2018 WI 51

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP2328-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Shaun M. Sanders,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 375 Wis. 2d 248, 895 N.W.2d 41

PDC No: 2017 WI App 22 - Published

OPINION FILED: May 18, 2018

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 5, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Waukesha

JUDGE: Jennifer Dorow and Lee S. Dreyfus, Jr.

JUSTICES:

CONCURRED: A.W. BRADLEY, J., concurs, joined by ABRAHAMSON, 

J. (opinion filed).

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:

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.
2018 WI 51

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP2328-CR

(L.C. No. 2013CF1206)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Shaun M. Sanders,

 Defendant-Appellant-Petitioner.

FILED

MAY 18, 2018

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 MICHAEL J. GABLEMAN, J. 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 relief2 to Shaun Sanders. State v. 

Sanders, 2017 WI App 22, 375 Wis. 2d 248, 895 N.W.2d 41. 

 

1 The Honorable Jennifer Dorow presided over Sanders' trial 

and sentencing.

2 The Honorable Lee S. Dreyfus, Jr. presided over Sanders' 

postconviction proceedings. 
No. 2015AP2328-CR 

2

¶2 Sanders raises a single issue for our review: do 

circuit courts possess statutory competency3 to proceed in 

criminal 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.

 

3 The concepts of statutory competency and subject matter 

jurisdiction are often conflated. Kett v. Cmty. Credit Plan, 

Inc., 228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786 (1999). We discuss 

the concepts of competency and subject matter jurisdiction in 

greater detail in paragraphs 19-24 below. Briefly stated, 

statutory competency is the concept that the legislature may 

prescribe how courts may address particular types of cases such 

as those involving juveniles alleged to be in need of protection 

or services, as opposed to those involving criminal defendants.
No. 2015AP2328-CR 

3

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.

¶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.

 

4 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.

5 For purposes of the juvenile justice code, a juvenile is 

"a person who is less than 18 years of age, except that for

purposes of investigating or prosecuting a person who is alleged

to have violated a state or federal criminal law or any civil 

law or municipal ordinance, 'juvenile' does not include a person 

who has attained 17 years of age." Wis. Stat. § 938.02(10m).
No. 2015AP2328-CR 

4

¶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 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 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. 

 

6 JIPS is an abbreviation for "juvenile in need of 

protection or services." See State v. Jeremiah C., 2003 WI App 

40, ¶1, 260 Wis. 2d 359, 659 N.W.2d 193.

7 The evidence introduced at trial was unclear as to whether 

the illegal conduct started when Sanders was eight or nine. 

H.S. testified that it began when she was six or seven, which 

would make Sanders eight or nine because he is approximately two 

years older than H.S. See also infra, ¶¶25-27. Whether the 

illegal conduct began when Sanders was eight or nine is 

irrelevant because, in either event, he was less than ten years 

old and thus would have been subject to a JIPS proceeding at 

that time. 
No. 2015AP2328-CR 

5

¶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 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, 

 

8 Skype is a software program that allows users to 

communicate in real time over the internet through video, audio, 

and instant messaging. 

9 The complaint does not specify which version of the 

statutes it applies to Sanders. We note that the State appears 

to have charged Sanders based on the version of the statutes in 

effect at the time the conduct occurred because the complaint 

lists count one as a class B felony, but count one became a 

class A felony in 2008. See 2007 Wis. Act 80, § 14. In any 

event, the specific version of the statutes underlying Sanders' 

charges is not important to our disposition of the issue before 

us.
No. 2015AP2328-CR 

6

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 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 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.

 

10 As noted in footnote 7, there was some discrepancy at 

trial as to whether Sanders was eight or nine when the illegal 

conduct began. Also as noted in footnote 7, the precise age is 

irrelevant.

11 In order to convict a defendant of repeated sexual 

assault of a child contrary to Wis. Stat. § 948.025(1)(a), the 

State must prove beyond a reasonable doubt that the defendant 

engaged in sexual contact "for the purpose of sexually degrading 

or sexually humiliating the complainant or sexually arousing or 

gratifying the defendant." Wis. Stat. § 948.01(5)(a).
No. 2015AP2328-CR 

7

¶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 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 

 

12 In the same police interview where Sanders confessed to 

engaging in peeks for one month, Sanders confessed to further 

sex acts with H.S. However, the circuit court suppressed that 

part of the interview.
No. 2015AP2328-CR 

8

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. 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 we 

granted on June 12, 2017.

II. STANDARD OF REVIEW

¶16 Whether circuit courts possess statutory competency is 

a question of law we review de novo. City of Eau Claire v. 

Booth, 2016 WI 65, ¶6, 370 Wis. 2d 595, 882 N.W.2d 738.

¶17 "Whether a defendant received ineffective assistance 

of counsel is a mixed question of law and fact." State v. 

Maday, 2017 WI 28, ¶25, 374 Wis. 2d 164, 892 N.W.2d 611. We 

uphold the circuit court's findings of fact as to what counsel 
No. 2015AP2328-CR 

9

did and did not do unless clearly erroneous. Id. Whether those 

facts constitute deficient performance and whether such 

performance prejudiced the defendant are questions of law we 

review de novo. State v. Erickson, 227 Wis. 2d 758, 768, 596 

N.W.2d 749 (1999).

III. ANALYSIS

¶18 We first address whether the issue Sanders raises is 

one of subject matter jurisdiction or circuit court competency. 

We next consider whether Sanders' trial counsel was ineffective 

for failing to file a pre-trial motion to dismiss count one. We 

hold that the circuit court possessed statutory competency to 

hear Sanders' case as a criminal matter. Thus, his counsel did 

not perform deficiently by failing to file a meritless motion 

seeking to dismiss count one prior to trial.

A. Sanders Alleges His Attorney was Ineffective for Failing to 

Challenge the Statutory Competency of the Circuit Court to Hear 

His Case as a Criminal Matter.

