|
COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 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. 96-1421
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
MAI
X.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for La Crosse County: RAMONA A. GONZALEZ, Judge. Affirmed.
VERGERONT,
J.[1] Mai
X., a juvenile, appeals from an order waiving juvenile jurisdiction over
her. She contends that the trial court
erroneously exercised its discretion in deciding to waive juvenile court
jurisdiction and that her trial counsel at the waiver hearing was ineffective. We conclude that the trial court properly
exercised its jurisdiction and that trial counsel was not ineffective. We therefore affirm.
BACKGROUND
Mai's
date of birth is August 15, 1978. The
delinquency petition, filed on December 20, 1995, charged her with two counts
of party to the crime of operating a motor vehicle without owner's consent,
contrary to §§ 939.05 and 943.23(3), Stats.[2]
The first count alleged that on
November 17, 1995, Officer Woletz of the Onalaska Police Department observed a
van run a stop sign, at the same time that another driver flagged Woletz down
stating that the van had almost hit his car.
The driver of the van was thirteen years old and did not have a driver's
license. Officer Woletz was informed
from police dispatch that the vehicle had been stolen from the City of La
Crosse sometime between November 11 and 12, 1995. Woletz learned from talking to van occupants that the driver and
a friend in the twin cities (St. Paul and Minneapolis) had been driving around
St. Paul picking up various friends, then driving to Eau Claire, and were now
going to La Crosse. Officer Woletz
realized that one of the van occupants was Mai and that she was a runaway from
Onalaska who had been missing since August 1995. Woletz also discovered that there was a conversation in the van
before it was stopped about the van being stolen, and that all the occupants
knew prior to being stopped that the van was stolen.
With
respect to the second count, the petition alleged that on November 1,
1995, Officer Knopps of the Hudson Police Department was dispatched to a
disabled vehicle on an exit ramp off I-94.
The vehicle was reported stolen from Winona County, Minnesota. Mai was one of the six passengers in the
car. She indicated in a written
statement that the vehicle she was in had been stolen on Monday night in
Winona, Minnesota, and that they were on their way to the twin cities.
At
the hearing on the State's petition for waiver to adult court, the State
presented testimony from Wayde Anger, intake worker for La Crosse County, who
had met with Mai on two occasions prior to the waiver hearing. He first spoke with her on November 18, 1995,
after she was initially detained. At
that time he determined that she would be a suitable candidate for home
detention and she was released to her parents.
He tried to determine whether she was willing to consider counseling and
attend school. She stated she was not
interested in any services. She
violated home detention on November 21 and a pickup order was issued. She was detained in the shelter, put back in
home detention, and ran away on December 6.
She returned home approximately two to four weeks before the waiver
hearing, which was held on May 8, 1996.
Anger testified that it was his understanding that she returned home
voluntarily because her parents were urging her to come home since she was
needed at home.
Anger
spoke to Mai a second time just before the waiver hearing and explained what
services were available to her. She
stated that she did not want any services, that she intended to go back to
school and become a cosmetologist. The
services he mentioned were counseling and school programs.
Mai
has no prior delinquency findings and no prior referrals to the department of
human services. To Anger's knowledge,
she had not received any prior treatment from the juvenile system. She did not have any mental illness or
developmental disability to his knowledge.
She had not been in school for a year and a half. In Anger's opinion, waiver was appropriate
because she had shown no interest in services or in cooperation, and had run
away twice from home detention. He
testified that once she turned eighteen, she could not be placed in a group
home or a foster home; the only out-of-home placement for her would be in a
correctional facility. Ordinarily for a
first-time offender such as Mai, the department would not consider an
out-of-home placement but would try to provide services while the juvenile was
on home detention.
Mai's
brother testified for the defense. He
stated that she had been home for four weeks, that she came back by herself and
was helping at home. He felt her
attitude had much improved since last fall.
He felt she might have told Anger that she did not want services because
Anger was a stranger and it was not a custom of their culture to tell strangers
about one's goals: that was considered
a personal family matter. Her brother
also testified that her father had had a stroke in February but Mai did not
return until April and that she had not gone to school at all during the year.
