years of age contrary to Wis. Stat.

§§ 948.60(2)(a) and 939.51(3)(a).
¶16 The Racine County Circuit Court, Charles Constantine,

Judge, held a preliminary hearing on May 7, 2009. Gorman

testified by telephone from a hospital and said that Toliver

shot him in the back and that as a result, he was paralyzed from

the waist down. Gorman testified:

He got angry, like very high tempered, and
started to throw the dice and told me that I was going
to have to give him all of his money back or else he

6
Miranda v. Arizona, 384 U.S. 436 (1966).

7
 No. 2012AP393-CR

would hit me. That was his way of saying shoot me,
you know, otherwise he would shoot me.
Gorman stated that he was unarmed and that during the incident,

Toliver "had the gun to [Gorman's] head." Gorman recounted the

details of the shooting:

[Toliver] pulled out a gun, and I thought he had
kind of pulled up, like he was going to put it——like
he was going to shoot me in the brain or in the head,
and then you know, I kind of got scared, you know? He
was trying to, basically, rob me, so I was kind of
loose, like, scared. I don't be around guns like
that. I didn't believe that he would shoot me at all,
so you know, I turned around and ran with all of the
speed that I had, and he shot me right in the back——

. . . .

He shot me right in the back, and then he went
back. . . . He got his book bag and came up, you
know, he ran. He ran. I'm pretty sure he thought I
was dead.
¶17 Investigator Nuttall also testified that Gorman picked

Toliver's picture out of a photograph array and identified him

as the shooter with certainty. At the end of Investigator

Nuttall's testimony, the State moved for bindover, and the
defense responded with a general objection: "Object to

bindover." The court stated, "I would note, there is probable

cause to believe a felony has been committed. The testimony we

have is from the victim. You have identification. You have a

shooting. Bindover is ordered. I do have an information, two

counts." Toliver waived the reading of the information and

entered pleas of not guilty to both counts. The information to

which the judge referred contained the same two counts as the
complaint: attempted first-degree intentional homicide and

8
 No. 2012AP393-CR

possession of a dangerous weapon by a person under 18. The

information listed Toliver's date of birth next to his name at

the top of the document.

¶18 On July 28, 2009, Toliver filed a petition for reverse

waiver pursuant to Wis. Stat. § 970.032(2).7 The petition

requested an evidentiary hearing and asserted that the case

should be transferred to juvenile court. On September 10, 2009,

Toliver filed a separate motion to reopen the preliminary

hearing, and argued that the circuit court failed to make the

7
"Reverse waiver" refers to the procedure by which an adult
court transfers a case against a juvenile offender to juvenile
court. Wisconsin Stat. § 970.032(2) reads:

(2) If the court finds probable cause to believe
that the juvenile has committed the violation of which
he or she is accused under the circumstances specified
in s. 938.183 (1)(a), (am), (ar), (b) or (c), the
court shall determine whether to retain jurisdiction
or to transfer jurisdiction to the court assigned to
exercise jurisdiction under chs. 48 and 938. The
court shall retain jurisdiction unless the juvenile
proves by a preponderance of the evidence all of the
following:

(a) That, if convicted, the juvenile could
not receive adequate treatment in the criminal justice
system.

(b) That transferring jurisdiction to the
court assigned to exercise jurisdiction under chs. 48
and 938 would not depreciate the seriousness of the
offense.

(c) That retaining jurisdiction is not
necessary to deter the juvenile or other juveniles
from committing the violation of which the juvenile is
accused under the circumstances specified in s.
938.183 (1)(a), (am), (ar), (b) or (c), whichever is
applicable.

9
 No. 2012AP393-CR

specific probable cause finding required by Wis. Stat.

§ 970.032.

