State v. Sanders, No. 2015AP2328-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN, J.
Citation2018 WI 51,381 Wis.2d 522,912 N.W.2d 16
Decision Date18 May 2018
Docket NumberNo. 2015AP2328-CR
Parties STATE of Wisconsin, Plaintiff–Respondent, v. Shaun M. SANDERS, Defendant–Appellant–Petitioner.

381 Wis.2d 522
912 N.W.2d 16
2018 WI 51

STATE of Wisconsin, Plaintiff–Respondent,
v.
Shaun M. SANDERS, Defendant–Appellant–Petitioner.

No. 2015AP2328-CR

Supreme Court of Wisconsin.

Oral Argument: December 5, 2017
Opinion Filed: May 18, 2018


For the defendant-appellant-petitioner, there were briefs filed by Craig M. Kuhary and Walden & Schuster, S.C., Waukesha. There was an oral argument by Craig M. Kuhary.

For the plaintiff-respondent, there was a brief filed by Kevin M. LeRoy, deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general; Misha Tseytlin, solicitor general; and Ryan J. Walsh, chief deputy solicitor general. There was an oral argument by Kevin M. LeRoy.

MICHAEL J. GABLEMAN, J.

381 Wis.2d 527

¶ 1 This is a review of a published decision of the court of appeals affirming the Waukesha County Circuit Court's judgment of conviction1 and order denying postconviction

381 Wis.2d 528

relief2 to Shaun Sanders. State v. Sanders, 2017 WI App 22, 375 Wis. 2d 248, 895 N.W.2d 41.

¶ 2 Sanders raises a single issue for our review: do circuit courts possess statutory competency3 to proceed in criminal

912 N.W.2d 20

matters when the adult defendant was charged for conduct he committed before his tenth birthday?

¶ 3 We hold that circuit courts possess statutory competency to proceed in criminal matters when the adult defendant was charged for conduct he committed before his tenth birthday. The defendant's age at the time he was charged, not his age at the time he committed the underlying conduct, determines whether the circuit court has statutory competency to hear his case as a criminal, juvenile delinquency, or JIPS matter. Consequently, the circuit court in this case possessed statutory competency to hear Sanders' case as a criminal matter because he was an adult at the time he was charged. Therefore, his counsel did not perform deficiently by failing to raise a meritless motion. Accordingly, we affirm the court of appeals.

I. BACKGROUND

A. Statutory Background

¶ 4 In order to understand this case, one must understand the three forms of statutory competency exercised in Wisconsin over those accused of committing criminal conduct.

381 Wis.2d 529

¶ 5 A person who is 17 years of age or older is subject to a criminal proceeding. See Wis. Stat. § 938.02(10m) (2013–14).4 A person convicted in a criminal proceeding may be subject to confinement in the state prison system or a county jail, fines, or probationary supervision. See Wis. Stat. §§ 973.01, 973.03, 973.05, 973.09.

¶ 6 A juvenile5 "10 years of age or older who is alleged to be delinquent" is subject to a juvenile delinquency proceeding. Wis. Stat. § 938.12(1). A juvenile adjudged delinquent may be subject to, inter alia, placement in a juvenile correctional facility or juvenile portion of a county jail, forfeiture, suspension of driving privileges, counseling, supervision, electronic monitoring, restitution, supervised work or community service, or drug testing. Wis. Stat. § 938.34.

¶ 7 A juvenile "under 10 years of age [who] has committed a delinquent act" is subject to a JIPS6 proceeding. Wis. Stat. § 938.13(12). A juvenile adjudged in need of protection or services may be subject

381 Wis.2d 530

to all of the dispositions available for those adjudged delinquent, except placement in a juvenile correctional facility or juvenile portion of a county jail, forfeiture, suspension of driving privileges (unless the JIPS matter involves habitual truancy), and placement in a facility for treatment of a developmental disability or mental illness unless the juvenile suffers from one of those conditions. Wis. Stat. § 938.345.

