2019 WI 96
SUPREME COURT OF WISCONSIN CASE NO.: 2017AP1416-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Matthew C. Hinkle, Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 384 Wis. 2d 612,921 N.W.2d 219 PDC No:2018 WI App 67 - Published
OPINION FILED: November 12, 2019 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 4, 2019
SOURCE OF APPEAL: COURT: Circuit COUNTY: Fond du Lac JUDGE: Robert J. Wirtz
JUSTICES: CONCURRED: DISSENTED: DALLET, J. dissents, joined by A.W. BRADLEY, J. (opinion filed) NOT PARTICIPATING: HAGEDORN, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs filed by Christina Starner, Green Bay. There was an oral argument by Christina Starner.
For the plaintiff-respondent, there was a brief filed by Aaron R. O’Neil, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Aaron R. O’Neil. 2019 WI 96 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP1416-CR (L.C. No. 2015CF418)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. NOV 12, 2019 Matthew C. Hinkle, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. We review whether Fond du
Lac County Circuit Court1 properly exercised adult-court criminal
jurisdiction over then-16-year-old Matthew C. Hinkle based on Milwaukee County Circuit Court's prior decision to waive Hinkle
from juvenile court to adult court.2 Our decision turns on the
1 The Honorable Robert J. Wirtz presided. 2We commonly use the terms "juvenile court" and "adult court" in these cases for ease of reference and understanding. As the court of appeals decision points out, Wisconsin does not have "juvenile courts" or "adult courts." We have circuit courts with general jurisdiction over all matters civil and criminal. We refer to a court as a "juvenile court" because the cases heard there involve juveniles being adjudicated under the (continued) No. 2017AP1416-CR
interpretation of Wis. Stat. § 938.183(1) and how its text
prescribes the practice commonly referenced by those handling
juvenile cases as "once waived, always waived."3
¶2 Hinkle contends Wis. Stat. § 938.183(1) confines the
"once waived, always waived" rule to each individual county—
meaning Hinkle could be waived into adult court only if another
Fond du Lac County Circuit Court previously waived him. He
argues Fond du Lac improperly relied on Milwaukee's waiver and,
as a result, the Fond du Lac County Circuit Court lacked
competency4 to handle his case.
Juvenile Justice Code. We use the term "adult court" to identify when a juvenile will be transferred from a court handling juvenile matters (a.k.a. "juvenile court") to a court where a juvenile will be prosecuted as an adult under the criminal law (a.k.a. "adult court"). The terms do not differentiate between types of courts but instead signify whether a juvenile's case will be determined by the laws applicable to juveniles under Wis. Stat. ch. 938 or whether the juvenile will be prosecuted as an adult and subject to the criminal code under Wis. Stat. chs. 939-951. See State v. Hinkle, 2018 WI App 67, ¶1 n.2, 384 Wis. 2d 612, 921 N.W.2d 219 (quoting and citing State v. Schroeder, 224 Wis. 2d 706, 719-20, 593 N.W.2d 76 (Ct. App. 1999)).
All subsequent references to the Wisconsin Statutes are to 3
the 2017-18 version unless otherwise indicated.
The 4 Wisconsin Constitution confers subject matter jurisdiction on circuit courts over "all matters civil and criminal." Wis. Const. art. VII, § 8. "Accordingly, a circuit court is never without subject matter jurisdiction." City of Eau Claire v. Booth, 2016 WI 65, ¶12, 370 Wis. 2d 595, 882 N.W.2d 738 (quoted source omitted). Competency is a distinct concept:
(continued) 2 No. 2017AP1416-CR
¶3 The State disagrees with Hinkle's restrictive view of
Wis. Stat. § 938.183(1). The State argues the statute's text
does not impose a county-specific restriction; instead, the
State construes the statute to give circuit courts across
Wisconsin original adult-court jurisdiction over crimes
committed by juveniles who have been previously waived into
adult court when those prior proceedings are still pending or
when the prior proceedings resulted in conviction. Both the
circuit court and the court of appeals agreed with the State.
We do as well.
¶4 We hold Wis. Stat. § 938.183(1) conferred exclusive
original adult jurisdiction over Hinkle based on Milwaukee
County Circuit Court's prior waiver. The text of the statute
does not impose a county-specific limitation on the rule
commonly referred to as "once waived, always waived." The Fond
du Lac County Circuit Court properly relied on Milwaukee's
waiver to move Hinkle from Fond du Lac's juvenile jurisdiction
to Fond du Lac's adult jurisdiction. Accordingly, the Fond du Lac County Circuit Court possessed competency to hear Hinkle's
Noncompliance with statutory mandates affects a court's competency and "a court's 'competency,' as the term is understood in Wisconsin, is not jurisdictional at all, but instead, is defined as 'the power of a court to exercise its subject matter jurisdiction' in a particular case."
City of Eau Claire, 2016 WI 65, ¶7, 370 Wis. 2d 595 (quoting State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508).
3 No. 2017AP1416-CR
case under the criminal code applicable to adults. We affirm
the decision of the court of appeals.
I. BACKGROUND
¶5 In July 2015, then-16-year-old Hinkle approached a
stopped car in Milwaukee County, reached into the driver's
window, shut off the car, took the keys, and ordered the driver
out of the car. Hinkle then took the car and drove it to Fond
du Lac. Fond du Lac Police Officer Ben Hardgrove saw the car
parked at a gas station and pulled up behind it to block its
egress. Hardgrove saw four people in the car, including Hinkle,
who was in the driver's seat. Hardgrove ordered the occupants
to "show their hands." Hinkle ignored the officer's command and
started ramming the car he was driving into Hardgrove's squad
car and a second car parked near him in an attempt to escape.
