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COURT OF APPEALS DECISION DATED AND FILED August 29, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from an order of the circuit court for Walworth County:� James L. carlson, Judge.� Vacated and cause remanded with directions.�
�1������� REILLY, J.[1] Noah L. appeals from an order of the trial court adjudicating him to be delinquent.� Noah L. argues the order should be vacated because the trial court improperly delayed adjudication until a dispositional hearing where it considered inadmissible evidence contrary to Wisconsin statute and principles of due process.� We agree that any adjudication should have been done at the conclusion of the fact-finding hearing, and thus we vacate the order.
BACKGROUND
�2������� The State filed a delinquency petition alleging that Noah L. committed disorderly conduct and unlawful texting.� The allegations revolved around a �table-top� incident in which Noah L. was reported to have helped force a classmate to the ground and text messages that were targeted toward the same classmate.�
�3������� The trial court held a fact-finding hearing related to the allegations.� At the conclusion of the hearing, the court stated �proof is sufficient on both counts� to find violations of Wis. Stat. �� 947.01 and 947.0125(2)(a).� The trial court, however, expressly refused to adjudicate Noah L. as delinquent until after receiving a dispositional report and recommendation from the Department of Human Services (DHS).� �I�m not adjudicating him delinquent. �I�m waiting for the report,� the trial court stated at the end of the fact-finding hearing. �The trial court added that it wanted to �find this in context of [Noah L.�s] total background behaviors.��
�4������� DHS prepared the report as ordered by the court despite the absence of a delinquency determination.� The report included information about Noah L.�s difficulties at school, psychiatric treatment, and homelife that were not admitted into evidence at the fact-finding hearing.� The report also included unproven allegations from unknown sources.�
�5������� The trial court reviewed the dispositional report from DHS and allowed the victim�s father to speak at the dispositional hearing. �The court then adjudicated Noah L. to be delinquent.� In doing so, the trial court explained,
I wanted to get as good a report as I could and the recommendation before I find delinquency.� [A delinquency finding] is like a permanent record as opposed to a finding on a civil ordinance or whatever.� It can keep somebody out of the Armed Services.� It can be used against you in criminal proceeding which is good.�
STANDARD OF REVIEW
�6������� Wisconsin Stat. � 938.31(4) requires the trial court to make �findings of fact and conclusions of law� relating to a juvenile delinquency petition as part of a fact-finding hearing.� The fact-finding hearing follows the traditional rules of evidence governing civil and criminal trials.� See Wis. Stat. � 938.299(4)(a).� Only after a juvenile has been adjudicated to be delinquent does a court hold a dispositional hearing.� Wis. Stat. � 938.335(1).� A dispositional report is required to be prepared prior to a dispositional hearing and must include information about the juvenile�s social history and recommendations for the juvenile�s rehabilitation and education.� Wis. Stat. � 938.33(1).�
�7������� We apply a de novo standard of review to questions of statutory interpretation.� State v. Aufderhaar, 2005 WI 108, �10, 283 Wis. 2d 336, 700 N.W.2d 4.� Due process concerns likewise require de novo review without deference to the trial court.� Id.�
DISCUSSION
�8������� Noah L. argues that the trial court�s refusal to make a delinquency finding until after considering information submitted at the dispositional hearing contravened black-letter law requiring cases to be decided solely upon admissible evidence.� Noah L. argues that the trial court had two options at the close of the fact-finding hearing, either to find him delinquent or to dismiss the petition.� Noah L. alleges that by waiting until the dispositional hearing to make the determination, the trial court violated Wis. Stat. � 938.31, which requires conclusions of law to be made at the fact-finding hearing.�
�9������� The State
asserts that the trial court made the required conclusion of law at the
fact-finding hearing when it determined that proof was sufficient on both
counts against Noah L.� According to the
State, the trial court determined that it could
declare Noah L. to be delinquent, but wanted additional information to decide
whether it should.� The State further argues that, even if the
trial court erred on the law, it reached the correct conclusion and its order
should be affirmed.�
�10����� We begin our discussion by noting the significance of a delinquency determination on the life of a juvenile.� In addition to the social stigma that attaches, the adjudication of delinquency also has been seen as a possible impediment later in the juvenile�s life.� See Winburn v. State, 32 Wis. 2d 152, 162, 145 N.W.2d 178 (1966).� Due to the serious implications of an adjudication of delinquency, Wisconsin courts have recognized that juvenile proceedings carry certain protections, including the requirement that they �measure up to the �essentials of due process and fair treatment.��� Rusecki v. State, 56 Wis. 2d 299, 307, 201 N.W.2d 832 (1972) (quoting Winburn, 32 Wis. 2d at 161).�
�11����� Due process requires that the trial court consider only evidence admissible pursuant to Wis. Stat. chs. 901 through 911, as is required by Wis. Stat. � 938.299(4)(a), in making its finding.� A trial court would not allow a jury to delay a finding of guilt in a criminal proceeding so as to consider information presented at the sentencing hearing.� The court�s good intentions in wanting to exercise caution before adjudicating Noah L. delinquent do not substitute for making a finding of delinquency or dismissing the petition at the fact-finding hearing.� An alleged delinquent is entitled to an adjudication based upon the facts and proof presented at the fact-finding hearing relating to the alleged delinquent acts�not adjudicated based upon other aspects of the child�s life.
�12����� In addition to raising concerns about due process, the trial court�s delay of a delinquency determination until the dispositional hearing also goes against the plain language of the statute.� Wisconsin Stat. � 938.31(4) requires all findings of fact and conclusions of law related to a juvenile delinquency petition to be made at a fact-finding hearing.� Whether a juvenile should be adjudicated as a delinquent is a conclusion of law, which should have been made at the fact-finding hearing and not at the dispositional hearing.�
�13����� As the trial court did not adjudge Noah L. to be delinquent at the conclusion of the fact-finding hearing and considered improper evidence in its later determination, we vacate the delinquency order and remand for dismissal of the petition.
����������� By the Court.�Order vacated and cause remanded with directions.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(e) (2009-10).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.