1. Sanders raises an issue of statutory competency.

¶19 At various points throughout his briefing, Sanders 

seems to treat the concepts of statutory competency and subject 

matter jurisdiction as identical. Though the concepts are often 

conflated, they are distinct. Kett v. Cmty. Credit Plan, Inc., 

228 Wis. 2d 1, 13 n.12, 596 N.W.2d 786 (1999). This distinction 

is important because defects in statutory competency can be 

forfeited or waived, but defects in subject matter jurisdiction 

may always be asserted. Vill. of Trempealeau v. Mikrut, 2004 WI 

79, ¶3, 273 Wis. 2d 76, 681 N.W.2d 190.
No. 2015AP2328-CR 

10

¶20 Subject matter jurisdiction defines a circuit court's 

"ability to resolve certain types of claims." Christine M. 

Wiseman & Michael Tobin, Wisconsin Practice Series: Criminal 

Practice and Procedure § 1:11, n.2 (2d ed. 2017). Statutory 

competency, on the other hand, defines a circuit court's 

"ability to undertake a consideration of the specific case or 

issue before it." Id.

¶21 Subject matter jurisdiction is defined by our 

constitution. Id. Circuit courts have subject matter 

jurisdiction over "all matters civil and criminal within this 

state . . . ." Wis. Const. art. VII, § 8. We construe this 

constitutional grant of power to mean "a circuit court is never 

without subject matter jurisdiction." Mikrut, 273 Wis. 2d 76, 

¶1.

¶22 In contrast, statutory competency is established by 

the legislature. Id., ¶9 ("We have recognized, however, that a 

circuit court's ability to exercise the subject matter 

jurisdiction vested in it by the constitution may be affected by 

noncompliance with statutory requirements pertaining to the 

invocation of that jurisdiction in individual cases."). A 

circuit court loses statutory competency when the court or a 

party fails to abide by a statutory mandate. Id., ¶10. These 

statutory mandates include time limits, mandatory release plans 

in chapter 980 cases, conditions precedent to modifying child 

support orders, and charging repeat OWI offenders criminally 

rather than civilly. Id., ¶13 (citations omitted); Booth, 370 

Wis. 2d 595, ¶22.
No. 2015AP2328-CR 

11

¶23 In this case, Sanders raises an issue of statutory 

competency because age limits on criminal, juvenile delinquency, 

and JIPS matters both define and restrict how a circuit court 

may address the specific case before it, and not whether a 

circuit court can hear criminal, juvenile delinquency, or JIPS 

matters generally. See Weisman & Tobin, supra, ¶20. 

¶24 Unlike challenges to subject matter jurisdiction, 

challenges to statutory competency may be forfeited13 or waived. 

Id., ¶3. This is so because statutory competency is "a 

'narrower concept' involving a 'lesser power' than subject 

matter jurisdiction." Id., ¶14 (citing Vill. of Shorewood v. 

Steinberg, 174 Wis. 2d 191, 200, 496 N.W.2d 57 (1993)). 

Consequently, Sanders forfeited his competency challenge when he 

failed to raise it in the circuit court. See Booth, 370 

Wis. 2d 595, ¶25. Accordingly, we will consider this issue 

through the framework of ineffective assistance of counsel. 

Erickson, 227 Wis. 2d at 768. See infra, ¶¶28-30. 

 

13 Though we spoke of "waiver" in Mikrut, we have since 

clarified that "forfeiture" is the proper term to describe a 

party's failure to raise an issue in the circuit court. Brunton 

v. Nuvell Credit Corp., 2010 WI 50, ¶35, 325 Wis. 2d 135, 785 

N.W.2d 302. Consequently, when "Mikrut says 'waiver[,]' it 

means 'forfeiture.'" City of Eau Claire v. Booth, 2016 WI 65, 

¶11 n.5, 370 Wis. 2d 595, 882 N.W.2d 738.
No. 2015AP2328-CR 

12

2. Sanders' counsel never challenged the circuit court's 

statutory competency to proceed on count one on the basis that 

Sanders was eight or nine years old at the time he committed 

some of the alleged conduct in that count.

¶25 Sanders' counsel had the opportunity, both before and 

during trial, to challenge the circuit court's competency to 

proceed on count one, but failed to do so. Sanders' counsel had 

sufficient notice that at least some of the alleged conduct 

underlying count one occurred while Sanders was eight or nine 

years old. The criminal complaint, as well as the information, 

provided notice of the time period during which the conduct 

recited in count one occurred.

¶26 During trial, testimony from Sanders and H.S. 

confirmed that Sanders was eight or nine years old when the 

conduct underlying count one started. See Thomas v. State, 92 

Wis. 2d 372, 386, 284 N.W.2d 917 (1979) (quoting Hess v. State, 

174 Wis. 96, 99, 181 N.W. 725 (1921)) ("[T]he 

prosecution . . . may prove the commission of the offense 

charged on some other day within a reasonable limitation [of 

that stated in the complaint and information]."). Sanders 

testified: (1) that he admitted to the investigating officer 

that he engaged in peeks, but for only one month approximately 

ten years prior to the interview (the interview occurred in 

March 2013); and (2) that he was "eight or nine" when the peeks 

took place.

¶27 Further, H.S. testified that the peeks began when she 

was six or seven years old. Sanders is approximately two years 
No. 2015AP2328-CR 

13

older than H.S., which means Sanders was eight or nine when the 

peeks began.

B. Counsel did not Perform Deficiently by Failing to Challenge 

the Circuit Court's Statutory Competency as to Count One.

¶28 A criminal defendant's constitutional right to counsel 

is infringed if counsel provides ineffective assistance. State 

v. Floyd, 2017 WI 78, ¶36, 377 Wis. 2d 394, 898 N.W.2d 560 

(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). A 

defendant receives ineffective assistance of counsel if his 

counsel both (1) performs deficiently; and (2) that deficient 

performance prejudices the defendant. Id. 

¶29 Counsel performs deficiently if his conduct "[falls] 

below an objective standard of reasonableness" for an attorney 

in the same position. Strickland, 466 U.S. at 688. Counsel 

does not perform deficiently by failing to bring a meritless 

motion. State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546 

N.W.2d 406 (1996). In determining whether counsel's performance 

was deficient for failing to bring a motion, we may assess the 

merits of that motion. See State v. Steinhardt, 2017 WI 62, 

¶43, 375 Wis. 2d 712, 896 N.W.2d 700.