At the same time, the other passengers exited the car. Hinkle
eventually cleared enough space to get past Hardgrove's squad
car and fled the gas station at a high rate of speed.
¶6 Fond du Lac police pursued Hinkle, who led them on a high-speed chase through residential areas. Police reported
Hinkle driving between 60-100 mph on his way out of town and
reaching 120 mph when he drove back into town. Hinkle's car
came to a stop only after he crashed into an SUV. Instead of
stopping as the police ordered him to do, Hinkle then fled on
foot. The police chased Hinkle down with the help of a canine
officer and arrested him.
¶7 The State pursued charges against Hinkle in the circuit courts of both Milwaukee County and Fond du Lac County. 4 No. 2017AP1416-CR
Because Hinkle was 16 years old, the State filed delinquency
petitions. See Wis. Stat. § 938.12(1) ("IN GENERAL. The court
[acting under ch. 938] has exclusive jurisdiction, except as
provided in ss. 938.17, 938.18, and 938.183, over any juvenile
10 years of age or older who is alleged to be delinquent.").
The delinquency petition filed in Milwaukee contained two
counts.5 The delinquency petition filed in Fond du Lac contained
14 counts.6 In addition, the State filed a criminal complaint in
Fond du Lac charging Hinkle as an adult with four counts: one
count of attempting to flee and three counts of hit and run.
See Wis. Stat. §§ 346.04(3), 343.31(3)(d)1, 346.67(1),
346.74(5)(a), and 939.50(3)(i). Hinkle was charged as an adult
on these four traffic counts pursuant to Wis. Stat. § 938.17,
which gives "courts of criminal and civil jurisdiction"
"exclusive jurisdiction in proceedings against juveniles 16
years of age or older" for these violations.
¶8 The State also filed petitions under Wis. Stat.
§ 938.18 in both Milwaukee and Fond du Lac, requesting that
5The two counts were: (1) robbery use of force, and (2) take and operate a motor vehicle without the owner's consent. See Wis. Stat. §§ 943.32(1)(a) and 943.23(2). 6The 14 counts included: seven counts of second-degree recklessly endangering safety; one count of take and operate a motor vehicle without the owner's consent; three counts of obstructing a police officer; and three counts of criminal damage to property. See Wis. Stat. §§ 941.30(2), 939.50(3)(g)&(h), 943.23(2), 946.41(1), 939.51(3)(a), and 943.01(1).
5 No. 2017AP1416-CR
Hinkle be waived from juvenile court to adult court.7 The
Milwaukee County Circuit Court held a waiver hearing and granted
the State's waiver petition.8 The State then filed a criminal
complaint in Milwaukee County Circuit Court charging Hinkle as
an adult with: (1) robbery with use of force and (2) take and
7 Wisconsin Stat. § 938.18 sets forth the conditions under which a party or the court can request that a juvenile "14 or older" be waived from juvenile to adult court:
Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing.
(1) WAIVER OF JUVENILE COURT JURISDICTION; CONDITION 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, 940.31, 943.10 (2), 943.32 (2), 943.87 or 961.41 (1) on or after the juvenile's 14th birthday.
(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. 8 At a waiver hearing, the circuit court first determines whether the matter has prosecutive merit. Wis. Stat. § 938.18(4). If the circuit court finds prosecutive merit, both the district attorney and the juvenile have the opportunity to present testimony and cross-examine witnesses. § 938.18(3) & (4). After considering the testimony and any other relevant evidence in the record, the circuit court decides whether the criteria for waiver in § 938.18(5) have been met.
6 No. 2017AP1416-CR
operate a vehicle without owner's consent. See Wis. Stat.
§§ 943.32(1)(a) and 943.23(2).
¶9 While the Milwaukee case was pending, the Fond du Lac
County Circuit Court considered the State's waiver petition.
Hinkle wanted to contest the waiver in Fond du Lac, and be
adjudicated as a juvenile. However, everyone, including
Hinkle's lawyer, agreed that the rule regularly referred to as
"once waived, always waived" applied. The circuit court and the
parties interpreted Wis. Stat. § 938.183(1) to require the Fond
du Lac County Circuit Court to waive Hinkle because the
Milwaukee County Circuit Court had previously done so. The Fond
du Lac County Circuit Court ruled that, pursuant to
§ 938.183(1), Hinkle must be prosecuted as an adult.
¶10 The State filed an amended Information in Fond du Lac
County Circuit Court, now charging Hinkle as an adult for all 18
counts——the four traffic counts from the original criminal
complaint, plus the 14 counts from the delinquency petition.
Hinkle accepted the plea bargain offered by the State, pled no contest to six counts, and entered an Alford plea on one count;9
the remaining 11 counts were dismissed and read-in.10 The
9 See North Carolina v. Alford, 400 U.S. 25 (1970). 10 A read-in charge is any crime "that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted." Wis. Stat. § 973.20(1g)(b). Similar to Wis. Stat. § 973.20(1g)(b), we have defined read-in charges as (continued) 7 No. 2017AP1416-CR
circuit court imposed a total sentence of six years of initial
confinement and three years of extended supervision to be
followed by two years of probation.11
¶11 Hinkle then filed a postconviction motion in Fond du
Lac County Circuit Court seeking to vacate his convictions,
withdraw his pleas, and transfer the 14 counts back to juvenile
court jurisdiction. Hinkle argued that Wis. Stat. § 938.183(1)
did not give Fond du Lac Circuit Court competency to proceed
over the 14 juvenile counts because the "once waived, always
waived" rule should be county-specific. In other words, Hinkle
argued that for Fond du Lac County Circuit Court to waive Hinkle
without a waiver hearing, the statute required a prior waiver by
a Fond du Lac County Circuit Court. Hinkle contended the
statutory language limits a circuit court's reliance on previous
juvenile court waivers to the specific county in which the prior
waiver occurred. Accordingly, Hinkle asserted Fond du Lac
County improperly relied on Milwaukee County's waiver, never
"charges [that] are expected to be considered in sentencing, with the understanding that read-in charges could increase the sentence up to the maximum that the defendant could receive for the conviction in exchange for the promise not to prosecute those additional offenses."
