State Of Wis. v. Mcguire

Decision Date20 July 2010
Docket NumberNo. 2007AP2711-CR.,2007AP2711-CR.
Citation2010 WI 91,786 N.W.2d 227
PartiesSTATE of Wisconsin, Plaintiff-Respondent,v.Donald J. MCGUIRE, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court



For the defendant-appellant-petitioner there were briefs by Robert R. Henak and the Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.


¶ 1 This is a review of an unpublished decision of the court of appeals State v. McGuire, No.2007AP2711-CR, unpublished slip op., 2009 WL 1393403 (Wis.Ct.App. May 20, 2009), affirming a judgment of the Walworth County Circuit Court, James L. Carlson, Judge. Father Donald J. McGuire (McGuire) was charged in 2005 with five counts of indecent behavior with a child, in violation of Wis. Stat. § 944.11(2) (1965-66). The charges were based on acts that McGuire committed between 1966 and 1968. Although prosecutions under § 944.11(2) are subject to the six-year statute of limitations under Wis. Stat. § 939.74(1) (2007-08),1 the statute of limitations was tolled while McGuire was not publicly a resident of Wisconsin. Wis. Stat. § 939.74(3).2 A jury convicted McGuire on all five counts.

¶ 2 McGuire filed a postconviction motion that the circuit court denied. The court of appeals affirmed. In this court, McGuire raises four issues: (1) whether the tolling provision of Wis. Stat. § 939.74(3) is unconstitutional as applied to the facts of this case; (2) whether charges were barred by due process because of the roughly 36 years that passed between the offenses and the charges; (3) whether reversal in the interest of justice under Wis. Stat. § 751.06 is appropriate; and (4) whether McGuire was denied effective assistance of counsel.

¶ 3 We conclude that Wis. Stat. § 939.74(3) is constitutional as applied to the facts of this case. It does not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the United States Constitution. Section 939.74(3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals.

¶ 4 We next conclude that the charges were not barred by due process. McGuire has failed to allege an improper motive or purpose on the part of the State, which is a necessary prerequisite for dismissal based on pre-indictment delay.

¶ 5 We also are satisfied that McGuire received a fair trial in which the real controversy was fully tried and justice has not for any reason miscarried. Therefore, reversal in the interest of justice is inappropriate.

¶ 6 Finally, we reject McGuire's contention that he was denied effective assistance of counsel. The two decisions of trial counsel that McGuire claims constituted deficient performance were part of a reasonable trial strategy.

¶ 7 For the reasons set forth, we affirm the court of appeals.


¶ 8 The facts are disputed, but the evidence at trial showed the following: McGuire was a Jesuit priest who taught at the Loyola Academy in Wilmette, Illinois, a suburb of Chicago. The priests who taught at the school lived in a residence attached to the school. Loyola Academy was not a boarding school, and students do not live on the campus. Students were permitted in the Jesuits' residence only for limited purposes, such as helping to carry a package.

¶ 9 Victor B. was 13 years old when he began attending Loyola in the fall of 1966. McGuire offered to counsel and tutor Victor, who was having trouble in school. McGuire then had Victor live with him in his residence at Loyola. While living in the room, Victor would sleep in the same bed as McGuire, often in the nude. The two began giving each other body massages, which included touching each others' genitals.

¶ 10 During this time, McGuire became acquainted with Victor's uncle, Harry B. In the spring of 1967, McGuire began visiting Harry's cottage in Fontana, Wisconsin. While McGuire and Victor were in Wisconsin-whether they were riding in the car or at the cottage-McGuire would give Victor what he referred to as “horse bites,” which he would perform by grabbing Victor below his groin and brushing his hand over Victor's genitals. The “horse bites” continued through the summer of 1968.

¶ 11 Sometime around November of 1967, McGuire visited the Fontana cottage while Victor was there. The only other person at the cottage at that time was Victor's grandmother. While Victor was in bed, McGuire entered the room, and Victor pretended to be asleep. McGuire put his hands down Victor's pants and squeezed his testicles and penis to wake him up.

¶ 12 In the fall of 1968, Victor returned to Loyola Academy but stopped living in McGuire's room. The sexual contact stopped at that time.

¶ 13 Sean C. was 14 years old when he began attending Loyola Academy in August of 1968. Because Sean was having problems getting to school, he was sent to see McGuire for guidance counseling. McGuire suggested that Sean stay at Loyola to avoid the problem of getting to school in the morning. McGuire told Sean to tell his father that he was sleeping in McGuire's guidance office, when in fact Sean was staying in bed with McGuire. Sean testified that McGuire took steps to hide the fact that Sean was living with McGuire.