¶30 A deficiency is prejudicial if there is a "reasonable 

probability that, but for counsel's unprofessional errors, the 

result of the proceedings would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the [proceedings'] outcome." Strickland, 466 U.S. 

at 694. If the defendant fails to prove one prong of the 

Strickland test (deficient performance or prejudice), then we 
No. 2015AP2328-CR 

14

need not address the other. Floyd, 377 Wis. 2d 394, ¶37 (citing 

Strickland, 466 U.S. at 697).

1. In Wisconsin, it is well-settled that statutory competency 

to hear a case as a criminal, juvenile delinquency, or JIPS 

matter is determined by the age of the accused at the time the 

offense is charged.

¶31 Wisconsin courts have uniformly held that statutory

competency is determined by the age of the accused at the time 

charges are filed, not the age of the accused at the time the 

underlying conduct occurred. Annala, 168 Wis. 2d 453; State ex 

rel. Koopman v. Waukesha Cty. Court, 38 Wis. 2d 492, 157 N.W.2d 

623 (1968); D.V. v. State, 100 Wis. 2d 363, 302 Wis. 2d 64 (Ct. 

App. 1981).

¶32 We first addressed this issue in Koopman, 38 

Wis. 2d 492. The State charged Koopman in criminal court for 

conduct that occurred before his 18th birthday.14 Id. at 494. 

Koopman filed a writ of prohibition in which he sought to 

transfer his case to the Waukesha County Juvenile Court.15 He 

did so because he committed the act at an age when he would have 

been subject to a juvenile court proceeding. Id. 

 

14 At the time State ex rel. Koopman v. Waukesha Cty. Court, 

38 Wis. 2d 492, 157 N.W.2d 623 (1968), was decided, 18 years of 

age was the dividing line for juvenile delinquency and adult 

criminal court competency. Wis. Stat. §§ 48.02(3), 48.12(1) 

(1967-68). The legislature lowered this age to 17 in 1995. 

1995 Wis. Act 27, § 2423.

15 At the time Koopman, 38 Wis. 2d 492, was decided, county 

courts had exclusive jurisdiction over all juvenile matters. 

Wis. Stat. § 253.13(1) (1967-68). County courts were abolished 

as part of the court reorganization of 1977. See Wis. Const. 

art. IV, § 2; Wis. Stat. § 753.07(1).
No. 2015AP2328-CR 

15

¶33 We held that Koopman was properly charged in criminal 

court because it was that court that had statutory competency to 

proceed in Koopman's case. Id. at 499. Juvenile courts had 

"exclusive jurisdiction . . . over any child who [was] alleged 

to be delinquent because: (1) he [had] violated any state law 

or any county, town, or municipal ordinance." Id. at 497 

(quoting Wis. Stat. § 48.12(1) (1967-68)). We reasoned that 

"'child' is qualified by the clause 'who is alleged to be 

delinquent,' thus setting up two requisites before [juvenile 

court] jurisdiction will attach." Id. at 498. Consequently, we 

determined that "the statute [excluded] the class of persons 

over eighteen at the time of the allegations of delinquency." 

Id. Koopman was properly charged in criminal court because he 

was 18 years old when the State filed charges.

¶34 We bolstered our holding with two observations. 

First, we drew an analogy between competency to hear a juvenile 

delinquency matter and competency to waive juvenile court 

jurisdiction. Because a juvenile court could waive its 

jurisdiction over a juvenile over 16 (thus allowing the juvenile 

to be tried as an adult) based on the juvenile's age at the time 

charged, then the circuit court's competency to hear a juvenile 

delinquency matter in the first place similarly depended on the 

defendant's age at the time charged. Id. at 499 (citing Wis. 

Stat. § 48.18 (1967-68)). Second, we noted that other aspects 

of juvenile court jurisdiction, such as "persons who may be 

dependent or neglected," Wis. Stat. § 48.13 (1967-68), applied 

only when "their status was called to the attention of the 
No. 2015AP2328-CR 

16

court" before the person's 18th birthday. Koopman, 38 

Wis. 2d at 499-500. These two aspects of the juvenile code are 

consistent with a reading of that section such that it applies 

only to those who are juveniles when charged.

¶35 The court of appeals subsequently applied the 

reasoning of Koopman in D.V., 100 Wis. 2d 363. In that case, 

the State filed a juvenile delinquency petition against D.V. 

alleging he committed an armed robbery when he was 11 years old. 

Id. at 365. However, the State did not file the juvenile 

delinquency petition until D.V. was 12 years old. Id. This is 

significant because, at the time, the minimum age for juvenile 

delinquency proceedings (i.e., the cutoff between JIPS and 

juvenile delinquency matters) was 12 years old.16 Wis. Stat. 

§ 48.13(12) (1981-82).

¶36 D.V. argued that the circuit court lacked statutory 

competency17 to hear the juvenile delinquency petition because 

the conduct occurred when his case would have been heard as a 

JIPS matter. Id. at 364. The court of appeals concluded that 

the circuit court possessed statutory competency and therefore 

 

16 The legislature lowered the minimum age for delinquency 

proceedings to ten years old in 1995 Wis. Act 77, § 629.

17 D.V. is among many prior Wisconsin decisions that confuse 

jurisdiction and competency. See Booth, 370 Wis. 2d 595, ¶14 

(prior "case law did not clearly distinguish between the

concepts of subject matter jurisdiction and competency"). Thus, 

though the D.V. court used the term "jurisdiction," the decision 

clearly addresses the concept of "competency" and we refer to it 

as such.
No. 2015AP2328-CR 

17

could proceed with the juvenile delinquency matter. It did so 

based on the long-standing principle that it is the person's age 

at the time of charging, and not the person's age at the time he 

committed the conduct, that determines whether the case will be 

heard as a criminal, juvenile delinquency, or JIPS matter. Id.

at 365 (citing Koopman, 38 Wis. 2d at 497-500).

