2018 WI 51
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2328-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Shaun M. Sanders,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 248, 895 N.W.2d 41
PDC No: 2017 WI App 22 - Published
OPINION FILED: May 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 5, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Jennifer Dorow and Lee S. Dreyfus, Jr.
JUSTICES:
CONCURRED: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON,
J. (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Craig M. Kuhary and Walden & Schuster, S.C., Waukesha.
There was an oral argument by Craig M. Kuhary.
For the plaintiff-respondent, there was a brief filed by
Kevin M. LeRoy, deputy solicitor general, with whom on the brief
were Brad D. Schimel, attorney general; Misha Tseytlin,
solicitor general; and Ryan J. Walsh, chief deputy solicitor
general. There was an oral argument by Kevin M. LeRoy.
2018 WI 51
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2328-CR
(L.C. No. 2013CF1206)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAY 18, 2018
Shaun M. Sanders, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals affirming the
Waukesha County Circuit Court's judgment of conviction1 and order
denying postconviction relief2 to Shaun Sanders. State v.
Sanders, 2017 WI App 22, 375 Wis. 2d 248, 895 N.W.2d 41.
1
The Honorable Jennifer Dorow presided over Sanders' trial
and sentencing.
2
The Honorable Lee S. Dreyfus, Jr. presided over Sanders'
postconviction proceedings.
No. 2015AP2328-CR
¶2 Sanders raises a single issue for our review: do
circuit courts possess statutory competency3 to proceed in
criminal matters when the adult defendant was charged for
conduct he committed before his tenth birthday?
¶3 We hold that circuit courts possess statutory
competency to proceed in criminal matters when the adult
defendant was charged for conduct he committed before his tenth
birthday. The defendant's age at the time he was charged, not
his age at the time he committed the underlying conduct,
determines whether the circuit court has statutory competency to
hear his case as a criminal, juvenile delinquency, or JIPS
matter. Consequently, the circuit court in this case possessed
statutory competency to hear Sanders' case as a criminal matter
because he was an adult at the time he was charged. Therefore,
his counsel did not perform deficiently by failing to raise a
meritless motion. Accordingly, we affirm the court of appeals.
3
The concepts of statutory competency and subject matter
jurisdiction are often conflated. Kett v. Cmty. Credit Plan,
Inc., 228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786 (1999). We discuss
the concepts of competency and subject matter jurisdiction in
greater detail in paragraphs 19-24 below. Briefly stated,
statutory competency is the concept that the legislature may
prescribe how courts may address particular types of cases such
as those involving juveniles alleged to be in need of protection
or services, as opposed to those involving criminal defendants.
2
No. 2015AP2328-CR
I. BACKGROUND
A. Statutory Background
¶4 In order to understand this case, one must understand
the three forms of statutory competency exercised in Wisconsin
over those accused of committing criminal conduct.
¶5 A person who is 17 years of age or older is subject to
a criminal proceeding. See Wis. Stat. § 938.02(10m) (2013-14).4
A person convicted in a criminal proceeding may be subject to
confinement in the state prison system or a county jail, fines,
or probationary supervision. See Wis. Stat. §§ 973.01, 973.03,
973.05, 973.09.
¶6 A juvenile5 "10 years of age or older who is alleged to
be delinquent" is subject to a juvenile delinquency proceeding.
Wis. Stat. § 938.12(1). A juvenile adjudged delinquent may be
subject to, inter alia, placement in a juvenile correctional
facility or juvenile portion of a county jail, forfeiture,
suspension of driving privileges, counseling, supervision,
electronic monitoring, restitution, supervised work or community
service, or drug testing. Wis. Stat. § 938.34.
4
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
5
For purposes of the juvenile justice code, a juvenile is
"a person who is less than 18 years of age, except that for
purposes of investigating or prosecuting a person who is alleged
to have violated a state or federal criminal law or any civil
law or municipal ordinance, 'juvenile' does not include a person
who has attained 17 years of age." Wis. Stat. § 938.02(10m).
3
No. 2015AP2328-CR
¶7 A juvenile "under 10 years of age [who] has committed
a delinquent act" is subject to a JIPS6 proceeding. Wis. Stat.
§ 938.13(12). A juvenile adjudged in need of protection or
services may be subject to all of the dispositions available for
those adjudged delinquent, except placement in a juvenile
correctional facility or juvenile portion of a county jail,
forfeiture, suspension of driving privileges (unless the JIPS
matter involves habitual truancy), and placement in a facility
for treatment of a developmental disability or mental illness
unless the juvenile suffers from one of those conditions. Wis.
Stat. § 938.345.
B. Factual and Procedural Background of Sanders' Case
¶8 Starting when Sanders was around eight or nine years
old, and his younger sister H.S. was six or seven years old,7 he
would ask for a "peek," which meant H.S. was expected to lift
her shirt and expose her breasts. As time elapsed, peeks
progressed to include Sanders touching and sucking H.S.'s
breasts, and eventually Sanders forcing oral sex on H.S.
6
JIPS is an abbreviation for "juvenile in need of
protection or services." See State v. Jeremiah C., 2003 WI App
40, ¶1, 260 Wis. 2d 359, 659 N.W.2d 193.
7
The evidence introduced at trial was unclear as to whether
the illegal conduct started when Sanders was eight or nine.
H.S. testified that it began when she was six or seven, which
would make Sanders eight or nine because he is approximately two
years older than H.S. See also infra, ¶¶25-27. Whether the
illegal conduct began when Sanders was eight or nine is
irrelevant because, in either event, he was less than ten years
old and thus would have been subject to a JIPS proceeding at
that time.
4
No. 2015AP2328-CR
¶9 The abuse stopped when Sanders was 18 and H.S. was 16.
H.S.'s boyfriend, R.N., heard Sanders request a peek while R.N.
was Skyping8 with H.S. H.S. immediately terminated the Skype
call, and reconnected approximately one minute later. H.S. told
R.N. what it meant when Sanders requested a peek, but swore him
to secrecy. R.N. told a school official about the incident a
few months later. The school reported the allegations to the
local police, who then launched an investigation.
¶10 The district attorney charged Sanders with four counts
of criminal misconduct: (1) repeated sexual assault of a child
contrary to Wis. Stat. § 948.025(1)(a)9 for conduct occurring
between September 26, 2003, and June 5, 2006; (2) repeated
sexual assault of a child contrary to § 948.025(1)(e) for
conduct occurring between September 26, 2008, and September 25,
2012; (3) incest contrary to Wis. Stat. § 948.06(1) for conduct
occurring between September 26, 2008, and September 25, 2012;
and (4) child enticement contrary to Wis. Stat. § 948.07(1) for
conduct occurring between September 26, 2008 and September 25,
8
Skype is a software program that allows users to
communicate in real time over the internet through video, audio,
and instant messaging.