¶19 On November 2, 2009, the Racine County Circuit Court,

Faye M. Flancher, Judge,8 held a motion hearing, which included

argument on the motion for reverse waiver and on the motion to

reopen the preliminary hearing. Judge Flancher noted that at

the preliminary hearing, "the Court did have at its disposal the

court file which has Mr. Toliver's name and date of birth in

bold on the face of the criminal complaint." Judge Flancher

stated:

So clearly from this transcript the Court did
indeed find probable cause that Cortez Lorenzo
Toliver, that there was probable cause to support
Count 1, attempted first degree intentional homicide,
and Count 2, possession of a dangerous weapon by a
person under the age of 18.

. . . .

And so the motion to reopen the preliminary
hearing is denied, and the Court does find based on
the preliminary hearing transcript that there is in
fact probable cause based on that record supporting
both Count 1, attempted first degree intentional
homicide, and Count 2, possession of a dangerous
weapon by a child.
The court also denied the motion for reverse waiver.

¶20 On June 3, 2011, Toliver filed a Plea

Questionnaire/Waiver of Rights form in which he pled guilty to

first-degree reckless injury while armed and attempted robbery

8
According to Toliver's brief, Judge Flancher replaced
Judge Constantine after a judicial rotation.

10
 No. 2012AP393-CR

while armed.9 On June 6, 2011, consistent with the plea, the

State filed an amended information charging Toliver with first-

degree reckless injury by use of a dangerous weapon contrary to

Wis. Stat. §§ 940.23(1)(a), 939.50(3)(d), and 939.63(1)(b)

(Count 1), and with attempted robbery with threat of force by

use of a dangerous weapon contrary to Wis. Stat.

§§ 943.32(1)(b), 939.50(3)(e), and 939.63(1)(b) (Count 2). At

the sentencing hearing on July 7, 2011, the State requested that

the court impose a lengthy prison sentence. The court agreed

and imposed consecutive sentences of 20 years of initial

confinement and ten years of extended supervision for Count 1

and seven years of initial confinement and two and a half years

of extended supervision for Count 2. The judgment of conviction

was filed on July 13, 2011.

¶21 On July 27, 2011, Toliver filed a notice of intent to

pursue postconviction relief. In his postconviction motion

filed on December 14, 2011, Toliver requested sentence

modification. The circuit court denied the postconviction
motion in an order filed January 23, 2012. Toliver filed a

notice of appeal on January 31, 2012.

¶22 On appeal, Toliver argued that the circuit court erred

in denying his motion for reverse waiver and erroneously

exercised its discretion with regard to the sentence it imposed.

State v. Toliver, No. 2012AP393-CR, unpublished slip op., ¶1

9
Toliver was 18 years old at the time he filed the plea
questionnaire.

11
 No. 2012AP393-CR

(Wis. Ct. App. Apr. 4, 2013). In addition, Toliver argued in

his reply brief that the circuit court did not comply with Wis.

Stat. § 970.032 because it did not articulate a specific finding

that there was probable cause to believe Toliver committed the

crime with which he was charged. Id., ¶29 n.5. The court of

appeals stated:

We generally do not address arguments raised for the
first time in a reply brief. A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998). We therefore decline to
address Toliver’s argument that the court failed at
the preliminary examination to make the specific
probable cause determination required by § 970.032.
Id. The court of appeals affirmed the circuit court's judgment

of conviction and order denying Toliver's postconviction motion.

Id., ¶29.

¶23 Toliver petitioned this court for review, which we

granted on December 17, 2013.10

10
In his petition for review, Toliver raised two issues:

1. Which prevails: the general rule that a
defect of subject matter jurisdiction may be raised at
any time, or the convention that the Court of Appeals
will not address an argument first raised in a reply
brief?

. . . .

2. Where a Wisconsin court fails to make the
specific probable cause finding required by Wis. Stat.
§ 970.032, does this failure cause the court to lose
subject matter jurisdiction over the criminal
proceeding, necessitating that the juvenile defendant
be discharged?

12
 No. 2012AP393-CR

II. STANDARD OF REVIEW

¶24 Essentially, Toliver argues that the circuit court's

probable cause finding was insufficient under Wis. Stat.

