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COURT OF APPEALS DECISION DATED AND RELEASED September
14, 1995 |
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,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 95-1220
95-1221
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF JUSTIN F. W.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
JUSTIN
F. W.,
Respondent-Appellant.
APPEAL
from orders of the circuit court for Dane County: SARAH B. O'BRIEN, Judge.
Affirmed.
VERGERONT,
J.[1] Justin
F.W. appeals from two orders waiving juvenile court jurisdiction over him. He asserts that the trial court: (1) improperly denied his request for a
continuance to permit his expert psychologist to review more records;
(2) failed to consider certain statutory factors; (3) made an
erroneous finding that the services in the juvenile justice system were
inadequate to protect the community and rehabilitate him; (4) improperly
refused to order a report on his suitability for certain programs; and
(5) erroneously exercised its discretion in concluding that his best
interests and the interest of the public required waiver.[2] We reject his contentions and affirm.
The
delinquency petitions charge Justin with one count of robbery by use of force
against the victim while using a dangerous weapon, contrary to
§§ 943.32(1)(a), 943.32(2) and 939.05, Stats.;
two counts of robbery by threatening the imminent use of force by use of a
dangerous weapon, one of which was as a party to the crime, contrary to
§§ 943.32(1)(b), 943.32(2) and 939.05; and two counts of carrying a
concealed weapon contrary to § 941.23, Stats.
The charges arose out of incidents that occurred on the same evening in which
three individuals were robbed of Magic Cards[3]
and other items. The petitions allege
that Justin and two other individuals participated in the robberies. Justin conceded that the petitions had
prosecutive merit.[4]
The
waiver hearing was initially scheduled for April 6, 1995, but was set over
until April 25, so that a psychologist, Dr. Michael Spierer, could meet with
Justin. By letter dated April 18,
counsel for Justin requested a continuance of two weeks because Dr. Spierer
would not be able to meet with Justin and prepare a report by April 25. The court's staff called counsel and advised
him that it was not likely the hearing would be postponed.
Justin,
his counsel, his witnesses and Dr. Spierer appeared at the scheduled time on
April 25. Justin's counsel repeated his
request for a continuance. He explained
that Dr. Spierer had met for several hours with Justin immediately before the
hearing and had been able to review a substantial amount of Justin's school
records and records from prior counseling.
However, Justin's counsel had not yet received certain mental health
records he wanted Dr. Spierer to review.
Counsel stated that he felt Dr. Spierer's opinion as to Justin's level
of maturity and what would be appropriate for his welfare and the welfare of
the community would be helpful, if not necessary, to the court in making its
determination on waiver.
The
trial court denied the request, stating that its staff had already indicated to
counsel that the hearing was not likely to be postponed and that he had already
been granted one request. The court
then stated:
I consider
information from a psychologist to be interesting and perhaps useful, but not
at all necessary for a waiver hearing.
I don't think that testimony of a psychologist is required and I tried
to be consistent in not unduly delaying waivers to get testimony from
psychologists. If they're available,
fine, if they're not, fine, is the way I look at it.
The
court permitted a brief recess so that counsel could confer with Dr.
Spierer. Dr. Spierer testified at the
hearing.
The
granting of a continuance is a matter for the court's discretion. In re D.H., 76 Wis.2d 286,
300, 251 N.W.2d 196, 204 (1977). We
will uphold a discretionary determination if the court applied the correct
legal standard to the relevant facts and, using a rational mental process,
reached a conclusion that a reasonable judge could reach. Rodak v. Rodak, 150 Wis.2d
624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989).
Justin
argues that the trial court's denial of a continuance deprived him of the
opportunity to present evidence and that the denial was based, not upon the
individual facts of his case, but on what "appears to have [been] a
blanket rule against continuances for the purpose of procuring psychological
testimony."
Although
we agree that certain comments of the trial court, in isolation, could be
interpreted as applying a "blanket rule," we conclude that, taken in
their entirety and in context, the trial court's remarks demonstrate a reasoning
process that reached a reasonable result.
The trial court is entitled to place a high priority on prompt waiver
hearings. It is clear that the court
did not have a blanket policy for denying requests for delays because one
request had already been granted. And,
although court staff indicated that the second request would likely be denied,
the court specifically gave counsel the opportunity, on April 25, to explain
why a second continuance was needed.