¶37 Later, we had the opportunity to apply the reasoning 

of Koopman in Annala, 168 Wis. 2d 453. In that case, Annala 

molested an eight-year-old child when he was 15 years old. Id.

at 458. The conduct was first reported to authorities when 

Annala was 20 years old, which is when the State filed charges 

in criminal court. Id. at 458-59.

¶38 Annala challenged his conviction for the same 

substantive reason Sanders challenges his: the circuit court 

lacked statutory competency to proceed because the conduct 

occurred when he was at an age when he would not be subject to 

criminal liability. Id. at 459-60. We affirmed Annala's 

conviction because juvenile courts are limited to applying the 

juvenile code to juveniles. Id. at 462-63. Simply put, "[t]he 

[statutory competency] of the juvenile court is determined by 

the individual's age at the time charged, not the individual's 

age at the time of the alleged offense." Id. at 463 (citing 

Koopman, 38 Wis. 2d at 497-500).

¶39 We bolstered our reasoning with two observations. 

First, to preclude adults from being charged for crimes 

committed when they were juveniles would serve to implicitly, 

but definitively, shorten legislatively-prescribed statutes of 
No. 2015AP2328-CR 

18

limitation. Id. at 465-66. That is, if the State could not 

prosecute adults for conduct committed as juveniles, then the 

State would be subject to a time limitation (the time between 

commission of the act and the juvenile's 17th birthday), which 

the legislature did not contemplate and our court has not 

authorized. Id. We did not

think that the legislature intended to allow a minor 

who is less than sixteen years old who commits a 

serious felony to cajole or manipulate the victim or 

conceal the crime or conceal suspected culpability for 

the crime until reaching eighteen years of age and 

thereby conclusively frustrating the State's ability 

to hold him or her accountable for the wrongdoing. 

Had the legislature intended to effectuate this 

drastic change in the law, it would have done so in an 

express and clearly understandable manner. 

Id. Second, we noted that any unfairness to defendants is 

mitigated by protections afforded by the United States and 

Wisconsin Constitutions. Id. at 465. 

¶40 As we recognized in State v. Becker, the State 

violates a defendant's right to due process when it delays 

charging as part of "a deliberate effort to avoid juvenile court 

jurisdiction." 74 Wis. 2d 675, 677, 247 N.W.2d 495 (1976). If 

a defendant alleges, with particularity, that the State 

intentionally delayed filing charges to avoid a juvenile 

delinquency proceeding and raises genuine issues of fact, then 

the defendant is entitled to a hearing at which the State must 

prove that any delay "was not for the purpose of manipulating 

the system to avoid" a juvenile delinquency proceeding. State 
No. 2015AP2328-CR 

19

v. Velez, 224 Wis. 2d 1, 9-11, 589 N.W.2d 9 (1999) (quoting 

Becker, 74 Wis. 2d at 678).

¶41 Other jurisdictions that adhere to the rule that a 

person's age at the time of charging determines whether a 

juvenile or criminal matter is proper apply similar safeguards. 

Samuel M. Davis, Rights of Juveniles, § 2:3 n.13 (2018); see 

also State v. Isaac, 537 N.W.2d 786, 788 (Iowa 1995) ("The due 

process protection in prosecutorial delay cases is available to 

defendants to make sure the State will not employ tricks to gain 

an advantage over a defendant."); State v. Dixon, 792 P.2d 137, 

138 (Wash. 1990) (applying three-part test to determine whether 

delay in charging that resulted in loss of juvenile court 

jurisdiction violated defendant's right to due process).

2. Our precedent is based upon sound legal reasoning and longstanding principles of statutory competency.

¶42 A majority of courts addressing this issue are in 

accord with the long-standing precedent that Wisconsin has 

uniformly applied in these cases. Wayne R. LaFave, Substantive 

Criminal Law, § 9.6 (3d ed. Oct. 2017); see also H.D. Warren & 

C.P. Jhong, Age of Child at Time of the Alleged Offense or 

Delinquency, or at Time of Legal Proceedings, as Criterion of 

Jurisdiction of Juvenile Court, 89 A.L.R.2d 506, § 2. LaFave 

draws our attention to two cases, in addition to Annala, for 

this proposition: United States v. Blake, 571 F.3d 331 (4th 

Cir. 2009), and State v. Fowler, 194 A.2d 558 (Del. Super. 

1963).
No. 2015AP2328-CR 

20

¶43 In Blake, the defendant challenged his indictment as 

violating 18 U.S.C. § 503218 because he was 17 years old when the 

conduct occurred and 21 years old when he was indicted. 

However, the attorney general never certified his case as 

fitting any of the code's enumerated criteria. Blake, 571 F.3d 

at 343. The Blake court held that certification was 

unnecessary. Id. at 344. It noted that the statute applies to 

"a person who 'has not attained his twenty-first birthday,'" not 

a person who "had not" attained his 21st birthday "at the time 

he allegedly violated the law in question." Id. The Blake

court reasoned that the statute's plain meaning requires 

certification only when the defendant is indicted while still a 

juvenile. Id. (citing United States v. Wright, 540 F.3d 833, 

898-39 (8th Cir. 2008)).

¶44 In Fowler, the defendant challenged his criminal 

conviction because he was 17 years old at the time the conduct 

underlying the charges took place but 27 years old when charged. 

194 A.2d 558. The relevant statute established that "[t]he 

 

18 Federal law prohibits prosecution of juveniles for crimes 

carrying a maximum penalty of six months or fewer unless the 

United States Attorney General certifies that (1) no state 

juvenile court has jurisdiction, or the appropriate state 

juvenile court refuses jurisdiction; (2) the state does not have 

available programs and services adequate for the needs of 

juveniles; or (3) the offense charged is a felony with a 

substantial federal interest. 18 U.S.C. § 5032 (2000). 

