                                                             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,                                          FILED
      v.                                                               MAY 18, 2018
Shaun M. Sanders,                                                         Sheila T. Reiff
                                                                       Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      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        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.


                                                       2
                                                            No.    2015AP2328-CR



                               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).


                                       3
                                                                    No.    2015AP2328-CR



      ¶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.


                                           4
                                                             No.    2015AP2328-CR



    ¶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.


                                        5
                                                             No.     2015AP2328-CR



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).


                                      6
                                                                           No.     2015AP2328-CR



      ¶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.


                                                 7
                                                                         No.   2015AP2328-CR



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
                                         8
                                                               No.     2015AP2328-CR



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.


                                       9
                                                                        No.    2015AP2328-CR



      ¶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.
                                              10
                                                                              No.     2015AP2328-CR



       ¶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.


                                               11
                                                             No.     2015AP2328-CR


   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




                                         12
                                                                      No.    2015AP2328-CR



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

                                             13
                                                                No.    2015AP2328-CR



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).


                                      14
                                                                          No.     2015AP2328-CR



       ¶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
                                               15
                                                                    No.     2015AP2328-CR



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.


                                           16
                                                                  No.     2015AP2328-CR



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
                                          17
                                                                         No.    2015AP2328-CR



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




                                               18
                                                                                No.    2015AP2328-CR



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 long-
            standing 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).



                                                    19
                                                                     No.     2015AP2328-CR



     ¶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).


                                           20
                                                                  No.    2015AP2328-CR



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
                                          21
                                                                              No.    2015AP2328-CR



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
                                                22
                                                                           No.     2015AP2328-CR



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.
                                               23
                                                                No.     2015AP2328-CR



       ¶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).
                                        24
                                                                   No.       2015AP2328-CR



    ¶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.
                                           25
                                                                           No.      2015AP2328-CR



             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.


                                                26
                                                                                No.    2015AP2328-CR



                                       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.




                                                   27
                                                                          No.   2015AP2328-CR.awb




      ¶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.



                                               1
                                                                      No.   2015AP2328-CR.awb


       ¶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.


                                               2
                                                                No.    2015AP2328-CR.awb


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)




                                        3
                                                           No.   2015AP2328-CR.awb


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).


                                        4
                                                                  No.    2015AP2328-CR.awb


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."


                                            5
                                                              No.    2015AP2328-CR.awb


      ¶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)
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§ 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.


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       ¶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).


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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

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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.



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    ¶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.




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