State v. Sulla, 2016 WI 46, ¶33, 369 Wis. 2d 225, 880 N.W.2d 659 (quoting State v. Frey, 2012 WI 99, ¶68, 343 Wis. 2d 358, 817 N.W.2d 436) (footnotes omitted).
Hinkle also entered into a plea bargain in the Milwaukee 11
County case: he pled to one charge and the second was dismissed.
8 No. 2017AP1416-CR
acquired adult-court jurisdiction over Hinkle, and, as a result,
lacked competency to preside over Hinkle's case in adult court.
¶12 The Fond du Lac County Circuit Court rejected Hinkle's
interpretation and denied the motion, reasoning:
I think the essence of the argument here is that Mr. Hinkle couldn't be transferred to adult court in Fond du Lac based on the waiver -- his waiver from juvenile court in Milwaukee to adult court in Milwaukee and, then, the subsequent violation in Fond du Lac County, which was then waived into adult court. And the statute . . . 938.183 [says] " . . . courts of criminal jurisdiction have exclusive jurisdiction over all of the following:
A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under" some statute sections, basically juvenile court sections, "by the court assigned to exercise jurisdiction under this chapter," 938, the juvenile justice code. And it says "by the court assigned to exercise jurisdiction" under the chapter. It doesn't indicate, specifically, that it has to be in the same county. And there are a multitude of courts which vary; based on time, and year, and place; who are assigned. You know, judges get an assignment to a particular duty, whether it's for a year or for a short period of time. Right now I'm assigned to intake, which includes juvenile matters. And, so, as I read the statute, if a person has been waived -- convicted of a violation following waiver of jurisdiction by a court -- by the court assigned to exercise jurisdiction under the chapter, that's sufficient. It doesn't have to be in the particular same county, because that isn't what the statute says. The court assigned to exercise juvenile court jurisdiction can be, by lack of limitation, any particular court there is assigned to juvenile court jurisdiction.
Mr. Hinkle was waived into adult court and convicted in adult court and, given that waiver and that transfer into adult court in Milwaukee . . . it
9 No. 2017AP1416-CR
was acceptable . . . for the court here with criminal court jurisdiction to have jurisdiction over him. ¶13 The court of appeals affirmed the circuit court's
order denying Hinkle's postconviction motion and agreed with the
circuit court's interpretation of Wis. Stat. § 938.183(1). The
court of appeals interpreted § 938.183(1)(b) to give a circuit
court hearing criminal cases "exclusive original jurisdiction
over" a juvenile when three conditions apply:
(1) the juvenile is presently alleged to have committed
a criminal violation;
(2) a juvenile court has waived its jurisdiction over
the juvenile for a previous violation; and
(3) either that previous violation resulted in a
conviction or the criminal proceedings remain pending.
State v. Hinkle, 2018 WI App 67, ¶21, 384 Wis. 2d 612, 921
N.W.2d 219. Hinkle filed a petition for review of the court of
appeals decision, which this court granted.
II. STANDARD OF REVIEW
¶14 This case involves the interpretation and application of Wis. Stat. § 938.183(1), "which is a question of law we
review independently, although we benefit from the decisions by
the court of appeals and circuit court." See State v. Talley,
2017 WI 21, ¶24, 373 Wis. 2d 610, 891 N.W.2d 390. "We
independently review questions of subject matter jurisdiction
and competency." City of Eau Claire v. Booth, 2016 WI 65, ¶6,
370 Wis. 2d 595, 882 N.W.2d 738.
10 No. 2017AP1416-CR
III. ANALYSIS
¶15 The dispute centers on the text of Wis. Stat.
§ 938.183(1), which provides:
Original adult court jurisdiction for criminal proceedings.
(1) JUVENILES UNDER ADULT COURT JURISDICTION. Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over all of the following:
(a) A juvenile who has been adjudicated delinquent and who is alleged to have violated s. 940.20 (1) or 946.43 while placed in a juvenile correctional facility, a juvenile detention facility, or a secured residential care center for children and youth or who has been adjudicated delinquent and who is alleged to have committed a violation of s. 940.20 (2m).
(am) A juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 10th birthday.
(ar) A juvenile specified in par. (a) or (am) who is alleged to have attempted or committed a violation of any state criminal law in addition to the violation alleged under par. (a) or (am) if the violation alleged under this paragraph and the violation alleged under par. (a) or (am) may be joined under s. 971.12 (1).
(b) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under s. 48.18, 1993 stats., or s. 938.18 by the court assigned to exercise jurisdiction under this chapter and ch. 48 or if the court assigned to exercise jurisdiction under this chapter and ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.
11 No. 2017AP1416-CR
(c) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation over which the court of criminal jurisdiction had original jurisdiction under this section or if proceedings on a previous violation over which the court of criminal jurisdiction has original jurisdiction under this section are still pending. (Emphasis added.) The underscored text underlies the
disagreement in this case.