According
to Anger, Mai's mother told him in November of 1995 that Mai was a good girl
when at home but she was truant and continued to runaway. At the waiver hearing, it was reported by
Mai's attorney that Mai's mother wanted her home and that her daughter was now
doing well. It was reported, through
Mai's brother acting as interpreter for his mother, that Mai had sworn to her
mother she would not runaway again and Mai's mother wanted her to be able to be
at home to help out and did not want her waived into adult court. She did not want her to be in detention any
more.[3]
At
the conclusion of the hearing, the court determined that Mai should be waived
into adult court. The court permitted
her to sign a signature bond in the amount of $2,500 and imposed as a condition
of the bond that she let her brother know where she is at all times.
After
the trial court's determination, Mai moved for a court order determining that
her counsel, Attorney Schnell, had been ineffective as defined in State
v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (1979). The grounds were that at the waiver hearing
counsel failed to present evidence regarding personality and suitability of the
juvenile system for Mai.
At
the Machner hearing, Lewis W. Stamps, Ph.D. testified that he had
conducted a clinical behavioral observation and mental status examination of
Mai and administered the Minnesota Multiphasic Personality Inventory. In his opinion, the results of the
examination were that Mai exhibited a behavioral pattern of submissiveness,
modesty and yielding. Appropriate
treatment for this behavioral pattern would include counseling and therapy. In Dr. Stamps' opinion, services available
in the juvenile system, particularly a treatment regime with formal
supervision, would be appropriate. In
his opinion, her behavior was that of an adolescent rather than an adult, she
was immature, and treatment for her in the juvenile system would be better than
treatment in the adult system.
Attorney
Schnell also testified at the Machner hearing. She stated that she did not speak with Mai's
mother prior to the waiver hearing to verify Anger's version of his
conversation with her; this was the result of time constraints, not strategy. She did not speak to any experts regarding
Mai's motives and attitudes because of time constraints. She did not consider asking for a
continuance because she did not think the court would grant the petition waiver
and because "there is a lot of pressure in the system to move cases
through." Her decision not to
consult an expert was not a strategic decision.
At
the conclusion of the Machner hearing, the court found that
Attorney Schnell's performance was not deficient, and if it were, there was no
resulting prejudice to Mai.
DISCUSSION
Court's Decision on Waiver
Section
48.18(5), Stats., provides that
if prosecutive merit is found, the judge shall base the decision whether to
waive jurisdiction on the criteria stated in para. (a) through (d).[4] Section 48.18(6) provides that after
considering the criteria under subsec. (5), the judge will state his or her
finding with respect to the criteria and if the judge determines that it is
established by clear and convincing evidence that it would be contrary to the
best interests of the child or the public to hear the case, the judge shall
enter an order waiving jurisdiction.
Waiver
of jurisdiction under § 48.18, Stats.,
is within the discretion of the juvenile court. In re J.A.L., 162 Wis.2d 940, 960, 471 N.W.2d 493,
501 (1991). The court has discretion as
to the weight it affords each of the criteria under § 48.18(5). Id. We look to the record to see whether discretion was exercised,
and if it has been, we look for reasons to sustain the court's decision. Id. at 961, 471 N.W.2d at
501. We will reverse a juvenile court's
waiver determination if and only if the record does not reflect a reasonable
basis for its determination, or the court does not state relevant facts or
reasons motivating the decision.
Mai's
counsel did not object to the prosecutive merit before the trial court but on
appeal argues the petition lacked prosecutive merit. The trial court found there was prosecutive merit. Because prosecutive merit is one of the
factors the court must consider under § 418.18(5)(b), Stats., in determining whether to grant
the State's waiver petition, we will review the trial court's determination on
prosecutive merit.
In
order to be the basis for a finding of prosecutive merit, the petition must
contain adequate and detailed information of the juvenile's alleged violation
of state criminal law and have demonstrable guarantees of trustworthiness. In re P.A.K., 119 Wis.2d 871,
887, 350 N.W.2d 677, 685 (1984).