9
The complaint does not specify which version of the
statutes it applies to Sanders. We note that the State appears
to have charged Sanders based on the version of the statutes in
effect at the time the conduct occurred because the complaint
lists count one as a class B felony, but count one became a
class A felony in 2008. See 2007 Wis. Act 80, § 14. In any
event, the specific version of the statutes underlying Sanders'
charges is not important to our disposition of the issue before
us.
5
No. 2015AP2328-CR
2012. According to the information filed by the State, Sanders
was 910 through 12 years old during the time period charged in
count one and 14 through 18 years old during the time periods
charged in counts two through four. Sanders was 19 years old
when the charges were filed.
¶11 At the close of the State's case-in-chief, Sanders'
counsel moved for an order to dismiss count one, repeated sexual
assault of a child contrary to Wis. Stat. § 948.025(1)(a) for
conduct occurring between September 26, 2003, and June 5, 2006.
Counsel based his motion on lack of evidence. Specifically,
Sanders' counsel argued that the State did not present any
evidence that Sanders had been sexually gratified by peeks
during the time period charged in count one, when he was either
eight or nine to 12 years old.11 The circuit court understood
the issue to be one of jurisdiction, rather than evidence or
competency, and took the motion under advisement. The jury
acquitted Sanders of count one, but convicted him of counts two
through four. The circuit court never addressed the merits of
Sanders' motion to dismiss count one.
10
As noted in footnote 7, there was some discrepancy at
trial as to whether Sanders was eight or nine when the illegal
conduct began. Also as noted in footnote 7, the precise age is
irrelevant.
11
In order to convict a defendant of repeated sexual
assault of a child contrary to Wis. Stat. § 948.025(1)(a), the
State must prove beyond a reasonable doubt that the defendant
engaged in sexual contact "for the purpose of sexually degrading
or sexually humiliating the complainant or sexually arousing or
gratifying the defendant." Wis. Stat. § 948.01(5)(a).
6
No. 2015AP2328-CR
¶12 Sanders brought a postconviction motion alleging,
inter alia, that his trial counsel was ineffective for failing
to bring a pre-trial motion to dismiss count one. Even though
Sanders was acquitted of count one, he alleged that he was
prejudiced because the inclusion of count one allowed evidence
of acts taking place between September 26, 2003, and June 5,
2006, to be admitted that would have been irrelevant and,
therefore, presumably excluded, if count one had been dismissed.
Specifically, Sanders confessed to police and testified at trial
that he engaged in peeks with H.S. when he was eight to nine
years old, but the peeks ended after one month and never
progressed beyond viewing H.S.'s breasts.12 Sanders argued that
his confession would have been irrelevant, and thus
inadmissible, without count one. He argued that he was
prejudiced because the confession added credibility to H.S.'s
testimony and detracted from what his defense would otherwise
have been but for count one; specifically, that the peeks never
happened.
¶13 The circuit court denied Sanders' postconviction
motion. Relying on our reasoning in State v. Annala, 168 Wis.
2d 453, 484 N.W.2d 138 (1992), the circuit court concluded that
the defendant's age at the time he is charged, not his age at
the time the underlying conduct occurred, determines whether
12
In the same police interview where Sanders confessed to
engaging in peeks for one month, Sanders confessed to further
sex acts with H.S. However, the circuit court suppressed that
part of the interview.
7
No. 2015AP2328-CR
charges are properly brought as a criminal, juvenile
delinquency, or JIPS matter. Because a pre-trial motion to
dismiss count one would have been meritless, the court concluded
that trial counsel did not perform deficiently for failing to
bring such a motion.
¶14 Sanders appealed. The court of appeals first
clarified that the issue raised was one of statutory competency,
not jurisdiction. Sanders, 375 Wis. 2d 248, ¶¶12-13. The court
of appeals next noted that challenges to a circuit court's
statutory competency can be forfeited. Id., ¶14. Thus, the
court of appeals viewed the case through the lens of ineffective
assistance of counsel for failure to bring a motion to dismiss
because Sanders' trial counsel never raised competency as an
issue. Id. The court of appeals affirmed, concluding that the
circuit court did have statutory competency to hear Sanders'
case in adult criminal court for conduct committed before he was
ten years old. Id., ¶29.
¶15 Sanders petitioned this court for review, which we
granted on June 12, 2017.
II. STANDARD OF REVIEW
¶16 Whether circuit courts possess statutory competency is
a question of law we review de novo. City of Eau Claire v.
Booth, 2016 WI 65, ¶6, 370 Wis. 2d 595, 882 N.W.2d 738.
¶17 "Whether a defendant received ineffective assistance
of counsel is a mixed question of law and fact." State v.
Maday, 2017 WI 28, ¶25, 374 Wis. 2d 164, 892 N.W.2d 611. We
uphold the circuit court's findings of fact as to what counsel
8
No. 2015AP2328-CR
did and did not do unless clearly erroneous. Id. Whether those
facts constitute deficient performance and whether such
performance prejudiced the defendant are questions of law we
review de novo. State v. Erickson, 227 Wis. 2d 758, 768, 596
N.W.2d 749 (1999).
III. ANALYSIS
¶18 We first address whether the issue Sanders raises is
one of subject matter jurisdiction or circuit court competency.
We next consider whether Sanders' trial counsel was ineffective
for failing to file a pre-trial motion to dismiss count one. We
hold that the circuit court possessed statutory competency to
hear Sanders' case as a criminal matter. Thus, his counsel did
not perform deficiently by failing to file a meritless motion
seeking to dismiss count one prior to trial.
A. Sanders Alleges His Attorney was Ineffective for Failing to
Challenge the Statutory Competency of the Circuit Court to Hear
His Case as a Criminal Matter.
1. Sanders raises an issue of statutory competency.
¶19 At various points throughout his briefing, Sanders
seems to treat the concepts of statutory competency and subject
matter jurisdiction as identical. Though the concepts are often
conflated, they are distinct. Kett v. Cmty. Credit Plan, Inc.,
228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786 (1999). This distinction
is important because defects in statutory competency can be
forfeited or waived, but defects in subject matter jurisdiction
may always be asserted. Vill. of Trempealeau v. Mikrut, 2004 WI
79, ¶3, 273 Wis. 2d 76, 681 N.W.2d 190.
9
No. 2015AP2328-CR
¶20 Subject matter jurisdiction defines a circuit court's
"ability to resolve certain types of claims." Christine M.