§ 970.032(1) to support the bindover, depriving the adult court

of exclusive original jurisdiction. When the principal facts

are not in dispute or the presiding official failed to make

factual findings at the preliminary hearing, the question of

whether there is sufficient evidence to support a bindover is a

question of law subject to de novo review. See Williams, 104

Wis. 2d at 21-22; see also State v. Dunn, 121 Wis. 2d 389, 398-

99, 359 N.W.2d 151 (1984); State v. Lindberg, 175 Wis. 2d 332,

340-41, 500 N.W.2d 322 (Ct. App. 1993); State v. Blalock, 150

Wis. 2d 688, 697, 442 N.W.2d 514 (Ct. App. 1989). In the

present case, the principal facts adduced at the preliminary

hearing are undisputed. Consequently, we review the preliminary

hearing independently to determine whether the circuit court

adequately determined that there was probable cause to support a

bindover——that is, whether the circuit court determined that
there was probable cause to believe that Toliver committed

attempted first-degree intentional homicide.11

We need not address either question because we conclude that
although the court's articulation of its findings at the
preliminary hearing was not perfect, the record demonstrates
that the circuit court found the specific probable cause
required by Wis. Stat. § 970.032. Thus, our analysis focuses on
the preliminary hearing.
11
We note that the above standards were articulated in the
context of preliminary hearings conducted pursuant to Wis. Stat.
§ 970.03. We conclude that they are applicable to preliminary
hearings conducted pursuant to Wis. Stat. § 970.032 as well.

13
 No. 2012AP393-CR

III. DISCUSSION

¶25 This case centers around the preliminary hearing for a

juvenile in adult court. Thus, we begin with a brief discussion

of the Juvenile Justice Code and the different probable cause

requirements for adults and juveniles in adult court.

A. The Juvenile Justice Code

¶26 The Juvenile Justice Code——Wis. Stat. ch. 938——became

effective on July 1, 1996, after a substantial revision of the

former Children's Code. State v. Kleser, 2010 WI 88, ¶42, 328

Wis. 2d 42, 786 N.W.2d 144; 1995 Wis. Act 77. Chapter 938 is

intended to address juvenile delinquency and to "equip juvenile

offenders with competencies to live responsibly and

productively." Wis. Stat. § 938.01(2). Under Wis. Stat. ch.

938, juvenile courts generally adjudicate cases against

delinquent juveniles ages ten and older. Wis. Stat.

§ 938.12(1). However, adult courts "have exclusive original

jurisdiction over" the crimes enumerated in Wis. Stat.

§ 938.183(1), including attempted first-degree intentional
homicide. Wis. Stat. § 938.183(1)(am).

B. The Differences between Preliminary Hearings for Adults and

Preliminary Hearings for Juveniles in Adult Court

¶27 Wisconsin Stat. § 970.03 is the general statute on

preliminary examinations in circuit court. "A preliminary

examination is a hearing before a court for the purpose of

determining if there is probable cause to believe a felony has

been committed by the defendant." Wis. Stat. § 970.03(1)
(emphasis added). This statute applies to adults charged with
14
 No. 2012AP393-CR

felonies, and to juveniles charged with felonies after they have

been waived by the juvenile court into adult court. The main

purpose of this preliminary examination is "to protect the

accused from hasty, improvident, or malicious prosecution and to

discover whether there is a substantial basis for bringing the

prosecution and further denying the accused his right to

liberty." State v. John Williams, 198 Wis. 2d 516, 527, 544

N.W.2d 406 (1996) (quoting Bailey v. State, 65 Wis. 2d 331, 344,

222 N.W.2d 871 (1974)).

¶28 By contrast, the preliminary examination under Wis.

