State v. Aufderhaar
| Decision Date | 07 July 2005 |
| Docket Number | No. 2003AP2820-CR.,2003AP2820-CR. |
| Citation | 2005 WI 108,700 NW 2d 4,283 Wis.2d 336 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Henry W. Aufderhaar, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by J. Paul Neumeier, Jr., Raymond E. Krek and Krek & Brantmeier, S.C., Jefferson, and oral argument by Raymond E. Krek.
For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
Henry W. Aufderhaar seeks review of a court of appeals decision affirming a circuit court order denying Aufderhaar's motion to dismiss the criminal proceedings against him or transfer jurisdiction to the juvenile court. Aufderhaar argues that neither the circuit court exercising juvenile court jurisdiction1 nor the circuit court to which waiver was ordered2 had personal jurisdiction over him because the juvenile court, which held a waiver hearing and waived him into adult court, failed to follow the statutory requirements for service of process in juvenile cases. We conclude that the failure to follow the statutory requirements for service defeats the State's assertion of personal jurisdiction and requires the circuit court to dismiss the criminal charges without prejudice and the juvenile court to vacate the waiver order. We therefore reverse and remand.
¶2 Aufderhaar was fifteen years old and living with his parents in Whitewater, Wisconsin on June 4, 2001, when he was interviewed by a police officer about five allegations of second-degree sexual assault of a child and two allegations of fourth-degree sexual assault of a child. Later that month, on June 29, he moved with his parents. The family lived with Aufderhaar's grandfather for approximately two weeks and then moved to Montana. On August 21, the Jefferson County District Attorney filed a delinquency petition against Aufderhaar, but when authorities learned that Aufderhaar had moved with his family to Montana, the file was transferred to Walworth County, where the incidents were alleged to have occurred.
¶3 On October 9, 2001, Walworth County attempted to mail documents containing the pending charges to Aufderhaar and his parents in Montana, but the mail was returned as "Attempted-Not Known." On October 26, a delinquency petition was filed in Walworth County with a return date of November 8. On October 31, a juvenile court clerk mailed the summons and delinquency petition to the Aufderhaars' former address in Whitewater. Aufderhaar did not appear for the initial plea hearing on November 8 and a capias was ordered. The court did not grant a continuance, nor was service made personally or by certified mail. The case then sat dormant for about a year and a half.
¶4 On March 6, 2003, the juvenile court clerk received a telephone call from Montana authorities that Aufderhaar was involved in a juvenile matter in that state relating to sexual behavior. The clerk forwarded this information to the district attorney's office and on March 12, the district attorney filed a petition for waiver into adult court in the still-pending delinquency petition. By this time, Aufderhaar was more than seventeen years old. The Montana authorities had given the Walworth County clerk a new address for Aufderhaar, so she sent the waiver petition to that new address. The waiver petition was not returned.
¶5 On April 23, the juvenile court waived Aufderhaar in absentia into adult court. It subsequently issued an order to that effect. A criminal complaint was filed, and a warrant was issued.
¶6 On October 2, 2003, Aufderhaar appeared in Walworth County and challenged the adult court's personal jurisdiction over him. He asserted that Wis. Stat. § 938.27(3)(a)1 (2001-02)3 mandates the juvenile court to notify the child and parents of all hearings, that Wis. Stat. § 938.273(1) requires a continuance and personal service if there is no appearance at the initial proceeding and that the same statute allows for service by certified mail in the event personal service is deemed to be impracticable. Aufderhaar alleged that because the statute was not followed, the juvenile court lacked personal jurisdiction over him and it had no authority to waive him into adult court. In the alternative, Aufderhaar argued that the waiver in absentia violated due process. Aufderhaar also argued that the 502-day delay in filing the juvenile waiver petition was unreasonable and prejudiced him.