Wiseman & Michael Tobin, Wisconsin Practice Series: Criminal
Practice and Procedure § 1:11, n.2 (2d ed. 2017). Statutory
competency, on the other hand, defines a circuit court's
"ability to undertake a consideration of the specific case or
issue before it." Id.
¶21 Subject matter jurisdiction is defined by our
constitution. Id. Circuit courts have subject matter
jurisdiction over "all matters civil and criminal within this
state . . . ." Wis. Const. art. VII, § 8. We construe this
constitutional grant of power to mean "a circuit court is never
without subject matter jurisdiction." Mikrut, 273 Wis. 2d 76,
¶1.
¶22 In contrast, statutory competency is established by
the legislature. Id., ¶9 ("We have recognized, however, that a
circuit court's ability to exercise the subject matter
jurisdiction vested in it by the constitution may be affected by
noncompliance with statutory requirements pertaining to the
invocation of that jurisdiction in individual cases."). A
circuit court loses statutory competency when the court or a
party fails to abide by a statutory mandate. Id., ¶10. These
statutory mandates include time limits, mandatory release plans
in chapter 980 cases, conditions precedent to modifying child
support orders, and charging repeat OWI offenders criminally
rather than civilly. Id., ¶13 (citations omitted); Booth, 370
Wis. 2d 595, ¶22.
10
No. 2015AP2328-CR
¶23 In this case, Sanders raises an issue of statutory
competency because age limits on criminal, juvenile delinquency,
and JIPS matters both define and restrict how a circuit court
may address the specific case before it, and not whether a
circuit court can hear criminal, juvenile delinquency, or JIPS
matters generally. See Weisman & Tobin, supra, ¶20.
¶24 Unlike challenges to subject matter jurisdiction,
challenges to statutory competency may be forfeited13 or waived.
Id., ¶3. This is so because statutory competency is "a
'narrower concept' involving a 'lesser power' than subject
matter jurisdiction." Id., ¶14 (citing Vill. of Shorewood v.
Steinberg, 174 Wis. 2d 191, 200, 496 N.W.2d 57 (1993)).
Consequently, Sanders forfeited his competency challenge when he
failed to raise it in the circuit court. See Booth, 370
Wis. 2d 595, ¶25. Accordingly, we will consider this issue
through the framework of ineffective assistance of counsel.
Erickson, 227 Wis. 2d at 768. See infra, ¶¶28-30.
13
Though we spoke of "waiver" in Mikrut, we have since
clarified that "forfeiture" is the proper term to describe a
party's failure to raise an issue in the circuit court. Brunton
v. Nuvell Credit Corp., 2010 WI 50, ¶35, 325 Wis. 2d 135, 785
N.W.2d 302. Consequently, when "Mikrut says 'waiver[,]' it
means 'forfeiture.'" City of Eau Claire v. Booth, 2016 WI 65,
¶11 n.5, 370 Wis. 2d 595, 882 N.W.2d 738.
11
No. 2015AP2328-CR
2. Sanders' counsel never challenged the circuit court's
statutory competency to proceed on count one on the basis that
Sanders was eight or nine years old at the time he committed
some of the alleged conduct in that count.
¶25 Sanders' counsel had the opportunity, both before and
during trial, to challenge the circuit court's competency to
proceed on count one, but failed to do so. Sanders' counsel had
sufficient notice that at least some of the alleged conduct
underlying count one occurred while Sanders was eight or nine
years old. The criminal complaint, as well as the information,
provided notice of the time period during which the conduct
recited in count one occurred.
¶26 During trial, testimony from Sanders and H.S.
confirmed that Sanders was eight or nine years old when the
conduct underlying count one started. See Thomas v. State, 92
Wis. 2d 372, 386, 284 N.W.2d 917 (1979) (quoting Hess v. State,
174 Wis. 96, 99, 181 N.W. 725 (1921)) ("[T]he
prosecution . . . may prove the commission of the offense
charged on some other day within a reasonable limitation [of
that stated in the complaint and information]."). Sanders
testified: (1) that he admitted to the investigating officer
that he engaged in peeks, but for only one month approximately
ten years prior to the interview (the interview occurred in
March 2013); and (2) that he was "eight or nine" when the peeks
took place.
¶27 Further, H.S. testified that the peeks began when she
was six or seven years old. Sanders is approximately two years
12
No. 2015AP2328-CR
older than H.S., which means Sanders was eight or nine when the
peeks began.
B. Counsel did not Perform Deficiently by Failing to Challenge
the Circuit Court's Statutory Competency as to Count One.
¶28 A criminal defendant's constitutional right to counsel
is infringed if counsel provides ineffective assistance. State
v. Floyd, 2017 WI 78, ¶36, 377 Wis. 2d 394, 898 N.W.2d 560
(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). A
defendant receives ineffective assistance of counsel if his
counsel both (1) performs deficiently; and (2) that deficient
performance prejudices the defendant. Id.
¶29 Counsel performs deficiently if his conduct "[falls]
below an objective standard of reasonableness" for an attorney
in the same position. Strickland, 466 U.S. at 688. Counsel
does not perform deficiently by failing to bring a meritless
motion. State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546
N.W.2d 406 (1996). In determining whether counsel's performance
was deficient for failing to bring a motion, we may assess the
merits of that motion. See State v. Steinhardt, 2017 WI 62,
¶43, 375 Wis. 2d 712, 896 N.W.2d 700.
¶30 A deficiency is prejudicial if there is a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceedings would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the [proceedings'] outcome." Strickland, 466 U.S.
at 694. If the defendant fails to prove one prong of the
Strickland test (deficient performance or prejudice), then we
13
No. 2015AP2328-CR
need not address the other. Floyd, 377 Wis. 2d 394, ¶37 (citing
Strickland, 466 U.S. at 697).
1. In Wisconsin, it is well-settled that statutory competency
to hear a case as a criminal, juvenile delinquency, or JIPS
matter is determined by the age of the accused at the time the
offense is charged.
¶31 Wisconsin courts have uniformly held that statutory
competency is determined by the age of the accused at the time
charges are filed, not the age of the accused at the time the
underlying conduct occurred. Annala, 168 Wis. 2d 453; State ex
rel. Koopman v. Waukesha Cty. Court, 38 Wis. 2d 492, 157 N.W.2d
623 (1968); D.V. v. State, 100 Wis. 2d 363, 302 Wis. 2d 64 (Ct.
App. 1981).
¶32 We first addressed this issue in Koopman, 38
Wis. 2d 492. The State charged Koopman in criminal court for
conduct that occurred before his 18th birthday.14 Id. at 494.
