COURT OF APPEALS DECISION DATED AND RELEASED October
19, 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. 95-1591
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF MICHAEL R.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
MICHAEL
R.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Rock County: JOHN H. LUSSOW, Judge. Affirmed.
VERGERONT,
J.[1] Michael
R. appeals from an order waiving juvenile court jurisdiction over him. He asserts that the record does not
establish a reasonable basis for the court's finding that facilities and
services in the juvenile system were inadequate or for the court's decision
that he was not likely to respond to a disposition within the juvenile
system. We disagree on both points and
affirm.
Michael's
date of birth is November 23, 1978. The
amended delinquency petition charged him with causing substantial bodily harm
to another with intent to cause bodily harm, committed in association with a
criminal gang with specific intent to assist in any criminal conduct by
criminal gang members, contrary to §§ 940.19(2), 939.625(1)(a) and
939.625(1)(b)2, Stats.
The
amended petition alleged that a group of juvenile males assaulted a
juvenile. Pertinent allegations in the
petition are as follows. The victim
stated that during the assault, the perpetrators asked him, "Why are you
claiming [membership in the Cryps gang]?"
The victim stated that Michael struck him several times in the face and
the back of the head, and that he was hit and kicked by others as well. At least three witnesses stated that they
observed Michael strike the victim in the face a number of times and heard the
victim's nose crack. Two of those
witnesses stated that they saw Michael strike or kick the victim approximately
twenty times; one said the victim was on the ground while Michael kicked him
twenty times and the other said Michael kicked the victim in the head three to
four times while on the ground. All
three witnesses said they heard Michael say while he was assaulting the victim,
words to the effect of, "Why are you claiming to be a member of my
gang."
The
petition also alleges that Michael told a police officer that he hit the victim
in the nose, that it made a loud cracking sound and that he kicked the victim
three to four times.
At
the waiver hearing, the State called as a witness Thomas Seibert, a juvenile
probation officer who had investigated the waiver issue. He had spoken to Michael, to Michael's
father and to school officials. Seibert
testified that Michael did not have any mental illnesses or developmental
disabilities, and is mentally mature.
His only prior record was one incident in which he ran away after a
party and was picked up at school, then released back to school. According to Seibert, Michael is motivated
by the image he has among his peers, mostly related to the gang activity
"that Michael has allegedly been involved in." Michael was not doing well at school and had
recently had a number of referrals to the principal's office for defiant and
uncooperative behavior. One incident
involved a teacher observing Michael drawing a gang symbol. Seibert testified that Michael told him he
had been a member of the Gangster Disciples, but at the present time he did not
align himself with that gang. Seibert
also testified that Michael had admitted to school peers and possibly school
staff that he was a Gangster Disciple.
Seibert thought that had occurred within the preceding four months. Gang-type graffiti has been confiscated from
Michael's locker. Based on Seibert's
conversation with Michael's father, he testified that Michael's father did not
condone any type of gang activity, poor school performance, or late hours and
was disciplining Michael "normally as a regular parent would."
Regarding
available juvenile facilities, this was Seibert's testimony on direct examination.
Q Now,
based upon your testimony here today, what would you, uh, how would you
evaluate Michael's potential for responding to future treatment?
A My
initial response and opinion would be that Michael would not respond to any
type of treatment that would not allow him to be involved in gang-type
activity; therefore, the possibility is that he would not respond well to any
treatment provided by our department and that waiver to adult court would be
appropriate at this time.
Q Is
there any facility that you would consider adequate to address the needs both
of Michael and of the community for protection?
A The--as
any alternatives, are you asking or--
Q Yes. Have you considered other alternatives in
making that recommendation?
A We considered the decision of corrections,
as in Wales, at Ethan Allen or Lincoln Hills, but felt the more appropriate
consideration would be waiver at this time.
On
cross-examination, Seibert testified as follows:
Q Did
you-- Are you familiar with those services
and facilities that are available?
A Yes,
I am.
Q Are
you familiar with those services or facilities available outside of this
county?
A To
some degree, yes, I am. Just through
contact with the case manager.
Q Do
you know of any that--any facilities in the state that address the type of
behavior that is alleged in this type of case in the juvenile justice system?
A Yes.
Q Could
you identify one for us?
A One
of the institutions we use for criminal-type behavior, one of them would be
Norris. That's a possibility.
Q And
can you just briefly describe what they offer at this facility?
