State v. LeQue

• Citation: 442 N.W.2d 494,150 Wis.2d 256
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert LeQUE, Defendant-Appellant. d 88-0921-CR.
• Decision Date: 26 April 1989
• Court: Court of Appeals of Wisconsin

Page 494

442 N.W.2d 494

150 Wis.2d 256

STATE of Wisconsin, Plaintiff-Respondent, v. Robert LeQUE, Defendant-Appellant. ^d 88-0921-CR.

Court of Appeals of Wisconsin.

Argued Jan. 19, 1989.

Opinion Released April 26, 1989.

Opinion Filed April 26, 1989.

William Retert, First Asst. State Public Defender, on briefs, Mary Wolfe, Asst. State Public Defender, argued, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., on brief, and William L. Gansner, Asst. Atty. Gen. (argued), for plaintiff-respondent.

Before SCOTT, C.J., and BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Robert LeQue appeals from two nonfinal orders denying his motions to dismiss for lack of subject matter jurisdiction and prosecutorial delay. ¹ Twenty days after his eighteenth birthday, LeQue was charged in adult circuit court with three counts of first-degree sexual assault, crimes which he allegedly committed when he was fifteen years old. We conclude that LeQue is subject to adult circuit court jurisdiction because the age of the defendant on the date the action is filed, not his age on the date of the alleged offense, determines whether the adult court has subject matter jurisdiction over a criminal proceeding. Furthermore, we conclude that the state successfully met its burden of showing that LeQue's charging was not the result of intentional manipulation designed to avoid juvenile court jurisdiction. Therefore, we affirm both orders.

On January 12, 1988, S.M. reported to a school counselor that she had been sexually assaulted by LeQue on three occasions between May and July of 1985. At the time of these alleged offenses, S.M. was eight and one-half years of age and LeQue was fifteen years of age. The counselor immediately notified the school principal and the department of health and social services (DHSS) of S.M.'s allegations. Two days later, January 14, Joanne Schneider from DHSS interviewed S.M. at school. After the interview, Schneider returned to her office where she looked up LeQue's age and learned that he would turn eighteen on February 3, twenty days later. The next day, January 15, Schneider referred S.M. to juvenile intake and reported the assault to Detective Berger of the City of Fond du Lac Police Department. She briefed Berger on the case and told him she would call him back after she had interviewed S.M.'s parents to determine if they would cooperate with the police investigation.

Due to the parents' work schedules, Schneider was unable to meet with them until five days later, January 20. Neither S.M. nor the police were present at the meeting. After this meeting, Schneider telephoned a city of Fond du Lac police captain and informed him that S.M.'s parents would be unable to meet with Detective Berger due to their work schedules. Schneider asked the captain to assign another officer. Detective Gerald Bonlander was then assigned to the case.

According to Schneider's testimony, S.M.'s parents wanted to be at the police interview, but their work schedules again made scheduling difficult. After several telephone calls to S.M.'s parents and Detective Bonlander, Schneider was able to set February 4, 1988 as a mutually agreeable meeting time for the police interview. The day before this interview, February 3, LeQue turned eighteen.

Following the interview, Detective Bonlander referred the case to the district attorney, and on February 23, 1988, a criminal complaint was issued charging LeQue with three counts of first-degree sexual assault. The record does not reveal that any representative of the City of Fond du Lac Police Department was expressly informed that LeQue was about to turn eighteen. However, LeQue had experienced numerous juvenile contacts with the Fond du Lac city and county criminal justice system. These included a juvenile waiver hearing in an unrelated matter on January 13.

LeQue moved for dismissal on alternate theories. First, he alleged that the adult circuit court lacked subject matter jurisdiction. He pointed out that sec. 48.18(1), Stats., prohibits the juvenile court from waiving jurisdiction over crimes committed by a child before the child's sixteenth birthday. ² He therefore argued that the legislature did not intend to allow the adult court to obtain subject matter jurisdiction over a crime committed by a fifteen-year-old just because the alleged offender was not charged until he was eighteen. The trial court rejected this argument, concluding that the law "states that the date of commencing the action, rather than the date of the alleged criminal action, is what determines whether or not there is juvenile jurisdiction." (Citing State v. Avery, 80 Wis.2d 305, 259 N.W.2d 63 (1977); State v. Becker, 74 Wis.2d 675, 247 N.W.2d 495 (1976); State ex rel. Koopman v. County Court, 38 Wis.2d 492, 157 N.W.2d 623 (1968)).

