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  • WisBar News
    December 27, 2013

    Defendant is an Adult Now but Sex Assault Case Must Go Back to Juvenile Court

    Dec. 27, 2013 – Cody Phillips was under age 15 when he allegedly used force to sexually assault a child. Recently, a state appeals court ordered his plea withdrawn and said the case must go back to juvenile court even though Phillips is now an adult.

    In 2010, the state charged Phillips with first-degree sexual assault of a child by use or threat of force (count one), and second-degree sexual assault of a child (count two).

    The juvenile court judge waived both counts into adult court, where Phillips was subject to a mandatory minimum sentence of 25 years in prison upon conviction for the first-degree sexual assault charge. Ultimately, Phillips pleaded no contest on two counts of second-degree sexual assault of a child, and received 10 years in prison.

    After sentencing, it was discovered that Phillips was under age 15 when he committed the crimes. Thus, he was not eligible to be waived into adult court on charges of first-degree sexual assault and not subject to the mandatory minimum sentence.

    Phillips, now almost 20, moved to withdraw his pleas on the ground that he negotiated the plea on a false assumption that he could go to prison for 25 years. The circuit court withdrew the pleas, but refused Phillips’s request for remand to juvenile court.

    The state conceded that a waiver to adult court was not authorized on the first-degree sex assault charge and the plea should be withdrawn. However, the state argued that the adult court now has jurisdiction on those charges because Phillips is now an adult.

    In State v. Phillips, 2012AP103-CR (Dec. 18, 2013), a three-judge panel for the District II Court of Appeals disagreed with the state’s argument, concluding the case must be remanded to the juvenile court because that court retains jurisdiction on those charges.

    “His current age and the potential dispositions available to the juvenile court upon remand do not negate the plain language of the Juvenile Code or the guidance of our case law,” wrote Judge Paul Reilly, also rejecting the state’s argument that a waiver to adult court was permissible on count two, allowing count one to attach.

    “The juvenile court did not have competency to consider waiver for one of the counts on which the waiver order was based,” Judge Reilly explained. “Only the juvenile court can determine whether waiver over Phillips is appropriate based on Count 2 alone.”

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