Stat. § 970.032 is for juveniles prosecuted under original

jurisdiction in adult court. This preliminary examination has a

manifest purpose beyond assuring that the prosecution against a

juvenile is well grounded. It is intended to determine whether

the adult court has exclusive original jurisdiction over a

juvenile who is alleged to have committed a violation of a

specific offense enumerated in Wis. Stat. § 938.183(1)(a), (am),

(ar), (b) or (c). Kleser, 328 Wis. 2d 42, ¶57. Consequently,
the court is required to "determine whether there is probable

cause to believe that the juvenile has committed the violation

of which he or she is accused under the circumstances specified

in s. 938.183(1) . . . ." Wis. Stat. § 970.032(1) (emphasis

added). The statute then provides: "If the court does not make

that finding, the court shall order that the juvenile be

discharged but proceedings may be brought regarding the juvenile

under ch. 938." Id. (emphasis added).

15
 No. 2012AP393-CR

¶29 The juvenile "has a strong incentive . . . to negate

that specific offense during the preliminary examination——to

prevent the state from prevailing on the specific offense

charged, or possibly, to deprive the criminal court of its

'exclusive original jurisdiction.'" Kleser, 328 Wis. 2d 42,

¶60. Moreover, the juvenile may not use a reverse waiver

hearing to contradict the previous finding of probable cause.

Id., ¶68.

¶30 As Kleser suggests, the specific probable cause

determination is designed to ensure that there is probable cause

that the juvenile committed one of the crimes in § 938.183(1),

so that the juvenile is tried in the correct court. Probable

cause to support a bindover exists in such a hearing when there

is a reasonable probability "that the juvenile has committed the

violation of which he or she is accused under the circumstances

specified in s. 938.183(1)(a), (am), (ar), (b) or (c)." Wis.

Stat. § 970.032(1); cf. Dunn, 121 Wis. 2d at 398; Roger

Williams, 104 Wis. 2d at 22-23.
¶31 For Toliver, the specific crime for which the circuit

court needed to find probable cause was attempted first-degree

intentional homicide. See Wis. Stat. § 938.183(1)(am). A

person commits attempted first-degree intentional homicide when

he attempts to "cause[] the death of another human being with

intent to kill that person." Wis. Stat. §§ 940.01(1)(a),

939.32. We turn now to Toliver's preliminary hearing to

determine whether the record demonstrates that the circuit court
made the required probable cause finding.
16
 No. 2012AP393-CR

C. Toliver's Preliminary Hearing

¶32 It is abundantly clear from the transcript of the

preliminary hearing that there was probable cause to believe

Toliver attempted first-degree intentional homicide. Gorman

testified that Toliver threatened to shoot him, held a gun to

his head, and shot him in the back as he tried to get away.

Investigator Nuttall testified that Gorman identified Toliver as

the shooter with certainty. Thus, there was a reasonable

probability that Toliver attempted to cause the death of Gorman

with the intent to kill him. Because probable cause for the

specific charge existed; because attempted first-degree

intentional homicide was the only felony charged in the

complaint; and because Toliver did not introduce any evidence to

support a reduced charge, we conclude that when Judge

Constantine found probable cause to believe Toliver committed a

felony, he made the requisite finding under Wis. Stat. § 970.032

that there was probable cause to believe Toliver committed

attempted first-degree intentional homicide.
¶33 When Judge Constantine concluded that there was

probable cause to believe a felony had been committed, he

referenced the shooting as well as an information he had been

given that contained the charges. He said, "You have

identification. You have a shooting. Bindover is ordered. I

do have an information, two counts." The first count in the

information was the only felony alleged: attempted first-degree

intentional homicide. The second count was possession of a
dangerous weapon by a person under 18. Thus, the judge referred
17
 No. 2012AP393-CR

to a document that alerted him to the fact that the defendant

before him was under 18 and that he was charged with a felony

that sustained adjudication in adult court. In reviewing Judge

Constantine's determination, Judge Flancher noted "that the

Court did have at its disposal the court file which has Mr.