B. Factual and Procedural Background of Sanders' Case

¶ 8 Starting when Sanders was around eight or nine years old, and his younger

912 N.W.2d 21

sister H.S. was six or seven years old,7 he would ask for a "peek," which meant H.S. was expected to lift her shirt and expose her breasts. As time elapsed, peeks progressed to include Sanders touching and sucking H.S.'s breasts, and eventually Sanders forcing oral sex on H.S.

¶ 9 The abuse stopped when Sanders was 18 and H.S. was 16. H.S.'s boyfriend, R.N., heard Sanders request a peek while R.N. was Skyping8 with H.S. H.S. immediately terminated the Skype call, and reconnected approximately one minute later. H.S. told R.N. what it meant when Sanders requested a peek, but

381 Wis.2d 531

swore him to secrecy. R.N. told a school official about the incident a few months later. The school reported the allegations to the local police, who then launched an investigation.

¶ 10 The district attorney charged Sanders with four counts of criminal misconduct: (1) repeated sexual assault of a child contrary to Wis. Stat. § 948.025(1)(a)9 for conduct occurring between September 26, 2003, and June 5, 2006; (2) repeated sexual assault of a child contrary to § 948.025(1)(e) for conduct occurring between September 26, 2008, and September 25, 2012; (3) incest contrary to Wis. Stat. § 948.06(1) for conduct occurring between September 26, 2008, and September 25, 2012; and (4) child enticement contrary to Wis. Stat. § 948.07(1) for conduct occurring between September 26, 2008 and September 25, 2012. According to the information filed by the State, Sanders was 910 through 12 years old during the time period charged in count one and 14 through 18 years old during the time periods charged in counts two through four. Sanders was 19 years old when the charges were filed.

¶ 11 At the close of the State's case-in-chief, Sanders' counsel moved for an order to dismiss count one, repeated sexual assault of a child contrary to

381 Wis.2d 532

Wis. Stat. § 948.025(1)(a) for conduct occurring between September 26, 2003, and June 5, 2006. Counsel based his motion on lack of evidence. Specifically, Sanders' counsel argued that the State did not present any evidence that Sanders had been sexually gratified by peeks during the time period charged in count one, when he was either eight or nine to 12 years old.11 The circuit

912 N.W.2d 22

court understood the issue to be one of jurisdiction, rather than evidence or competency, and took the motion under advisement. The jury acquitted Sanders of count one, but convicted him of counts two through four. The circuit court never addressed the merits of Sanders' motion to dismiss count one.

¶ 12 Sanders brought a postconviction motion alleging, inter alia, that his trial counsel was ineffective for failing to bring a pre-trial motion to dismiss count one. Even though Sanders was acquitted of count one, he alleged that he was prejudiced because the inclusion of count one allowed evidence of acts taking place between September 26, 2003, and June 5, 2006, to be admitted that would have been irrelevant and, therefore, presumably excluded, if count one had been dismissed. Specifically, Sanders confessed to police and testified at trial that he engaged in peeks with H.S. when he was eight to nine years old, but the peeks ended after one month and never progressed beyond viewing H.S.'s breasts.12 Sanders argued that his confession

381 Wis.2d 533

would have been irrelevant, and thus inadmissible, without count one. He argued that he was prejudiced because the confession added credibility to H.S.'s testimony and detracted from what his defense would otherwise have been but for count one; specifically, that the peeks never happened.

¶ 13 The circuit court denied Sanders' postconviction motion. Relying on our reasoning in State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138 (1992), the circuit court concluded that the defendant's age at the time he is charged, not his age at the time the underlying conduct occurred, determines whether charges are properly brought as a criminal, juvenile delinquency, or JIPS matter. Because a pre-trial motion to dismiss count one would have been meritless, the court concluded that trial counsel did not perform deficiently for failing to bring such a motion.

