State v. Sanders

• Decision Date: 15 March 2017
• Docket Number: Appeal No. 2015AP2328-CR
• Citation: 2017 WI App 22,895 N.W.2d 41,375 Wis.2d 248
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Shaun M. SANDERS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

375 Wis.2d 248

895 N.W.2d 41

2017 WI App 22

STATE of Wisconsin, Plaintiff-Respondent,

v.Shaun M. SANDERS, Defendant-Appellant.^†

Appeal No. 2015AP2328-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: September 14, 2016

Opinion Filed: March 15, 2017

On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig M. Kuhary of Walden & Schuster, S.C., Waukesha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general.

Before Reilly, P.J., Gundrum and Hagedorn, JJ.

GUNDRUM, J.

¶1 Shaun M. Sanders appeals from a judgment of conviction for repeated sexual assault of the same child in violation of WIS. STAT . § 948.025 (2015-16),¹ incest with a child in violation of WIS. STAT . § 948.06(1), and child enticement in violation of WIS. STAT . § 948.07. He also appeals an order denying his motion for postconviction relief.²

¶2 Sanders argues the circuit court lacked subject matter jurisdiction and competency to prosecute him for criminal conduct he allegedly committed when he was under the age of ten, and his trial counsel performed ineffectively by not moving pretrial to preclude the introduction at trial of evidence related to acts occurring prior to his tenth birthday. Sanders also argues his counsel performed ineffectively by failing to object to the jury instructions and verdict form related to the incest count on the ground they were not specific enough so as to require the jury to unanimously agree on one specific act forming the basis of the sexual element of this count. We reject all of Sanders' arguments and affirm.

Background

¶3 The State charged Sanders with four felony counts related to sexual activity he engaged in over several years with his younger sister, H.S. Count one of the Information charged him with committing repeated sexual assaults of H.S. between approximately September 26, 2003, and June 5, 2006, a time period when H.S. was seven to nine years old and Sanders was nine to twelve years old. Counts two, three, and four respectively charged Sanders with committing repeated sexual assault of, incest with, and child enticement of H.S. between approximately September 26, 2008, and September 25, 2012, a time period when H.S. was twelve to fifteen years old and Sanders was fourteen to eighteen years old. A jury trial was held, at which the following relevant testimony was presented.

¶4 H.S. testified that in December 2012 she was communicating with her boyfriend via Skype when her brother, Sanders, entered her bedroom and said "peek." H.S. responded by immediately ending her Skype communication, participating in a "peek" with Sanders, and afterward reestablishing Skype communication with her boyfriend. H.S. testified that "whenever [Sanders] came in and demanded with the word 'peek,' it meant that I was supposed to lift my shirt, and he would suck and fondle and kiss each of my breasts." H.S.'s boyfriend also testified to communicating with H.S. via Skype, Sanders entering H.S.'s bedroom and saying "something about a peek," H.S. abruptly ending the Skype communication for about "a minute, minute and a half," and H.S. then reestablishing Skype communication with him.

¶5 H.S. testified she was six or seven years old³ the first time Sanders had her participate in a "peek." She did not remember details, but stated, "All I know is that eventually, it just became something that I did ... [a]nd that I was expected to do." The "peeks" "always involve[d] touching," and took place in H.S.'s bedroom, Sanders' bedroom, and "[i]f my parents weren't there, it could happen anywhere in the house." Between the time of the first "peek" and December 2012, the "peeks" occurred "[o]ver 200 times."

¶6 H.S. confirmed that the "peeks" eventually "led to something else," and testified to a specific occasion where Sanders took her into the walk-in closet in her bedroom, which had the blinds closed, and "showed" her, as H.S. recalled Sanders stating it, "the proper way to give a blow job." She described the "blow job" as her putting her mouth on Sanders' penis and sucking "until he ejaculate[d] into his shirt." H.S. performed such oral sex on Sanders "[a]round ten" times, in either H.S.'s or Sanders' bedroom, but she "[did] not remember ... times" other than the incident in her walk-in closet. She recalled "[t]here were several times where I would be in the kitchen or I would be downstairs, and he would walk past and tell me that I was expected in his room at a certain time at night when both of my parents were asleep." She would go to his room in response: "Sometimes it would just be a peek, and most of the time, it would be oral sex, or I would watch him masturbate." She stated "[t]here were times where it was every other month, and there were times where it would be every other day." H.S. was "[t]welve or thirteen" the first time she engaged in oral sex with Sanders, and it "stopped" when Sanders went to "boot camp" in May 2012.