Toliver's name and date of birth in bold on the face of the

criminal complaint." Accordingly, the record demonstrates that

Judge Constantine was aware that Toliver was a juvenile and

found probable cause to believe that Toliver committed attempted

first-degree intentional homicide.

¶34 This might be a different case if Toliver had

introduced evidence of mitigating circumstances to support a

charge that was not consistent with the exclusive original

jurisdiction of the adult court. Toliver had a right and "a

strong incentive" to offer evidence "to negate that specific

offense during the preliminary examination." Kleser, 328

Wis. 2d 42, ¶60. He also had the right to request a specific

probable cause finding or discharge of the juvenile. Had he
done any of these things, it would be difficult to say that

Judge Constantine found probable cause for attempted first-

degree intentional homicide without saying more. This would be

a different case if the judge had specifically stated that he

did not find probable cause to believe Toliver committed

attempted first-degree intentional homicide. However, in the

absence of any mitigating evidence or finding of lack of

probable cause, we conclude that the circuit court's probable

18
 No. 2012AP393-CR

cause determination related to the felony charged and that the

court's finding complied with Wis. Stat. § 970.032.

¶35 While the record demonstrates that Judge Constantine

found probable cause to believe that Toliver committed attempted

first-degree intentional homicide, his finding should have been

more precise.12 Wisconsin Stat. § 970.032(1) requires the court

to "first determine whether there is probable cause to believe

that the juvenile has committed the violation of which he or she

is accused under the circumstances specified in s.

938.183(1)(a), (am), (ar), (b), or (c), whichever is

applicable." Wis. Stat. § 970.032(1) (emphasis added). Thus,

when conducting a preliminary hearing pursuant to § 970.032, the

court should: (1) acknowledge on the record that the individual

being charged is a juvenile; (2) refer to the specific charge or

charges that require adjudication in adult court under Wis.

Stat. § 938.183(1); and (3) state on the record that there is

probable cause to believe the juvenile offender has committed

the specific crime or crimes charged. The legislature intended
that an adult court should be specific in its articulation of

its probable cause finding against a juvenile offender to avoid

appeals such as this one. A general probable cause articulation

will not always have the support of such a clear record to

12
It must be acknowledged that Judge Constantine made his
ruling a little over one year before this court's decision in
Kleser. State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, 786
N.W.2d 144. Kleser emphasized that the finding of probable
cause should address the specific offense charged. Id., ¶57.

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 No. 2012AP393-CR

demonstrate that the judge complied with Wis. Stat.

§ 970.032(1).

IV. CONCLUSION

¶36 When an adult court conducts a preliminary hearing for

a juvenile pursuant to Wis. Stat. § 970.032(1), the court should

state specifically on the record whether it finds probable cause

to believe that the juvenile committed the offense under Wis.

Stat. § 938.183(1) that is charged in the complaint. Although

specificity is strongly preferred, a general probable cause

determination might comply with Wis. Stat. § 970.032(1) if the

totality of the circumstances demonstrates that the court's

finding related to the charged offense under Wis. Stat.

§ 938.183(1). Despite the fact that the court in this case did

not specifically refer to the charged felony under Wis. Stat.

§ 938.183(1)(am), the totality of the circumstances leaves no

doubt that there was probable cause to believe Toliver attempted

first-degree intentional homicide and suggests that the judge

made the specific finding required by Wis. Stat. § 970.032(1).
Thus, the bindover and prosecution of Toliver in adult court

were not improper.

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

affirmed.

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 No. 2012AP393-CR.ssa

¶37 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The

legislature has declared that a circuit court must make

particular findings in a preliminary hearing in order to

establish original adult court jurisdiction over a juvenile.1

See Wis. Stat. § 970.032(1).

¶38 Section 970.032(1) reads as follows:

(1) Notwithstanding s. 970.03, if a preliminary
examination is held regarding a juvenile who is
subject to the original jurisdiction of the court of
criminal jurisdiction under s. 938.183(1), the court
shall first determine whether there is probable cause
to believe that the juvenile has committed the

1
Like the majority opinion, I do not address the issue of
subject matter jurisdiction in the instant case. Majority op.,
¶23 n.10.

