State v. Bergwin

2010 WI App 137, 793 N.W.2d 72, 329 Wis. 2d 737, 2010 Wisc. App. LEXIS 730
CourtCourt of Appeals of Wisconsin
DecidedSeptember 14, 2010
DocketNos. 2009AP1151-CR, 2009AP1152-CR
StatusPublished
Cited by3 cases

This text of 2010 WI App 137 (State v. Bergwin) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bergwin, 2010 WI App 137, 793 N.W.2d 72, 329 Wis. 2d 737, 2010 Wisc. App. LEXIS 730 (Wis. Ct. App. 2010).

Opinion

BRUNNER, J.

¶ 1. Drew Bergwin appeals judgments of conviction, entered on his no contest pleas, for five counts of burglary as party to a crime and two counts of felony bail jumping. Bergwin was sixteen years old when he committed the burglaries, and was charged as an adult three days after his seventeenth birthday. We conclude statements by the State to [740]*740Bergwin's intake worker demonstrate an unequivocal intent to delay charging Bergwin as a juvenile in violation of his due process right to juvenile adjudication. Consequently, we reverse Bergwin's burglary convictions. We also reverse Bergwin's bail jumping convictions because the adult criminal court lacked jurisdiction to impose bond conditions. Additionally, we sanction Bergwin's appellate counsel for her failure to comply with the Rules of Appellate Procedure.

BACKGROUND

¶ 2. On April 14, 2008, Sean House implicated Bergwin in a series of recent burglaries to several Door County stores and restaurants. House was charged on May 1, 2008. Bergwin was subsequently charged as an adult on June 9, 2008 — three days after his seventeenth birthday. Bergwin was released on a $3,500 signature bond, with the condition that he have no contact with House.

¶ 3. On September 8, 2008, Bergwin filed a motion to dismiss, alleging the State intentionally delayed charging him to avoid juvenile jurisdiction. Four witnesses testified at the motion hearing, including police investigator James Valley, juvenile court intake worker Susan MacLean, and Sally Baudhuin, an administrative assistant in the district attorney's office.1

¶ 4. Valley testified he treated Bergwin's case as a juvenile referral and had substantially completed his investigation of the burglaries when he referred the matter to social services on April 25, 2008.

[741]*741¶ 5. MacLean testified she received Valley's referral on April 29, 2008. She spoke with the district attorney's office on two occasions, each time taking contemporaneous notes. During the first conversation on May 19, 2008, MacLean wrote, "Due to [Bergwin] turning 16 [sic] within the 40 days for intake and the co-defendant is in adult court, [Bergwin's] case will also be handled in adult court." MacLean's note indicates that after the conversation, she cancelled an intake conference with Bergwin's father. MacLean again spoke with the district attorney's office on May 21, 2008. During that conversation, MacLean noted, "Victims have sent information to DA. [One victim] wants him in adult court and says he has . . . done things since this. She is very angry. 17 on 6/6. Handle both in adult court." MacLean closed Bergwin's file on May 29, 2008.

¶ 6. Baudhuin was the sole member of the district attorney's office to testify. She stated she received MacLean's referral on May 23, 2008. She described the intake and referral process generally, but could not recall any discussions with social services regarding Bergwin's case.

¶ 7. The circuit court denied Bergwin's motion. It noted both Valley and MacLean denied intentionally delaying Bergwin's case, and found their testimony credible.

¶ 8. On October 27, 2008, the State charged Berg-win with five counts of felony bail jumping, alleging he and House were living together with Bergwin's father. Bergwin entered no contest pleas to the burglary charges and two bail jumping charges as part of a consolidated plea agreement. The court accepted the joint recommendation, withheld sentence and placed Bergwin on three years' probation.

[742]*742DISCUSSION

¶ 9. A juvenile's due process objections to adult court jurisdiction present a question of constitutional fact. State v. LeQue, 150 Wis. 2d 256, 265, 442 N.W.2d 494 (Ct. App. 1989). We apply a two-step standard of review under these circumstances, upholding the circuit court's findings of historical fact unless they are clearly erroneous, but reviewing the circuit court's application of constitutional principles to those facts de novo. State v. Kelsey C.R., 2001 WI 54, ¶ 12, 243 Wis. 2d 422, 626 N.W.2d 777.

¶ 10. In general, exclusive jurisdiction is vested in the juvenile court over any juvenile alleged to be delinquent for violating a state law. Wis. Stat. § 938.12(1).2 For prosecution purposes, a "juvenile" is any person under the age of seventeen at the time the criminal complaint is filed. Wis. Stat. § 938.02(10m); State ex rel. Koopman v. Waukesha Cnty. Ct. Judges, 38 Wis. 2d 492, 499, 157 N.W.2d 623 (1968). A juvenile can be prosecuted for most crimes in adult criminal court only if juvenile jurisdiction is waived pursuant to Wis. Stat. § 938.18.

¶ 11. "Administrators of a state juvenile system may not manipulate administrative procedures so as to avoid state and constitutional procedural rights meant to protect juveniles." State v. Becker, 74 Wis. 2d 675, 677, 247 N.W.2d 495 (1976) (quotation omitted). In Becker, our supreme court held that when charging authorities suspect a juvenile of committing a crime, [743]*743"jurisdiction in a criminal court cannot be maintained on a charge brought after the child becomes eighteen, unless it is affirmatively shown that the delay was not for the purpose of manipulating the system to avoid juvenile court jurisdiction."3 Id. at 678. The State bears the burden of proving a lack of manipulative intent. State v. Montgomery, 148 Wis. 2d 593, 603, 436 N.W.2d 303 (1989).

¶ 12. The State, arguing the testimony at Bergwin's motion hearing demonstrated a lack of manipulative intent, largely relies on the circuit court's credibility findings. At the conclusion of the hearing, the court stated:

I find that the witnesses that have been called by both sides are all credible, and I adopt their testimony, and in particular, those who were directly involved in processing this case: Sally Baudhuin, Jim Valley, and Sue MacLean. At least the second two have said under oath that they did not in any way deliberately delay or intentionally delay the process in order to avoid juvenile jurisdiction.

Credibility findings are entitled to substantial deference. See State v. Hughes, 2000 WI 24, ¶ 2 n.1, 233 Wis. 2d 280, 607 N.W.2d 621. We therefore accept the circuit court's finding that Valley, MacLean, and Baudhuin were all believable. This case, however, does not turn on credibility findings.

[744]*744¶ 13. In denying Bergwin's motion, the circuit court overlooked clear, credible evidence of manipulation by the State. MacLean's notes establish that before she completed her intake inquiry, the State had already decided to prosecute Bergwin as an adult.

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Bluebook (online)
2010 WI App 137, 793 N.W.2d 72, 329 Wis. 2d 737, 2010 Wisc. App. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bergwin-wisctapp-2010.