ARGUMENT: December 5, 2017
Circuit Court Waukesha County, No. 2013CF1206 Jennifer Dorow
and Lee S. Dreyfus, Jr., Judge
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
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.
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.
BRADLEY, J., concurs, joined by ABRAHAMSON, J. (opinion
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 conviction and order denying postconviction
relief to Shaun Sanders. State v.
Sanders, 2017 WI.App. 22, 375 Wis.2d 248, 895 N.W.2d 41.
Sanders raises a single issue for our review: do circuit
courts possess statutory competency to proceed in criminal
matters when the adult defendant was charged for conduct he
committed before his tenth birthday?
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
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.
A person who is 17 years of age or older is subject to a
criminal proceeding. See Wis.Stat. §
938.O2(lOm) (2013-14).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.
A juvenile "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.
A juvenile "under 10 years of age [who] has committed a
delinquent act" is subject to a JIPS 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
Starting when Sanders was around eight or nine years old, and
his younger sister H.S. was six or seven years old,
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.
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 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
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) 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 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.
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. 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.
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. 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.
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.
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.
Sanders petitioned this court for review, which we granted on
June 12, 2017.
STANDARD OF REVIEW
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
"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
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
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.
Sanders raises an issue of statutory competency.
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.
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.
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.
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.
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,
Unlike challenges to subject matter jurisdiction, challenges
to statutory competency may be forfeited 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
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.
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
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
Counsel did not Perform Deficiently by Failing to Challenge
the Circuit Court's Statutory Competency as to Count One.
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.
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.
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 ...