|
COURT OF
APPEALS DECISION DATED AND
RELEASED August
29, 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. 96-1281
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
LYNNSIE
F.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: ROBERT A. DECHAMBEAU, Judge.
Affirmed.
DEININGER,
J.[1] Lynnsie
F., who turned seventeen after the filing of a delinquency petition but before
a plea hearing, appeals from an order waiving juvenile court jurisdiction under
§ 48.18, Stats. She claims the trial court erred by failing
to base its decision on the criteria of § 48.18(5), and by basing its
decision on an improper factor. We
conclude that under the special circumstances of § 48.12(2), Stats.,[2]
the trial court based its decision on the relevant criteria of § 48.18(5),
and not upon an improper factor. We
therefore affirm.
FACTS
On
March 27, 1996, the State filed a petition alleging Lynnsie F. to be delinquent
for committing the offense of disorderly conduct on March 19, 1996, in
violation of § 947.01, Stats. A plea hearing was initially scheduled for
April 10, 1996. On March 29, 1996,
however, the State filed a waiver petition under § 48.18(1), Stats., and a waiver hearing was set
for April 25, 1996. Lynnsie F. became
seventeen years of age on April 7, 1996.
At
the beginning of the waiver hearing the State told the trial court that it was
"not willing to entertain a consent decree" because of other pending
charges against Lynnsie F. Lynnsie F.
asked "that the Court retain jurisdiction in juvenile court" and moved
for dismissal "based on a motion of prosecutive merit." The trial court denied the motion and waived
juvenile court jurisdiction, stating:
Well,
938.12[sic] does give the Court basically two options because the third option
can only be with the acquiescence of the district attorney which he has -- he
is not doing, so the consent decree is out.
The Court choices are waiver or dismissal. The criteria for waiver that counsel has directed the Court's
attention to is the prosecutive merit of this case. I would note just from the allegations in the petition this is
charged as a disorderly conduct. I
suspect under the circumstances it could have just as well have been charged as
battery.
The
trial court went on to note that the delinquency petition alleged that Lynnsie
F. had slapped her stepfather and hit him one or two times, distinguishing the
allegations from "general disorderly conduct" such as "someone
playing their stereo too loudly and disturbing someone." Finding the conduct to be "directed to
a specific person in an aggressive, violent manner," the trial court
concluded that the charge had prosecutive merit.
Lynnsie
F.'s trial counsel then called the court's attention to § 48.18(5)(b), Stats., noting that "there are
different criteria that the Court should look at," but still focused her
argument on "another ... look" or the "second prong test"
of prosecutive merit. In response, the
trial court reaffirmed its finding that the offense in question was one that
"should be dealt with by the courts."
SECTION
48.18(5), STATS.,[3] CRITERIA
Lynnsie
F. first argues that the trial court erred by not basing its waiver decision on
the criteria of § 48.18(5)(a) and (c), Stats. Lynnsie F.
correctly notes that the "[S]tate did not offer, and the court did not
request evidence on any of the sec. 48.18(5)(a) factors." She claims this failure to be error, citing In
the Interest of P.A.K., 119 Wis.2d 871, 350 N.W.2d 677 (1984). She also argues that the trial court failed
to consider any of the criteria under § 48.18(5)(a) and (c), contrary to
this court's holdings in In the Interest of C.W., 142 Wis.2d 763,
419 N.W.2d 327 (Ct. App. 1987); In the Interest of G.B.K., 126
Wis.2d 253, 376 N.W.2d 385 (Ct. App. 1985); and In the Interest of C.D.M.,
125 Wis.2d 170, 370 N.W.2d 287 (Ct. App. 1985).
None
of the cases cited by Lynnsie F., however, address the circumstances under
§ 48.12(2), Stats., which
applies to a child who reaches the age of seventeen prior to an adjudication of
delinquency in the juvenile court.
This
court has had occasion to review the application of § 48.18, Stats., to the "special
situation" arising under § 48.12(2), Stats., in In the Interest of K.A.P., 159
Wis.2d 384, 464 N.W.2d 106 (Ct. App. 1990).