For purposes of section 5032, a "juvenile" is "a person who 

has not attained his twenty-first birthday". 18 U.S.C. § 5031 

(2000). 
No. 2015AP2328-CR 

21

family court shall have exclusive jurisdiction in all 

proceedings . . . (2) concerning any child . . . charged with 

having violated any law of this State or any charter, ordinance 

or regulation of a sub-division thereof." Id. at 562 (quoting 

Del. Code Ann. tit. 10, § 951(2) (1963)). The statutes defined 

"child" as "a person who has not yet attained his eighteenth 

birthday." Id. at 561 (quoting Del. Code Ann. tit. 10, § 901 

(1963)).

¶45 The court reasoned juvenile court jurisdiction applies 

only to "[a] child charged." Id. at 562. Because Fowler was 

not a child when charged, the court determined that it was not 

improper for the State to bring criminal charges against him. 

Id. 

3. Application to Sanders

¶46 Sanders does not argue that the reasoning of Koopman, 

D.V., and Annala is flawed or that they should be overruled. 

Rather, he argues that the reasoning of those three cases does 

not apply to him because the charges in those cases "jumped" 

only one level (i.e., JIPS to juvenile in D.V. and juvenile to 

criminal court in Koopman and Annala), whereas his charges 

"jumped" two levels (i.e., JIPS to criminal court). Sanders 

views juvenile delinquency and criminal matters to be highly 

analogous because both punish criminal conduct and attempt to 

rehabilitate offenders through various sanctions, including 

confinement. He contrasts this with JIPS matters, which 

concentrate on rehabilitation, rather than punishment, and do 

not allow for confinement. Based on these distinctions, he 
No. 2015AP2328-CR 

22

argues that the legislature intended ten years to be the minimum 

age for criminal conduct such that a person can never be 

criminally charged for conduct committed before his tenth 

birthday.

¶47 Sanders bases his conclusion on a distinction that 

lacks a legal difference. The reasoning that applied to the 

charges that "jumped" one level in Koopman, D.V., and Annala

applies just as strongly to Sanders for two reasons: (1) we are 

not persuaded that the legislature intended to leave the State 

with no recourse when criminal conduct committed before a 

person's tenth birthday does not come to light until on or after 

the person has reached his 17th birthday; and (2) the 

legislature's inaction on statutory competency since Koopman, 

D.V., and Annala evinces legislative acquiescence to our 

interpretation of the competency statutes.

¶48 First, we are not persuaded that the legislature 

intended to leave the State with no recourse when criminal 

conduct committed before a person's tenth birthday does not come 

to light until on or after the person has reached his 17th 

birthday. We are not persuaded now, just as we were not 

persuaded in Annala, "that the legislature intended to allow a 

minor . . . to cajole or manipulate the victim[,] conceal the 

crime[,] or conceal suspected culpability for the crime until 

reaching [17] years of age and thereby conclusively frustrat[e]

the State's ability to hold him or her accountable for the 

wrongdoing." Annala, 168 Wis. 2d at 465-66. Though Annala

addressed juveniles over ten years old who are charged as 
No. 2015AP2328-CR 

23

adults, the reasoning applies in the present case because, like 

the defendants in Annala and Koopman, Sanders could not be the 

subject of a juvenile delinquency or JIPS matter.

¶49 Sanders could not be the subject of a juvenile 

delinquency proceeding because he is no longer a juvenile. The 

structure of the relevant statute for juvenile court competency 

has remained unchanged since Koopman: "The [juvenile] court has 

exclusive [competency] . . . over any juvenile 10 years of age 

or older who is alleged to be delinquent." Wis. Stat. 

§ 938.12(1). As we reasoned in Koopman, 38 Wis. 2d at 498, 

Sanders is too old for juvenile delinquency proceedings because 

the statute, by its plain language, applies only to a 

"juvenile . . . who is alleged to be delinquent." Because a 

juvenile is a person younger than 17 years of age and Sanders 

was 19 years old when charged, he could not be the subject of a 

juvenile delinquency proceeding.

¶50 Similarly, Sanders could not be subject to a JIPS 

proceeding because he is no longer a juvenile under ten years of 

age. Circuit courts possess statutory competency in JIPS cases 

when a "juvenile is under 10 years of age and has committed a 

delinquent act." Wis. Stat. § 938.13(12). Like the juvenile 

delinquency competency statute (Wis. Stat. § 938.12(1)), the 

JIPS competency statute (§ 938.13(12)) sets out two 

prerequisites: (1) the "juvenile is under 10 years of age"; and 

(2) the juvenile "has committed a delinquent act." Id. Because 

Sanders was no longer "under ten years of age" when he was 

charged, he could not be the subject of a JIPS proceeding. Id. 
No. 2015AP2328-CR 

24

¶51 As the foregoing analysis demonstrates, if Sanders 

could not have been criminally charged for the conduct at issue 

in this case when 19, then he could not have been charged at 

all. If the legislature had wanted this "drastic" result, "it 

would have done so in an express and clearly understandable 

manner." Annala, 168 Wis. 2d at 466.

¶52 Second, our plain reading of Wis. Stat. §§ 938.12 and 

938.13 is bolstered by the legislature's inaction on this issue 

since Koopman, D.V., and Annala were decided. If, as Sanders 

argues, the legislature intended the minimum age for criminal 

responsibility to be ten years old, it could have enacted a 

statute establishing as much after Koopman, D.V., or Annala. 

State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990) 

("Legislative inaction following judicial construction of a 

statute, while not conclusive, evinces legislative approval of 

the interpretation."). Legislative inaction is more indicative 

of acquiescence to prior judicial interpretation when other 

provisions within the same section are amended without affecting 

the provision at issue. See Tucker v. Marcus, 142 Wis. 2d 425, 

434, 418 N.W.2d 818 (1988). This rule is applicable to Sanders' 

case because the legislature has not substantively changed the 

statutory competency provisions despite making numerous 

amendments to related provisions——most notably separating the 

juvenile justice code from the children's code. 1995 Wis. Act 

77, § 629; see also, e.g., 2005 Wis. Act 344, § 134 (making 

stylistic amendment to § 938.12); 2005 Wis. Act 344, § 136 

(making stylistic amendment to § 938.13).
No. 2015AP2328-CR 

25

¶53 Even though the legislature has not established a 

minimum age for criminal responsibility, other safeguards are 

built in:

 Statutes of Limitations: In situations where the 

general six-year statute of limitations for felonies 

applies (which is the vast majority of felonies), an 

adult cannot be criminally charged for conduct 

committed before the person's tenth birthday. See

Wis. Stat. § 939.74(1). Mathematically, at least six 

years must elapse between conduct committed before the 

person's tenth birthday and the person's seventeenth 

birthday. 