A They
offer weekly and daily counseling as well as group and individual
counseling. Schooling is on the
premises of the facility. It's a
nonsecure facility and is an open campus as far as there is no lock downs or
any of that type of a nature on that facility.
Q And
did you specifically consider that as an option in this case?
A Every
option of our department was considered, with the end result being this waiver
hearing.
Q Is
this investigation based on your consideration of those facilities or by other
people in your department?
....
A The
decision was made by myself and my supervisor in making the decision on what
facility or what route we would take in this investigation.
Q Did
you make a specific decision that the Norris center was not appropriate for
Michael [R.] if he was proved to be found guilty of this allegation?
A Our
decision was that any facility at this point would not be appropriate and the
fact that we felt, with his alleged involvement with the gang activity and the
importance of that gang activity, that any facility would not be appropriate at
this time but yet waiver would be the most appropriate decision.
Q Are
there any facilities that you are aware of that address the type of behavior
that's alleged in this case?
A I
do have familiarity with other facilities although they basically would be the
same as I have mentioned earlier in the Norris situation.
Q For
instance, are you familiar with any programs at the Rawhide facility?
A Yes,
I am.
Q Can
you briefly describe what they offer there?
A Personally
my experience, I've not had physical contact or had visited Rawhide, so I
cannot give an expert opinion on what Rawhide would offer. That would be more an opinion of our liaison
that works with that facility.
Q Are
you familiar with a facility or program that's called Tomorrow's Children?
A Um-hum. I am familiar with that facility.
Q Do
you know where that's located?
A I
don't know the exact city it is located in.
I never visited the facility.
Q Do
you know if it's located near Waupaca, Wisconsin?
A Once
again, I have no knowledge of that, where that is located.
Q Do
you know what kind of programs are offered at that facility?
A Basically
the same as well as others, I believe.
There's some AODA program as well at that facility.
Q What
are-- Does your recommendation, is it
based on any perceived need that Michael [R.] needs any counseling regarding
alcohol or other drug use?
A To
my knowledge, I have no--in my investigation I found no need for that, although
it could be an underlying factor. In
speaking with--with his family as well as the school, most of the instances
were gang drawings and gang-related activity but no AODA-type issues were
brought of a significant matter.
Q Can
you just specify exactly what it is that you think Michael needs, what your
recommendation is based on?
A Well, the recommendation was-- My
supervisor and I went through all the options and concluded that waiver at this
point would be appropriate in the fact that we were--our belief is that he
could not be duly served by the juvenile justice system at this point.
The
State also called Kathleen Lichtfuss, a supervisor assigned to the Adolescent
Services Center of the Rock County Human Services Department. She testified that on two recent dates when
she was assigned to bring Michael and other juveniles in and out of court
proceedings, she heard and observed Michael describing his role in the hitting
and kicking of the victim to other juveniles in a boastful manner.
Michael
called his stepmother as a witness. She
described Michael as very bright and "a good guy," although she and
his father had the typical problems with him.
She testified that they had transferred Michael from one high school to
another because they felt he was or might be involved in a gang, probably the
Gangster Disciples, at the first high school.
She also testified concerning Michael's daily activities, her contacts
with school personnel, the discipline she and his father imposed when he ran
away, and their efforts to improve his school performance.
The
trial court found the petition had prosecutive merit. It acknowledged that Michael's age and lack of a significant
prior record militated against a waiver of juvenile court jurisdiction. However, it also pointed to the evidence of
gang involvement and its relation to Michael's motivation, while noting that
the extent of Michael's current gang involvement was not known from the
record. The court considered the
alleged conduct to be egregious, the offense to be serious, and Michael's
alleged role in the beating to be somewhat greater than that of the other
juveniles involved. The court stated
that it was putting particular emphasis on the circumstances and nature of the
offense.
The
court concluded that in view of the alleged conduct and the alleged gang
activity, the facilities in the juvenile system were not adequate for his
treatment or for the protection of the public.
It found clear and convincing evidence that it would be contrary to the
best interest of the juvenile and the public to hear the case in juvenile
court.
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).[2] 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). 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. Id. at 961, 471 N.W.2d at 501.
Michael
acknowledges that the trial court did exercise its discretion. However, he maintains that it erred in
weighing and assessing the evidence in several ways. First, Michael argues that Seibert's testimony as to the adequacy
and suitability of facilities was conclusory and did not demonstrate that he
had evaluated specific facilities.
