|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
21, 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. 94-2468
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF JAMES L. C.,
A
CHILD UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
JAMES
L. C.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Vernon County: MICHAEL J. ROSBOROUGH, Judge.
Affirmed.
SUNDBY,
J.[1] Appellant James L.C. appeals from the
juvenile court's September 8, 1994 order waiving the court's jurisdiction over
him. On November 17, 1994, we remanded
this matter to the trial court for a Machner[2]
hearing. After that hearing, the trial
court determined that while James's trial counsel's performance was indeed
deficient, that deficient performance did not prejudice appellant. We agree and affirm the trial court's
order.
James
L.C. has a history of bizarre sexual conduct.
On October 25, 1993, he was placed by the county department of human
services on informal supervision for six months because of numerous acts of
lewd and lascivious behavior perpetrated by him over the course of a year. A condition of this disposition was that he
receive treatment with Dr. George Planavsky, a psychiatrist. On March 4, 1994, he was charged in a
delinquency petition with one count of lewd and lascivious behavior occurring
on February 5, 1994. He was placed on
formal supervision of the department until November 27, 1994, when he would
become eighteen. He was placed with his
mother and ordered to have an assessment and counseling at the Ron McGuire
Family Therapy Center. On May 18, 1994,
he was admitted to the St. Francis Psychiatric Unit when he was found to be in
a drug-induced psychotic state. On June
9, 1994, he was placed at the Scarseth House until November 27, 1994.
On
September 1, 1994, James absconded from Scarseth House. He was apprehended September 2, 1994, while
operating a stolen vehicle. On
September 8, the State filed two delinquency petitions, one charging James with
one count of lewd and lascivious behavior, and the other charging one
misdemeanor count and one felony count of operating a motor vehicle without the
owner's consent, party to a crime. On
the same day, the juvenile court granted the State's petition to waive its
jurisdiction over James and referred the petitions to the district attorney for
appropriate criminal proceedings. The
court found that there were no adequate and suitable facilities, services and
procedures available to treat a juvenile of James's age.
The
juvenile court had available to it the report of Sandy Garry, a therapist
employed by the Ron McGuire Family Therapy Center. She met with James on several occasions to complete a diagnostic
evaluation. The therapist's report
related a history of family and personal dysfunction, including physical and
psychological abuse, neglect, inattention to basic needs, drug and alcohol
abuse, and inappropriate sexual behavior.
James admitted to numerous acts of exposing behavior, far beyond those
with which he was charged. He was unable
to feel remorse for his exposing behavior because he didn't do anything physical
to his victims. Throughout the
evaluation, James frequently referred to himself as "crazy" or not
"normal." The therapist
recommended that James participate in an individualized therapy program with
in-patient treatment as a sanction for relapse.
The
delinquency petitions and the waiver petition were heard simultaneously. James personally informed the court that he
wished to proceed at that time on the waiver petition. The only witness was Andrea Cunningham, a
social worker with the county department of human services. She testified that James had a combination
of problems, including drug and alcohol abuse and deviant sexual behavior. She further testified that the department
was asking the court to waive its jurisdiction because, "there aren't any
facilities or services remaining within the juvenile system that are adequate
to deal with this child's problems and to also protect the public." She believed that he would be better served
by being treated as an adult, one of the factors being that he would become
eighteen in approximately two-and-one-half months. James's counsel did not cross-examine Cunningham with respect to
her conclusions or recommendations.
However, the court inquired as to James's prior behavior, his evaluation
and treatment. Cunningham testified
that she was not sufficiently aware of the adult system to know whether James's
needs might be better met if the court were to waive its jurisdiction over him. She had not received a report from Dr.
Planavsky or had a chance to speak with him.
She did express her opinion that James might be deterred if he knew
there were more severe consequences.
When asked whether Lincoln Hills would be an appropriate placement,
Cunningham testified that because of this "quick" hearing, she did not
have time to check out "all those things." The court asked Cunningham if she had any idea what kind of
inpatient treatment would be available as a punitive consequence to
re-offending. She said she did
not.
After
the court admitted the therapist's report into evidence, James's counsel
commented:
The only statement I would make is you're
always concerned when you represent somebody and he apparently [has] totally
given up, doesn't want to fight, just wants to go along with whatever happens
and ... that's the case with [James].
And after reading
this thing from Ron McGuire Family Therapy Center ... I can understand ...
where some of those attitudes come from....
I think he thinks he's a real bad person and there's no hope for him and
that's why he's given up and doesn't want to [fight] anymore. At least now I understand it; I didn't
before.
The
following are excepts from the trial court's oral decision:
[A]lthough
the ... juvenile ... does not wish to contest the waiver issue, I nevertheless
think this is a close question as to whether the Court should waive him into
adult court....
... I would make the following observations of
whether he's ... "mentally ill" I think is somewhat up in the air....
[W]hether his condition amounts to mental illness, ... without expert
testimony, ... I don't really know how to resolve that.
....
... It appears that he has a fatalistic view of
his problems and his position and his likelihood for ever being a ...
"normal functioning member of the community." And while I don't pretend to be a
psychiatrist or psychologist, everything I've heard here today suggests that he
may be suffering from some degree of depression at this time.
....
Prior treatment has been minimal, mainly
because of the sequence of events here.
It's my understanding from reviewing the petition and the court file
that he was adjudicated delinquent because of the indecent exposure behavior
this spring ... and he was to obtain counseling and ... that was amended to
placement at Scarseth House in May.