LeQue also contended that the adult circuit court's exercise of jurisdiction deprived him of his rights to equal protection and due process under the United States and Wisconsin Constitutions. In his brief in support of his motion to dismiss, LeQue argued that an irrational and arbitrary classification is created by a system which would have prohibited adult prosecution of this offense if the matter had been charged prior to his eighteenth birthday, but which would permit adult prosecution now that the charges were issued after his eighteenth birthday. The trial court did not address this argument in its decision. ³

Alternatively, LeQue argued that even if subject matter jurisdiction existed, the action must be dismissed because the state failed to act with due dispatch and the resultant delay was intentional and negligent. The trial court rejected this further argument, determining that the twenty-two day period between S.M.'s report of the assault and LeQue's eighteenth birthday was an investigative period; that there was neither intentional nor negligent delay on the part of the state; and that the state had acted with due dispatch. LeQue appeals.

A circuit court's jurisdiction over criminal matters is derived from the Wisconsin Constitution and statutes. Wis. Const. art. VII, sec. 8; sec. 753.03, Stats.; see also In re Carlson, 147 Wis.2d 630, 635, 433 N.W.2d 635, 637 (Ct.App.1988). Thus, whether the circuit court has jurisdiction over a particular criminal complaint presents a question of statutory and constitutional interpretation. Carlson, 147 Wis.2d at 635, 433 N.W.2d at 637. This is a question of law to which we apply an independent standard of review. Id.

The issue in this case is whether the adult circuit court has jurisdiction over an adult ⁴ who is charged with a crime allegedly committed at age fifteen, a crime for which the alleged offender could not have been waived into adult court if he had been charged while still a juvenile. Sec. 48.18(1), Stats. Until now, case law has dealt only with instances in which an adult was charged with a crime committed at age seventeen. See Avery, 80 Wis.2d at 307, 259 N.W.2d at 64; Becker, 74 Wis.2d at 676, 247 N.W.2d at 496; Koopman, 38 Wis.2d at 494, 157 N.W.2d at 624. In these cases, the supreme court has held that it is the defendant's age on the date of commencing the action, rather than the date of the alleged criminal act, which determines whether there is any bar to adult court jurisdiction. Avery, 80 Wis.2d at 310, 259 N.W.2d at 65; Koopman, 38 Wis.2d at 499-500, 157 N.W.2d at 627.

This case, however, involves a juvenile who could not have been waived into the adult court had a juvenile proceeding been promptly commenced following commission of the alleged offense. Sec. 48.18(1), Stats. This distinction, LeQue argues, serves to bar the adult circuit court from exercising subject matter jurisdiction which Avery, Becker and Koopman would otherwise confer. We disagree.

At the heart of LeQue's statutory argument is the juvenile waiver statute, sec. 48.18, Stats. This statute permits the juvenile court to waive its exclusive jurisdiction over a child if the child is alleged to have violated a state criminal law on or after his or her sixteenth birthday. Id. We have previously held that this statute establishes the juvenile's age at the time of the offense as determinative of the point at which the juvenile court can waive jurisdiction. In re D.V., 100 Wis.2d 363, 367, 302 N.W.2d 64, 66 (Ct.App.1981). ⁵

LeQue correctly states that if he had been charged twenty days earlier, the juvenile court would have had exclusive jurisdiction. Sec. 48.12(1), Stats. From this he argues that the juvenile court would have been powerless to waive its jurisdiction because he was only fifteen at the time of the alleged offenses. Sec. 48.18, Stats. Since LeQue would likely have turned eighteen before any plea hearing, LeQue further reasons that the juvenile court would then have had the limited options of either dismissing the action with prejudice or entering into a consent decree. Sec. 48.12(2). ⁶

From this premise, LeQue argues that there is no rational basis for prohibiting adult prosecution of an action if the matter was reported, investigated and prosecuted promptly, but permitting such prosecution if there is delay which carries the charging date beyond the alleged offender's eighteenth birthday. LeQue argues that this is an absurd result which conflicts with the waiver statute's objectives. We reject this reasoning.

Section 753.03, Stats., provides that "circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court." Therefore, an adult circuit court's jurisdiction over criminal matters is circumscribed only by the exclusive jurisdiction given to the juvenile court over children alleged to have committed crimes. The delinquency arm of the juvenile court is vested with exclusive jurisdiction of children over twelve years of age and less than eighteen years of age who have violated state or...