¶ 14 Sanders appealed. The court of appeals first clarified that the issue raised was one of statutory competency, not jurisdiction. Sanders, 375 Wis. 2d 248, ¶¶ 12–13, 895 N.W.2d 41. The court of appeals next noted that challenges to a circuit court's statutory competency can be forfeited. Id., ¶ 14. Thus, the court of appeals viewed the case through the lens of ineffective assistance of counsel for failure to bring a motion to dismiss because Sanders' trial counsel never raised competency as an issue. Id. The court of appeals affirmed, concluding that the circuit court did have statutory competency to hear Sanders' case in adult criminal court for conduct committed before he was ten years old. Id., ¶ 29.

¶ 15 Sanders petitioned this court for review, which...

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14 practice notes
  • State v. X. S. (In re X. S.), 2021AP419
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...counseling, supervision, electronic monitoring, restitution, supervised work or community service, or drug testing." State v. Sanders, 2018 WI 51, ¶6, 381 Wis.2d 522, 912 N.W.2d 16. [4] Running Rebels Intensive Monitoring Program provides support, oversight, and mentoring to delinquent juve......
  • State v. Hinkle, No. 2017AP1416-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • November 12, 2019
    ...because a trial lawyer's failure to raise a nonmeritorious issue "does not constitute deficient performance." See State v. Sanders, 2018 WI 51, ¶54, 381 Wis. 2d 522, 912 N.W.2d 16 ("[F]ailure to bring a meritless motion does not constitute deficient performance.").Finally, the State asks us......
  • State v. X. S. (In re Interest of X. S.), 2021AP419
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...counseling, supervision, electronic monitoring, restitution, supervised work or community service, or drug testing." State v. Sanders, 2018 WI 51, ¶6, 381 Wis. 2d 522, 912 N.W.2d 16.4 Running Rebels Intensive Monitoring Program provides support, oversight, and mentoring to delinquent juveni......
  • State v. Kimble, 2021AP1227-CR
    • United States
    • Court of Appeals of Wisconsin
    • November 29, 2022
    ...it would have been overruled." Counsel's performance is not deficient for failing to make a meritless objection. See State v. Sanders, 2018 WI 51, ¶18, 381 Wis.2d 522, 912 N.W.2d 16. Therefore, Kimble has not made a showing of deficient performance. ¶38 Further, Kimble has not made a showin......
  • Request a trial to view additional results
12 cases
  • State v. X. S. (In re X. S.), 2021AP419
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2022
    ...counseling, supervision, electronic monitoring, restitution, supervised work or community service, or drug testing." State v. Sanders, 2018 WI 51, ¶6, 381 Wis.2d 522, 912 N.W.2d 16. [4] Running Rebels Intensive Monitoring Program provides support, oversight, and mentoring to delinquent juve......
  • State v. Hinkle, No. 2017AP1416-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • November 12, 2019
    ...because a trial lawyer's failure to raise a nonmeritorious issue "does not constitute deficient performance." See State v. Sanders, 2018 WI 51, ¶54, 381 Wis. 2d 522, 912 N.W.2d 16 ("[F]ailure to bring a meritless motion does not constitute deficient performance.").Finally, the State asks us......
  • Riggert v. Reed, Appeal No. 2017AP2369
    • United States
    • Court of Appeals of Wisconsin
    • November 8, 2018
    ...29 U.S.C. § 1132(e)(1). Pertinent here, a challenge to subject matter jurisdiction may be raised at any time. See State v. Sanders , 2018 WI 51, ¶ 19, 381 Wis. 2d 522, 912 N.W.2d 16 ("defects in subject matter jurisdiction may always be asserted"); Kohler Co. v. DILHR , 81 Wis. 2d 11, 25, 2......
  • State v. Wolfe, 2021AP77-CR
    • United States
    • Court of Appeals of Wisconsin
    • March 30, 2022
    ...on these bases would not have been successful, we hold that Wolfe received constitutionally adequate assistance. See State v. Sanders, 2018 WI 51, ¶29, 381 Wis.2d 522, 912 N.W.2d 16 (holding counsel does not perform deficiently by failing to bring a meritless motion). ¶9 We apply the same t......
  • Request a trial to view additional results

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