There, a juvenile delinquency petition was filed against a seventeen
year old.[4] At the plea hearing, the child denied the
allegations. Before an adjudication on
the petition however, the child attained age eighteen. Section 48.18(2) requires that a waiver
petition be filed "prior to the plea hearing." Since that had not been done, the trial
court refused to allow the State to file a waiver petition.
We
first found the statute in question to be ambiguous because "reasonable
minds could differ as to whether the legislature intended to impose the time
deadline of the waiver statute on the special waiver situation contemplated by
sec. 48.12(2), Stats." Id.
at 389, 464 N.W.2d at 108. We concluded
that "[t]he leading idea of sec. 48.12(2), Stats., is to redefine the
juvenile court's jurisdiction when this special situation arises," and
held that the § 48.18(2), Stats.,
deadline for filing a waiver petition in a "conventional delinquency
proceeding" does not apply to the § 48.12(2) situation. Id. at 390, 464 N.W.2d at 108.
Similarly,
we now hold that the criteria of § 48.18(5)(a) and (c), Stats., are not relevant and need not
be considered when a § 48.12(2), Stats.,
situation arises.
As
Lynnsie F. concedes in her reply brief, the State is not obligated to provide
evidence concerning waiver criteria which are "wholly irrelevant" to
the case at hand. The State is not
required to present evidence on all listed waiver criteria, and the juvenile
court need only state on the record its findings with respect to criteria
actually considered. In the
Interest of G.B.K., 126 Wis.2d 253, 256, 376 N.W.2d 385, 388 (Ct. App.
1985).
The
criteria under § 48.18(5)(c), Stats.,
focus on whether there are suitable services and/or facilities in the juvenile
justice system to address the needs of the child, while those under
§ 48.18(5)(a) largely focus on whether the child is suitable for juvenile
system services and facilities. Under
the terms of § 48.12(2), Stats.,
however, a juvenile court disposition is precluded.[5]
It
would thus be a meaningless exercise for the State to produce evidence on, and
for the court to consider, whether suitable dispositional services and/or
facilities are available in the juvenile justice system. As the Wisconsin Supreme Court noted in
analyzing § 48.12(2), Stats.:
The initial jurisdiction of the juvenile court is framed
in terms of the defendant's age at the time of prosecution because the juvenile
court is only empowered under secs. 48.34 and 48.344, Stats., to impose
rehabilitation treatment programs that are designed to benefit delinquent children. The programs are not designed to benefit an
adult that has committed a criminal act, regardless of whether the criminal act
was committed when the defendant was a child.
State v. Annala, 168
Wis.2d 453, 464, 484 N.W.2d 138, 142-43 (1992).
In
contrast, the waiver criteria set forth in § 48.18(5)(b), Stats., are highly relevant to a waiver
decision under the special situation of § 48.12(2), Stats.
Section 48.18(5)(b) focuses not upon the the advisability of a juvenile
disposition, but upon the offense, including "the type and seriousness of
the offense ... whether it was against persons ... the
extent to which it was committed in a violent, aggressive, premeditated or
willful manner" and "prosecutive merit."[6] The Wisconsin Supreme Court has likened the
determination of prosecutive merit to the determination of probable cause in a
preliminary examination for felony prosecutions. In the Interest of T.R.B., 109 Wis.2d 179, 190-192,
325 N.W.2d 329, 334-35 (1982). Before
deciding to permit a criminal prosecution against a person who is on the mere
threshold of adulthood, the juvenile court, like a judge at a preliminary
hearing, must endeavor "to prevent hasty, malicious, improvident, and
oppressive prosecutions, to protect the person charged from open and public
accusations of the crime ... and to discover whether or not there are
substantial grounds upon which a prosecution may be based." Thies v. State, 178 Wis. 98,
103, 189 N.W. 539, 541 (1922).
