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COURT OF APPEALS DECISION DATED AND RELEASED November 9, 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. 95-1769
95-1770
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE INTEREST OF
DORIAN H.,
A PERSON UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
DORIAN H.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Rock County: JOHN H. LUSSOW, Judge. Affirmed.
EICH, C.J.[1] Dorian H., a minor, appeals from orders of
the juvenile court waiving him into circuit court to face several criminal
charges, including: (1) battery and disorderly conduct; (2) intentionally
causing bodily harm; and (3) acting with a criminal gang with intent to assist
criminal conduct by gang members. The
first charge stems from an incident in which he is alleged to have beaten
another juvenile, while the remaining charges stem from a separate incident in
which he is alleged, in conjunction with several other juveniles, to have
physically attacked a schoolmate.[2] He argues that waiver is not supported by
the evidence in that the probation officer's testimony as to available juvenile
court programs and services was non-specific, and that the juvenile court
otherwise erroneously exercised its discretion in waiving jurisdiction.
We affirm the orders.
Dorian H. argues first
that the testimony of his probation officer, Thomas Siebert, relating to the
adequacy of juvenile court services and programs, failed to "evaluate
specific facilities or programs," but instead testified generally as to
the adequacy or inadequacy of various alternatives "without addressing why
a specific alternative might not be appropriate." Contrasting Siebert's testimony with that of
his mother and school social worker "that [he] needed structure in his
life, and would positively respond to future treatment," Dorian H. argues
that the court could order waiver only if it had simply "rubber
stamped" the district attorney's waiver request, rather than exercising
discretion in the matter. We disagree.
Section 48.18(5), Stats., sets forth at considerable
length the criteria for waiver of juvenile court jurisdiction.[3] As may be seen, the court is to consider,
among (many) other things, "[t]he adequacy and suitability of facilities,
services and procedures available for treatment of the child and protection of
the public within the juvenile justice system ...." Section 48.18(5)(c).
But the court is not
required to "resolve every statutory waiver criterion against the
child" in order to waive jurisdiction; rather, the statute "requires
only that the court consider the listed criteria and state its findings on the
record." Interest of G.B.K.,
126 Wis.2d 253, 256, 376 N.W.2d 385, 388 (Ct. App. 1985). It is a broader process, for, under the
statute,
the
juvenile court [has] authority to waive its jurisdiction if it appears by clear
and convincing evidence that it would be contrary to the public's best
interests for the child to remain in the juvenile system. Although in its analysis on whether to waive
the child into adult court, the juvenile court begins with the child's best interests
as its chief concern, it is still permitted after evaluating all [the
statutory] factors to conclude that the public's interests are best served by
waiving its jurisdiction.
Interest
of B.B., 166 Wis.2d 202, 210, 479 N.W.2d 205, 208 (Ct. App.
1991).
Under these cases, the
fact that Siebert's testimony did not go into detail, considering and either
approving or rejecting each and every option, possibility or program that might
exist in the system, does not by itself undermine the juvenile's court's
decision. As indicated, the ultimate question
is whether the court appropriately exercised its discretion in deciding the
issue.
Dorian H. agrees that
whether to waive juvenile jurisdiction in a given case is left to the sound
discretion of the juvenile court, and we will uphold a waiver decision if the
record reflects that the juvenile court exercised its discretion and there is a
reasonable basis in fact and law for its decision. Interest of Curtis W., 192 Wis.2d 719, 726, 531
N.W.2d 633, 635 (Ct. App. 1995).
In Burkes v. Hales,
165 Wis.2d 585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991), we discussed at some
length the scope of our review of a trial court's discretionary act:
A court exercises discretion when it
considers the facts of record and reasons its way to a rational, legally sound
conclusion. It is "a process of
reasoning" in which the facts and applicable law are considered in
arriving at "a conclusion based on logic and founded on proper legal
standards." Thus, to determine
whether the trial court properly exercised its discretion in a particular
matter, we look first to the court's on-the-record explanation of the reasons
underlying its decision. And where the
record shows that the court looked to and considered the facts of the case and
reasoned its way to a conclusion that is (a) one a reasonable judge could reach
and (b) consistent with applicable law, we will affirm the decision even if it
is not one with which we ourselves would agree.
It need not be a lengthy process. While reasons must be stated, they need not
be exhaustive. It is enough that they
indicate to the reviewing court that the trial court "undert[ook] a
reasonable inquiry and examination of the facts" and "the record
shows that there is a reasonable basis for the ... court's
determination." Indeed,
"[b]ecause the exercise of discretion is so essential to the trial court's
functioning, we generally look for reasons to sustain discretionary
decisions."
(Citations
and footnote omitted.)
In this case, the trial
court, after hearing the evidence, explained its decision as follows:
I've heard a lot of testimony here today
about involvement with gangs. There's
been some question as to whether this is big-city-type gang or wannabe-type
activity. But what we are finding in
this state is that the wannabe activity is far more dangerous than what we
might want to compare with cities. Kids
are out to prove themselves. And I've
heard testimony about fraternization here and the wanting, the desire, to
belong to a group. Unfortunately, I'm not convinced that the motives of this
grouping are in the best interests of the juveniles or the community.
I
recognize his mother has really tried very hard to work with him, but she's
also indicated to this court that she's at her wit's end.
Now,
if I look at the adequacy and suitability of the facilities and services
available, basically the testimony I've got is that corrections would probably
be capable of dealing with this gang type of thing. And, frankly, I don't think that's cost effective, and I really
don't think in this case, in view of Dorian's background, that corrections,
juvenile corrections would be suitable treatment for him at all. I'm familiar with the various treatment
programs in the juvenile justice system.
We've certainly tried the community based stuff, and ... I'm honestly at
my wit's end to think of anything that would be adequate or suitable.
This gang business is a community problem,
and I guess it's got to be dealt with here.
This is ... these allegations are very serious. And I think that the state has a strong case
against Dorian and his friends. And I
mean the most recent incident, of course, is the most serious. We're not talking about skipping school and
stealing candy anymore. We're talking about big league criminal activity, an
attack against another human being, and that's really of great concern to the
court. So I don't think there's
adequate or suitable facilities or services available for treatment within the
system which will also assure protection of the public.
So I find clear and convincing evidence [that]
it would be contrary to the best interests of the juvenile and the public to
hear the case in juvenile court.
The record before the
court details Dorian H.'s gang-related activities and the severity of the
conduct for which the charges were issued.
It also contains, as we have indicated, evidence on his prior record and
the general adequacy/inadequacy of juvenile court facilities and services to
deal with his conduct. In Curtis
W., we upheld the trial court's exercise of discretion to waive
jurisdiction where it was apparent from the record that the court, in so
deciding, considered the intentional and aggravated nature of the offense, the
juvenile's prior record, his disregard for the law and "lack of commitment
to rehabilitation," the lack of success in his prior contacts with the
juvenile system, and the fact that the maximum time period available for his
treatment in the juvenile system was "`not long enough.'" Interest of Curtis W., 192
Wis.2d 719, 726, 531 N.W.2d 633, 635
(Ct. App. 1995).
The juvenile court's
explanation of its reasons for ordering Dorian H.'s waiver in this case is no
less reasoned, no less based on the facts of record, and no less specific in
its consideration of the § 48.18(5) criteria than was the Curtis W.
court, and we reach the same result here.
The court did not erroneously exercise its discretion in waiving
jurisdiction over Dorian H.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] The charges stemming from the separate incidents were the subject of separate waiver petitions, and we consolidated them for purposes of this appeal.
[3] The
criteria are listed as follows in § 48.18(5):
(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.