Based
on Justin's counsel's statements on April 25, it was reasonable for the court
to conclude that a second continuance was not necessary. Dr. Spierer had met with Justin for several
hours, reviewed, in counsel's words, "a substantial amount" of Justin's
school records, as well as certain prior counseling records. And Dr. Spierer was present and able to
testify. Justin's counsel did not
explain in any detail the nature or significance of the records he had not yet
obtained, or what additional evidence he hoped to provide if a continuance were
granted. On appeal, Justin does not
tell us what evidence he was unable to present because of the denial of a
continuance. We conclude the trial
court did not misuse its discretion in denying the request for a continuance.
We
now consider the merits of the trial court's decision to waive its
jurisdiction. 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 paragraphs (a) through (d).[5] Section 48.18(6), Stats., provides that after considering the criteria under
subsec. (5), the judge shall state his or her finding with respect to the
criteria, and if the judge determines on the record that it is established
"by clear and convincing evidence that it would be contrary to the best
interests of the child or of 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 is to regard the
best interest of the child as the paramount consideration. Id. The court has discretion as to the weight it affords each of the
criteria under § 48.18(5). 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. Id.
at 961, 471 N.W.2d at 501.
Justin
was born on July 31, 1977, and at the time of the waiver hearing was about
three months away from his eighteenth birthday. The State presented the testimony of Paula Proctor, the social
worker assigned by the Dane County Department of Human Services to Justin's
case. She testified regarding Justin's
history of learning disabilities, poor school attendance, brief attendance at
Operation Fresh Start, prior individual counseling with Keith Wheeler for
depression, and prior family counseling.
Proctor
opined that there was no suitable treatment that could be made available to
Justin were he to remain in the community or in his mother's home. Residential treatment and group homes or
foster homes would not be appropriate, in her view, because Justin would be one
of the older individuals, would not be a member of a group or home that would
be age appropriate, and there would not be adequate time to work with him. The only option left in the juvenile system
was a correctional facility, according to Proctor. Although she knew some treatment is available at a correctional
facility, she did not know specifically what is available, nor did she know
specifically what Justin's treatment needs are.
Dr.
Spierer testified that Justin is suffering from major depression. Justin needs medication for his depression,
which he took in the past but stopped taking, and individual psychotherapy. Dr. Spierer also testified that Justin
probably also required a combination of group and family therapy. In Dr. Spierer's view, Justin also needs to
get his high school diploma, probably through a high school equivalency program
(GED), and he needs vocational training.
Justin could get a GED, Dr. Spierer testified, but he would have to work
hard and show up, and Dr. Spierer doubted that he is now able to control
that. Dr. Spierer described Justin's
physical development as normal for a seventeen-year-old boy, but his emotional
development is behind; in his ability to function independently, he is more
like a fourteen or fifteen-year-old.
In
response to the court's question as to how Justin would function in the youth
correctional facilities--Lincoln Hills and Ethan Allen--Dr. Spierer testified
that Justin would have difficulty in those environments because he would either
be influenced by more streetwise youngsters to engage in wrongdoing or he would
be victimized.[6]
Justin's
mother testified that Justin lives with her and her older son. She described her efforts to make Justin
attend school. She testified that
Justin has chores at home, informs her of his whereabouts, and has not been a
discipline problem.
The
trial court also obtained the presence of Andrew Jones, who was supervising
Justin in detention. Jones testified
concerning Justin's behavior in detention, stating that Justin had generally
been well behaved and compliant.
The
trial court concluded that there was clear and convincing evidence that it
would be contrary to Justin's best interests and to the public's interests to
retain the case in juvenile court. The
trial court first made these findings:
Justin has major depression and significant learning disabilities. He lives at home and helps with chores. He has attempted employment on three
occasions but none have worked out. He
has not consistently attended high school for a considerable period of time. He has a physical maturity level normal for
his age, but a mental maturity level of a fourteen or fifteen-year-old. He has intelligence in the low average
range. He has no prior offenses. He has received some prior therapy for
depression and apparently profited to some extent, but treatment with
medication was apparently unsuccessful. However, Dr. Spierer's testimony indicates that medication might
be of assistance in treating his depression.
The
court found that Justin is not ready for adult independent living and that his
potential for receiving a high school diploma and developing skills for
independent living and for maintaining employment is not clear. Based on the slow progress Justin had made
in the school system with almost eleven years of special education programming
and on his pattern of responding to treatment in the past, the court concluded
that his progress in meeting these goals would be slow and could take several
years.