Koopman filed a writ of prohibition in which he sought to
transfer his case to the Waukesha County Juvenile Court.15 He
did so because he committed the act at an age when he would have
been subject to a juvenile court proceeding. Id.
14
At the time State ex rel. Koopman v. Waukesha Cty. Court,
38 Wis. 2d 492, 157 N.W.2d 623 (1968), was decided, 18 years of
age was the dividing line for juvenile delinquency and adult
criminal court competency. Wis. Stat. §§ 48.02(3), 48.12(1)
(1967-68). The legislature lowered this age to 17 in 1995.
1995 Wis. Act 27, § 2423.
15
At the time Koopman, 38 Wis. 2d 492, was decided, county
courts had exclusive jurisdiction over all juvenile matters.
Wis. Stat. § 253.13(1) (1967-68). County courts were abolished
as part of the court reorganization of 1977. See Wis. Const.
art. IV, § 2; Wis. Stat. § 753.07(1).
14
No. 2015AP2328-CR
¶33 We held that Koopman was properly charged in criminal
court because it was that court that had statutory competency to
proceed in Koopman's case. Id. at 499. Juvenile courts had
"exclusive jurisdiction . . . over any child who [was] alleged
to be delinquent because: (1) he [had] violated any state law
or any county, town, or municipal ordinance." Id. at 497
(quoting Wis. Stat. § 48.12(1) (1967-68)). We reasoned that
"'child' is qualified by the clause 'who is alleged to be
delinquent,' thus setting up two requisites before [juvenile
court] jurisdiction will attach." Id. at 498. Consequently, we
determined that "the statute [excluded] the class of persons
over eighteen at the time of the allegations of delinquency."
Id. Koopman was properly charged in criminal court because he
was 18 years old when the State filed charges.
¶34 We bolstered our holding with two observations.
First, we drew an analogy between competency to hear a juvenile
delinquency matter and competency to waive juvenile court
jurisdiction. Because a juvenile court could waive its
jurisdiction over a juvenile over 16 (thus allowing the juvenile
to be tried as an adult) based on the juvenile's age at the time
charged, then the circuit court's competency to hear a juvenile
delinquency matter in the first place similarly depended on the
defendant's age at the time charged. Id. at 499 (citing Wis.
Stat. § 48.18 (1967-68)). Second, we noted that other aspects
of juvenile court jurisdiction, such as "persons who may be
dependent or neglected," Wis. Stat. § 48.13 (1967-68), applied
only when "their status was called to the attention of the
15
No. 2015AP2328-CR
court" before the person's 18th birthday. Koopman, 38
Wis. 2d at 499-500. These two aspects of the juvenile code are
consistent with a reading of that section such that it applies
only to those who are juveniles when charged.
¶35 The court of appeals subsequently applied the
reasoning of Koopman in D.V., 100 Wis. 2d 363. In that case,
the State filed a juvenile delinquency petition against D.V.
alleging he committed an armed robbery when he was 11 years old.
Id. at 365. However, the State did not file the juvenile
delinquency petition until D.V. was 12 years old. Id. This is
significant because, at the time, the minimum age for juvenile
delinquency proceedings (i.e., the cutoff between JIPS and
juvenile delinquency matters) was 12 years old.16 Wis. Stat.
§ 48.13(12) (1981-82).
¶36 D.V. argued that the circuit court lacked statutory
competency17 to hear the juvenile delinquency petition because
the conduct occurred when his case would have been heard as a
JIPS matter. Id. at 364. The court of appeals concluded that
the circuit court possessed statutory competency and therefore
16
The legislature lowered the minimum age for delinquency
proceedings to ten years old in 1995 Wis. Act 77, § 629.
17
D.V. is among many prior Wisconsin decisions that confuse
jurisdiction and competency. See Booth, 370 Wis. 2d 595, ¶14
(prior "case law did not clearly distinguish between the
concepts of subject matter jurisdiction and competency"). Thus,
though the D.V. court used the term "jurisdiction," the decision
clearly addresses the concept of "competency" and we refer to it
as such.
16
No. 2015AP2328-CR
could proceed with the juvenile delinquency matter. It did so
based on the long-standing principle that it is the person's age
at the time of charging, and not the person's age at the time he
committed the conduct, that determines whether the case will be
heard as a criminal, juvenile delinquency, or JIPS matter. Id.
at 365 (citing Koopman, 38 Wis. 2d at 497-500).
¶37 Later, we had the opportunity to apply the reasoning
of Koopman in Annala, 168 Wis. 2d 453. In that case, Annala
molested an eight-year-old child when he was 15 years old. Id.
at 458. The conduct was first reported to authorities when
Annala was 20 years old, which is when the State filed charges
in criminal court. Id. at 458-59.
¶38 Annala challenged his conviction for the same
substantive reason Sanders challenges his: the circuit court
lacked statutory competency to proceed because the conduct
occurred when he was at an age when he would not be subject to
criminal liability. Id. at 459-60. We affirmed Annala's
conviction because juvenile courts are limited to applying the
juvenile code to juveniles. Id. at 462-63. Simply put, "[t]he
[statutory competency] of the juvenile court is determined by
the individual's age at the time charged, not the individual's
age at the time of the alleged offense." Id. at 463 (citing
Koopman, 38 Wis. 2d at 497-500).
¶39 We bolstered our reasoning with two observations.
First, to preclude adults from being charged for crimes
committed when they were juveniles would serve to implicitly,
but definitively, shorten legislatively-prescribed statutes of
17
No. 2015AP2328-CR
limitation. Id. at 465-66. That is, if the State could not
prosecute adults for conduct committed as juveniles, then the
State would be subject to a time limitation (the time between
commission of the act and the juvenile's 17th birthday), which
the legislature did not contemplate and our court has not
authorized. Id. We did not
think that the legislature intended to allow a minor
who is less than sixteen years old who commits a
serious felony to cajole or manipulate the victim or
conceal the crime or conceal suspected culpability for
the crime until reaching eighteen years of age and
thereby conclusively frustrating the State's ability
to hold him or her accountable for the wrongdoing.
Had the legislature intended to effectuate this
drastic change in the law, it would have done so in an
express and clearly understandable manner.
Id. Second, we noted that any unfairness to defendants is
mitigated by protections afforded by the United States and
Wisconsin Constitutions. Id. at 465.
