COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1995 |
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. 95-1450-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
WADE L.,
A PERSON UNDER THE AGE
OF EIGHTEEN:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
WADE L.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County: MEL FLANAGAN, Judge. Affirmed.
SULLIVAN,
J. Wade L., a juvenile, appeals from a dispositional order
adjudging him delinquent for robbery—threat of force, as a party to a
crime. On appeal, he argues that the
trial court deprived him of due process by: (1) failing to provide defense
counsel with a copy of the delinquency petition until the hearing, thereby
denying Wade L. both of notice of the charges against him and of effective
assistance of counsel; (2) failing to allow defense counsel to present argument
at the defense hearing; (3) finding probable cause to detain Wade L. based
upon insufficient evidence; (4) placing Wade L. in secure detention based
upon an inadequate record; and (5) failing to provide Wade L. with a
meaningful detention hearing within the statutory time limit. This court concludes that Wade L.
waived any challenges to these alleged errors.
Consequently, the order is affirmed.[1]
On December 1, 1994,
City of Milwaukee police officers arrested Wade L. for his alleged
involvement in two related purse-snatching incidents. The next day a juvenile detention hearing was held at which the
State filed a delinquency petition with the court. Wade L. received a copy of the petition at that time as
well. Based upon the petition, the
juvenile court found probable cause to detain Wade L. in secure detention
on each of the three charged counts: operating a vehicle without owners
consent, theft from person, and robbery—threat of force.
At the detention
hearing, with the Honorable Russell W. Stamper presiding, the following
exchange took place:
THE COURT: Court
finds probable cause as to each count and hereby informs the juvenile of his
constitutional rights, which include the right to remain silent, the right to
confront and cross-examine witnesses against him, right to subpoena and present
witnesses in his own behalf, right to counsel, to jury trial and to require
proof beyond a reasonable doubt.
I'll hear the agent on
placement.
[INTAKE
SPECIALIST]: Your Honor, we're recommending the In-house Monitoring
Program.
THE COURT: State.
[ASST. DISTRICT
ATTORNEY]: Secure detention because of the nature of the defense.
THE
COURT: Defense.
[COUNSEL]: Your
Honor, I have just been handed the petition.
THE COURT: Sir,
what is your recommendation on placement?
[COUNSEL]: I'm
recommending home.
THE COURT: All
right. Detention because of the
seriousness and of the risk that he poses of physical harm to others.
THE CLERK: This is
a Branch --
[COUNSEL]: Your
Honor, we really haven't had an opportunity -- Well, number one, I haven't
had an -‑
THE COURT: Same
placement. Give us a date, Madam Clerk,
please.
THE CLERK: December
8th, two o'clock, Branch 9 case, initial appearance.
[COUNSEL]: I --
Well, I just wish to make --
THE COURT: Is that
date acceptable, sir?
[COUNSEL]: Your
Honor --
THE COURT: All
right. We will stay with that
date. Next case.
[COUNSEL]: It's
necessary for me to make a record at this time in order to preserve my right to
any appeal.
THE COURT: Call
the next one in.
[COUNSEL]: I would
like to ‑‑ I have not had an opportunity to look over the
petition.
THE COURT: Take it
with you.
[COUNSEL]: This
is -- I mean this is the --
THE COURT: Next
case. Off the record.
On
December 8, 1994, Wade L. received his plea hearing, where he entered a
not guilty plea. On December 21,
however, he pleaded guilty to the robbery—threat-of-force charge and the
juvenile court adjudged him delinquent on January 10, 1995. On January 24, 1995, in his notice of intent
to pursue postconviction relief, he first raised the alleged errors arising out
of the December 2, 1994, detention hearing.
He appeals from the delinquency order.
All of the issues raised
by Wade L. on appeal implicate the procedures and protections set forth in
Chapter 48, Stats. Section 48.21, Stats., which governs the procedure of detention hearings,
provides in relevant part:
(2) Proceedings concerning runaway or delinquent
children. Proceedings concerning a child who comes within the
jurisdiction of the court ... shall be conducted according to this subsection.
....
(b) A copy of the
petition shall be given to the child at or prior to the time of the hearing.
Prior notice of the hearing shall be given to the child's parent, guardian and
legal custodian and to the child in accordance with s. 48.20 (8).
(c) Prior
to the commencement of the hearing, the child shall be informed by the judge or
juvenile court commissioner of the allegations that have been or may be made,
the nature and possible consequences of this hearing as compared to possible
future hearings, the provisions of s. 48.18 if applicable, the right to counsel
under s. 48.23 regardless of ability to pay if the child is not yet represented
by counsel, the right to remain silent, the fact that the silence may not be
adversely considered by the judge or juvenile court commissioner, the right to
confront and cross‑examine witnesses and the right to present witnesses.
Challenges
alleging a violation of due process rights raise an issue of law that we review
de novo. See State
ex rel. Grant v. Department of Corrections, 192 Wis.2d 298, 303, 531
N.W.2d 367, 369 (Ct. App. 1995).
Additionally, § 48.297(2), Stats.,
requires that any “[d]efenses and objections based upon defects in the
institution of the proceedings, lack of probable cause on the face of the
petition, [and] insufficiency of the petition” must be raised within ten days
after the plea hearing, or they are deemed waived. Section 48.297(2), Stats.
All of Wade L.'s
arguments implicating errors in the institution of the proceedings fall within
the ambit of § 48.297.
Wade L. did not object to these errors within ten days of his
December 8, 1994, plea hearing; accordingly, he waived the right to challenge
any due process errors arising out of the detention hearing. Section 48.297, Stats. Any other
challenges not implicating errors in the institution of the proceedings were
waived upon Wade L.'s guilty plea.
See State v. Kraemer, 156 Wis.2d 761, 765, 457
N.W.2d 562, 563 (Ct. App. 1990).
Further, this court will not exercise its power of discretionary
reversal on these issues. See
§ 752.35, Stats. The juvenile court meaningfully complied
with the requirements of § 48.21, and this court is satisfied that the
real controversy in this case has been fully tried.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.