Hearsay evidence may be considered if it has demonstrable guarantees of
trustworthiness. Id. at
885, 350 N.W.2d at 685. Prosecutive
merit involves the same standard as probable cause in the preliminary hearing
stage in an adult criminal proceeding--a reasonable probability that the
alleged crime has been committed and that the juvenile has probably committed
it. Id. at 884, 350
N.W.2d at 684.
Mai's
argument on prosecutive merit is that the petition does not allege that Mai
participated in either the theft or the operation of either of the
vehicles. Mai was charged with being a
party to the crime of operating a motor vehicle without the owner's consent. With respect to the November 1 incident,
Mai's statement indicated that she knew that the vehicle had been stolen, as
did the other passengers in that vehicle; she nevertheless was riding in the
vehicle. With respect to the November
17 incident, the officer reported that in talking to the passengers, which
included Mai, he learned there was a conversation in the van before it was
stopped about the van being stolen and that all the occupants knew prior to the
van being stopped that it was stolen.
Both vehicles were crossing state lines and driving between cities.
Mai
does not challenge the reliability of the officers' reports upon which the
petition was based. Information based
on personal observations of police officers made while acting in their official
capacity is ordinarily considered trustworthy.
See P.A.K, 119 Wis.2d at 888, 350 N.W.2d at
686. She also does not challenge the
written statement attributed to her. We
conclude the petition contains sufficiently detailed and reliable information
to establish that there was probable cause to believe that Mai conspired with
or aided another juvenile in operating both vehicles without the consent of the
owners of the vehicles.
In
applying the other § 48.18(5), Stats.,
waiver factors, the trial court acknowledged that there were certain factors
that favored retaining jurisdiction in the trial court--Mai's lack of previous
delinquency findings, lack of prior treatment in the juvenile system, and the
absence of an infliction of serious bodily harm in the crimes charged. However, the court also considered the fact
that Mai ran away from home before November of 1995, was truant from school for
"a year and a half, almost two years," and twice ran away from home
detention. The court recognized that
Mai had recently returned home, appeared to be doing well, and that this
indicated a potential for her positively responding to future treatment. However, in view of the short period of time
until her eighteenth birthday--less than four months--the court was doubtful
that would be a sufficient time to alter Mai's behavior.
The
court also considered what sanctions would be available should Mai not comply
with a juvenile court order. If Mai did
not comply before her eighteenth birthday, the court noted, it had certain
sanctions available such as putting her in secured detention and giving her
community service hours. The court
heard testimony and was aware that the order for supervision could be extended
for a year past Mai's eighteenth birthday, but the court also knew that after Mai's
eighteenth birthday, it could not sanction her by keeping her in a detention
facility if she violated her supervision order. This was an important factor to the court in view of Mai having
twice run from nonsecure detention. The
court did not consider that an out-of-home placement was warranted.
The
court determined that Mai was leading a mature lifestyle because she had
avoided school for almost two years and had lived, apparently adequately, away
from home for periods of time.
Finally,
the court considered the charged offenses to be serious because they were
felonies that involved keeping an important possession of another away from
that person for a long period of time.
The court also took into account that, on both charges, Mai was with a
group of juveniles acting together without regard for the safety of others.
We
conclude that the trial court addressed each of the factors pertinent to waiver
with sufficient specificity and there was a reasonable basis in the record for
the trial court's evaluation of each of the factors. The court need not resolve all the statutory criteria against the
juvenile to order waiver. See In
re C.W., 142 Wis.2d 763, 768-69, 419 N.W.2d 327, 329-30 (Ct. App.
1987). As we have noted, the weight to
give each factor is within the trial court's discretion. In re J.A.L., 162 Wis.2d at
960, 471 N.W.2d at 501. It is not an
erroneous exercise of discretion for the court to give heavy weight to the
seriousness of the offense and the short period of time left in the juvenile
justice system. See In re
G.B.K., 126 Wis.2d 253, 260, 376 N.W.2d 385, 389 (Ct. App. 1985).
