COURT OF
APPEALS DECISION DATED AND
RELEASED February
13, 1997 |
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. 96-3079
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
In the
Interest of Aaron S.W.,
a
Person Under the Age of 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
AARON
S.W.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
EICH,
C.J.[1] Aaron S.W., a juvenile born on July 8, 1980,
appeals from an order waiving him into adult criminal court to face charges of
intimidation of a witness and physical abuse to a child. He argues that the juvenile court
erroneously exercised its discretion when it ruled that the State had met its
burden to prove that it would be contrary to his best interests, or the
interests of the public, to retain jurisdiction over the offenses.
We
believe discretion was appropriately exercised and affirm the order.
Before
juvenile court jurisdiction may be waived, the court must be satisfied that the
State has proved, by clear and convincing evidence, that it is contrary to the
best interests of both the minor and the public to retain jurisdiction. Section 938.18(6) (formerly § 48.18(6)), Stats.
It is a determination resting within the court's sound discretion, State
v. C.W., 142 Wis.2d 763, 766-67, 419 N.W.2d 327, 328-29 (Ct. App.
1987), upon consideration of the criteria set forth in § 938.18.[2] The court is not required to make specific
findings with respect to each factor, and it has discretion to assign such
weight as it sees fit to each factor it considers. J.A.L. v. State, 162 Wis.2d 940, 960, 471 N.W.2d
493, 501 (1991); B.B. v. State, 166 Wis.2d 202, 209-10, 479
N.W.2d 205, 207-08 (Ct. App. 1991).
We
will uphold the court's decision to waive jurisdiction if the record indicates
that discretion was in fact exercised and there is a reasonable basis for the
decision. B.B., 166
Wis.2d at 207, 479 N.W.2d at 207. A
discretionary decision is not tested by some subjective standard, or even by
our own sense of what might be a "right" or "wrong"
decision in the case, but rather will stand unless it can be said that no
reasonable judge, acting on the same facts and underlying law, could reach the
same conclusion. State v. Jeske,
197 Wis.2d 905, 913, 541 N.W.2d 225, 228 (Ct. App. 1995).
In
addition to considering the factors set forth in § 938.18(5), Stats., the court must consider the
interests of the minor and the public.
Prior to the recent amendments to the juvenile code, the court was
required to give primary weight to the minor's interests. See B.B., 166 Wis.2d at
207, 479 N.W.2d at 207. Under the law
now applicable, however, the court must give equal weight to protecting
the public from juvenile crime, holding the juvenile accountable for his or her
acts and the juvenile's treatment needs.
Section 938.01, Stats.
Aaron
argues that the trial court failed to weigh the statutory factors—specifically
that it failed to "properly consider" (1) his "personality and
prior record," and (2) the adequacy and suitability of services and
facilities available for treating him in the juvenile system. He also contends that the court gave undue
weight to the seriousness of the charges.
The
trial court began by noting that waiver does not mean "washing your
hands" of the individual, because rehabilitation is an aim of the adult
correctional system just as it is in the juvenile system. The court then took up each of the statutory
factors in turn, noting that Aaron had no prior record, was not mentally ill or
developmentally disabled, had not been waived into adult court in the past and
had a "mental and physical maturity" similar to others of his age and
a "pattern of living" similar to that of "a typical 16-year-old
with no prior offenses."
The
court then discussed the nature and seriousness of the offense, which it said
"cannot be minimized."
We are
not talking about two kids fighting in the school yard about whether or not
somebody was safe or out.
We are talking
about serious injury being inflicted as a result of serious criminal
offenses. And we are talking about a
sophisticated type of crime since basically what it involved was protecting a
drug dealer. The seriousness of that
cannot be minimized. It obviously was
very violent, it was aggressive, it was premeditated and willful.
Then,
considering Aaron's "motive and attitude," the court stated that,
despite the best efforts of his parents and counselors, he "cross[ed] a
line" in committing the offense.