¶16 The parties agree that "courts of criminal jurisdiction" means Wisconsin's circuit courts hearing criminal
cases where defendants are prosecuted as adults. Likewise, the
parties agree that "the court assigned to exercise jurisdiction
under this chapter and ch. 48" means circuit courts hearing
juvenile matters where juveniles may be adjudicated delinquent
under the Juvenile Justice Code. The dispute is whether "the
court assigned to exercise jurisdiction" i.e., the juvenile
court waiving jurisdiction, means only the specific circuit
court where the juvenile was waived. That is, does the
statutory language confine previous waivers to specific counties
so that a previous waiver under Wis. Stat. § 938.183(1)(b) in Milwaukee County Circuit Court confers exclusive original
jurisdiction only on the courts of criminal jurisdiction in
Milwaukee County.
¶17 When interpreting a statute, we start with the
language of the statute, and if the meaning of the text is
plain, we need go no further. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
12 No. 2017AP1416-CR
"Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Id. In determining the meaning of the text, context
and the statute's structure are important so that the words are
not viewed in isolation, but are considered together with
"closely-related" statutes. Id., ¶46. The goal is to interpret
the statute in a reasonable way, which avoids "absurd or
unreasonable results." Id.
¶18 We also attempt "to give reasonable effect to every
word, in order to avoid surplusage," id., and apply the
fundamental canon of statutory construction that "[n]othing is
to be added to what the text states or reasonably implies[.]"
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 93 (2012); see also Dawson v. Town
of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316
("We decline to read into the statute words the legislature did
not see fit to write."). "[R]ather, we interpret the words the legislature actually enacted into law." State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165.
¶19 We start, then, with the language of Wis. Stat.
§ 938.183(1) to see whether the meaning of the text is plain.
Subsection (1) assigns "exclusive original jurisdiction" to
"courts of criminal jurisdiction" over juveniles in five
distinctly described circumstances as set forth in paragraphs
(a), (am), (ar), (b), and (c). Both of these phrases have common, ordinary, and well-known meanings. "Exclusive original 13 No. 2017AP1416-CR
jurisdiction" limits where the case can begin. "Courts of
criminal jurisdiction" means courts that have jurisdiction to
hear criminal cases. The Wisconsin Constitution specifically
bestows circuit courts with "jurisdiction in all matters civil
and criminal." Wis. Const. art. VII, § 8.12 Consistent with the
constitution, the legislature recognizes Wisconsin circuit
courts as courts of criminal jurisdiction in Wis. Stat.
§ 753.03.13 This court and our court of appeals have done so as
12 Article VII, Section 8 provides:
Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction. 13 Wisconsin Stat. § 753.03 provides:
JURISDICTION OF CIRCUIT COURTS. The circuit courts have the general jurisdiction prescribed for them by article VII of the constitution and have power to issue all writs, process and commissions provided in article VII of the constitution or by the statutes, or which may be necessary to the due execution of the powers vested in them. The circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carry into effect their judgments, orders and other determinations, subject to review by the court of appeals or the supreme court as provided by law. The courts and the judges thereof have power to award all such writs, (continued) 14 No. 2017AP1416-CR
well. City of Eau Claire, 370 Wis. 2d 595, ¶7; State v.
Spanbauer, 108 Wis. 2d 548, 552, 322 N.W.2d 511 (Ct. App. 1982)
(recognizing "the circuit courts of this state are given
exclusive jurisdiction over all criminal matters"). All of
Wisconsin's circuit courts, therefore, are courts of criminal
jurisdiction.
¶20 The statute contains only two qualifiers within the
text assigning "courts of criminal jurisdiction" "exclusive
original jurisdiction" over certain juveniles. The first is the
"notwithstanding" clause at the start of the sentence:
"Notwithstanding ss. 938.12(1) and 938.18[.]" The two
referenced statutes concern general juvenile jurisdiction under
ch. 938, and the process for requesting waiver of general
juvenile jurisdiction. Wisconsin Stat. § 938.12(1) assigns
"exclusive jurisdiction" to juvenile courts handling delinquency
petitions. Wisconsin Stat. § 938.18 provides the petition
waiver and waiver hearing process, which may result in a
decision to move a juvenile from juvenile court adjudication to adult court prosecution. The "notwithstanding" qualifier tells
us that even though juvenile courts handling delinquency
petitions have exclusive jurisdiction over juveniles under
§ 938.12(1), and even though a process exists to waive juveniles
into adult court, the legislature assigned our criminal circuit
process and commissions, throughout the state, returnable in the proper county.
15 No. 2017AP1416-CR
courts exclusive original adult jurisdiction over juvenile
offenders in certain circumstances.
¶21 The second qualification for "courts of criminal
jurisdiction" to have "exclusive original jurisdiction" over
juveniles appears as described in the five paragraphs within
Wis. Stat. § 938.183(1). Each paragraph describes a type of
juvenile who will be subject to adult court jurisdiction in the
criminal court.
¶22 Paragraph (b) applies to Hinkle and confers criminal
court jurisdiction over "[a] juvenile who is alleged to have
violated any state criminal law": (1) "if the juvenile has been
convicted of a previous violation following waiver of
jurisdiction under . . . s. 938.18 by the court assigned to
exercise jurisdiction under this chapter and ch. 48," or (2) "if
the court assigned to exercise jurisdiction under this chapter
and ch. 48 has waived its jurisdiction over the juvenile for a
previous violation and criminal proceedings on that previous
violation are still pending." Wis. Stat. § 938.183(1)(b). ¶23 Hinkle interprets Wis. Stat. § 938.183(1)(b) as
mandating automatic adult-court original jurisdiction only
within the county in which a previous waiver occurred. In all
other counties, the State would be required to request a waiver.