The
trial court then considered the nature of the charges against Justin. It acknowledged that Justin had told Dr.
Spierer that he was a follower in the incidents. But, based on the allegations in the petition, it concluded that,
if Justin was a follower, he was an extremely active follower. The allegations, as noted by the court, were
that the offense was planned some days before it occurred; that Justin and
another were given the assignment of obtaining weapons; that Justin admitted
following the victim and hitting the victim on the back of the neck two times;
that Justin advised the victim if he ever told anyone they would come back and
kill him; that one of the co-accused indicated that the victim appeared to be
unconscious when they walked away; that the two returned to the third person
involved who told them the cards they had just stolen were worthless and to
find another victim; that with the second victim, Justin did not do the
physical accosting but he did take the property; and that under a green duffel
bag lying next to Justin's feet, the police officer found a wooden stick
three-and-one-half feet long, a small hatchet, a knife, a sheath, and tire
iron.
The
trial court concluded that these allegations were extremely serious because
they involved violence and aggression against persons and were premeditated and
willful, and that Justin committed a substantial share of the aggression.
The
trial court also concluded that the facilities and services in the juvenile
system are not adequate to treat Justin and to protect the public. The primary basis for this conclusion is the
seriousness of the offense and Justin's age.
The court considered that the fifteen-month period left until Justin
turns nineteen is not long enough to give him the skills he needs to live an
independent adult life; nor is fifteen months of supervision long enough to
protect the public. The court found
that the only resource suitable in the juvenile system for Justin is a youth
correctional facility, and that is inadequate given that Justin can be there no
longer than fifteen months.
Justin
argues that the court failed to make findings with respect to Justin's motives
and attitudes. We do not agree. The trial court specifically noted the
testimony that he was a follower in the incidents but, in view of the
allegations about his participation, nevertheless considered the offenses to be
extremely serious. The trial court also
found that he lived at home and helped with chores. The trial court was not required to find that he was generally
compliant. Although there was testimony
that he was compliant in detention, there was also Dr. Spierer's testimony and
Justin's mother's testimony that he had been noncompliant with respect to
school attendance.
Justin
also argues that the trial court failed to consider his mental illness,
response to prior treatment, learning disability, development immaturity,
absence of prior delinquencies and juvenile pattern of living. Justin contends that, even though the trial
court made findings on these factors, it did not explain why waiver was
necessary in light of these factors.
Justin's real argument here is that these factors, in his view, favor
juvenile jurisdiction and the trial court should have given them more
weight. We do not agree.
First,
not all of these factors necessarily favor juvenile jurisdiction. Based on the testimony, the court could
reasonably conclude that Justin's past responses to special education
programming and to treatment for his depression indicated that Justin's
progress would be slow. With only
fifteen months in the juvenile system, the court could reasonably conclude that
sufficient progress would not be made within that time. Second, the weight assigned to 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. The court need not resolve all the statutory
criteria against the juvenile to order waiver.
See In re C.W., 142 Wis.2d 763, 769, 419 N.W.2d
327, 329 (Ct. App. 1987). It is not an
erroneous exercise of discretion for the court to give heavy weight to the
severity of the offense and the short period of time left in the juvenile
system. In re G.B.K., 126
Wis.2d 253, 260, 376 N.W.2d 385, 389 (Ct. App. 1985).
Justin
contends that the trial court's finding that the youth correctional services
are inadequate to treat Justin and to protect the public is clearly
erroneous. We do not agree. The trial court found that the only resource
suitable for Justin in the juvenile system is the youth correctional
facility. This is supported by
Proctor's testimony. Proctor rejected
all the options but a correctional facility as inadequate. As to that facility, she did not know
whether it would meet Justin's treatment needs. When asked by Justin's counsel whether the SPRITE program, a
thirty-day "mini boot camp," would be appropriate for Justin, Proctor
answered "no," because of its short duration. When asked whether the SPRITE program might
be appropriate after a stay in a correctional facility, Proctor answered that
that would depend on the recommendation from the correctional facility.
The
trial court's determination that a youth correctional facility is inadequate is
based primarily on its conclusion that fifteen months is inadequate--both
because of the seriousness of the offense and the length of time needed for
Justin to make progress in dealing with his educational, vocational and mental
health needs. This conclusion is
supported by the record.