Mai
points to the trial court's statement that her pattern of behavior was for
"7-1/2 years," and argues that it was a finding of fact that has no
basis in the record. We are convinced
that is either a misstatement by the trial court or a typographical error. Elsewhere in the trial court's lengthy
decision explaining its reasoning, the court made clear that it understood that
the pattern of being truant had being going on for "a year and a half, almost
two years."
Mai
argues that it was inappropriate for the court to consider the sanctions
available for failure to comply with a juvenile court order. We do not agree. Given the fact that Mai had twice run from nonsecure detention
and had demonstrated a change in attitude and behavior for only a few weeks,
the court could reasonably conclude that, once the pressure of the waiver
hearing was over, Mai might not comply with the supervision order.
Mai
also asserts that the record is inadequate to support the trial court's
conclusion that she was living a mature lifestyle. While another decision maker might have evaluated that factor
differently based on this record, there was sufficient basis in the record to
support the trial court's conclusion, and we cannot say the trial court's
evaluation of the record was unreasonable.
The same is true with respect to the seriousness of the offense, which
Mai asserts was overstated by the trial court.
The trial court recognized that the offenses did not involve bodily harm
but considered them to be "aggressive and willful acts" because they
were felonies, occurred on two occasions within three weeks, and demonstrated a
lack of concern for the rights and safety of others. This is a reasonable conclusion based on the record.
Ineffective Assistance of Counsel
To succeed on a claim of
ineffective assistance of counsel, Mai must show that her attorney's
performance was deficient and that the deficient performance prejudiced her
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). There is a
strong presumption that the attorney has rendered effective assistance and made
all significant decisions exercising reasonable professional judgment. Id. at 689. In addition, Mai must show that there is a
reasonable probability that, but for trial counsel's unprofessional errors, the
result of the proceeding would have been different. Id. at 694; State v. Sanchez, ___
Wis.2d ___, 548 N.W.2d 69, 76 (1996).
Ineffective assistance of counsel claims present mixed questions of law
and fact. State v. Pitsch,
124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714 (1985). The trial court's findings of fact will not be disturbed unless
clearly erroneous. Id. at
634, 369 N.W.2d at 714. However, the
determination of whether counsel's performance was deficient and whether the
client was prejudiced are questions of law, which we review de novo. Id.
In
denying the claim of ineffective assistance of counsel, the trial court stated
that both through Anger and Mai's brother, there was sufficient evidence at the
waiver hearing about Mai's attitudes and motives. The court noted that its primary reasons for deciding on waiver
were the seriousness of the charges and the inability of the juvenile system to
address the situation within the short period of time left. The court stated that Dr. Stamps' testimony
concerning Mai benefiting from counseling did not "add anything new to the
mix," because the fact remained that the time left to supervise her in the
juvenile system, including the one-year extension of the order, was not
sufficient to address her behavior. The
court concluded that there was no deficient performance and no prejudice.
We
do not decide whether there was deficient performance because we conclude there
was no prejudice. As the trial court
pointed out, Dr. Stamps' testimony on Mai's need for counseling and the
potential benefit of counseling does not respond to the court's concern with
the limited amount of time remaining for Mai in the juvenile system and the
limited sanctions available should she violate a supervision order after her
eighteenth birthday. Nor does his
testimony address the nature of the offenses, which the court considered
serious. As we have already held, the
trial court did not erroneously exercise its discretion in determining that Mai
should be waived to adult court. Mai
has not met her burden of demonstrating that there is a reasonable possibility
that the result would have been different had Dr. Stamps' testimony been
presented at the waiver hearing.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Party to a crime includes aiding and abetting
the commission of the crime or conspiring with another to commit it. Section 939.05(2)(b) and (c), Stats.
[3] Apparently after Mai returned home in April
of 1996, she was picked up for the earlier violations of in-home detention and
was placed in the juvenile detention facility.
[4] Section 48.18(5), Stats., provides:
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 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.
(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.