According to the court, despite all the encouragement—and despite his
obviously serious drug and alcohol problems—Aaron was "totally
unmotivated" to help himself or even assist others to that end. The court went on to note that his lack of
motivation and his habit of minimizing the seriousness of his actions and his
problems continued through his arrest and detention. The court commented on Aaron's bored and detached demeanor during
the proceedings and the conclusions of his own psychologist that he would view
remaining in juvenile court as "getting off."
The
court then discussed Aaron's continued lack of motivation to help himself,
despite the considerable efforts of his parents and counselors to change his
habits and attitudes. According to the
court, Aaron has shown "no motivation to change and no motivation to
participate actively in any kind of program that might be available in any
system." The court went on to
state its belief that the adult system has "a larger array of
programs" in which Aaron could be required to participate—to his benefit. The court concluded:
[T]he
first thing that has to happen is we have to get his attention. And I believe leaving him in the juvenile
system will not do that. His refusal to
accept the seriousness of the offense, the seriousness of the drug and alcohol
problem that got him to that offense, would make anything in the juvenile
system meaningless and inappropriate for him.
There is no suitable alternative in the juvenile system. There is in the adult system.
I'm satisfied by clear and convincing evidence
that it would be contrary to both his best interests and the interests of the
public to maintain [juvenile] jurisdiction.
I'm satisfied that
the serious juvenile offender program, even considering the adult Intensive
Sanctions Program, even considering that, require that he be waived into adult
court.
Challenging
the court's determination, Aaron points first to testimony indicating that he
was not the same as other sixteen-year-olds but was immature and suffering from
"poor self-esteem." He also
emphasizes his lack of any criminal or juvenile record and points to testimony
that many of the "motivational" problems mentioned by the court are
the result of his low self-esteem and emotional immaturity, and that he has a
continuing need for treatment in this regard.
He
then points to evidence he believes mitigates the seriousness of the offense—in
particular, the fact that the others involved in the incident were not much
younger than he and that the incident was not premeditated. Finally, he complains that the court did not
devote adequate discussion to detailing the types of "services ...
available in the adult system that would better serve [his] best
interests" and those of the public.
The
essence of Aaron's argument on this appeal is that the record contains evidence
that would support a contrary result: denial of the waiver petition. That may be. It usually is in such cases—indeed in most all cases coming to
court.
But
our task on appeal is not to substitute our judgment for that of the trial
court in situations such as this. We
are wisely barred from doing so. We say
"wisely so" because, as the supreme court has repeatedly stated, a
major reason circuit courts are given discretionary authority over matters that
involve evaluation of the circumstances and often-competing facts that arise in
the course of a hearing or trial is that the circuit judge, being
"on-the-spot," is in a much better position to understand and
evaluate testimony and evidence—including the demeanor of the witnesses—than is
an appellate court working from a cold trial transcript. Schultz v. Darlington Mut. Ins. Co.,
181 Wis.2d 646, 657, 511 N.W.2d 879, 883 (1994).
We
have quoted at length from the trial court's decision because we think it is,
as the State suggests in its brief, a "textbook example" of an
appropriate exercise of discretion.
There is absolutely no question that the court exercised
discretion. Nor is there any question
that the court considered the statutory factors, as the law requires it
to. There may be evidence in the record
that might lead another judge to conclude otherwise with respect to one or more
of the criteria—or to give greater or lesser weight to various criteria than
did the judge in this case—but this is beside the point. The decision reached by the trial court in
the exercise of its discretion was plainly one a reasonable judge could
reach. As such, we may not overturn it.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
The personality and
prior record of the juvenile, including whether the juvenile is mentally ill or
developmentally disabled, whether the court has previously waived its
jurisdiction over the juvenile, whether the juvenile has been previously
convicted following a wavier of the court's jurisdiction or has been previously
found delinquent, whether such conviction or delinquency involved the
infliction of serious bodily injury, the juvenile's motives and attitudes, the
juvenile's physical and mental maturity, the juvenile's pattern of living,
prior offenses, prior treatment history and apparent potential for responding
to future treatment.
Section 938.18(5)(a), Stats.