¶40 As we recognized in State v. Becker, the State
violates a defendant's right to due process when it delays
charging as part of "a deliberate effort to avoid juvenile court
jurisdiction." 74 Wis. 2d 675, 677, 247 N.W.2d 495 (1976). If
a defendant alleges, with particularity, that the State
intentionally delayed filing charges to avoid a juvenile
delinquency proceeding and raises genuine issues of fact, then
the defendant is entitled to a hearing at which the State must
prove that any delay "was not for the purpose of manipulating
the system to avoid" a juvenile delinquency proceeding. State
18
No. 2015AP2328-CR
v. Velez, 224 Wis. 2d 1, 9-11, 589 N.W.2d 9 (1999) (quoting
Becker, 74 Wis. 2d at 678).
¶41 Other jurisdictions that adhere to the rule that a
person's age at the time of charging determines whether a
juvenile or criminal matter is proper apply similar safeguards.
Samuel M. Davis, Rights of Juveniles, § 2:3 n.13 (2018); see
also State v. Isaac, 537 N.W.2d 786, 788 (Iowa 1995) ("The due
process protection in prosecutorial delay cases is available to
defendants to make sure the State will not employ tricks to gain
an advantage over a defendant."); State v. Dixon, 792 P.2d 137,
138 (Wash. 1990) (applying three-part test to determine whether
delay in charging that resulted in loss of juvenile court
jurisdiction violated defendant's right to due process).
2. Our precedent is based upon sound legal reasoning and long-
standing principles of statutory competency.
¶42 A majority of courts addressing this issue are in
accord with the long-standing precedent that Wisconsin has
uniformly applied in these cases. Wayne R. LaFave, Substantive
Criminal Law, § 9.6 (3d ed. Oct. 2017); see also H.D. Warren &
C.P. Jhong, Age of Child at Time of the Alleged Offense or
Delinquency, or at Time of Legal Proceedings, as Criterion of
Jurisdiction of Juvenile Court, 89 A.L.R.2d 506, § 2. LaFave
draws our attention to two cases, in addition to Annala, for
this proposition: United States v. Blake, 571 F.3d 331 (4th
Cir. 2009), and State v. Fowler, 194 A.2d 558 (Del. Super.
1963).
19
No. 2015AP2328-CR
¶43 In Blake, the defendant challenged his indictment as
violating 18 U.S.C. § 503218 because he was 17 years old when the
conduct occurred and 21 years old when he was indicted.
However, the attorney general never certified his case as
fitting any of the code's enumerated criteria. Blake, 571 F.3d
at 343. The Blake court held that certification was
unnecessary. Id. at 344. It noted that the statute applies to
"a person who 'has not attained his twenty-first birthday,'" not
a person who "had not" attained his 21st birthday "at the time
he allegedly violated the law in question." Id. The Blake
court reasoned that the statute's plain meaning requires
certification only when the defendant is indicted while still a
juvenile. Id. (citing United States v. Wright, 540 F.3d 833,
898-39 (8th Cir. 2008)).
¶44 In Fowler, the defendant challenged his criminal
conviction because he was 17 years old at the time the conduct
underlying the charges took place but 27 years old when charged.
194 A.2d 558. The relevant statute established that "[t]he
18
Federal law prohibits prosecution of juveniles for crimes
carrying a maximum penalty of six months or fewer unless the
United States Attorney General certifies that (1) no state
juvenile court has jurisdiction, or the appropriate state
juvenile court refuses jurisdiction; (2) the state does not have
available programs and services adequate for the needs of
juveniles; or (3) the offense charged is a felony with a
substantial federal interest. 18 U.S.C. § 5032 (2000).
For purposes of section 5032, a "juvenile" is "a person who
has not attained his twenty-first birthday". 18 U.S.C. § 5031
(2000).
20
No. 2015AP2328-CR
family court shall have exclusive jurisdiction in all
proceedings . . . (2) concerning any child . . . charged with
having violated any law of this State or any charter, ordinance
or regulation of a sub-division thereof." Id. at 562 (quoting
Del. Code Ann. tit. 10, § 951(2) (1963)). The statutes defined
"child" as "a person who has not yet attained his eighteenth
birthday." Id. at 561 (quoting Del. Code Ann. tit. 10, § 901
(1963)).
¶45 The court reasoned juvenile court jurisdiction applies
only to "[a] child charged." Id. at 562. Because Fowler was
not a child when charged, the court determined that it was not
improper for the State to bring criminal charges against him.
Id.
3. Application to Sanders
¶46 Sanders does not argue that the reasoning of Koopman,
D.V., and Annala is flawed or that they should be overruled.
Rather, he argues that the reasoning of those three cases does
not apply to him because the charges in those cases "jumped"
only one level (i.e., JIPS to juvenile in D.V. and juvenile to
criminal court in Koopman and Annala), whereas his charges
"jumped" two levels (i.e., JIPS to criminal court). Sanders
views juvenile delinquency and criminal matters to be highly
analogous because both punish criminal conduct and attempt to
rehabilitate offenders through various sanctions, including
confinement. He contrasts this with JIPS matters, which
concentrate on rehabilitation, rather than punishment, and do
not allow for confinement. Based on these distinctions, he
21
No. 2015AP2328-CR
argues that the legislature intended ten years to be the minimum
age for criminal conduct such that a person can never be
criminally charged for conduct committed before his tenth
birthday.
¶47 Sanders bases his conclusion on a distinction that
lacks a legal difference. The reasoning that applied to the
charges that "jumped" one level in Koopman, D.V., and Annala
applies just as strongly to Sanders for two reasons: (1) we are
not persuaded that the legislature intended to leave the State
with no recourse when criminal conduct committed before a
person's tenth birthday does not come to light until on or after
the person has reached his 17th birthday; and (2) the
legislature's inaction on statutory competency since Koopman,
D.V., and Annala evinces legislative acquiescence to our
interpretation of the competency statutes.
¶48 First, we are not persuaded that the legislature
intended to leave the State with no recourse when criminal
conduct committed before a person's tenth birthday does not come
to light until on or after the person has reached his 17th
birthday. We are not persuaded now, just as we were not
persuaded in Annala, "that the legislature intended to allow a
minor . . . to cajole or manipulate the victim[,] conceal the
crime[,] or conceal suspected culpability for the crime until
reaching [17] years of age and thereby conclusively frustrat[e]
the State's ability to hold him or her accountable for the
wrongdoing." Annala, 168 Wis. 2d at 465-66. Though Annala
addressed juveniles over ten years old who are charged as
22
No. 2015AP2328-CR
adults, the reasoning applies in the present case because, like
the defendants in Annala and Koopman, Sanders could not be the
subject of a juvenile delinquency or JIPS matter.