 Mens Rea Elements: Intent elements serve to protect 

juveniles who, in the judgment of the jury, could not 

form criminal intent. See State v. Stephen T., 2002 

WI App 3, ¶13, 250 Wis. 2d 26, 643 N.W.2d 151 ("[T]he 

State must prove as an element of the crime that the 

perpetrator had the specific intent to touch the 

victim for the purpose of sexual arousal or 

gratification."). In fact, this protection may have 

benefitted Sanders in this case. Though we cannot 

know with certainty why the jury acquitted Sanders of 

count one, we observe that the jury sent a note to the 

circuit court during deliberations questioning whether 

a juvenile under 12 years old could form the requisite 

intent to perform an act for his own sexual arousal or 

gratification. 
No. 2015AP2328-CR 

26

 Inappropriate Filing Delays: Both the United States 

and Wisconsin Constitutions protect defendants from 

intentional delay by the State when that delay is 

calculated to avoid a JIPS or juvenile proceeding. 

Becker, 74 Wis. 2d at 677 (citing Miller v. Quatsoe, 

348 F. Supp. 764 (E.D. Wis. 1972) ("[W]hen the filing 

of the complaint determines juvenile court 

jurisdiction, then this filing cannot be delayed in 

order to avoid juvenile court jurisdiction unless the 

juvenile is granted a hearing with the necessary 

constitutional safeguards.")).

¶54 Time has not changed the logic underpinning our prior 

opinions on this issue and so we take this opportunity to 

reemphasize our holdings therein: the age of the accused person 

at the time of charging, not the time he committed the act 

underlying the charge, determines whether the case is properly 

heard as a criminal, juvenile delinquency, or JIPS matter. 

Consequently, any motion to dismiss count one prior to trial 

would have been meritless because the circuit court possessed 

statutory competency to hear the case as a criminal matter. 

Sanders' trial counsel did not perform deficiently because 

failure to bring a meritless motion does not constitute 

deficient performance. Cummings, 199 Wis. 2d at 747 n.10. 

Because we hold that Sanders' counsel did not perform 

deficiently, we need not consider the prejudice prong of the 

Strickland test. Floyd, 377 Wis. 2d 394, ¶37.
No. 2015AP2328-CR 

27

IV. CONCLUSION

¶55 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 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.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2015AP2328-CR.awb

1

¶56 ANN WALSH BRADLEY, J. (concurring). I agree with 

the court of appeals that "[w]ithout question, the law did not 

clearly provide that Sanders could not be prosecuted for 

criminal sexual acts he was alleged to have committed prior to 

age ten." State v. Sanders, 2017 WI App 22, ¶29, 375 

Wis. 2d 248, 895 N.W.2d 41. Neither the legislature nor the 

courts have addressed this specific issue.

¶57 As we have previously stated, "failure to raise 

arguments that require the resolution of unsettled legal 

questions generally does not render a lawyer's services outside 

the wide range of professionally competent assistance sufficient 

to satisfy the Sixth Amendment." State v. Lemberger, 2017 WI 

39, ¶33, 374 Wis. 2d 617, 893 N.W.2d 232 (internal quotations 

omitted). Accordingly, I concur in the mandate because the 

issue of whether an adult defendant may be charged in adult 

court for offenses committed as an eight or nine-year-old was

not sufficiently settled in Wisconsin law.

¶58 I write separately, however, to address the majority's 

resolution of this unsettled question. Sanders argues that the 

legislature intended ten years to be the minimum age for 

criminal conduct such that a person cannot be subsequently 

criminally charged as an adult for conduct committed before his 

tenth birthday. The jury's response was consistent with 

Sanders' argument when it determined that Sanders was not guilty 

of allegedly criminal acts engaged in while age eight or nine.
No. 2015AP2328-CR.awb

2

¶59 The majority, nonetheless, interprets the statutory 

scheme differently. It concludes that the legislature intends 

that criminal liability attaches to conduct engaged in by 

children under the age of 10, regardless of whether it is age 4 

or 5, 8 or 9, or any other single digit number. Yet, the 

majority is unable to point to the specific language in the 

statutory scheme that sets forth such a legislative intent.

¶60 From its faulty analysis, the majority divines a 

legislative intent from no language at all. In the area where 

the legislature has spoken about a child's capacity——negligence—

—it has indicated that a child under seven is "conclusively 

presumed" to be incapable of negligence.1 How can the majority 

square its asserted legislative intent here where the 

legislature has not spoken with the explicit legislative intent 

expressed in Wis. Stat. § 891.44? It cannot.

¶61 I determine that it is absurd to conclude the 

legislature intended that criminal liability can attach for acts 

engaged in by children ages zero-ten. The majority's conclusion 

to the contrary defies the purpose and structure of our 

statutes, as well as the rationale of prior case law.

I

¶62 Sanders, now an adult, was charged with repeated 

sexual assault of the same child for acts committed against his 

sister when he was eight or nine years old, as well as three 

 

1 See Wis. Stat. § 891.44.
No. 2015AP2328-CR.awb

3

other offenses. The district attorney brought the charges in 

adult criminal court.

¶63 The majority determines that the adult criminal court 

had competency to proceed, despite the fact that Sanders was 

only eight or nine years old at the time of the alleged conduct. 

