Charging delay leads to reversal

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It has long been the law that the State cannot intentionally delay charging a juvenile until he comes of age, and then charge him as an adult.

But it has been just as long that Wisconsin defense attorneys have looked in vain for even a single published case holding that the State violated the law.

On Sept. 14, however, the Wisconsin Court of Appeals held, in an opinion recommended for publication, that a defendant’s adult convictions must be reversed because the State intentionally delayed processing his case.

On April 14, 2008, then-16-year-old Drew E. Bergwin was implicated in a series of burglaries in Door County. The investigator referred the case to juvenile court intake on April 25.

However, Bergwin was not charged until June 9, three days after his seventeenth birthday. Because of his age on the date the criminal complaint was filed, he was charged as an adult.

He was also later charged with bail jumping for failure to comply with the terms of his release.

Bergwin moved to dismiss, alleging the State intentionally delayed charging him to avoid juvenile jurisdiction.

At an evidentiary hearing, the juvenile intake worker testified that, after speaking with the district attorney’s office, she wrote in her notes, “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.”

Nevertheless, the circuit court denied the motion to dismiss. Bergwin entered into a plea agreement, was sentenced, and appealed the denial of his motion to dismiss.

In an opinion by Judge Edward R. Brunner, the Court of Appeals reversed.

The court concluded that the delay in charging Bergwin ran afoul of the rule in State v. Becker, 74 Wis.2d 675, 678, 247 N.W.2d 495 (1976), that when charging authorities suspect a juvenile of committing a crime, “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.”

Judge Brunner wrote for the court, “In denying Bergwin’s motion, the circuit court overlooked clear, credible evidence of manipulation by the State. [The intake worker’s] notes establish that before she completed her intake inquiry, the State had already decided to prosecute Bergwin as an adult.”

The court noted that, in previous cases addressing motions to dismiss based on delay in charging a juvenile, the state has presented evidence that the delay was because of legitimate, non-manipulative reasons.

In Becker itself, the defendant did not prevail, because the delay was the result of an ongoing drug investigation. In others, problems locating the defendant caused the delay. State v. Velez, 224 Wis.2d 1, 589 N.W.2d 9 (1999); State v. Montgomery, 148 Wis.2d 593, 436 N.W.2d 303 (1989).

In contrast, the investigation of Bergwin was completed approximately a month and a half before he turned 17. The only reasonable inference, the court concluded, was intentional delay.

“The testimony elicited at the motion hearing establishes that the State inappropriately invaded the intake worker’s domain and improperly deprived the juvenile court of jurisdiction,” the court found, “The State’s actions circumvented the statutory juvenile justice process and, in turn, abrogated Bergwin’s right to due process of law.”

The court held that the bail jumping convictions must be reversed as well, even though those occurred after Bergwin turned 17. The court concluded that, because the circuit court lacked jurisdiction to adjudicate the underlying charges, it also lacked authority to establish conditions of bail.

David Ziemer can be reached at [email protected].

What the court held

Case: State v. Bergwin, Nos. 2009AP1151-CR & 2009AP1152-CR

Issues: Did it violate due process to delay charging a juvenile until after he turned 17?

Holdings: Yes. Where the State presented no legitimate reason for the delay, the convictions must be reversed.

Attorneys: For Plaintiff: Christopher G. Wren, Madison; For Defendant: Roberta A. Heckes, Adell