Justin
next contends that he was deprived of the opportunity to present evidence
because the trial court did not order the Department of Social Services to
submit a report analyzing his suitability for the adult intensive sanctions
program under § 301.048, Stats.,
the juvenile boot camp program under § 48.532, Stats., and the corrective sanctions program under
§ 48.533, Stats., as he
requested by motion. The denial of
these requests, he asserts, is an erroneous exercise of the court's
discretion. We disagree and conclude
the trial court properly exercised its discretion in denying these motions.
The
trial court denied the motion with respect to the adult sanctions program
because § 48.18(2m), Stats.,
does not become effective until December 1, 1995.[7] Subsection (2m) provides that if it appears
that a child who is the subject of a waiver hearing may be suitable for
participation in the adult intensive sanctions program under § 301.048, Stats., the juvenile court "shall
order the department of corrections to submit a written report analyzing the
child's suitability for participation in [that] program ... and recommending
whether the child should be placed" in that program. Justin's trial counsel agreed that this
subsection was not yet effective, stating:
"I think it is significant only considering prospectively that
these are options that the court will have available within a very short time
and it indicates sort of a policy shift as far as what the court should be
considering." Justin's counsel
appears to concede that at the time of the waiver hearing, April 25, 1995, the
juvenile court did not have this option, and he did not explain in any detail
why the existence of that future option should affect the trial court's
decision in April.
In
addressing the request for a report on the juvenile boot camp, the trial court
stated that it had been informed by a legislator that this was still in the
planning process. The trial court
invited Justin to present contrary information, but he did not. Section 48.532, Stats., provides that beginning in 1995, the department shall
provide a juvenile boot camp for children and may place in the boot camp any
child whose legal custody has been transferred to the department for placement
in a secured facility. There is no
requirement that the court order a report with respect to the juvenile boot
camp.
Justin
suggests that Proctor's testimony contradicted the trial court's information
that a juvenile boot camp did not yet exist.
We see no contradiction. Proctor
testified about the thirty-day SPRITE program, which Justin's counsel described
in his question to her as a "mini-boot camp." That is clearly not the juvenile boot camp
referred to in § 48.532, Stats. When Proctor was asked about the juvenile boot
camp referred to in § 48.532, she testified she had no information about
that. Given this testimony and the
information the trial court had that the juvenile boot camp did not yet exist,
it was entirely reasonable for the court not to order a report and not to
consider the juvenile boot camp as an option without some evidence from Justin
that this facility existed. Justin was
not prevented from presenting evidence on the juvenile boot camp.
With
respect to the corrective sanctions program under § 48.533, Stats., there is no requirement that
the court order a report on the appropriateness of this program. Justin was not prevented from presenting
evidence on this program. The trial court
did understand this program was available.
But the court correctly pointed out, and Justin's counsel agreed, that
this is only an option for a child who is first placed in a youth correctional
facility and is then recommended for the program by the department. This program was only relevant for Justin if
the trial court first determined that placement in a youth correctional
facility was appropriate. As we have
explained above, the trial court's conclusion that a youth correctional
facility was inadequate was reasonable and supported by the record.
Finally,
Justin argues that the trial court erroneously exercised its discretion in
concluding that the best interest of the juvenile and the safety of the public
required waiver. We disagree with
Justin that there was not a reasonable basis in the record for the trial court's
conclusion. Here again, Justin is
disputing the weight the trial court attached to the time remaining for Justin
in the juvenile system, the greater length of time it will take for Justin to
successfully respond to treatment and acquire necessary skills, and the
seriousness of the offense. This is
within the trial court's discretion and we see no misuse of that discretion.
By
the Court.—Orders affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] We granted Justin's petitions for leave to
appeal the two waiver orders by order of this court dated May 2, 1995. The two appeals were consolidated by order
of this court dated May 19, 1995.
[4] One petition was filed with respect to two of
the robbery victims and a second petition was filed with respect to the third
victim. Waiver proceedings on the two
petitions were consolidated.
[5] 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.
[6] Dr. Spierer also testified that Justin would
have the same difficulties in the adult correctional system. The court recognized that the criteria under
§ 48.18(5), Stats., do not
include an assessment of the adequacy and suitability of services in the adult
correctional system, but only an assessment of the juvenile system, and, where
applicable, the mental health system.
Section 48.18(5)(c). However,
the court allowed Dr. Spierer to answer this question of Justin's counsel,
overruling the objection.