Majority op., ¶18. In the majority's view, "[t]he 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." Id., ¶55. Further, the 

majority concludes that this was a point of settled law. Id., 

¶31 (citing State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138 

(1992); State ex rel. Koopman v. Cty. Court, 38 Wis. 2d 492, 157 

N.W.2d 623 (1968); D.V. v. State, 100 Wis. 2d 363, 302 N.W.2d 64 

(Ct. App. 1981)).

¶64 The majority opinion tells us that we are not to worry 

about limitless criminal liability for acts committed while 

children because there are "safeguards" built into the system. 

See majority op., ¶53. Specifically, in the majority's view, 

statutes of limitations, mens rea elements, and the rules 

regarding inappropriate filing delays serve as a buffer to 

inappropriate charges being filed against an adult for conduct 

committed as a child. Id.

¶65 Using an illogical progression, the majority reaches 

its conclusion. Essentially, if A (JIPS) to B (juvenile court)
No. 2015AP2328-CR.awb

4

is permissible2, and B to C (adult court) is permissible3, then 

why should A to C not be permissible? But the majority's logic 

does not hold.

II

¶66 The majority would have us believe that the 

legislature intended to provide for adult criminal liability for 

an act committed between the ages of zero and ten. See majority 

op., ¶8 n.7 ("Whether the illegal conduct began when Sanders was 

eight or nine is irrelevant because, in either event, he was 

less than ten years old and thus would have been subject to a 

JIPS proceeding at that time."). The purpose and structure of 

our statutes, as well as the rationale of prior case law, say 

otherwise.

¶67 The majority's logic in allowing the jump from JIPS 

court to adult court does not hold because it is out of step 

with the purpose of the laws governing children's liability, the 

structure of the JIPS law, and the rationale employed in D.V.

Accordingly, I address each in turn and determine that the 

majority's result is not what the legislature intended.

¶68 First, the majority's logic does not hold because it 

is out of step with the purpose of the laws governing children's 

liability. "The law has historically reflected . . . that 

 

2 See D.V. v. State, 100 Wis. 2d 363, 302 N.W.2d 64 (Ct. 

App. 1981).

3 See State v. Annala, 168 Wis. 2d 453, 484 N.W.2d 138 

(1992); State ex rel. Koopman v. Cty. Court, 38 Wis. 2d 492, 157 

N.W.2d 623 (1968).
No. 2015AP2328-CR.awb

5

children characteristically lack the capacity to exercise mature 

judgment and possess only an incomplete ability to understand 

the world around them." J.D.B. v. North Carolina, 564 U.S. 261, 

273 (2011).

¶69 Trends in jurisprudence are increasingly recognizing 

that children must be treated differently. "Juveniles are more 

capable of change than are adults, and their actions are less 

likely to be evidence of 'irretrievably depraved character' than 

are actions of adults." Graham v. Florida, 560 U.S. 48, 68 

(2010). Parts of the brain involved in behavior control 

continue to mature throughout adolescence. Id. The differences 

between the child and adult minds make children less morally 

culpable. Miller v. Alabama, 567 U.S. 460, 472 (2012).

¶70 Our statutory schemes governing civil and criminal 

liability for children reflect these concerns. As an initial

point of comparison, the legislature has definitively spoken 

that there is an age at which a child does not have the capacity 

to act negligently, and that age is seven. See Wis. Stat. 

§ 891.44.4 Yet in the majority's view, a person can be held 

criminally liable even after reaching adulthood for an act 

committed at that same age. It is absurd that a child can be 

ascribed criminal intent at an age where that same child is 

"conclusively presumed" to be incapable of negligence.

 

4 Wis. Stat. § 891.44 provides: "It shall be conclusively 

presumed that an infant minor who has not reached the age of 7 

shall be incapable of being guilty of contributory negligence or 

of any negligence whatsoever."
No. 2015AP2328-CR.awb

6

¶71 As to criminal liability, the statutes evince a 

similar underlying policy. From their inception, our laws 

addressing juvenile conduct were "not designed as a method of 

punishment for crimes committed by juveniles." In re Alley, 174 

Wis. 85, 91, 182 N.W.2d 360 (1921). Rather, "[e]very section 

and paragraph of the statute is permeated with the benevolent 

purpose of improving the child's condition, and not with 

punishing his past conduct. The whole object and purpose of 

this law will be defeated if it is construed and applied as a 

punitive statute." Id. at 91-92.

¶72 Second, the majority's logic does not hold because 

there is no statutory procedure for bringing what would be a 

JIPS case to juvenile court, much less to adult court. This 

stands in stark contrast to the clearly delineated statutory 

process for moving cases between juvenile court and adult court. 

See Wis. Stat. §§ 970.032, 938.18. Pursuant to § 938.18, either 

the district attorney or a juvenile may petition to waive 

juvenile court jurisdiction and have a criminal matter against a 

juvenile 14 or older who committed certain crimes be heard in 

adult court. § 938.18(1) and (2).5 Likewise, pursuant to 

 

5 Wis. Stat. § 938.18 provides, in relevant part:

(1) Waiver of juvenile court jurisdiction; conditions 

for. Subject to s. 938.183, a petition requesting the 

court to waive its jurisdiction under this chapter may 

be filed if the juvenile meets any of the following 

conditions:

(a) The juvenile is alleged to have violated s. 

940.03, 940.06, 940.225(1) or (2), 940.305, 940.3

1, 943.10(2), 943.32(2), 943.87 or 961. 41(1) on 

or after the juvenile's 14th birthday.

(continued)
No. 2015AP2328-CR.awb

7

§ 970.032, an adult court can send a case to juvenile court if 

certain criteria are fulfilled.6 No analogous process exists for 

moving a case from JIPS court to either juvenile court or adult 

court.

 

(b) The juvenile is alleged to have committed a 

violation on or after the juvenile's 14th 

birthday at the request of or for the benefit of 

a criminal gang, as defined in s. 939.22(9), that 

would constitute a felony under chs. 939 to 948 

or 961 if committed by an adult.

(c) The juvenile is alleged to have violated any 

state criminal law on or after the juvenile's 

15th birthday.