¶7 In his defense, Sanders testified he did not commit any of the actions to which H.S. testified. Instead, he told the jury that for a one-month period when he was around eight or nine years old, he would ask H.S. "to lift up her shirt and show her breasts." He testified that he called this a "peek," no contact was involved, it never occurred again after that month, and to his "knowledge" there was never any sexual touching between him and his sister. He stated he did not know at the time that the "peeks" were wrong, "but now I do."

¶8 The jury found Sanders not guilty on count one and guilty on counts two through four. He filed a postconviction motion alleging his trial counsel provided him ineffective assistance. The circuit court denied Sanders' motion, and he appeals.

Discussion

¶9 Sanders asserts he was improperly prosecuted on count one because that count included time during which he was under ten years of age and the circuit court lacked subject matter jurisdiction and the competency to exercise that jurisdiction to prosecute him for acts committed prior to age ten. Relatedly, he argues his trial counsel performed ineffectively in failing to challenge count one on these grounds prior to trial. While the jury ultimately did acquit Sanders on that count, he asserts that because the count was not dismissed prior to trial, evidence was admitted at trial specifically related to that count which prejudiced him with regard to the other counts. Sanders also contends his trial counsel performed ineffectively in failing to object to the jury instructions and verdict form related to count three, incest, on the basis the victim testified to multiple instances of sexual contact with Sanders yet the instructions and verdict form did not require the jury to unanimously agree upon which specific sexual act formed the basis of the incest guilty verdict. We affirm Sanders' convictions because we conclude there was no jurisdiction or competency problem with regard to count one and counsel was not ineffective in failing to challenge that count or the jury instructions and verdict form related to count three.

Sanders' Pre-Age-Ten Conduct

¶10 "We independently review questions of subject matter jurisdiction and competency." City of Eau Claire v. Booth , 2016 WI 65, ¶6, 370 Wis.2d 595, 882 N.W.2d 738. With regard to a claim of ineffective assistance of counsel, to be successful, a defendant must show counsel's performance was deficient and the deficiency prejudiced him/her. See State v. Erickson , 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999). If the defendant fails to prove one prong, we need not address the other. See Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether counsel's performance was deficient or prejudicial is a question of law we review de novo. State v. Jeannie M.P. , 2005 WI App 183, ¶6, 286 Wis.2d 721, 703 N.W.2d 694.

¶11 Before the circuit court and initially on appeal, Sanders' only issue related to count one was that the circuit court lacked subject matter jurisdiction and counsel was ineffective for not raising the matter prior to trial. We sought supplemental briefing from Sanders and the State, asking if the matter is really one of competency, not jurisdiction. In their supplemental briefs, both parties agree the issue they previously addressed as jurisdiction is really an issue of competency. Sanders, however, also maintains the additional position that the circuit court "did not have criminal subject matter jurisdiction on count one ... because it did not allege an offense known to law."

¶12 Sanders' contention the circuit court lacked jurisdiction related to count one is a nonstarter. Even though Sanders' trial counsel failed to raise this issue prior to trial, we nonetheless review the matter directly because a challenge to subject matter jurisdiction cannot be forfeited. See Booth , 370 Wis.2d 595, ¶1, 882 N.W.2d 738. In Booth , our supreme court recently reconfirmed in unmistakable and definitive language that "no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Id. , ¶18 (quoting Village of Trempealeau v. Mikrut , 2004 WI 79, ¶8, 273 Wis.2d 76, 681 N.W.2d 190 ). Even where a complaint fails to state an offense known to law⁴ —the subject matter jurisdiction position Sanders maintains— "the court must retain subject matter jurisdiction to dispose of the matter." Id. , ¶17. Here, the circuit court had subject matter jurisdiction.

¶13 "A circuit court's ability to exercise its subject matter jurisdiction in individual cases, however, may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction." Id. , ¶12 (quoting Mikrut , 273 Wis.2d 76, ¶2, 681 N.W.2d 190 ). "The failure to comply with these statutory conditions ... may under certain circumstances affect the circuit court's competency to proceed to judgment in the particular case...