Kywanda F., In Interest of, 94-1866-FT

• Decision Date: 10 April 1996
• Docket Number: No. 94-1866-FT,94-1866-FT
• Citation: 546 N.W.2d 440,200 Wis.2d 26
• Parties: In the Interest of KYWANDA F., A Person under the Age of 18. STATE of Wisconsin, Petitioner-Respondent-Petitioner, v. KYWANDA F., Respondent-Appellant. d
• Court: Wisconsin Supreme Court

Page 440

546 N.W.2d 440

200 Wis.2d 26

In the Interest of KYWANDA F., A Person under the Age of 18 STATE of Wisconsin, Petitioner-Respondent-Petitioner, v. KYWANDA F., Respondent-Appellant. ^d

No. 94-1866-FT.

Supreme Court of Wisconsin.

Argued Oct. 31, 1995.

Decided April 10, 1996.

Appeal from Circuit Court, Rock County, James E. Welker, Judge.

For the petitioner-respondent-petitioner the cause was argued by Gregory Posner-Weber, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the respondent-appellant there was a brief and oral argument by William E. Schmaal, Assistant State Public Defender.

BRADLEY, Justice.

The State seeks review of a decision of the court of appeals ¹ reversing both a dispositional order and a post-dispositional order of the Rock County Circuit Court, James E. Welker, Judge. The primary issue before this court is whether the circuit court lost competency to accept Kywanda's admission when it failed to inform her of the statutory right to judicial substitution. We conclude that a court's failure to inform a juvenile of the right to judicial substitution does not affect its competency and warrants reversal only if the juvenile suffers actual prejudice. Because the factual record in this case is insufficient for this court to determine whether Kywanda suffered prejudice, we reverse the court of appeals and remand to the circuit court to hold an evidentiary hearing within the framework of State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). We also remand for the circuit court to hear evidence and make a determination as to whether Kywanda's plea was knowingly, intelligently, and voluntarily entered applying the Bangert analysis.

The facts for purposes of this appeal are undisputed. The State filed a delinquency petition alleging that Kywanda carried a concealed weapon contrary to Wis.Stat. § 941.23 (1993-94) ² and engaged in disorderly conduct while armed contrary to Wis.Stat. §§ 947.01 and 939.63(1)(a). Kywanda initially denied the allegations in the petition, but later entered an admission to the concealed weapon allegation pursuant to a plea agreement.

Prior to accepting her admission, the juvenile court engaged in a brief colloquy with Kywanda, advising her of the elements of the offense and informing her that by her admission she was giving up her right to a trial by jury. Based on this colloquy, the court found that her admission was "freely, voluntarily, and intelligently made" and that she understood "the rights that [she] waived by the entry of this plea." After a dispositional hearing, the court ordered Kywanda's legal custody transferred to the Department of Health and Social Services for a period of one year and placed her in a secure juvenile correctional facility.

Kywanda subsequently filed a post-disposition motion to withdraw her admission. As grounds for withdrawal she alleged that her admission was not knowing and voluntary under the totality of the circumstances because the trial court failed to inform her of her rights under Wis.Stat. § 48.243, ³ her right to judicial substitution pursuant to Wis.Stat. § 48.30(2), ⁴ and the possible dispositional consequences of her plea pursuant to Wis.Stat. § 48.30(8)(a). ⁵

The circuit court then held a hearing on the motion. Neither Kywanda nor the State presented witnesses in support of their positions. After hearing arguments from both sides, the court denied the motion, finding that Kywanda was aware of the potential disposition resulting from her plea. However, it made no specific finding whether Kywanda knew of her rights under Wis.Stat. § 48.243 or the right to substitution.

The court of appeals reversed both the circuit court's dispositional order and the post-dispositional order which denied Kywanda's motion to withdraw her plea. Although not argued by either party, the court of appeals concluded that compliance with Wis.Stat. § 48.29 is jurisdictional and that the circuit court's failure to inform Kywanda of her substitution right deprived it of competence to proceed. State v. Kywanda F., No. 94-1866-FT, 1994 WL 700639, unpublished slip op. at 2, 8 (Wis.Ct.App. Dec. 15, 1994). The court therefore deemed it unnecessary to address the question of whether Kywanda's admission was knowing, intelligent, and voluntary. ⁶ Id. at 8, 1994 WL 700639.

I.

We first address the issue raised by the decision of the court of appeals of whether a circuit court loses competency to act if it fails to inform a juvenile alleged to be delinquent of her statutory right to judicial substitution pursuant to Wis.Stat. §§ 48.29(1) and 48.30(2). This presents a question of law. We therefore review this question without deference to the determinations of the lower courts. See Michael J.L. v. State [In Interest of Michael J.L.], 174 Wis.2d 131, 136, 496 N.W.2d 758 (Ct.App.1993).