In other words, Hinkle thinks only the criminal court in the
specific county where the juvenile was waived can exercise adult
jurisdiction over the juvenile based on the previous waiver.
Because the waiving court was Milwaukee County, Hinkle argues § 938.183(1)(b) should not apply to his Fond du Lac case. 16 No. 2017AP1416-CR
Instead, he believes the Fond du Lac County Circuit Court
presiding over his 14-count delinquency petition should have
conducted its own waiver hearing to determine whether to waive
him into adult court or keep him in Fond du Lac's juvenile court
system.
¶24 The statutory text does not support Hinkle's
interpretation, which would require reading Hinkle's county-
based restriction into the text. It is a cardinal "maxim[] of
statutory construction . . . that courts should not add words to
a statute to give it a certain meaning." Fitzgerald, 387
Wis. 2d 384, ¶30 (quoting Fond du Lac Cty. v. Town of Rosendale,
149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)). Neither
the statute's reference to "courts of criminal jurisdiction" nor
its reference to "the court assigned to exercise jurisdiction
under this chapter" refer to individual counties. If the
legislature wanted to confine either "courts of criminal
jurisdiction" or "the court assigned to exercise jurisdiction"
to circuit courts within a particular county, it could have easily done so. The legislature could have limited adult court
jurisdiction to "the particular county" or "the specific county"
or "the individual county" where the juvenile had previously
been waived. The legislature, however, did not, and "[w]e will
not read into the statute a limitation the plain language does
not evidence." Dane Cty. v. LIRC, 2009 WI 9, ¶33, 315
Wis. 2d 293, 759 N.W.2d 571; Fitzgerald, 387 Wis. 2d 384, ¶30
("We do not read words into a statute regardless of how persuasive the source may be; rather, we interpret the words the 17 No. 2017AP1416-CR
legislature actually enacted into law."); see also Scalia &
Garner, Reading Law at 93 ("Nothing is to be added to what the
text states or reasonably implies"); Iselin v. United States,
270 U.S. 245, 251 (1926) ("To supply omissions transcends the
judicial function.").
¶25 Examining the context and structure of ch. 938 further
defeats Hinkle's proposed county-by-county constriction of Wis.
Stat. § 938.183(1)'s adult jurisdiction. Most of the provisions
within ch. 938 address juvenile courts, and particular processes
relating to their operation. Subchapter III, Wis. Stat.
§§ 938.12-938.185, however, addresses jurisdiction in
particular. The examples Hinkle posits about the use of "the
court" as juxtaposed with "any court" in the non-jurisdictional
portions of ch. 938 are not helpful in assessing the context and
structure informing the interpretation of the jurisdictional
section.
¶26 The legislature's use of the plural term "courts" as
the place of exclusive original jurisdiction when a juvenile has been waived by the juvenile court shows the legislature did not
limit this exclusive original jurisdiction to a specific county,
but instead included all criminal courts across the state. The
specific definition the legislature provided in Wis. Stat.
§ 938.02(2m) for the term "court" also supports this
interpretation. It provides:
"Court," when used without further qualification, means the court assigned to exercise jurisdiction under this chapter and ch. 48 or, when used with reference to a juvenile who is subject to s. 938.183,
18 No. 2017AP1416-CR
a court of criminal jurisdiction or, when used with reference to a juvenile who is subject to s. 938.17 (2), a municipal court. Accordingly, "the court assigned to exercise jurisdiction" under
ch. 938 means all the circuit courts across the state hearing
juvenile matters——unless "further qualifi[ed]" because all
juvenile courts exercise jurisdiction under ch. 938. The
definition does not interpose a county-specific qualifier on the
term "court", but instead contemplates the legislature could
"further qualif[y]" "the court" beyond this general definition. The legislature chose not to further qualify "the court" in Wis.
Stat. § 938.183(1)(b) with any county-based limitation.
¶27 In addition, definitional paragraph (2m) further
identifies "court" in "s. 938.183" specifically as "a court of
criminal jurisdiction." (Emphasis added.) The generality of
this reference further evidences that the legislature did not
restrict the application of Wis. Stat. § 938.183(1) on a county-
by-county basis.
¶28 Hinkle also relies on the purpose expressed by the
legislature in Wis. Stat. § 938.01(2)(c): "[t]o provide an individualized assessment of each alleged and adjudicated
delinquent juvenile" and in § 938.01(2)(f) "[t]o respond to a
juvenile offender's needs for care and treatment, consistent
with the prevention of delinquency, each juvenile's best
interest and protection of the public, by allowing the court to
utilize the most effective dispositional option" as support for
his county-specific interpretation. He argues that a smaller community like Fond du Lac might be better suited to provide
19 No. 2017AP1416-CR
individualized treatment for a juvenile than Milwaukee, and
therefore Fond du Lac should not be bound by a Milwaukee waiver.
While different counties across Wisconsin may handle juvenile
waivers differently, that possibility cannot alter or supplement
the plain language of the statute, which endows courts of
criminal jurisdiction with exclusive original jurisdiction over
a juvenile who has been waived by the juvenile court. Even
textually-expressed purpose "cannot be used to contradict text
or to supplement it" but instead, "[p]urpose sheds light only on
deciding which of various textually permissible meanings should
be adopted." Scalia & Garner, Reading Law at 57. The textual
absence of the sort of county-based qualifier Hinkle would have
us read into the statute——"what a text chooses not to do——are as
much a part of its 'purpose' as its affirmative" expressions.