So really he hasn't given the system a chance
to work with his problems ... because he's committed new delinquent acts fairly
shortly after being placed on that delinquency order or adjudication and
dispositional order.
I would conclude that he has potential for
responding to ... future treatment. I
don't think by any means he's someone that should be given up on.
... [M]y observation, though, would be that the
types, the depth and the unusual nature of these intertwined problems is such
that he has a long-term need for treatment that would extend beyond the time
period that would be left in the juvenile system.... So I don't know how we would accomplish what he needs to have
accomplished in the juvenile court system.
....
... The adequacy and suitability of services
and procedures available for treatment and protection of the public within the juvenile
or mental health systems is a consideration.... [T]he facilities would appear to be the same, whether he's
treated as a juvenile or an adult, and the treatment program would appear to be
the same.
[T]he report that the Court has reviewed from [the
therapist] ... indicates that ... one of the things needed is some immediacy to
consequences....
... I think it's fair to say as a general
proposition it usually is easier to inflict immediate consequences upon someone
who's being treated as an adult rather than as a juvenile. So that certainly weighs in rather strongly
in favor of the adult system to deal with this unique problem.
Those are the only
considerations that are relevant. I
conclude that while I still think it's a close question ..., there is
sufficient evidence [that] the State has met its burden and it has established
by evidence which is clear, satisfactory and convincing that [James] should be
... waived to adult court.
James
appealed from the dispositional order alleging, among other things, ineffective
assistance of counsel. On November 17,
1994, we stayed the appeal and remanded the record to the trial court for a Machner
hearing. In a decision entered January
31, 1995, the trial court concluded that counsel's performance was deficient
but that that performance did not prejudice James.
Because
the State does not contest the trial court's finding that James's counsel's
performance was deficient at the waiver hearing, we need consider only the
trial court's finding that James was not prejudiced by that deficient
performance. The trial court recognized
that James had to show both that his counsel's performance was deficient and
that he was prejudiced by that performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). As the trial court stated in its memorandum
decision, "[t]he test is whether defense counsel's errors undermine
confidence in the reliability of the results." State v. Glass, 170 Wis.2d 146, 154, 488 N.W.2d
432, 435 (Ct. App. 1992). The trial
court applied the proper test when it stated that, "[t]he question is
whether there is a reasonable probability that the court would have reached a
different result, if counsel had not erred."
The
trial court's finding that counsel's performance was deficient is supported by
the record. He met with James for the
first and only time for a few minutes before the first court appearance and
then volunteered to have the waiver hearing immediately. In fairness to counsel, we believe the
record shows that counsel was informing the court as to James's wishes. In fact, James himself told the court he was
willing to proceed. However, we agree
that counsel should not have proceeded with the waiver hearing without
investigating the facts. As the trial
court observed, this was a close case.
In view of the imminence of James's eighteenth birthday, counsel should
have been prepared to argue to the court that James could remain within the
juvenile court's jurisdiction long enough to obtain the therapy he needed. The therapist reported to the court that the
Ron McGuire Family Therapy Center was prepared to provide James with
treatment. Plainly, counsel was not
aware of the length and nature of treatment which would have been available to
James in that treatment facility or another facility.
Before
the trial court entered its decision, it reopened the Machner
hearing to allow James to present testimony of Michelle Munzenberger on the
question of the prejudice to James because of counsel's deficient
performance. She was qualified as an
expert in social work. She testified
that James's needs would "more thoroughly be dealt with in the juvenile
system on the basis that as an adult he's not even being addressed on the
issues of the lewd and lascivious behavior." She referred to the criminal charges against James pending in the
criminal court.
Munzenberger
testified that there are services available in the juvenile system to address
the issues of alcohol and drug abuse and deviant sexual behavior. She believed that James was motivated to
address his problems. She
testified: "I don't feel he's been
fairly dealt with as far as the least restrictive to most restrictive options
as far as the juvenile code and I feel he needs to be given that
opportunity." She expressed her
opinion that James would be prejudiced by waiving him into adult court.
Before
the juvenile court heard Munzenberger's testimony, it reviewed all of the
statutory factors before reaching its conclusion that it was in James's and the
public's best interest that the court waive its jurisdiction over him. We do not believe we may upset that exercise
of the trial court's discretion.
Without the urging of counsel, the trial court examined the therapist's
report and was therefore aware of the recommendations of the therapist that
James receive individual therapy with the possibility of the consequence of
in-patient therapy if he did not cooperate with the therapy program. The court concluded that had it heard the
testimony of Cunningham and Munzenberger at a hypothetical waiver hearing, it
was not reasonably probable that the court would have concluded that the State
had failed to carry its burden to show that waiver of the juvenile court's
jurisdiction was in James's best interest and the best interest of the
public.
Clearly,
the trial court was impressed with the therapist's opinion that James could be
benefited by dealing with any further offenses "swiftly and in a punitive
fashion." While the therapist
recommended that the punitive consequences include in-patient treatment, it was
not inappropriate for the trial court to consider that in the criminal justice
system, any additional offenses by James could be dealt with swiftly and in a
punitive fashion.
The
trial court demonstrated that it thoroughly understood the nature and extent of
James's problems. It considered all of
the statutory factors. In the
circumstances, this court would be substituting its will for the discretion of
the trial court were we to reverse the trial court's decision. That is an inappropriate function of an
appellate court.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.