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State v. Sanders

Court of Appeals of Wisconsin, District II

March 15, 2017

State of Wisconsin, Plaintiff-Respondent,
Shaun M. Sanders, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Waukesha County No. 2013CF1206: JENNIFER DOROW and LEE S. DREYFUS, JR., Judges. Affirmed.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Shaun M. Sanders appeals from a judgment of conviction for repeated sexual assault of the same child in violation of WIS. STAT. § 948.025 (2015-16), [1] incest with a child in violation of WIS. STAT. § 948.06(1), and child enticement in violation of Wis. STAT. § 948.07. He also appeals an order denying his motion for postconviction relief.[2]

         ¶2 Sanders argues the circuit court lacked subject matter jurisdiction and competency to prosecute him for criminal conduct he allegedly committed when he was under the age of ten, and his trial counsel performed ineffectively by not moving pretrial to preclude the introduction at trial of evidence related to acts occurring prior to his tenth birthday. Sanders also argues his counsel performed ineffectively by failing to object to the jury instructions and verdict form related to the incest count on the ground they were not specific enough so as to require the jury to unanimously agree on one specific act forming the basis of the sexual element of this count. We reject all of Sanders' arguments and affirm.


         ¶3 The State charged Sanders with four felony counts related to sexual activity he engaged in over several years with his younger sister, H.S. Count one of the Information charged him with committing repeated sexual assaults of H.S. between approximately September 26, 2003, and June 5, 2006, a time period when H.S. was seven to nine years old and Sanders was nine to twelve years old. Counts two, three, and four respectively charged Sanders with committing repeated sexual assault of, incest with, and child enticement of H.S. between approximately September 26, 2008, and September 25, 2012, a time period when H.S. was twelve to fifteen years old and Sanders was fourteen to eighteen years old. A jury trial was held, at which the following relevant testimony was presented.

         ¶4 H.S. testified that in December 2012 she was communicating with her boyfriend via Skype when her brother, Sanders, entered her bedroom and said "peek." H.S. responded by immediately ending her Skype communication, participating in a "peek" with Sanders, and afterward reestablishing Skype communication with her boyfriend. H.S. testified that "whenever [Sanders] came in and demanded with the word 'peek, ' it meant that I was supposed to lift my shirt, and he would suck and fondle and kiss each of my breasts." H.S.'s boyfriend also testified to communicating with H.S. via Skype, Sanders entering H.S.'s bedroom and saying "something about a peek, " H.S. abruptly ending the Skype communication for about "a minute, minute and a half, " and H.S. then reestablishing Skype communication with him.

         ¶5 H.S. testified she was six or seven years old[3] the first time Sanders had her participate in a "peek." She did not remember details, but stated, "All I know is that eventually, it just became something that I did ... [a]nd that I was expected to do." The "peeks" "always involve[d] touching, " and took place in H.S.'s bedroom, Sanders' bedroom, and "[i]f my parents weren't there, it could happen anywhere in the house." Between the time of the first "peek" and December 2012, the "peeks" occurred "[o]ver 200 times."

         ¶6 H.S. confirmed that the "peeks" eventually "led to something else, " and testified to a specific occasion where Sanders took her into the walk-in closet in her bedroom, which had the blinds closed, and "showed" her, as H.S. recalled Sanders stating it, "the proper way to give a blow job." She described the "blow job" as her putting her mouth on Sanders' penis and sucking "until he ejaculate[d] into his shirt." H.S. performed such oral sex on Sanders "[a]round ten" times, in either H.S.'s or Sanders' bedroom, but she "[did] not remember ... times" other than the incident in her walk-in closet. She recalled "[t]here were several times where I would be in the kitchen or I would be downstairs, and he would walk past and tell me that I was expected in his room at a certain time at night when both of my parents were asleep." She would go to his room in response: "Sometimes it would just be a peek, and most of the time, it would be oral sex, or I would watch him masturbate." She stated "[t]here were times where it was every other month, and there were times where it would be every other day." H.S. was "[t]welve or thirteen" the first time she engaged in oral sex with Sanders, and it "stopped" when Sanders went to "boot camp" in May 2012.

         ¶7 In his defense, Sanders testified he did not commit any of the actions to which H.S. testified. Instead, he told the jury that for a one-month period when he was around eight or nine years old, he would ask H.S. "to lift up her shirt and show her breasts." He testified that he called this a "peek, " no contact was involved, it never occurred again after that month, and to his "knowledge" there was never any sexual touching between him and his sister. He stated he did not know at the time that the "peeks" were wrong, "but now I do."

         ¶8 The jury found Sanders not guilty on count one and guilty on counts two through four. He filed a postconviction motion alleging his trial counsel provided him ineffective assistance. The circuit court denied Sanders' motion, and he appeals.