Id. Respect for what the legislature omitted from the statutory
text requires us "to reject the replacement or supplementation
of text with purpose" and we do so here. Id. at 57-58.
¶29 As with any statute, we interpret the text of Wis. Stat. § 938.183(1) to mean what it says. The text plainly
assigns exclusive original jurisdiction to courts of criminal
jurisdiction over juveniles who fall under any of § 938.183(1)'s
five paragraphs. Paragraph (1)(b) places a juvenile under adult
court jurisdiction when the juvenile is "alleged to have
violated any state criminal law" either (1) after a previous
conviction following a waiver by the juvenile court; or (2) when
the juvenile court waived its jurisdiction on a violation where criminal proceedings are still pending. Wis. Stat. 20 No. 2017AP1416-CR
§ 938.183(1)(b). Hinkle met the requisites under para. (1)(b)
because the juvenile court in Milwaukee waived its jurisdiction
over Hinkle in favor of adult criminal court jurisdiction, and
the Milwaukee criminal proceeding was still pending when Hinkle
appeared before the Fond du Lac County Circuit Court on the 14-
count delinquency petition.
¶30 We hold the text of the statute does not limit the
adult court jurisdiction prescribed in Wis. Stat. § 938.183(1)
to the individual juvenile court in the specific county where a
juvenile was previously waived. Whenever a juvenile court
exercising jurisdiction under ch. 938 (or ch. 48) has previously
waived a juvenile——who is alleged to be in violation of any
state law and that juvenile is either convicted or the criminal
proceeding is still pending——courts of criminal jurisdiction
anywhere in Wisconsin have exclusive original jurisdiction. The
waiver by the juvenile court means that any pending or future
violations by that juvenile must begin in adult criminal court
pursuant to the exclusive original jurisdiction assigned to courts of criminal jurisdiction under Wis. Stat. § 938.183(1).
Once waived, always waived.14
14Although the statutes say any pending or new criminal matters against a waived juvenile must always begin under adult criminal jurisdiction, Wis. Stat. § 970.032 provides two ways in which a juvenile may be returned to juvenile court jurisdiction. See Wis. Stat. § 970.032(1) (permitting the criminal court to return a juvenile to the juvenile system when no probable cause exists); and Wis. Stat. § 970.032(2) (allowing the criminal court that finds probable cause to transfer the juvenile back to juvenile jurisdiction under a reverse waiver analysis); see also State v. Kleser, 2010 WI 88, ¶128, 328 Wis. 2d 42, 786 (continued) 21 No. 2017AP1416-CR
IV. CONCLUSION
¶31 We hold Wis. Stat. § 938.183(1) conferred exclusive
original adult criminal jurisdiction over Hinkle based on
Milwaukee County Circuit Court's prior waiver. The text of the
statute does not impose a county-specific limitation for the
"once waived, always waived" rule. The Fond du Lac County
Circuit Court properly relied on Milwaukee's waiver to move
Hinkle from Fond du Lac's juvenile jurisdiction to Fond du Lac's
adult jurisdiction. Accordingly, the Fond du Lac County Circuit
Court had competency to handle Hinkle's case prosecuting him as
N.W.2d 144.
While the phrase "once waived, always waived" does not appear in the statute, it is routinely used by attorneys and judges in the juvenile justice system in reference to the statute we interpret in this case. The Juvenile Judicial Benchbook uses "once waived always waived" in two places, cautioning circuit courts that the "Judge should point out the 'once waived always waived' provision of Juv Justice Code" so in an uncontested waiver situation, the juvenile's decision to not contest the waiver petition is "knowing, voluntary and intelligent." WISCONSIN JUDICIAL BENCHBOOK: JUVENILE, JV 5-9 & JV 5-18 (2019) (JV 5-18 same as JV 5-9, except refers to "new Juv Justice Code"). We use the phrase "once waived, always waived" as a convenient shorthand reference to the rule plainly expressed in the statutory text and nothing more.
22 No. 2017AP1416-CR
an adult under the criminal code. We affirm the decision of the
court of appeals.15
By the Court.—The decision of the court of appeals is
affirmed.
¶32 BRIAN HAGEDORN, J. did not participate.
15Hinkle also maintains that his trial lawyer gave him ineffective assistance by failing to argue that Wis. Stat. § 938.183(1) should be interpreted to have a county-specific waiver limitation. To prove his lawyer was ineffective, Hinkle must show both that his lawyer acted deficiently and that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89. Hinkle cannot prove ineffective assistance because a trial lawyer's failure to raise a nonmeritorious issue "does not constitute deficient performance." See State v. Sanders, 2018 WI 51, ¶54, 381 Wis. 2d 522, 912 N.W.2d 16 ("[F]ailure to bring a meritless motion does not constitute deficient performance.").
Finally, the State asks us to hold that Hinkle forfeited his claims because he did not contemporaneously object to adult court jurisdiction or because he resolved the case by entering pleas. It is not necessary for us to address the State's forfeiture argument, and we decline to do so. See Water Well Sols. Serv. Grp., Inc. v. Consol. Ins. Co., 2016 WI 54, ¶33 n.18, 369 Wis. 2d 607, 881 N.W.2d 285 (cases should be decided on the narrowest possible grounds).
23 No. 2017AP1416-CR.rfd
¶33 REBECCA FRANK DALLET, J. (dissenting). The majority
opinion interprets Wis. Stat. § 938.183(1)(b) in violation of
the very canons of statutory construction it purports to follow
and substitutes a one-size-fits-all approach to juvenile
justice. I read the language of § 938.183(1)(b) within the
rules of statutory construction: in relation to the language of
surrounding and closely-related statutes and in accordance with
the Juvenile Justice Code's textually explicit purpose to
individually assess each juvenile based on their needs and the
availability of resources.1 See Wis. Stat. § 938.01(2).