¶ 14 While Sean was staying in McGuire's room, the two began to give each other massages. During these massages, McGuire would touch Sean's penis and have Sean touch his.

¶ 15 McGuire took Sean on several trips. Sometime between Thanksgiving and Christmas of 1968, the two travelled together to the Fontana cottage on a Friday. Sean was 14 years old at the time. On Friday night at the Fontana cabin, McGuire began massaging Sean's penis with baby oil. He then changed positions and told Sean to do the same to him. The next night, the two performed the same acts again.

¶ 16 Sean continued to live with McGuire during his freshman year at Loyola. He would stay in McGuire's room roughly four nights a week, and sexual contact occurred nearly every day. During the summer, McGuire and Sean traveled to Europe, and sexual contact occurred on this trip. In the fall, Sean returned to living with McGuire, and the sexual contact continued.

¶ 17 In February of 1970, Sean reported the sexual contact to Father Charles Schlax. Later, several Jesuits-Father Renke, the president of Loyola; Father Beall, the principal; and Father Humbert, the headmaster-interviewed Sean. Sean's father attended this meeting. After Sean left the meeting, his father told him that he would not return to Loyola, and Sean was transferred to a different school. Neither the school nor Sean's father contacted the police.

¶ 18 In June of 2003, Sean contacted an attorney about the sexual contact with McGuire. On August 1, 2003, Sean filed a civil lawsuit against the Jesuits and McGuire.

¶ 19 In August of 2003, Victor received a letter from the headmaster of Loyola Academy about reports of sexual misconduct. After he did some research, Victor contacted Sean's attorney, who put him in touch with Sean. According to Victor and Sean, they did not know each other before they spoke on the phone in 2003. During their phone conversation, Sean obtained some information about the Fontana cottage, but both Victor and Sean later denied having discussed what McGuire had actually done to either of them or the layout of McGuire's room at Loyola.

¶ 20 On February 7, 2005, a criminal complaint was filed in Walworth County charging McGuire with two counts of indecent behavior with a child, in violation of Wis. Stat. § 944.11(2) (1965).3 The complaint was later amended to add three additional counts.

¶ 21 A four-day jury trial began on February 19, 2006. Victor and Sean both testified at trial; McGuire did not. The jury found McGuire guilty on all five counts.

¶ 22 McGuire filed a motion for postconviction relief asking for dismissal of charges or, alternatively, a new trial. He argued, inter alia, that the statute of limitations tolling provision in Wis. Stat. § 939.74(3) was unconstitutional, reversal was warranted in the interest of justice, and the charges were barred by due process. He also raised an ineffective assistance of counsel claim based on the decision of his trial counsel, Gerald Boyle, not to investigate Harry B.'s wife, Elita, who would testify regarding Harry's unwillingness to give out keys to the Fontana cottage. Finally, he argued that a new trial was warranted because McGuire discovered after trial that Robert Goldberg, who McGuire had known previously, would have testified that he saw Sean and Victor together shortly after they graduated from high school. 4 After a hearing on the ineffective assistance of counsel claim, the court denied the motion.

¶ 23 McGuire appealed, raising four arguments: (1) the charging delay violated his constitutional rights; (2) he received ineffective assistance of counsel; (3) the circuit court erroneously admitted other acts evidence; and (4) the circuit court erroneously allowed rebuttal evidence. The court of appeals affirmed the circuit court on all four issues.

¶ 24 McGuire petitioned this court for review, which we granted on September 10, 2009.


¶ 25 The constitutionality of a statute is a question of law, which we review de novo. State v. Cole, 2003 WI 112, ¶ 10, 264 Wis.2d 520, 665 N.W.2d 328. Statutes are presumed to be constitutional, and a party challenging a statute's constitutionality must demonstrate that it is unconstitutional beyond a reasonable doubt. State v. Baron, 2009 WI 58, ¶ 10, 318 Wis.2d 60, 769 N.W.2d 34. This presumption and burden apply to as-applied constitutional challenges to statutes as well as to facial challenges. State v. Wood, 2010 WI 17, ¶ 15, 323 Wis.2d 321, 780...

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    ...device ... to protect against prejudice arising from a lapse of time between the date of an alleged offense and an arrest.’ ” State v. McGuire, 2010 WI 91, ¶ 45, 328 Wis.2d 289, 786 N.W.2d 227 (quoting State v. Wilson, 149 Wis.2d 878, 903, 440 N.W.2d 534 (1989) ). If we were to accept Hurle......
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1 books & journal articles
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    • South Dakota Law Review Vol. 66 No. 3, September 2021
    • March 22, 2021
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