The court of appeals determined that compliance with Wis.Stat. § 48.29 is "jurisdictional." Kywanda, slip op. at 8, 1994 WL 700639. This court has previously emphasized that a circuit court has subject matter jurisdiction, conferred by our state constitution, to consider and determine any type of action. Green County Dep't of Human Servs. v. H.N. [In Interest of B.J.N.], 162 Wis.2d 635, 469 N.W.2d 845 (1991). As a result, the failure to comply with a particular statutory mandate may only prevent it from adjudicating the specific case before it. Id. at 656, 469 N.W.2d 845. This is more properly referred to as a court's competency to act or proceed. Id.; Michael J.L., 174 Wis.2d at 137, 496 N.W.2d 758.

The court of appeals treats as mandatory the language of Wis.Stat. § 48.30(2) that a juvenile "shall be advised" of the right to substitution. It concludes that the failure to comply automatically results in the loss of competency. We agree that the term "shall" is presumed to be mandatory when it appears in a statute. Wagner v. State Medical Examining Bd., 181 Wis.2d 633, 643, 511 N.W.2d 874 (1994). However, the mandatory nature of the statute does not necessarily mean that noncompliance requires the loss of competence. We interpret Wis.Stat. § 48.30(2) as requiring the court to advise the juvenile of the right to substitution but, at the same time, leaving the determination of whether the error is reversible to the courts. See E.B. v. State [In Matter of E.B.], 111 Wis.2d 175, 188, 330 N.W.2d 584 (1983).

Neither the court of appeals nor Kywanda has identified any cases, other than those interpreting statutory time limits, that have held that the failure to comply with a mandatory statutory requirement results in the court losing competency in a juvenile case. In B.J.N., this court concluded that a circuit court's failure to observe certain time provisions in ch. 48 causes the circuit court to lose its competence to proceed and requires the dismissal of a delinquency petition. B.J.N. 162 Wis.2d at 657, 469 N.W.2d 845. In general, other courts have also interpreted various time limits in ch. 48 to be mandatory. B.J.N., 162 Wis.2d at 654 & n. 15, 469 N.W.2d 845; Shawn B.N. v. State [In Interest of Shawn B.N.], 173 Wis.2d 343, 353, 497 N.W.2d 141 (Ct.App.1992).

Courts holding that noncompliance with ch. 48 time limits results in the loss of the court's competency to proceed have relied on legislative history to support such a result. See, e.g., T.H. v. LaCrosse County [In Interest of R.H.], 147 Wis.2d 22, 27-31, 433 N.W.2d 16 (Ct.App.1988), aff'd per curiam by an equally divided court, 150 Wis.2d 432, 441 N.W.2d 233 (1989). The legislature in 1977 substantially revised ch. 48 to establish time limitations in order to protect a child's constitutional due process rights. B.J.N., 162 Wis.2d at 646, 469 N.W.2d 845; R.H., 147 Wis.2d at 27-31, 433 N.W.2d 16. "The legislative history of the Children's Code shows that the legislature considers that strict time limits between critical stages within the adjudication process are necessary to protect the due process rights of children and parents." Id. at 33, 433 N.W.2d 16. The same history also indicates that the legislature intended the time limits to be mandatory, with noncompliance resulting in the court losing competency to proceed. Id. at 31-35, 433 N.W.2d 16.

Kywanda argues that the circuit court's failure to inform an alleged delinquent child of the right to judicial substitution is analogous to a violation of the mandatory time limits. She asserts that they both deprive the court of its competency to proceed. The court of appeals agreed, reasoning that the statutory right to substitution was intended to protect a juvenile's due process right to a fair trial by an impartial judge.

However, unlike the legislative history surrounding the time limits in ch. 48, neither Kywanda nor the court of appeals in its decision cites any legislative history to support the argument that the legislature intended that noncompliance with Wis.Stat. §§ 48.29(1) and 48.30(2) would result in the court losing competence to proceed. Our own review reveals none either. Kywanda's analogy to time limit cases fails because the loss of competency in these cases was premised on legislative history supporting such a result and no such legislative history exists here.

The court of appeals' determination that the circuit court's failure to inform Kywanda of the right to substitution mandates a loss of competence based on a violation of her due process rights also fails. A person's right to be tried by an impartial judge is part of the fundamental right to a fair trial guaranteed by the Due Process Clause of the Fifth Amendment of the United States Constitution. State v. Hollingsworth, 160 Wis.2d 883, 893, 467 N.W.2d 555 (Ct.App.1991). However, as the Supreme Court has recognized within the context of judicial recusal, "not all questions of judicial qualification ... involve constitutional validity." Aetna Life Ins. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823 (1986), quoting ...