Substantial confusion exists in the case law on the meaning
of the terms "jurisdiction," "subject matter jurisdiction,"
"jurisdictional error," and "competence" of the courts. The
jurisprudence concerning subject matter jurisdiction and a
circuit court's competence to exercise its subject matter
jurisdiction is "murky at best." See State v. Bush, 2005 WI
103, ¶16, 283 Wis. 2d 90, 699 N.W.2d 80. See also Xcel Energy
Servs., Inc. v. LIRC, 2013 WI 64, ¶¶62-65, 349 Wis. 2d 234, 833
N.W.2d 665 (Abrahamson, C.J., concurring); Miller Brewing Co. v.
LIRC, 173 Wis. 2d 700, 705 n.1, 495 N.W.2d 660 (1993); Shopper
Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 237, 344 N.W.2d 115
(1984) (Abrahamson, C.J., concurring in part and dissenting in
part).

Compare, e.g., Village of Trempealeau v. Mikrut, 2004 WI
79, ¶8, 273 Wis. 2d 76, 681 N.W.2d 190 ("[T]he subject matter
jurisdiction of the circuit courts cannot be curtailed by state
statute.") with majority op., ¶29 ("The juvenile 'has strong
incentive . . . to negate that specific offense during the
preliminary hearing——to prevent the state from prevailing on the
specific offense charged, or possibly, to deprive the criminal
court of its "exclusive original jurisdiction."'") (citing State
v. Kleser, 2010 WI 88, ¶60, 328 Wis. 2d 42, 786 N.W.2d 144)
(emphasis added).

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violation of which he or she is accused under the
circumstances specified in s. 938.183(1)(a), (am),
(ar), (b), or (c), whichever is applicable. If the
court does not make that finding, the court shall
order that the juvenile be discharged but proceedings
may be brought regarding the juvenile under ch. 938.
Wis. Stat. § 970.032(1) (emphasis added).

¶39 At the defendant's preliminary hearing, the circuit

court failed to make the required statutory finding. Rather,

the circuit court stated the following:

[T]here is probable cause to believe a felony has been
committed. The testimony we have is from the victim.
You have identification. You have a shooting.
(Emphasis added.)
¶40 The circuit court found probable cause to believe "a

felony" had been committed. "A felony" could refer to any

number of crimes, not all of which would support proceedings in

adult criminal court for a juvenile. The circuit court did not

determine that "there is probable cause to believe that the

juvenile has committed the violation of which he . . . is

accused . . ." (emphasis added).

¶41 The majority opinion rewrites the transcript of the
preliminary hearing to conclude that the circuit court made the

required findings. The majority opinion declares, in effect,

that the circuit court did not mean what it said on the record.2

¶42 Unlike the majority opinion, I cannot conclude that

the circuit court complied with Wis. Stat. § 970.032(1). If a

circuit court fails to make the finding required by Wis. Stat.

§ 970.032(1), the statute provides a remedy; it mandates that

the circuit court "shall order that the juvenile be discharged"
2
Majority op., ¶¶32-35.

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(emphasis added). See also State v. Kleser, 2010 WI 88, ¶64,

328 Wis. 2d 42, 786 N.W.2d 144.

¶43 This court should follow the statute. See, e.g.,

State v. Romero-Georgana, 2014 WI 83, ¶85, ___ Wis. 2d ___,

___N.W.2d ___ (Bradley, J., dissenting); State v. Douangmala,

2002 WI 62, ¶4, 253 Wis. 2d 173, 646 N.W.2d 1 (when a statute

"expressly sets forth the remedy to be granted" if a circuit

court "fails to advise a defendant about deportation

consequences as required by [the statute]," the court should

grant the requested remedy).

¶44 For the foregoing reasons, I dissent.

¶45 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

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