The
trial court properly considered and stated its findings regarding the
§ 48.18(5)(b), Stats.,
criteria in deciding to waive juvenile court jurisdiction over Lynnsie F. They go to the very heart of the trial
court's stated reasons for waiving juvenile jurisdiction.[7]
CONSIDERATION OF
IMPROPER FACTOR
Lynnsie
F. next argues that by accepting the State's assertion that it would not enter
into a consent decree, the trial court improperly limited its consideration to
the two remaining options: dismissal or
waiver. She suggests the court must
first determine whether to waive juvenile jurisdiction, and if it decides not
to do so, the State must then decide whether to enter into a consent decree or
"acquiesce in dismissal of the case."
This
construction of § 48.12(2), Stats.,
is not supported by the language of the statute. Section 48.12(2) does not specify a two-step process, nor does it
prescribe an order of preference to the three § 48.12(2) options.
Accordingly,
the juvenile court should consider each of the three options in an order most
appropriate to the facts at hand. If a
consent decree is proposed to the court, it would seem most appropriate for the
juvenile court to first consider whether it will accept the same, proceed under
§ 48.32(1), Stats., to
suspend the proceedings, and order supervision on certain terms and
conditions. If a consent decree is not
proposed, it may even be appropriate for the juvenile court to inquire of the
parties whether they wish to consider a consent decree. But where one or more of the parties who
must agree to a consent decree[8]
states unequivocally that a consent decree will not be entertained and why that
is so, it is not improper for the juvenile court to proceed to consider the two
remaining options available under § 48.12(2), Stats.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Section 48.12(2), Stats., provides as follows:
(2) If a court proceeding has been commenced under this
section before a child is 17 years of age, but the child becomes 17 years of
age before admitting the facts of the petition at the plea hearing or if the
child denies the facts, before an adjudication, the court retains jurisdiction
over the case to dismiss the action with prejudice, to waive its jurisdiction
under s. 48.18, or to enter into a consent decree. If the court finds that the child has failed to fulfill the
express terms and conditions of the consent decree or the child objects to the
continuation of the consent decree, the court may waive its jurisdiction.
1995 Wis. Act 27, § 2432.
[3] Section 48.18(5), Stats., provides as follows:
(5) If
prosecutive merit is found, the judge, after taking relevant testimony which
the district attorney shall present and considering other relevant evidence,
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 willful 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.
[5] As of July 1, 1996, § 48.12(2), Stats., has been repealed and replaced
by § 938.12(2), Stats.,
which reads as follows:
If a court proceeding has been commenced under
this section before a juvenile is 17 years of age, but the juvenile becomes 17
years of age before admitting the facts of the petition at the plea hearing or
if the juvenile denies the facts, before an adjudication, the court retains
jurisdiction over the case.
1995
Wis. Act 77, § 629.
Instead
of being limited to the three options of the former § 48.12(2), Stats., it appears that a juvenile
court may now retain jurisdiction over a 17 year-old through adjudication and
disposition. The issue considered in In
the Interest of K.A.P., 159 Wis.2d 384, 464 N.W.2d 106 (Ct. App. 1990),
is now explicitly addressed in § 938.18(2), Stats., which permits the filing of a waiver petition at
anytime prior to adjudication if the juvenile turns 17.
[6] Prosecutive merit is both a waiver criteria
under § 48.18(5)(b), Stats.,
and a required preliminary finding under § 48.18(4). The juvenile court need not take testimony
on the issue of prosecutive merit and may find it solely on the basis of the
delinquency and waiver petitions. In the Interest of P.A.K., 119
Wis.2d 871, 887, 350 N.W.2d 677, 685 (Ct. App. 1984).
[7] The criteria under § 48.18(5)(d), Stats., did not apply in this case, but
would seem to be a relevant consideration when applicable in a § 48.12(2),
Stats., situation.
[8] A consent decree under § 48.32(1), Stats., "must be agreed to by the
child ...; the parent, guardian or legal custodian; and the person
filing the petition under s. 48.25."
The assistant district attorney who filed the petition stated
unequivocally that the State would not entertain a consent decree and provided
the trial court with the reasons for that decision. Lynnsie F.'s trial counsel did not take issue with the State's
position nor did she request the court to consider a consent decree.