Accordingly, I dissent.
¶34 The parties dispute the meaning of Wis. Stat.
§ 938.183(1) which provides, in relevant part, that "courts of
criminal jurisdiction" have exclusive original jurisdiction over
"[a] juvenile who is alleged to have violated any state criminal
law . . . if the court assigned to exercise jurisdiction under
this chapter and [Wis. Stat.] ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal
proceedings on that previous violation are still pending."
§ 938.183(1)(b) (emphasis added.) The parties agree that
"courts of criminal jurisdiction" are circuit courts hearing
criminal cases where defendants are prosecuted as adults. See
majority op., ¶16. The dispute in this case lies in the meaning
of "the court assigned to exercise jurisdiction" that has waived
I, like the majority, will use the term "Juvenile Justice 1
Code" to refer to Wis. Stat. ch. 938.
1 No. 2017AP1416-CR.rfd
its jurisdiction over the juvenile for a previous violation. Is
"the court" equivalent to "a" or "any" juvenile court in any
county statewide? Or is "the court" the juvenile court in the
same county where the new charges are filed? In other words, in
the context of this case, does § 938.183(1)(b) confer exclusive
original jurisdiction over Hinkle on any circuit court hearing
criminal cases of adult defendants, or only on those courts in
Milwaukee County, where juvenile jurisdiction over Hinkle was
waived?
¶35 The majority concludes that "the court" is equivalent
to "a" or "any" juvenile court in any county statewide, and
bases its opinion on what it deems a common "practice" or "rule"
of "once waived, always waived." See majority op., ¶¶1-2, 4, 9,
11, 30-31 & n.14. This "practice" provides little support for
the majority's plain meaning analysis of Wis. Stat.
§ 938.183(1)(b), as it appears nowhere in the statutory
language. Instead, it derives from a recommendation made by a
legislative study committee that may not have been taken into consideration by the legislature. See Juvenile Justice Study
Committee, Juvenile Justice: A Wisconsin Blueprint for Change
14-15 (Jan. 1995); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 369, 376 (2012)
(describing the "false notion" that committee reports are a
worthwhile aid in statutory construction because "they are
drafted by committee staff and are not voted on (and rarely even
read) by the committee members, much less by the full house.") The only authority that the majority cites for the proposition
2 No. 2017AP1416-CR.rfd
that "once waived, always waived" is "routinely used by
attorneys and judges in the juvenile justice system" is the
Juvenile Judicial Benchbook. Majority op., ¶30 n.14. The
Benchbook alone is not independent legal authority and it
provides no statute or case as authority for this "practice."2
See Hefty v. Strickhouser, 2008 WI 96, ¶33 n.11, 312
Wis. 2d 530, 752 N.W.2d 820 (recognizing that the Benchbook "is
not intended to stand as independent legal authority for any
proposition of law.").3
¶36 Moreover, although the majority declares Wis. Stat.
§ 938.183(1)(b)'s meaning to be plain, or unambiguous, its
reliance on an extrinsic source to determine the statute's
meaning indicates otherwise. As we recently reaffirmed: "[W]e
confine our analysis of unambiguous laws to their text."
Milwaukee Dist. Council 48 v. Milwaukee Cty., 2019 WI 24, ¶18,
385 Wis. 2d 748, 924 N.W.2d 153; see also Town of Rib Mountain
v. Marathon Cty., 2019 WI 50, ¶9, 386 Wis. 2d 632, 926 N.W.2d
731 ("'Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as
legislative history.'" (quoted source omitted)). If
§ 938.183(1)(b)'s meaning is truly unambiguous, the majority
It is noteworthy that the two sections of the Juvenile 2
Justice Benchbook cited by the majority are the only portions of JV5: Waiver to Adult Court/Reverse Waiver where the citation is "Recommendation" rather than a statute or case.
The first page of the Juvenile Justice Benchbook 3
admonishes: "[t]he Wisconsin Judicial Benchbooks are not intended to be cited as independent legal authority."
3 No. 2017AP1416-CR.rfd
would not need to focus on sources outside of the statutory
language to determine its meaning. I recognize that the
language of § 938.183(1)(b) is ambiguous because it reasonably
gives rise to two different, competing meanings, as advocated
for by the parties in this case. See State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶47, 271 Wis. 2d 633,
681 N.W.2d 110.
¶37 In analyzing the statutory language of Wis. Stat.
§ 938.183(1)(b), I rely not on a common "practice" appropriated
from the recommendation of a legislative study committee, but on
the seminal case of Kalal, which instructs this court to begin a
statutory interpretation analysis with the statute's plain
language. Kalal, 271 Wis. 2d 633, ¶45. The statutory language
is then examined "not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Id., ¶46. Lastly, I look to the purpose or scope of
the statute, which "may be readily apparent from its plain language . . . ." Id., ¶49.
¶38 My interpretation of Wis. Stat. § 938.183(1)(b) is
informed by the two considerations ignored by the majority: the
context of § 938.183(1)(b) in relation to surrounding and
closely-related statutes and explicit statements of legislative
purpose expressed in the Juvenile Justice Code. In statutes
that surround or are closely-related to § 938.183(1)(b), the
legislature differentiates between "the court" in a particular county and "a court" or "any court" in any county, which
4 No. 2017AP1416-CR.rfd
demonstrates that these terms convey different meanings. "When
the legislature uses different terms in a statute——particularly
in the same section——we presume it intended the terms to have
distinct meanings." Johnson v. City of Edgerton, 207 Wis. 2d
343, 351, 558 N.W.2d 653 (Ct. App. 1996). For example, Wis.