¶49 Sanders could not be the subject of a juvenile
delinquency proceeding because he is no longer a juvenile. The
structure of the relevant statute for juvenile court competency
has remained unchanged since Koopman: "The [juvenile] court has
exclusive [competency] . . . over any juvenile 10 years of age
or older who is alleged to be delinquent." Wis. Stat.
§ 938.12(1). As we reasoned in Koopman, 38 Wis. 2d at 498,
Sanders is too old for juvenile delinquency proceedings because
the statute, by its plain language, applies only to a
"juvenile . . . who is alleged to be delinquent." Because a
juvenile is a person younger than 17 years of age and Sanders
was 19 years old when charged, he could not be the subject of a
juvenile delinquency proceeding.
¶50 Similarly, Sanders could not be subject to a JIPS
proceeding because he is no longer a juvenile under ten years of
age. Circuit courts possess statutory competency in JIPS cases
when a "juvenile is under 10 years of age and has committed a
delinquent act." Wis. Stat. § 938.13(12). Like the juvenile
delinquency competency statute (Wis. Stat. § 938.12(1)), the
JIPS competency statute (§ 938.13(12)) sets out two
prerequisites: (1) the "juvenile is under 10 years of age"; and
(2) the juvenile "has committed a delinquent act." Id. Because
Sanders was no longer "under ten years of age" when he was
charged, he could not be the subject of a JIPS proceeding. Id.
23
No. 2015AP2328-CR
¶51 As the foregoing analysis demonstrates, if Sanders
could not have been criminally charged for the conduct at issue
in this case when 19, then he could not have been charged at
all. If the legislature had wanted this "drastic" result, "it
would have done so in an express and clearly understandable
manner." Annala, 168 Wis. 2d at 466.
¶52 Second, our plain reading of Wis. Stat. §§ 938.12 and
938.13 is bolstered by the legislature's inaction on this issue
since Koopman, D.V., and Annala were decided. If, as Sanders
argues, the legislature intended the minimum age for criminal
responsibility to be ten years old, it could have enacted a
statute establishing as much after Koopman, D.V., or Annala.
State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990)
("Legislative inaction following judicial construction of a
statute, while not conclusive, evinces legislative approval of
the interpretation."). Legislative inaction is more indicative
of acquiescence to prior judicial interpretation when other
provisions within the same section are amended without affecting
the provision at issue. See Tucker v. Marcus, 142 Wis. 2d 425,
434, 418 N.W.2d 818 (1988). This rule is applicable to Sanders'
case because the legislature has not substantively changed the
statutory competency provisions despite making numerous
amendments to related provisions——most notably separating the
juvenile justice code from the children's code. 1995 Wis. Act
77, § 629; see also, e.g., 2005 Wis. Act 344, § 134 (making
stylistic amendment to § 938.12); 2005 Wis. Act 344, § 136
(making stylistic amendment to § 938.13).
24
No. 2015AP2328-CR
¶53 Even though the legislature has not established a
minimum age for criminal responsibility, other safeguards are
built in:
Statutes of Limitations: In situations where the
general six-year statute of limitations for felonies
applies (which is the vast majority of felonies), an
adult cannot be criminally charged for conduct
committed before the person's tenth birthday. See
Wis. Stat. § 939.74(1). Mathematically, at least six
years must elapse between conduct committed before the
person's tenth birthday and the person's seventeenth
birthday.
Mens Rea Elements: Intent elements serve to protect
juveniles who, in the judgment of the jury, could not
form criminal intent. See State v. Stephen T., 2002
WI App 3, ¶13, 250 Wis. 2d 26, 643 N.W.2d 151 ("[T]he
State must prove as an element of the crime that the
perpetrator had the specific intent to touch the
victim for the purpose of sexual arousal or
gratification."). In fact, this protection may have
benefitted Sanders in this case. Though we cannot
know with certainty why the jury acquitted Sanders of
count one, we observe that the jury sent a note to the
circuit court during deliberations questioning whether
a juvenile under 12 years old could form the requisite
intent to perform an act for his own sexual arousal or
gratification.
25
No. 2015AP2328-CR
Inappropriate Filing Delays: Both the United States
and Wisconsin Constitutions protect defendants from
intentional delay by the State when that delay is
calculated to avoid a JIPS or juvenile proceeding.
Becker, 74 Wis. 2d at 677 (citing Miller v. Quatsoe,
348 F. Supp. 764 (E.D. Wis. 1972) ("[W]hen the filing
of the complaint determines juvenile court
jurisdiction, then this filing cannot be delayed in
order to avoid juvenile court jurisdiction unless the
juvenile is granted a hearing with the necessary
constitutional safeguards.")).
¶54 Time has not changed the logic underpinning our prior
opinions on this issue and so we take this opportunity to
reemphasize our holdings therein: the age of the accused person
at the time of charging, not the time he committed the act
underlying the charge, determines whether the case is properly
heard as a criminal, juvenile delinquency, or JIPS matter.
Consequently, any motion to dismiss count one prior to trial
would have been meritless because the circuit court possessed
statutory competency to hear the case as a criminal matter.
Sanders' trial counsel did not perform deficiently because
failure to bring a meritless motion does not constitute
deficient performance. Cummings, 199 Wis. 2d at 747 n.10.
Because we hold that Sanders' counsel did not perform
deficiently, we need not consider the prejudice prong of the
Strickland test. Floyd, 377 Wis. 2d 394, ¶37.
26
No. 2015AP2328-CR
IV. CONCLUSION
¶55 We hold that circuit courts possess statutory
competency to proceed in criminal matters when the adult
defendant was charged for conduct he committed before his tenth
birthday. The defendant's age at the time he was charged, not
his age at the time he committed the underlying conduct,
determines whether the circuit court has statutory competency to
hear his case as a criminal, juvenile delinquency, or JIPS
matter. Consequently, the circuit court possessed statutory
competency to hear Sanders' case as a criminal matter because he
was an adult at the time he was charged. Therefore, his counsel
did not perform deficiently by failing to raise a meritless
motion. Accordingly, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
27
No. 2015AP2328-CR.awb
¶56 ANN WALSH BRADLEY, J. (concurring). I agree with
the court of appeals that "[w]ithout question, the law did not
clearly provide that Sanders could not be prosecuted for
criminal sexual acts he was alleged to have committed prior to
age ten." State v. Sanders, 2017 WI App 22, ¶29, 375
Wis. 2d 248, 895 N.W.2d 41. Neither the legislature nor the
courts have addressed this specific issue.
