This case reached the court of appeals via a petition for leave to appeal a non-final order.
The State’s juvenile delinquency petition alleged that Phillips committed one count of 1st-dgree sexual assault of child by use or threat of force and a second count of 2nd-degree assault of a child. At the State’s request, the juvenile court waived Phillips into adult court on both counts and ultimately pled no contest to two counts of 2nd-degree sexual assault of a child. Ultimately, Phillips moved to vacate his pleas because–as to count one–he was statutorily ineligible to be waived into adult court and he was not subject to a mandatory minimum sentence of 25 years, as the State had claimed. But it insisted that it could proceed against Phillips, on both counts, in adult court because: (1) he was not entitled to remand on count 1, (2) he had, in the meantime, become an adult, and (3) the waiver order as to Count 2 was valid. The court of appeals would have none of it.
Issue: What remedy is available to a juvenile who is improperly waived into adult court? The State says the defendant may only withdraw his pleas and have his adult-court conviction vacated. The court of appeals, siding with Phillips, said “wrong.” The remedy is remand to juvenile court.
¶8 We cannot accept the State’s argument as it relies on inapplicable authority and contradicts the plain language of Wis. Stat. § 938.12(2), which states that the juvenile court retains jurisdiction over ongoing cases where a delinquency petition is filed when the alleged offender is a juvenile. The fact that errors by the State, Phillips’s attorneys, and both the juvenile and adult courts delayed the proceedings and Phillips has since become an adult does not affect the juvenile court’s jurisdiction over this matter under § 938.12(2). See D.W.B. v. State, 158 Wis. 2d 398, 404-05, 462 N.W.2d 520 (1990). Phillips was a juvenile when the delinquency petition relying on Counts 1 and 2 was filed, and without a valid waiver order, the juvenile court retained jurisdiction over Phillips for those charges.
¶9 The State’s initiation of proceedings against Phillips on Count 1 in juvenile court means that Phillips may never be waived into adult court on this charge. His current age and the potential dispositions available to the juvenile court upon remand do not negate the plain language of the Juvenile Code or the guidance of our case law. See id. (State may not usurp power from juvenile court over juveniles who turn eighteen during pending juvenile court proceedings). For the State to argue that the “ends” of adult court jurisdiction justify the “means” of obtaining adult court jurisdiction contrary to what our statutes allow is a false argument.
Issue: Where a waiver into adult court is valid only as to one count, may the State proceed against the defendant in adult court on all counts? Again, the court of appeals answered “no.”
¶10 We also reject the State’s contention that the waiver order is valid as it pertains to Count 2, permitting jurisdiction in adult court to attach for that count. The juvenile court did not have competency to consider waiver for one of the counts on which the waiver order was based. The waiver order was thus invalid and ineffective, precluding the adult court from assuming jurisdiction. See State v. Aufderhaar, 2005 WI 108, ¶28, 283 Wis. 2d 336, 700 N.W.2d 4. Only the juvenile court can determine whether waiver over Phillips is appropriate based on Count 2 alone.