6 Wis. Stat. § 970.032 provides:

(2) If the court finds probable cause to believe that 

the juvenile has committed the violation of which he 

or she is accused under the circumstances specified 

in s. 938.183 (1)(a), (am), (ar), (b) or (c), the 

court shall determine whether to retain jurisdiction 

or to transfer jurisdiction to the court assigned to 

exercise jurisdiction under chs. 48 and 938. The court 

shall retain jurisdiction unless the juvenile proves 

by a preponderance of the evidence all of the 

following:

(a) That, if convicted, the juvenile could not 

receive adequate treatment in the criminal 

justice system.

(b) That transferring jurisdiction to the court 

assigned to exercise jurisdiction under chs. 48 

and 938 would not depreciate the seriousness of 

the offense.

(c) That retaining jurisdiction is not necessary 

to deter the juvenile or other juveniles from 

committing the violation of which the juvenile is 

accused under the circumstances specified in s. 

938.183 (1)(a), (am), (ar), (b) or (c), whichever 

is applicable.
No. 2015AP2328-CR.awb

8

¶73 Finally, the majority's logic does not hold because it 

is inconsistent with the reasoning of D.V., despite its heavy 

reliance on the case. In D.V., 100 Wis. 2d 363, the court of 

appeals approved the charging in juvenile court of an offense 

committed at the age of 117 based on the juvenile's age at the 

time of charging rather than the time of commission. The 

court's analysis was driven, however, by the similarities in the 

possible dispositions offered by the two statutory schemes at 

issue. See D.V., 100 Wis. 2d at 368-70.

¶74 The D.V. court specified that its conclusion was 

supported by the contention that "the differences between adult 

criminal prosecutions and juvenile delinquency proceedings are 

much more substantial than differences between a juvenile 

delinquency proceeding and a juvenile proceeding affecting a 

child alleged to be in need of protection or services which can 

be ordered by the juvenile court." Id. at 368. Following the 

D.V. court's lead, a comparison between the available 

dispositions had this case been charged as a JIPS matter and the 

range of punishment for adult criminal charges is instructive.

¶75 As relevant here, Sanders was charged in count one 

with repeated sexual assault of a child as a class B felony. 

Conviction of a class B felony subjects an adult to up to 60 

 

7 At the time D.V. was decided, a child "[w]ho, being under 

12 years of age, has committed a delinquent act" was considered 

to be a child alleged to be in need of protection or services, 

or CHIPS. Wis. Stat. § 48.13(12) (1981-82). The current JIPS 

statute places the dividing line at ten years of age rather than 

twelve. § 938.13(12).
No. 2015AP2328-CR.awb

9

years of imprisonment, with up to 40 years of that time being 

initial confinement. Wis. Stat. § 939.50(2)(b); 

§ 973.01(2)(b)1. Further, an adult convicted of this offense is 

subject to mandatory sex offender registration. See § 301.45.

¶76 In contrast, if the same conduct was addressed in JIPS 

court, there would be no "sentence," but only a "disposition." 

See Wis. Stat. §§ 938.34, 345. These dispositions are oriented 

toward treatment rather than punishment. See In Interest of 

Reginald D., 193 Wis. 2d 299, 311-12, 533 N.W.2d 181 (1995).

¶77 In fact, a juvenile adjudged in need of protection or 

services may not be placed in "the serious juvenile offender 

program juvenile correctional facility or a secured residential 

care center for children and youth" or in a "juvenile detention 

facility or juvenile portion of a county jail or in nonsecure 

custody under s. 938.34(3)(f)." Wis. Stat. § 938.345(1). 

Further, sex offender registration of a juvenile is 

discretionary with the circuit court, rather than mandatory. 

See § 938.345(3). The dispositions available pursuant to a JIPS 

order are a far cry from 40 years in prison followed by 20 years 

of extended supervision and mandatory sex offender registration.

¶78 A delay in charging thus has the possibility to vastly 

increase the punishment for the same conduct. Why should one be 

subject to a 60 year sentence rather than a treatment-oriented 

disposition because more time has passed since the crime?

¶79 And what of the majority's "safeguards?" See majority 

op., ¶53. Do statutes of limitations, mens rea elements, and 

the rules regarding inappropriate filing delays prevent the 
No. 2015AP2328-CR.awb

10

filing of inappropriate charges against an adult for conduct 

committed as a child? Id. These "safeguards" are little 

comfort to Sanders. They did nothing to protect him from being 

charged and tried, even if he was ultimately acquitted of the 

charge related to his conduct as an eight or nine-year-old 

child.

¶80 I question whether an eight or nine-year-old child has 

the capacity to commit an offense of sexual assault. 

Specifically, I question that an eight or nine-year-old can form 

the necessary intent for conviction of the sexual assault 

offense charged in this case: "for the purpose of sexually 

degrading or sexually humiliating the complainant or sexually 

arousing or gratifying the defendant." See Wis. Stat. 

§ 948.01(5) (2003-04). But I have no doubt whatsoever that the 

majority gets it wrong when it concludes that the conduct of 

children aged zero-ten may later be subject to criminal 

prosecution.

¶81 Finally, the majority rests its conclusion in part on 

legislative acquiescence. See majority op., ¶52. We have 

stated in the past that legislative acquiescence is a "weak reed 

upon which to lean." State v. Hansen, 2001 WI 53, ¶38, 243 

Wis. 2d 328, 627 N.W.2d 195; Green Bay Packaging, Inc. v. DILHR, 

72 Wis. 2d 26, 36, 240 N.W.2d 422 (1976). It is even weaker 

when the case law to which the legislature has supposedly 

acquiesced does not stand for the proposition the majority 

ascribes to it.
No. 2015AP2328-CR.awb

11

¶82 I urge the legislature to provide increased clarity by 

reexamining this area of the law. The purpose and statutory 

scheme indicate that the legislature did not intend the 

majority's result. The legislature should act to show its true 

intention, lest its silence be deemed acquiescence with the 

majority's untenable assertion of legislative intent.

¶83 For the foregoing reasons, I respectfully concur.

¶84 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this concurrence.
No. 2015AP2328-CR.awb

1