|
COURT OF APPEALS DECISION DATED AND RELEASED APRIL 24, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0109
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of
Brian S.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
BRIAN S.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
MARY K. WAGNER-MALLOY, Judge. Affirmed.
ANDERSON, P.J. Brian S. appeals from a
nonfinal order whereby the juvenile court waived juvenile jurisdiction. We conclude that the juvenile court's order
was supported by clear and convincing evidence that it was contrary to the best
interests of the child and the public to retain juvenile court
jurisdiction. Accordingly, we affirm.
A petition for
determination of status—alleged delinquent child—was filed in the interest of
Brian. The petition alleged that Brian,
in concert with others, intentionally damaged property by means of explosives,
contrary to § 943.02(1)(c), Stats. According to an investigator of the Twin
Lakes Police Department, he was called to an incident where a telephone
junction box had been hevily damaged by explosives. One of the boys involved in the incident gave a statement to the
investigator that he and other boys, including Brian, made the bomb in Brian's
garage.
The State petitioned the
juvenile court for waiver of jurisdiction.
A waiver hearing was held. The
juvenile court subsequently granted the State's petition for waiver. Brian appealed. We granted his request to appeal the nonfinal order.
Waiver of jurisdiction
under § 48.18, Stats.,[1]
is within the sound discretion of the juvenile court. J.A.L. v. State, 162 Wis.2d 940, 960, 471 N.W.2d
493, 501 (1991). The juvenile court
also has discretion as to the weight it affords each of the criteria under §
48.18(5). Id. When reviewing a juvenile court's exercise
of discretion, we first look to the record to see if discretion was in fact
exercised. Then we look for reasons to
sustain the court's discretionary decision.
Id. at 961, 471 N.W.2d at 501.
Pursuant to § 48.18(5), Stats., the juvenile court shall base
its decision whether to waive jurisdiction on the following criteria:
(a) The personality and prior record of the child, including whether the
child is mentally ill or developmentally disabled, whether the court has
previously waived its jurisdiction over the child, whether the child has been
previously convicted following a waiver of the court's jurisdiction or has been
previously found delinquent, whether such conviction or delinquency involved
the infliction of serious bodily injury, the child's motives and attitudes, the
child's physical and mental maturity, the child's pattern of living, prior
offenses, prior treatment history and apparent potential for responding to
future treatment.
(b) The type and seriousness of the offense, including whether it was
against persons or property, the extent to which it was committed in a violent,
aggressive, premeditated or wilful manner, and its prosecutive merit.
(c) The adequacy and suitability of facilities, services and procedures
available for treatment of the child and protection of the public within the
juvenile justice system and, where applicable, the mental health system and the
suitability of the child for placement in the youthful offender program under
s. 48.537 or the adult intensive sanctions program under s. 301.048.
(d) The desirability of trial and disposition of the entire offense in
one court if the juvenile was allegedly associated in the offense with persons
who will be charged with a crime in circuit court.
Subsection
(6) of the statute goes on to state that after considering the above stated
criteria, the judge shall state his or her findings with respect to the
criteria on the record and “if the judge determines on the record that it is
established by clear and convincing evidence that it would be contrary to the
best interest of the child or of the public to hear the case, the judge shall
enter an order waiving jurisdiction ¼.”
At the waiver hearing,
John Deneka, a social worker with the Kenosha County Department of Social
Services, testified regarding his preparation of a waiver report for Brian's
case. He stated that he recommended
waiver. He based his recommendation on
the fact that Brian was in need of long-term supervisory care. He stated:
I
think this kind of offense requires a higher level of ¼
policing than I'm able to afford. ¼
[T]here are some definite issues that he needs to attend to that I'm not sure I
can get to within a year's period of time.
So, I--Brian, I think, has run out of time and I have run out of
resources, I mean the department, in terms of how to provide a high level
probation in Twin Lakes.
After hearing the
evidence, the court stated that it was “required to consider [§] 48.18 [, Stats.,] in determining whether or not
waiver [was] appropriate.” The court
went on to conclude that Brian was not mentally ill or developmentally
disabled. He had been previously found
delinquent in one adjudication and “a couple of informals.” The court listed possible motives for
Brian's behavior and that his pattern of living had been dependent on his
parents. The court stated that his
prior offenses involved property crimes and possession of marijuana. It then stated:
This is a serious offense. This is aggressive, willful, premeditated,
against property, but also in nature against community because of what was
bombed.
Are there services or facilities that can treat the child and protect
the public? Based on the nature of the
Class B felony, Mr. Deneka's statement about the significant period of time
that supervision is required, I don't think juvenile court services are
appropriate at this point.
¼.
The Court will find by clear and convincing evidence that it's not in
the best interests of [Brian] nor the community for the circuit court with
juvenile jurisdiction to hear this matter.
It'll be referred to the district attorney for appropriate criminal
proceedings.
After
reviewing the record, we conclude that the juvenile court's decision to waive
jurisdiction was reasonable and based on clear and convincing evidence in the
record.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.