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State v. Sanders

Supreme Court of Wisconsin

May 18, 2018

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

          ORAL ARGUMENT: December 5, 2017

          Circuit Court Waukesha County, No. 2013CF1206 Jennifer Dorow and Lee S. Dreyfus, Jr., Judge

         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

          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.

          A.W. BRADLEY, J., concurs, joined by ABRAHAMSON, J. (opinion filed).

          MICHAEL J. GABLEMAN, J.

         ¶1 This is a review of a published decision of the court of appeals affirming the Waukesha County Circuit Court's judgment of conviction[1] and order denying postconviction relief[2] to Shaun Sanders. State v. Sanders, 2017 WI.App. 22, 375 Wis.2d 248, 895 N.W.2d 41.

         ¶2 Sanders raises a single issue for our review: do circuit courts possess statutory competency[3] 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. 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.O2(lOm) (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 juvenile[5] "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.

         ¶7 A juvenile "under 10 years of age [who] has committed a delinquent act" is subject to a JIPS[6] 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.

         ¶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 Skyping[8] 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, 2012. According to the information filed by the State, Sanders was 9[10] 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.

         ¶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');">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 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 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');">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.

         ¶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.

         ¶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 forfeited[13] 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. 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 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 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 ...


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