Stat. § 938.35(1) requires "[t]he court" to enter a judgment
setting forth "the court's" finding and disposition in the
proceeding, and § 938.35(1)(b) allows that record to be
admissible "[i]n a proceeding in any court assigned to exercise
jurisdiction under this chapter and ch. 48." (Emphasis added.)
"The court," the juvenile court entering judgment in a
particular county, is thus distinct from any juvenile court in
any county where the record is admissible.
¶39 Similarly, in the context of records, Wis. Stat.
§ 938.396(2g)(gm) provides that upon request of "any court
assigned to exercise jurisdiction . . . the court assigned
to exercise jurisdiction . . . shall open for inspection . . .
its records . . . ." (Emphasis added.) Here the legislature distinguishes "any court," any juvenile court in any county,
from "the court" in the county that is the custodian of
the records. Likewise, in § 938.396(2m)(b)1., the legislature
contrasts "the court" assigned to exercise jurisdiction under
the Juvenile Justice Code with "any other court" assigned to
exercise jurisdiction under the chapter.4 (Emphasis added.) The
Further examples include Wis. Stat. §§ 938.028(3), 938.341 4
and 938.37(1), all of which refer broadly to "a court" to encompass any juvenile court.
5 No. 2017AP1416-CR.rfd
legislature chose to use the term "the court" in Wis. Stat.
§ 938.183(1)(b), thereby giving it a meaning distinct from "any"
or "a" court.
¶40 The majority claims that because Wis. Stat. § 938.183
addresses jurisdiction, other sections unrelated to jurisdiction
are "not helpful" in assessing context and structure. Majority
op., ¶25.5 The majority cites to no authority for this novel
proposition that limits this court's review of statutory
context. Instead, the majority looks to a section unrelated to
jurisdiction which defines the word "court" "when used without
further qualification" as "the court assigned to exercise
jurisdiction under this chapter . . . ." Wis. Stat.
§ 938.02(2m) (emphasis added). In this case, our task is to
resolve the meaning of "court" when it is qualified by the word
"the" in the context of § 938.183(1)(b). Simply applying the
definition of "court" in § 938.02(2m) begs the question of which
court is "the court assigned to exercise jurisdiction" under
§ 938.183(1)(b). ¶41 Finally, I read Wis. Stat. § 938.183(1)(b) in
accordance with the Juvenile Justice Code's textually explicit
purpose, which requires a circuit court to individually assess
5 The majority overlooks a statute related to jurisdiction where "courts," "the court," and "a court" are juxtaposed: Wis. Stat. § 938.17. Section 938.17 gives "courts of criminal and civil jurisdiction" exclusive jurisdiction in proceedings against juveniles for specific vehicle violations. (Emphasis added.) The statute subsequently refers to a juvenile being charged in "a court of criminal or civil jurisdiction" and in a successive subsection refers to "the court." (Emphasis added.)
6 No. 2017AP1416-CR.rfd
each juvenile based on their needs and the availability of
resources. The Juvenile Justice Code characterizes the
following as "important purposes": "provid[ing] an
individualized assessment of each alleged and adjudicated
delinquent juvenile" and "respond[ing] to a juvenile offender's
needs for care and treatment, consistent with the prevention of
delinquency, each juvenile's best interest and protection of the
public, by allowing the court to utilize the most effective
dispositional option." Wis. Stat. §§ 938.01(2)(c) and (f).
Wisconsin Stat. § 938.18(5)(c) further requires each court
evaluating waiver to adult court to consider "[t]he adequacy and
suitability of facilities, services and procedures available for
treatment of the juvenile and protection of the public within
the juvenile justice system." As the majority acknowledges,
this explicit textual purpose "sheds light . . . on deciding
which of various textually permissible meanings should be
adopted." Majority op., ¶28. The meaning adopted by the
majority contradicts the explicit purpose of the Juvenile Justice Code and prevents a circuit court from making the
statutorily required individualized assessment of what is in the
"best interests" of the juvenile and the public in light of
available resources. See §§ 938.18(5) and (6).
¶42 I conclude that Wis. Stat. § 938.183(1)(b) is
ambiguous because it is "capable of being understood by
reasonably well-informed persons in two or more senses." Kalal,
271 Wis. 2d 633, ¶47. I adopt Hinkle's interpretation because he reads the language of § 938.183(1)(b) within the rules of
7 No. 2017AP1416-CR.rfd
statutory construction: in relation to the context of the
Juvenile Justice Code and its textually expressed purpose. See
Student Ass'n of Univ. of Wisconsin-Milwaukee v. Baum, 74
Wis. 2d 283, 294-95, 246 N.W.2d 622 (1976) (explaining "the
purpose of the whole act is to be sought and is favored over a
construction which will defeat the manifest object of the
act.").
¶43 A Milwaukee County Circuit Court's waiver of juvenile
jurisdiction over Hinkle does not confer exclusive original
jurisdiction on a Fond du Lac County Circuit Court hearing
criminal cases of adult defendants. Therefore, I would remand
the case to the Fond du Lac County Circuit Court to allow Hinkle
to withdraw his plea and to vacate the Fond du Lac County order
waiving juvenile court jurisdiction.
¶44 For the foregoing reasons, I respectfully dissent.
¶45 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
8 No. 2017AP1416-CR.rfd