¶7 The circuit court rejected these arguments. It concluded that Aufderhaar had absconded with his family in order to avoid prosecution. The circuit court stated that although the juvenile court did not expressly say at the waiver hearing that any attempt at service would have been ineffectual because the Aufderhaars were intent on avoiding service, such an assumption was implicit in its mention that there was a warrant out for Aufderhaar's father, who was "on the run." The circuit court concluded that it was correct to assume service would have been ineffectual. The circuit court ruled, in the alternative, that Aufderhaar had notice of the waiver hearing because the waiver petition mailed to him was presumed to have reached him since it was not returned as undeliverable. In the circuit court's view, this notice was sufficient to defeat the claim of lack of personal jurisdiction. Regarding the delay, the circuit court held that while the State may have been negligent in not acting in a timely manner, it did not do so with the intent to manipulate the system so as to be able to try Aufderhaar as an adult. Therefore, there was no violation of his due process rights.
¶8 Aufderhaar then filed a petition for leave to appeal a nonfinal order. He raised three arguments: (1) that there was an unreasonable delay in the filing of the waiver petition (502 days); (2) that he was not given proper notice of the waiver hearing; and (3) that the waiver granted in absentia denied him due process.4 The court of appeals granted the petition. On appeal, the court affirmed the circuit court's denial of Aufderhaar's motion, but on different grounds. The court of appeals rejected the circuit court's conclusion that service would have been ineffectual because Aufderhaar's father was "on the run," stating:
First, the record shows no factual basis for finding that the father had moved to avoid the law other than that he had two pending misdemeanors. Second, even had the father moved to avoid the law and would work to avoid personal service, we fail to see how sending certified mail to the correct mailing address in Montana would somehow have been a useless exercise. And third, we do not understand how a juvenile can be held to be vicariously liable for the actions of a parent in moving out of state such that the State is relieved from even trying to get the correct address and mailing a document to that address by certified mail.
The court of appeals further stated:
It is undisputed that the juvenile court erred when, following Aufderhaar's nonappearance at his initial hearing to respond to the delinquency petition, it failed to comply with Wis. Stat. § 938.273, which requires the court to continue the matter and to order either personal service or service by certified mail unless it finds that such service would be ineffectual. The question to be decided is the legal ramifications of such a failure.
The court concluded that the State's failure to follow the provisions of Wis. Stat. § 938.273 did not deprive the juvenile court of personal jurisdiction over Aufderhaar, pursuant to State v. Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct. App. 1993). The court stated "'it is the delinquency petition that is the critical procedure for acquiring personal jurisdiction over the juvenile.'" (Quoting Jermaine T.J., 181 Wis. 2d at 91.) In response to the 502-day delay, the court affirmed the circuit court's conclusion that the delay was not intentional and therefore not in violation of Aufderhaar's due process rights.
¶9 Aufderhaar filed a petition to review, raising two issues: (1) whether a 502-day delay between the filing of the juvenile delinquency petition and the filing of a waiver petition demands dismissal of the adult court criminal proceedings; and (2) whether the failure of the State and the juvenile court to follow the statutory provisions for service deprived the circuit court of personal jurisdiction. We granted the petition.
¶10 Due process determinations are questions of law we decide de novo. State v. Sorenson, 2002 WI 78, ¶25, 254 Wis. 2d 54, 646 N.W.2d 354. This case turns in part on questions of statutory interpretation to which we apply a de novo standard of review, but benefiting from the analyses of both the circuit court and the court of appeals. State v. Cole, 2003 WI 59, ¶12, 262 Wis. 2d 167, 663 N.W.2d 700.
¶11 Aufderhaar first argues that the 502-day delay between the filing of the juvenile delinquency petition and the filing of a waiver petition violates his due process rights and requires dismissal of the adult court criminal proceedings. We have ruled that only an intentional delay by the State to avoid juvenile court jurisdiction constitutes a due process violation requiring dismissal. See State v. Montgomery, 148 Wis. 2d 593, 595, 436 N.W.2d 303 (1989). We agree that there is no evidence the State delayed filing the waiver petition until after Aufderhaar turned seventeen. The State did not resume its prosecution of Aufderhaar until Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in a juvenile matter in Montana and providing a current address for Aufderhaar. We agree with the court of appeals that "it is quite apparent that Aufderhaar was himself the catalyst for the State's...
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