         ¶9 Sanders asserts he was improperly prosecuted on count one because that count included time during which he was under ten years of age and the circuit court lacked subject matter jurisdiction and the competency to exercise that jurisdiction to prosecute him for acts committed prior to age ten. Relatedly, he argues his trial counsel performed ineffectively in failing to challenge count one on these grounds prior to trial. While the jury ultimately did acquit Sanders on that count, he asserts that because the count was not dismissed prior to trial, evidence was admitted at trial specifically related to that count which prejudiced him with regard to the other counts. Sanders also contends his trial counsel performed ineffectively in failing to object to the jury instructions and verdict form related to count three, incest, on the basis the victim testified to multiple instances of sexual contact with Sanders yet the instructions and verdict form did not require the jury to unanimously agree upon which specific sexual act formed the basis of the incest guilty verdict. We affirm Sanders' convictions because we conclude there was no jurisdiction or competency problem with regard to count one and counsel was not ineffective in failing to challenge that count or the jury instructions and verdict form related to count three.

         Sanders' P' re-Age-Ten Conduct

         ¶10 "We independently review questions of subject matter jurisdiction and competency." City of Eau Claire v. Booth, 2016 WI 65, ¶6, 370 Wis.2d 595, 882 N.W.2d 738. With regard to a claim of ineffective assistance of counsel, to be successful, a defendant must show counsel's performance was deficient and the deficiency prejudiced him/her. See State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999). If the defendant fails to prove one prong, we need not address the other. See Strickland v. Washington, 466 U.S. 668, 697 (1984). Whether counsel's performance was deficient or prejudicial is a question of law we review de novo. State v. Jeannie M.P., 2005 WI.App. 183, ¶6, 286 Wis.2d 721, 703 N.W.2d 694.

         ¶11 Before the circuit court and initially on appeal, Sanders' only issue related to count one was that the circuit court lacked subject matter jurisdiction and counsel was ineffective for not raising the matter prior to trial. We sought supplemental briefing from Sanders and the State, asking if the matter is really one of competency, not jurisdiction. In their supplemental briefs, both parties agree the issue they previously addressed as jurisdiction is really an issue of competency. Sanders, however, also maintains the additional position that the circuit court "did not have criminal subject matter jurisdiction on count one ... because it did not allege an offense known to law."

         ¶12 Sanders' contention the circuit court lacked jurisdiction related to count one is a nonstarter. Even though Sanders' trial counsel failed to raise this issue prior to trial, we nonetheless review the matter directly because a challenge to subject matter jurisdiction cannot be forfeited. See Booth, 370 Wis.2d 595, ¶1. In Booth, our supreme court recently reconfirmed in unmistakable and definitive language that "no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Id., ¶18 (quoting Village of Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis.2d 76, 681 N.W.2d 190');">681 N.W.2d 190). Even where a complaint fails to state an offense known to law[4]-the subject matter jurisdiction position Sanders maintains-"the court must retain subject matter jurisdiction to dispose of the matter." Id., ¶17. Here, the circuit court had subject matter jurisdiction.

         ¶13 "A circuit court's ability to exercise its subject matter jurisdiction in individual cases, however, may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction." Id., ¶12 (quoting Mikrut, 273 Wis.2d 76, ¶2). "The failure to comply with these statutory conditions ... may under certain circumstances affect the circuit court's competency to proceed to judgment in the particular case before the court." Id., ¶12 (quoting Mikrut, 273 Wis.2d 76, ¶2). With his supplemental briefing, Sanders modifies his initial jurisdiction arguments to assert the circuit court was not competent to proceed on count one because our statutes "mandate" that a person cannot be held criminally liable for a wrongful act he/she committed before age ten. His competency claim fails as well.[5]

         ¶14 To begin, we note that "challenges to the circuit court's competency are [forfeited] if not raised in the circuit court." Mikrut, 273 Wis.2d 76, ¶30; see also Booth, 370 Wis.2d 595, ¶¶21, 25. Here, Sanders did not raise the issue of competency before the circuit court; thus he forfeited any challenge on this basis. Despite the forfeiture, we nonetheless will address the competency issue, but we do so within the rubric of ineffective assistance of counsel. See Erickson, 227 Wis.2d at 766 (while appellate courts can ignore forfeiture, the "normal procedure" in criminal cases is to address forfeiture within the rubric of an ineffective assistance of counsel analysis). We conclude trial counsel did not perform deficiently in failing to raise the competency issue prior to trial; therefore, the assistance counsel provided Sanders was not ineffective.

         ¶15 Sanders insists "that persons who commit acts under the age of 10 are not old enough by law to invoke the provisions of the Juvenile Justice Code or the Wisconsin Criminal Code." In support, he first cites to WIS. STAT. § 938.12(1), which provides: "The [juvenile] court has exclusive jurisdiction ... over any juvenile 10 years of age or older who is alleged to be delinquent." Sanders then points to WIS. STAT. § 938.02(3m), which defines "delinquent" as "a juvenile who is 10 years of age or older who has violated any state or federal criminal law." Finally, Sanders refers us to WIS. STAT. § 938.183(1)(am), which states:

(1) Juveniles under adult court jurisdiction. Notwithstanding [Wis. Stat. §§] 938.12(1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over ....
(am) A juvenile who is alleged to have attempted or committed a violation of [Wis. Stat. §] 940.01 [first-degree intentional homicide] or to have committed a violation of [Wis. Stat. §] 940.02 [first-degree reckless homicide] or [Wis. Stat. §] 940.05 [second-degree intentional homicide] on or after the juvenile's 10th birthday.