The
adequacy and suitability of facilities and services in the juvenile system to
treat the child and protect the public is one of the criteria listed in
§ 48.18(5), Stats. However, the statute does not require that
the State submit evidence on each of the criteria listed in the statute. In re G.B.K., 126 Wis.2d 253,
256, 376 N.W.2d 385, 388 (Ct. App. 1985).
Nor does the statute require the State to prove there are no adequate
alternatives to waiver in the juvenile system.
Id. Rather, the
statute requires that when evidence is presented as to a particular criterion,
the court consider that criterion and make a finding concerning that
criterion. In re C.W.,
142 Wis.2d 763, 769, 419 N.W.2d 327, 330 (Ct. App. 1987). The
trial court met this requirement. It
considered the testimony presented on the adequacy and suitability of the
facilities and services in the juvenile system and made a finding that they
were not adequate to treat Michael or protect the public given the nature of
the alleged offense and the alleged related gang activity. This finding is supported by Seibert's
testimony. The finding has a reasonable
basis in the record, which is all that is required of the court's findings. In
re J.A.L., 162 Wis.2d at 961, 471 N.W.2d at 501. Michael did not present any testimony that
disputed Seibert's testimony.[3]
Michael
contends that the trial court relied on its own information, rather than the
record, in finding that the juvenile facilities were not suitable. He bases this argument on this statement of
the trial court, made after it summarized the testimony:
I'm familiar with
the facilities available in the juvenile system for treatment, and I simply do
not feel that at this point, because of the kind of conduct and the fact that
we are dealing with alleged gang activity, that's the kind of thing that can be
treated in the juvenile system. This is
going to have to be dealt with at the local level.
We
do not agree with Michael that this statement demonstrates that the court
relied on "secret information" thereby violating Michael's right to
fundamental fairness. Rather, we
interpret this statement as the court expressing agreement with Seibert's
opinion on the inadequacy of the juvenile facilities and services based on the
court's knowledge of those facilities and services. We see nothing improper in this statement.
Michael
also argues that the record did not establish a reasonable basis for the
court's conclusion that Michael was not likely to respond to a disposition
within the juvenile system. More
specifically, he argues that the court did not consider the entire record as it
relates to Michael's potential for responding to treatment, but instead relied
on the court's concern over gang activity in the community generally.
A
juvenile's "prior treatment history and apparent potential for responding
to future treatment" are factors the court must consider if evidence on
these factors is presented. Section
48.18(5)(a), Stats. There was no evidence of any prior or
current treatment needs of Michael for mental illness, developmental
disabilities, drug or alcohol problems, or emotional problems.
Michael
apparently considers evidence of disruptive and uncooperative conduct in school
and the prior incident of running away as indicating a need for
"treatment," and argues that the evidence of those incidents does not
show that Michael has not responded to "treatment," that is, to the
discipline imposed on him because of those incidents. We think this prior conduct and discipline is more appropriately
described as Michael's "prior record," rather than as "treatment
history." The court must consider
evidence of a juvenile's prior record if it is presented. Section 48.18(5)(a), Stats. But whichever
way this prior conduct and discipline is categorized, the court did consider
this evidence and found that "there really isn't much of a juvenile
record." The court recognized that
this militated against a waiver.
However,
the court assigned greater weight to the circumstances and nature of the
offense: the egregiousness of the
alleged conduct and the gang-related aspect.
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. In re
G.B.K., 126 Wis.2d at 256, 376 N.W.2d at 388. It is not an erroneous exercise of discretion for the court to
give heavy weight to the severity of the offense. Id. at 260, 376 N.W.2d at 389.
We
do not agree with Michael that the trial court based its conclusion on generalities
about gang involvement rather than the record.
There was a reasonable basis in the record for the court to find that
Michael had been involved with a gang and that his alleged conduct in the
offense was related to, or motivated by, involvement with a gang. It was not improper for the court to comment
on the seriousness of the problem of gang activity in the community in
considering the weight to assign to the nature and circumstances of the
offense.
We
conclude there was a reasonable basis in the record for the court's
determination to waive juvenile jurisdiction, and that the court did not misuse
its discretion in doing so.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] 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.
[3] We do not suggest that Michael must present
evidence of particular facilities that are adequate to treat him and protect
the public. But if he does not, and if
the State presents evidence that the facilities are inadequate, it is not a
misuse of the court's discretion to find that the facilities are inadequate.