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COURT OF APPEALS DECISION DATED AND RELEASED September
21, 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. |
No. 95-1713
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF SALLY S.
A
CHILD UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
SALLY
S.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Grant County: JOHN R.
WAGNER, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal
decided pursuant to § 752.31(2)(e), Stats. We granted Sally S.'s petition for leave to
appeal a trial court's order waiving juvenile jurisdiction. Section 808.03(2), Stats. Sally argues
that the trial court erroneously exercised its discretion because insufficient
evidence supports the court's determination that waiver of juvenile
jurisdiction is in the best interests of Sally. We disagree and therefore affirm.
BACKGROUND
A
Grant County sheriff filed a delinquency petition in April 1995 alleging that
Sally, then a seventeen-year-old juvenile, had committed burglary, contrary to
§§ 943.10(1)(a), 939.50(3)(c) and 48.12(1), Stats., forgery, contrary to §§ 943.38(2), 939.50(3)(c),
and 48.12(1), Stats., and
extortion, contrary to §§ 943.30(1), 939.50(3)(d), and 48.12(1), Stats.
The prosecutor filed a petition asking that the trial court waive
juvenile jurisdiction and, after a hearing on the matter, the court ordered
that juvenile jurisdiction be waived.
Sally appeals.
WAIVER
The
decision to waive juvenile jurisdiction rests within the sound discretion of
the trial court. In re J.A.L.,
162 Wis.2d 940, 960, 471 N.W.2d 493, 501 (1991). We will only reverse if the record does not reflect a reasonable
basis for the determination, or a statement of the relevant facts or reasons
supporting the decision cannot be found in the record. Id. at 961, 471 N.W.2d at 501.
Section
48.18(5), Stats., sets forth the
factors the trial court must consider in making the waiver determination and
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.
The trial court must
state its findings with respect to these factors on the record, and, if the
court determines that clear and convincing evidence establishes that it would
be contrary to the best interests of the child or of the public for the court to
hear the case, the court may enter an order waiving juvenile jurisdiction. Section 48.18(6), Stats.;[1]
J.A.L., 162 Wis.2d at 960, 471 N.W.2d at 501. The court need not make a finding against
the juvenile on every factor before waiving jurisdiction. In re B.B., 166 Wis.2d 202,
209, 479 N.W.2d 205, 207-08 (Ct. App. 1991).
And, the weight given to each of those factors is left to the trial
court. J.A.L., 162 Wis.2d
at 960, 471 N.W.2d at 501. When making
the waiver determination, the trial court must regard the best interests of the
child as being the paramount consideration.
Id.
Sally
argues that the trial court erroneously exercised its discretion because the
State presented insufficient evidence to support the court's waiver
determination. According to Sally, in
order to establish that there is clear and convincing evidence that it would be
contrary to the best interests of the child or the public for the juvenile
court to hear the case, the state must be required to provide evidence
pertaining to each factor set forth in § 48.18(5), Stats., thereby providing the court with a reasonable basis
for its decision. We disagree.
We
have stated that the language of § 48.18(6), Stats., does not require the state to present evidence as to
each factor set forth in § 48.18(5).
In re G.B.K., 126 Wis.2d 253, 256, 376 N.W.2d 385, 388
(1985). Instead, § 48.18(6)
directs the trial court to state on the record its findings with respect to the
factors actually considered. Id. Furthermore, the plain language of §
48.18(5) directs courts to consider testimony offered by the state as well as
other relevant evidence. Consequently,
we may examine the entire transcript of the waiver hearing to determine if
there is sufficient evidence to support the trial court's decision.
Our
review of the record shows that there was sufficient evidence presented at the
waiver hearing to support the trial court's order. The court heard testimony regarding Sally's age, personality,
prior record, and the services that could be made available to her in the
juvenile system. Darin Smith, a
juvenile court intake worker for Grant County, testified that Sally would turn
eighteen on August 29, 1995. He
stated that when he attempted to contact her about this case, she refused to
accept a letter that he had sent to her about the matter. He told the court that Sally and her parents
failed to appear for the initial appearance and that she was the subject of
another juvenile case pending in Juneau County in which she had also failed to
appear. Smith testified that based upon
the facts that she was residing alone, was responsible for herself, and the
seriousness of the offenses, he believed that she should be waived into adult
court. He admitted that he did not know
how long she had been living on her own and that he had had no personal contact
with her.
Susan
Doll, a Richland County Department of Social Services social worker and
supervisor, testified on behalf of Sally and stated that Sally was estranged
from her family, had been living on her own since about age 13 or 14, moves
from place to place, and had not maintained a long-term residential
relationship with either parent. Doll
testified that Sally had not attended school during the 1994-95 school year and
that there had been a formal adjudication of truancy in Richland County. She added, however, that Richland County had
closed Sally's case when Sally moved to Juneau County. Doll testified that Richland County had
placed her in foster care for a short period of time and had attempted to help
her find a permanent living situation.
Doll described the juvenile treatment services that the counties or the
juvenile division of the Department of Corrections could make available to
her. Doll conceded that once Sally
turned eighteen, which she is now, there was not much that could be done to
enforce any juvenile court order.
The
trial court also properly exercised its discretion when it ordered juvenile
jurisdiction waived. After hearing the
evidence, the court found prosecutive merit.
It next considered Sally's personality, noting that Sally was from a
broken or dysfunctional family. It
noted that there was no evidence of mental illness nor evidence that she was
developmentally disabled. To the
court's knowledge, Sally had not been waived before into adult court.
The
trial court stated that the crimes alleged to have been committed did not
involve any physical injury but it indicated that it considered burglary to be
one of the more serious property crimes.
It also remarked that extorsion was a crime against a person and it
commented on the potential penalties posed by those crimes.
The
trial court explained that secure juvenile detention facilities would restrict
Sally's freedom and would keep her with people who were the same age but more
serious offenders. The court stated
that it was not convinced that it would be in her or the public's best
interests to put her in a secure detention facility but that it was not
"impressed" with other juvenile services, noting that she and her
parents had not, to date, availed themselves of those services.
The
trial court concluded that waiver of juvenile jurisdiction was appropriate,
stating:
[These crimes] are serious enough I am concerned that
she would use what would be a tragic situation, that this girl in extorting
money from an individual in order to provide funds for whatever it is she
wanted to do; I am concerned if she's brave enough to walk into the home of an
individual and steal checks; and I am concerned that she expresses little
concern for her own future with her lack of attendance in school; and I am
concerned there is no indication of her ability to settle down; and I am
concerned that the juvenile justice system lacks the appropriate services which
she so sorely needs, and I feel it would be in the best interest of her and the
general public that the Court waive juvenile court jurisdiction ....
The
record reflects that the trial court identified each of the statutory factors
applicable in this case,[2]
evaluated the factors based upon the relevant evidence before it, and reached a
reasonable conclusion that waiver was appropriate. Accordingly, we affirm.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[1] Section 48.18(6), Stats, provides:
After considering
the criteria under sub. (5), the judge shall state his or her finding with
respect to the criteria on the record, 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 and referring the matter to
the district attorney for appropriate criminal proceedings in the circuit
court, and the circuit court thereafter has exclusive jurisdiction. In the absence of evidence to the contrary,
the judge shall presume that it would be contrary to the best interests of the
child and of the public to hear the case if the child is alleged to have
violated any state criminal law on or after the child's 16th birthday and if
the court has waived its jurisdiction over the child for a previous violation.