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Adult court had jurisdiction, competency to adjudicate offenses committed before defendant was age 10

State v. Shaun M. Sanders, 2017 WI App 22, petition for review granted 6/13/17, affirmed, 2018 WI 51; case activity (including briefs)

When Sanders was 19 years old he was charged with committing repeated sexual assaults of H.S. during a time period when he was aged 9 to 12 and H.S. was aged 7 to 9. He asserts the circuit court had neither subject matter jurisdiction nor competency to proceed on those charges because under §§ 938.02(3m), 938.12(1), and 938.183(1)(am) persons who commit criminal acts when they are under the age of 10 are not subject to the juvenile justice code or the criminal code. The court of appeals rejects the claim.

¶25     …Sanders reads too much into the legislative provisions he relies upon. The legislature has established a clear and rational structure for addressing criminal conduct based upon the age of the offender at the time authorities act upon the conduct. Absent the running of a statute of limitations period… or improper delay by law enforcement once aware of allegations,… if an offender is statutorily chargeable as an adult when legal action is initiated, the adult criminal court has competency to exercise its jurisdiction regardless of the offender’s age when he/she committed the criminal conduct. If the offender is age ten or older but not yet chargeable as an adult when legal action is initiated, the juvenile court has competency to treat the offender as a delinquent. And if the offender is under age ten when allegations of his/her criminal conduct are legally addressed, the juvenile court has competency to treat the child as being in need of protection or services. See Wis. Stat. §§ 938.02(1) & (3m), 938.12(1), 938.13(12). As the circuit court pointed out in rejecting Sanders’ postconviction motion, if Sanders’ alleged pre-age-ten sexual conduct with H.S. had come to the attention of and been acted upon by authorities before he turned ten, the matter would have been addressed as a CHIPS matter. These alleged acts, however, did not come to the attention of authorities until Sanders was an adult, and thus they were then properly addressed in adult criminal court.

The lack-of-jurisdiction claim is a “nonstarter” in light of the expansive—indeed, unlimited—approach that the supreme court has adopted, first in Village of Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis. 2d 76, 681 N.W.2d 190, and reaffirmed just last term in City of Eau Claire v. Booth, 2016 WI 65, ¶18, 370 Wis. 2d 595, 882 N.W.2d 738: “no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.” (¶¶11-12).

Competency to exercise jurisdiction, however, can be lost, usually because of “noncompliance with statutory requirements pertaining to the invocation of … jurisdiction,” Booth, 370 Wis. 2d 595, ¶12. The thrust of Sanders’s argument is that the statutory provisions granting juvenile and adult court “jurisdiction” (i.e., “competency,” Michael J.L. v. State, 174 Wis. 2d 131, 137, 496 N.W.2d 758 (Ct. App. 1993)) over minors who commit crimes doesn’t start till the child is age 10; hence, he claims, juvenile and adult courts don’t have competency to handle charges against a kid who committed criminal acts under the age of 10. The court rejects this claim based on prior cases holding that what matters is not the age of the person at the time of commission but the age of the person at the time authorities bring the person into court. State ex rel. Koopman v. County Court, 38 Wis. 2d 492, 498-500, 157 N.W.2d 623 (1968); D.V. v. State, 100 Wis. 2d 363, 302 N.W.2d 64 (Ct. App. 1981); State v. LeQue, 150 Wis. 2d 256, 258, 442 N.W.2d 494 (Ct. App. 1989); State v. Annala, 168 Wis. 2d 453, 463, 484 N.W.2d 138 (1992). (¶¶17-24) The continuing validity of the rule of those cases is supported by the fact that the legislature hasn’t changed the relevant statutes to “specifically and clearly limit[] criminal liability based upon the age of an offender at the time of the offense….” (¶28).

Note the two caveats: First, no court can adjudicate charges if they’re filed after the statute of limitations has run. (¶25 n.7). The court cites the standard time limits for misdemeanor and felony offenses, but those don’t apply to most sexual assault cases. The most serious child sex offenses have no limitation, § 939.74(2)(a)1., and many others run until the victim turns 45 years old, § 939.74(2)(c). Second, delaying a filing for the purpose of manipulating the system to avoid juvenile court could deprive the adult court of competency, State v. Becker, 74 Wis. 2d 675, 678, 247 N.W.2d 495 (1976). (¶25 n.8), but proving that purpose is difficult, if not impossible.

Finally, Judge Reilly concurs on narrower grounds. He expresses the sensible concern that a young child may not have the capacity to commit a crime, and if so shouldn’t be punished just because the conduct happens to come to light and be charged after the person is an adult. (¶¶44-46). Nonetheless, he feels bound by D.V., which allowed a person who committed delinquent conduct under the age of 10, and was thus in the CHIPS age category, to be charged in juvenile court at age 12: “If it is permissible for the state to pull a CHIPS category act into a delinquency petition, then there is no logical legal reason why the state cannot pull a CHIPS category act into a criminal complaint.” (¶47).

Sanders also alleged his trial lawyer was ineffective for not asking for a unanimity instruction on a charge of incest against H.S. during a different time period, when H.S. was 12 to 15 and Sanders was 14 to 18. The court concludes there was no prejudice. While H.S. testified there were multiple acts of sexual activity during that time period, she detailed only one specific act of sexual activity during the charged time period, and that act coincided with the facts alleged to support a child enticement charge which he was also convicted of. Thus, the court concludes it was unlikely the jury did not agree on the specific act of incest. (¶¶30-41).

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