         ¶16 Relying on these statutory provisions, Sanders initially asserts the legislature must have intended a person could not be held liable criminally or as a juvenile delinquent for criminal acts he/she committed before his/her tenth birthday otherwise the legislature would have specifically stated that individuals could be held liable for such acts. In his reply brief, however, he goes further, asserting "the legislature has clearly and unequivocally stated that children under the age of ten are simply not capable of forming the necessary intent, or actus reus, to commit violations of state or federal law." The legislature most certainly did not "clearly and unequivocally" state this. With no statute providing the clarity Sanders desires, he cobbles together the multiple statutes cited above to draw the strained inference that the legislature intended no one be held liable criminally or as a juvenile delinquent for criminal acts he/she committed before the age of ten. These provisions hardly constitute a clear statutory mandate upon which to conclude the circuit court lacked competency with regard to count one, much less to conclude Sanders' trial counsel performed deficiently in not objecting to count one on this ground prior to trial. As we have stated, "counsel does not perform deficiently in failing to 'object and argue a point of law' that is 'unclear.'" State v. Morales-Pedrosa, 2016 WI.App. 38, ¶16, 369 Wis.2d 75, 879 N.W.2d 772 (citation omitted). Furthermore, Wisconsin case law indicates the circuit court was competent to adjudicate count one.

         ¶17 As indicated, see supra note 4, older cases often used the terms "subject matter jurisdiction" or "jurisdiction" when the matter under consideration really was the competency of the circuit court to proceed to judgment on a matter. The following cases reflect this misnomer. With the understanding that the cases are really referring to competency, these cases provide us significant guidance.

         ¶18 In State ex rel. Koopman v. County Court, 38 Wis.2d 492, 157 N.W.2d 623 (1968), the defendant sought a writ of prohibition to determine whether criminal proceedings for burglary could proceed against him because, although he was over age eighteen when the criminal complaint was issued, he was under age eighteen when he allegedly committed the offenses. Id. at 494. The Koopman court noted that then-WIS. STAT. § 48.12-the predecessor to WIS. STAT. § 938.12, addressing "jurisdiction" over allegedly delinquent juveniles- provided in material part that "[t]he juvenile court has exclusive jurisdiction ... over any child who is alleged to be delinquent." Koopman, 38 Wis.2d at 497 (emphasis added). Literally construing the statute, the court held that the criminal court, not the juvenile court, had "jurisdiction" to proceed against the defendant because the age of an individual at the time legal allegations are filed against him/her, not his/her age at the time of the offense, determines which court, juvenile or adult criminal, has competency to adjudicate the case. Id. at 498-500.

         ¶19 Approximately twenty years later, in State v. LeQue, 150 Wis.2d 256, 442 N.W.2d 494 (Ct. App. 1989), we addressed the question of "whether the adult circuit court has jurisdiction over an adult who is charged with a crime allegedly committed at age fifteen, a crime for which the alleged offender could not have been waived into adult court if he had been charged while still a juvenile." Id. at 262 (citation omitted). In answering the question in the affirmative, we concluded that LeQue was "subject to adult circuit court jurisdiction because the age of the defendant on the date the action is filed, not his age on the date of the alleged offense, determines whether the adult court has subject matter jurisdiction over a criminal proceeding." Id. at 258. Essentially echoing Koopman, we added that "under [WIS. STAT. §§] 753.03 ["Jurisdiction of circuit courts"] and 48.12, ... the adult circuit court has subject matter jurisdiction to hear and determine any charges brought against an adult defendant, regardless of the defendant's age at the time of the offense." LeQue, 150 Wis.2d at 265 (emphasis added); see 1995 Wis. Act 77, §§ 74-75 (repealing §48.12 and recodifying it as WIS. STAT. § 938.12).

         ¶20 A few years after LeQue, our supreme court decided State v. Annala,168 Wis.2d 453, 484 N.W.2d 138 (1992). Annala was fifteen years old when he molested a young child, but twenty years old when it came to the attention of authorities. Id. at 458. He was tried and convicted of first-degree sexual assault. Id. at 459. On appeal to our supreme court, Annala, challenging our decision in LeQue, argued that the adult court "could not acquire jurisdiction over an adult defendant that allegedly violated the law when he or she was less than sixteen years of age because the juvenile court has exclusive jurisdiction over such delinquent children" and there had not been a proper waiver into adult court. Annala, 168 Wis.2d at 460-61, 463-64. In rejecting Annala's appeal, the Annala court agreed with our decision in LeQue, and citing to its decision in ...

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