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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 6, 1996 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1191
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE INTEREST OF DAVID T.O.,
a person under the age of 18:
STATE OF WISCONSIN,
Petitioner-Appellant,
v.
DAVID T. O.,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Oconto County:
LARRY JESKE, Judge. Affirmed.
CANE, P.J. The State appeals the trial court's order
denying waiver of juvenile court jurisdiction of the juvenile, David T.O.[1] The State's contention is that the trial
court unreasonably exercised its discretion by refusing to waive David into
adult court. Because the trial court
reasonably exercised its discretion, the order is affirmed.
David is charged with
nineteen counts of criminal damage to property and one count of recklessly
endangering another's safety.
Essentially, the State alleges that David and another youth cut the
brake lines on nineteen Oconto Falls school buses. The single count of recklessly endangering another's safety
alleges that the bus driver of one of these buses was endangered when he drove
it. At the waiver hearing, the trial
court found that there was prosecutive merit to the charges, but denied the
State's petition for waiving David into adult court because he had no prior
record and was receptive to future treatment.
Both sides correctly
state this court's standard of review for waiver cases. Whether to waive a child into adult court is
discretionary with the trial court and, on appeal, this court must review the
record to determine whether the trial court exercised its discretion and, if
so, whether there are reasons to sustain its discretionary decision. In re J.A.L., 162 Wis.2d 940,
960-61, 471 N.W.2d 493, 501 (1991). At
a juvenile waiver hearing, the trial court must apply the specific criteria set
forth in § 48.18(5), Stats., and
determine whether the State has proved that waiver is in the best interest of
the child or the public. In re
C.D.M., 125 Wis.2d 170, 176, 370 N.W.2d 287, 290 (Ct. App. 1985); §
48.18(5), Stats.
Here, a review of the
record demonstrates that the trial court exercised its discretion and carefully
evaluated all the criteria, setting forth its specific findings as to each
criterion. The court noted that David
has a normal intelligence level and physical maturity. It found that David was responding well to
treatment and had the support of his family.
David has no prior record. There
is no dispute that the crime was serious, premeditated and had the potential
for injury or death.
After the trial court
considered the statutory criteria, it then proceeded to weigh the criteria and
decide whether to waive David into adult court. On appeal, this court must observe that it is for the trial court
to determine which factors are most persuasive and the weight to be afforded
each of the factors is discretionary with the trial court. In re G.B.K., 126 Wis.2d 253,
259, 376 N.W.2d 385, 389 (Ct. App. 1985).
The trial court remarked that the decision to waive was a close
call. However, the court explained that
two factors had the most impact on its decision not to waive David: the lack of any prior record and David's
responsiveness to treatment.
Although
the State disagrees with the trial court's decision and argues that the trial
court should have given more weight to other factors such as David's age and
the seriousness of the offenses, it is for the trial court to determine which factors
are most persuasive, not the State. As
David correctly points out in his brief, the State is simply attempting to
replace the trial court's judgment with its own. Simply because the State does not agree with the factors that the
trial court found persuasive does not mean that the trial court misused its
discretion. The trial court is
entrusted with this responsibility of making these decisions and this court on
appeal must affirm the trial court if there is a reasonable basis for the
decision on waiver.
Here, the trial court
had a reasonable basis to deny waiver.
David had no prior offenses and there had never been a delinquency
petition filed against him. The trial
court found this persuasive and stated, "when I look at the overall track
record here, he's never been involved in something of this sort or any criminal
activity in the past and there's no real indication that it would happen in the
future, if in fact he did it." The
court acknowledged that this was a close call, but after weighing and balancing
each of the criteria, it concluded that waiving David into adult court was not
in his or the public's best interest.
The trial court
faithfully followed the requirements of the waiver statute, balanced the
arguments for and against waiver and then made a reasoned decision denying
waiver based on the relevant facts.
This court is satisfied that the trial court exercised its discretion in
a reasonable manner and with sufficient reasons. The order denying waiver into adult court is affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.