¶57 As we have previously stated, "failure to raise
arguments that require the resolution of unsettled legal
questions generally does not render a lawyer's services outside
the wide range of professionally competent assistance sufficient
to satisfy the Sixth Amendment." State v. Lemberger, 2017 WI
39, ¶33, 374 Wis. 2d 617, 893 N.W.2d 232 (internal quotations
omitted). Accordingly, I concur in the mandate because the
issue of whether an adult defendant may be charged in adult
court for offenses committed as an eight or nine-year-old was
not sufficiently settled in Wisconsin law.
¶58 I write separately, however, to address the majority's
resolution of this unsettled question. Sanders argues that the
legislature intended ten years to be the minimum age for
criminal conduct such that a person cannot be subsequently
criminally charged as an adult for conduct committed before his
tenth birthday. The jury's response was consistent with
Sanders' argument when it determined that Sanders was not guilty
of allegedly criminal acts engaged in while age eight or nine.
1
No. 2015AP2328-CR.awb
¶59 The majority, nonetheless, interprets the statutory
scheme differently. It concludes that the legislature intends
that criminal liability attaches to conduct engaged in by
children under the age of 10, regardless of whether it is age 4
or 5, 8 or 9, or any other single digit number. Yet, the
majority is unable to point to the specific language in the
statutory scheme that sets forth such a legislative intent.
¶60 From its faulty analysis, the majority divines a
legislative intent from no language at all. In the area where
the legislature has spoken about a child's capacity——negligence—
—it has indicated that a child under seven is "conclusively
presumed" to be incapable of negligence.1 How can the majority
square its asserted legislative intent here where the
legislature has not spoken with the explicit legislative intent
expressed in Wis. Stat. § 891.44? It cannot.
¶61 I determine that it is absurd to conclude the
legislature intended that criminal liability can attach for acts
engaged in by children ages zero-ten. The majority's conclusion
to the contrary defies the purpose and structure of our
statutes, as well as the rationale of prior case law.
I
¶62 Sanders, now an adult, was charged with repeated
sexual assault of the same child for acts committed against his
sister when he was eight or nine years old, as well as three
1
See Wis. Stat. § 891.44.
2
No. 2015AP2328-CR.awb
other offenses. The district attorney brought the charges in
adult criminal court.
¶63 The majority determines that the adult criminal court
had competency to proceed, despite the fact that Sanders was
only eight or nine years old at the time of the alleged conduct.
Majority op., ¶18. In the majority's view, "[t]he defendant's
age at the time he was charged, not his age at the time he
committed the underlying conduct, determines whether the circuit
court has statutory competency to hear his case as a criminal,
juvenile delinquency, or JIPS matter." Id., ¶55. Further, the
majority concludes that this was a point of settled law. Id.,
¶31 (citing State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138
(1992); State ex rel. Koopman v. Cty. Court, 38 Wis. 2d 492, 157
N.W.2d 623 (1968); D.V. v. State, 100 Wis. 2d 363, 302 N.W.2d 64
(Ct. App. 1981)).
¶64 The majority opinion tells us that we are not to worry
about limitless criminal liability for acts committed while
children because there are "safeguards" built into the system.
See majority op., ¶53. Specifically, in the majority's view,
statutes of limitations, mens rea elements, and the rules
regarding inappropriate filing delays serve as a buffer to
inappropriate charges being filed against an adult for conduct
committed as a child. Id.
¶65 Using an illogical progression, the majority reaches
its conclusion. Essentially, if A (JIPS) to B (juvenile court)
3
No. 2015AP2328-CR.awb
is permissible2, and B to C (adult court) is permissible3, then
why should A to C not be permissible? But the majority's logic
does not hold.
II
¶66 The majority would have us believe that the
legislature intended to provide for adult criminal liability for
an act committed between the ages of zero and ten. See majority
op., ¶8 n.7 ("Whether the illegal conduct began when Sanders was
eight or nine is irrelevant because, in either event, he was
less than ten years old and thus would have been subject to a
JIPS proceeding at that time."). The purpose and structure of
our statutes, as well as the rationale of prior case law, say
otherwise.
¶67 The majority's logic in allowing the jump from JIPS
court to adult court does not hold because it is out of step
with the purpose of the laws governing children's liability, the
structure of the JIPS law, and the rationale employed in D.V.
Accordingly, I address each in turn and determine that the
majority's result is not what the legislature intended.
¶68 First, the majority's logic does not hold because it
is out of step with the purpose of the laws governing children's
liability. "The law has historically reflected . . . that
2
See D.V. v. State, 100 Wis. 2d 363, 302 N.W.2d 64 (Ct.
App. 1981).
3
See State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138
(1992); State ex rel. Koopman v. Cty. Court, 38 Wis. 2d 492, 157
N.W.2d 623 (1968).
4
No. 2015AP2328-CR.awb
children characteristically lack the capacity to exercise mature
judgment and possess only an incomplete ability to understand
the world around them." J.D.B. v. North Carolina, 564 U.S. 261,
273 (2011).
¶69 Trends in jurisprudence are increasingly recognizing
that children must be treated differently. "Juveniles are more
capable of change than are adults, and their actions are less
likely to be evidence of 'irretrievably depraved character' than
are actions of adults." Graham v. Florida, 560 U.S. 48, 68
(2010). Parts of the brain involved in behavior control
continue to mature throughout adolescence. Id. The differences
between the child and adult minds make children less morally
culpable. Miller v. Alabama, 567 U.S. 460, 472 (2012).
¶70 Our statutory schemes governing civil and criminal
liability for children reflect these concerns. As an initial
point of comparison, the legislature has definitively spoken
that there is an age at which a child does not have the capacity
to act negligently, and that age is seven. See Wis. Stat.
§ 891.44.4 Yet in the majority's view, a person can be held
criminally liable even after reaching adulthood for an act
committed at that same age. It is absurd that a child can be
ascribed criminal intent at an age where that same child is
"conclusively presumed" to be incapable of negligence.
4
Wis. Stat. § 891.44 provides: "It shall be conclusively
presumed that an infant minor who has not reached the age of 7
shall be incapable of being guilty of contributory negligence or
of any negligence whatsoever."
5
No. 2015AP2328-CR.awb
¶71 As to criminal liability, the statutes evince a
similar underlying policy. From their inception, our laws
addressing juvenile conduct were "not designed as a method of
punishment for crimes committed by juveniles." In re Alley, 174
Wis. 85, 91, 182 N.W.2d 360 (1921). Rather, "[e]very section
and paragraph of the statute is permeated with the benevolent
purpose of improving the child's condition, and not with
punishing his past conduct. The whole object and purpose of
this law will be defeated if it is construed and applied as a
punitive statute." Id. at 91-92.
