State v. Lewandowski

• Decision Date: 28 January 1985
• Docket Number: No. 83-2415-CR,83-2415-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christopher M. LEWANDOWSKI, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 550

364 N.W.2d 550

122 Wis.2d 759

STATE of Wisconsin, Plaintiff-Respondent, v. Christopher M. LEWANDOWSKI, Defendant-Appellant.

^*

No. 83-2415-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 9, 1984.

Opinion Released Jan. 28, 1985.

Opinion Filed Jan. 28, 1985.

Alan G. Habermehl and Kalal & Habermehl, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and John J. Glinski, Asst. Atty. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

Defendant appeals from a judgment of conviction of burglary and first degree sexual assault and an order denying his motion for postconviction relief. He argues that because he was 16 years old at the time of the offense and the circuit court record contained no evidence showing a waiver of the juvenile court's jurisdiction, the circuit court lacked subject matter jurisdiction. He alternatively contends that if a waiver is found, it was defective. He also contends that his sentence is excessive.

The circuit court record contained defendant's waiver into circuit court. Defendant raised the alleged waiver defects for the first time in his reply brief, and has therefore waived any error. The trial court did not abuse its discretion in sentencing defendant. We affirm defendant's conviction.

Defendant was arrested when he was 16 years old. After two hearings in juvenile court, that court waived jurisdiction and referred the matter to the district attorney for criminal proceedings in circuit court. Sec. 48.18(6), Stats. Defendant was charged with burglary, armed burglary, first degree sexual assault, and criminal damage to property.

At trial, a 12 year old babysitter testified that defendant entered the house where she was sleeping on the sofa, woke her, and told her that he was drunk and wanted sex. He then pushed her upstairs stating that he had a knife. He forced her to remove her clothing and submit to sexual contact. She convinced him that the noise of a nearby car meant that the homeowners had returned. He made her promise not to report the incident and allowed her to run downstairs to delay the homeowners while he hid under a bed. She escaped, and defendant was immediately apprehended.

Juvenile Court Waiver

Defendant contends that the circuit court had no subject matter jurisdiction over him because its record did not show a waiver of juvenile court jurisdiction.

Section 48.18(6), Stats., requires the juvenile court to waive jurisdiction over children 16 years old or older before the circuit court obtains jurisdiction for criminal proceedings. Section 48.18(2) requires a hearing be held before the juvenile court to determine whether waiver is appropriate.

In State ex rel. A.E. v. Green Lake County Cir. Ct., 94 Wis.2d 98, 105a-b, 292 N.W.2d 114, 114 (1980) (on motion for reconsideration) the court concluded that juvenile waiver orders are not "final orders" under sec. 808.03(1), Stats., because they do not "[dispose] of the entire matter in litigation as to one or more of the parties." Id. (quoting sec. 808.03(1)). It also concluded that juvenile waiver orders were not "adjudications" under sec. 48.47, Stats., because they did not go to the merits of the case. It held "[t]he waiver order merely transfers the matter to another court." Id. at 105b, 292 N.W.2d at 114.

Underlying A.E.'s conclusion that juvenile waiver orders are not final is the proposition that a juvenile's waiver into criminal court is but part of one proceeding which begins when the child is taken into custody and ends with acquittal or conviction.

Because the juvenile and criminal proceedings were part of the same proceeding, it is unnecessary that juvenile orders be duplicated in the criminal portion of the proceeding. The record in the trial court was not defective.

Defendant argues for the first time in his reply brief that there were "defects" in the juvenile court's waiver hearings because (1) the court found prosecutive merit solely on the allegations of the petitions alleging delinquency and requesting waiver, (2) the testimony was inadequate in that the psychological evaluation of defendant was not summarized or introduced into the record, and (3) the waiver was granted without consideration of mitigating factors. He concludes that the "defects" deprived the trial court of subject matter jurisdiction.

Saying that defects deprive a trial court of subject matter jurisdiction does not make it so. A juvenile court has jurisdiction to err. The alleged defects are not jurisdictional. ¹

In In Matter of Estate of Bilsie, 100 Wis.2d 342, 346 n. 2, 302 N.W.2d 508, 512 (Ct.App.1980), we said: "Appellants waited until their reply brief to argue that the court ignored or failed to give proper weight to the evidence presented at trial. ... We will not, as a general rule, consider issues raised by appellants for the first time in a reply brief."

Defendant first mentions the alleged hearing errors in his reply brief. We will not review them.

The Sentences

Defendant contends that the trial court's concurrent sentences of five years in prison for first degree sexual assault and two years in prison for armed burglary constituted an abuse of discretion because the court concentrated solely on the severity of the offenses, excluded all other appropriate factors and made a blanket refusal to consider probation.

In McCleary v. State, 49 Wis.2d 263, 276, 182 N.W.2d 512, 519 (1971), the court said that relevant sentencing factors are the protection of the public, the gravity of the offense and the defendant's...