¶72 Second, the majority's logic does not hold because
there is no statutory procedure for bringing what would be a
JIPS case to juvenile court, much less to adult court. This
stands in stark contrast to the clearly delineated statutory
process for moving cases between juvenile court and adult court.
See Wis. Stat. §§ 970.032, 938.18. Pursuant to § 938.18, either
the district attorney or a juvenile may petition to waive
juvenile court jurisdiction and have a criminal matter against a
juvenile 14 or older who committed certain crimes be heard in
adult court. § 938.18(1) and (2).5 Likewise, pursuant to
5
Wis. Stat. § 938.18 provides, in relevant part:
(1) Waiver of juvenile court jurisdiction; conditions
for. Subject to s. 938.183, a petition requesting the
court to waive its jurisdiction under this chapter may
be filed if the juvenile meets any of the following
conditions:
(a) The juvenile is alleged to have violated s.
940.03, 940.06, 940.225(1) or (2), 940.305, 940.3
1, 943.10(2), 943.32(2), 943.87 or 961. 41(1) on
or after the juvenile's 14th birthday.
(continued)
6
No. 2015AP2328-CR.awb
§ 970.032, an adult court can send a case to juvenile court if
certain criteria are fulfilled.6 No analogous process exists for
moving a case from JIPS court to either juvenile court or adult
court.
(b) The juvenile is alleged to have committed a
violation on or after the juvenile's 14th
birthday at the request of or for the benefit of
a criminal gang, as defined in s. 939.22(9), that
would constitute a felony under chs. 939 to 948
or 961 if committed by an adult.
(c) The juvenile is alleged to have violated any
state criminal law on or after the juvenile's
15th birthday.
6
Wis. Stat. § 970.032 provides:
(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.
7
No. 2015AP2328-CR.awb
¶73 Finally, the majority's logic does not hold because it
is inconsistent with the reasoning of D.V., despite its heavy
reliance on the case. In D.V., 100 Wis. 2d 363, the court of
appeals approved the charging in juvenile court of an offense
committed at the age of 117 based on the juvenile's age at the
time of charging rather than the time of commission. The
court's analysis was driven, however, by the similarities in the
possible dispositions offered by the two statutory schemes at
issue. See D.V., 100 Wis. 2d at 368-70.
¶74 The D.V. court specified that its conclusion was
supported by the contention that "the differences between adult
criminal prosecutions and juvenile delinquency proceedings are
much more substantial than differences between a juvenile
delinquency proceeding and a juvenile proceeding affecting a
child alleged to be in need of protection or services which can
be ordered by the juvenile court." Id. at 368. Following the
D.V. court's lead, a comparison between the available
dispositions had this case been charged as a JIPS matter and the
range of punishment for adult criminal charges is instructive.
¶75 As relevant here, Sanders was charged in count one
with repeated sexual assault of a child as a class B felony.
Conviction of a class B felony subjects an adult to up to 60
7
At the time D.V. was decided, a child "[w]ho, being under
12 years of age, has committed a delinquent act" was considered
to be a child alleged to be in need of protection or services,
or CHIPS. Wis. Stat. § 48.13(12) (1981-82). The current JIPS
statute places the dividing line at ten years of age rather than
twelve. § 938.13(12).
8
No. 2015AP2328-CR.awb
years of imprisonment, with up to 40 years of that time being
initial confinement. Wis. Stat. § 939.50(2)(b);
§ 973.01(2)(b)1. Further, an adult convicted of this offense is
subject to mandatory sex offender registration. See § 301.45.
¶76 In contrast, if the same conduct was addressed in JIPS
court, there would be no "sentence," but only a "disposition."
See Wis. Stat. §§ 938.34, 345. These dispositions are oriented
toward treatment rather than punishment. See In Interest of
Reginald D., 193 Wis. 2d 299, 311-12, 533 N.W.2d 181 (1995).
¶77 In fact, a juvenile adjudged in need of protection or
services may not be placed in "the serious juvenile offender
program juvenile correctional facility or a secured residential
care center for children and youth" or in a "juvenile detention
facility or juvenile portion of a county jail or in nonsecure
custody under s. 938.34(3)(f)." Wis. Stat. § 938.345(1).
Further, sex offender registration of a juvenile is
discretionary with the circuit court, rather than mandatory.
See § 938.345(3). The dispositions available pursuant to a JIPS
order are a far cry from 40 years in prison followed by 20 years
of extended supervision and mandatory sex offender registration.
¶78 A delay in charging thus has the possibility to vastly
increase the punishment for the same conduct. Why should one be
subject to a 60 year sentence rather than a treatment-oriented
disposition because more time has passed since the crime?
¶79 And what of the majority's "safeguards?" See majority
op., ¶53. Do statutes of limitations, mens rea elements, and
the rules regarding inappropriate filing delays prevent the
9
No. 2015AP2328-CR.awb
filing of inappropriate charges against an adult for conduct
committed as a child? Id. These "safeguards" are little
comfort to Sanders. They did nothing to protect him from being
charged and tried, even if he was ultimately acquitted of the
charge related to his conduct as an eight or nine-year-old
child.
¶80 I question whether an eight or nine-year-old child has
the capacity to commit an offense of sexual assault.
Specifically, I question that an eight or nine-year-old can form
the necessary intent for conviction of the sexual assault
offense charged in this case: "for the purpose of sexually
degrading or sexually humiliating the complainant or sexually
arousing or gratifying the defendant." See Wis. Stat.
§ 948.01(5) (2003-04). But I have no doubt whatsoever that the
majority gets it wrong when it concludes that the conduct of
children aged zero-ten may later be subject to criminal
prosecution.
¶81 Finally, the majority rests its conclusion in part on
legislative acquiescence. See majority op., ¶52. We have
stated in the past that legislative acquiescence is a "weak reed
upon which to lean." State v. Hansen, 2001 WI 53, ¶38, 243
Wis. 2d 328, 627 N.W.2d 195; Green Bay Packaging, Inc. v. DILHR,
72 Wis. 2d 26, 36, 240 N.W.2d 422 (1976). It is even weaker
when the case law to which the legislature has supposedly
acquiesced does not stand for the proposition the majority
ascribes to it.
10
No. 2015AP2328-CR.awb
¶82 I urge the legislature to provide increased clarity by
reexamining this area of the law. The purpose and statutory
scheme indicate that the legislature did not intend the
majority's result. The legislature should act to show its true
intention, lest its silence be deemed acquiescence with the
majority's untenable assertion of legislative intent.
¶83 For the foregoing reasons, I respectfully concur.
¶84 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this concurrence.
11
No. 2015AP2328-CR.awb
1