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COURT OF APPEALS DECISION DATED AND RELEASED December
13, 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. 95-2198-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID
C. HERTZBERG,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Waukesha County: LEE S. DREYFUS, JR., Judge. Affirmed.
SNYDER,
J. David
C. Hertzberg appeals a juvenile court order waiving him into criminal
court. He contends that the waiver
hearing was invalid because it was held without his presence and without the
presence of counsel. As a second basis
to contest the validity of the waiver, David contends that the district
attorney failed to present testimony as required by § 48.18(5), Stats.
Because we conclude that the juvenile waiver decision was proper, we
affirm.
On
July 12, 1991, a delinquency petition was filed against David approximately two
and one-half weeks before his eighteenth birthday.[1] The petition charged David with theft and
attempted theft, both charges stemming from an incident in which David, while
accompanied by his father, Charles Hertzberg, took personal papers, a map and a
garage door opener from a locked, parked car and attempted to enter a second
vehicle.[2]
Concurrent
to the filing of the delinquency petition, the State filed a waiver
petition. See § 48.18, Stats.
On July 17, 1991, the juvenile court sent David and Charles a summons
for the initial hearing scheduled for August 9, 1991. A copy of this summons was also sent to David's mother, Diane
Hertzberg, in Michigan.
On
July 29, 1991, the juvenile court received a letter from Diane which stated
that David was in her custody in Michigan and would be unable to attend the
August 9, 1991, court hearing.[3] Diane suggested that perhaps David's father
could attend and asked the court to contact her immediately if David needed a
public defender.[4]
David
did not make an appearance at the August 9, 1991, hearing. Based upon the letter the court had received
from Diane and its belief that Diane did not “understand the circumstances,”
the juvenile court rescheduled the initial appearance for August 23, 1991. Notice of the rescheduled hearing was sent
to David, Diane and Charles. After
David and his parents failed to appear,[5]
the juvenile court issued a capias and rescheduled the matter for September 12,
1991.[6] Since David was now eighteen years old, the
court directed that the notice of this hearing be sent directly to him.
There
was no appearance at the waiver hearing by David, Diane or Charles, nor did
counsel appear on David's behalf. The
State argued its position for granting the waiver petition and stated, “[I]t's
quite clear that David nor his mother had any intention of ever coming back to
the State of Wisconsin, particularly since these charges were filed.” The social worker also made a statement
which highlighted her limited contact with David. Following this, the juvenile court determined that a waiver was
in the best interests of David and the community, and ordered the juvenile
waiver.
A
criminal complaint was issued on October 31, 1991, naming David and Charles as
codefendants. On November 1, 1991, the
court issued a summons, requiring David's appearance on December 2, 1991. When he failed to appear, a warrant was
issued for his arrest. David was
arrested on July 11, 1994. After his
arrest, he filed motions to dismiss due to an invalid waiver hearing. Following the denial of both motions, David
sought permissive leave to appeal the juvenile court's waiver order. Leave to appeal was granted.
David
contends that the waiver hearing was invalid because (1) he was not present,
(2) he was not represented by counsel and (3) the district attorney failed to
present testimony. We take up each
argument in turn.
Our
inquiry will focus on several sections of the juvenile code: § 48.12, Stats. (juvenile court jurisdiction); § 48.18, Stats. (appropriate procedures for a
juvenile waiver hearing); and § 48.27(1), Stats. (procedures for issuing a notice or summons).
Statutory
construction involves a question of law, and a reviewing court owes no
deference to the trial court's determination.
State v. Grayson, 165 Wis.2d 557, 563, 478 N.W.2d 390, 393
(Ct. App. 1991), aff'd, 172 Wis.2d 156, 493 N.W.2d 23 (1992). The construction of the juvenile code and
its application to the facts are questions of law. See Green County Dep't of Human Servs. v. H.N.,
162 Wis.2d 635, 645, 469 N.W.2d 845, 848 (1991). When multiple statutes are contained in the same chapter and
assist in implementing the chapter's goals and policy, the statutes should be
read in pari materia and harmonized if possible. State v. Amato, 126 Wis.2d
212, 216, 376 N.W.2d 75, 77 (Ct. App. 1985).
David
first argues that the waiver hearing was invalid because he was not
present. David had been charged as a
delinquent prior to his eighteenth birthday and was under the jurisdiction of
the juvenile court. See §
48.12(1), Stats. David and his
parents were notified of his initial appearance, as required by § 48.27(1), Stats., which reads in relevant part:
After a citation is issued or a petition has been filed
relating to facts concerning a situation specified under ss. 48.12, 48.125 and
48.13, unless the parties under sub. (3) voluntarily appear, the court may
issue a summons requiring the person who has legal custody of the child to
appear personally, and, if the court so orders, to bring the child before the
court at a time and place stated.
The
initial summons that was sent to David and his parents also stated, “In the
case of your failure to appear as summoned herein ... the court may proceed to
hear testimony in the support of the allegations in the petition.” The second notice, again sent to David and
both parents, included the statement, “Your failure to appear will result in
the issuance of a Capias for your arrest.”
The third notification, sent to David as an adult, stated that a waiver
hearing was scheduled and “[y]our presence is required on the above date and
time.”
Section
48.18, Stats., prescribes the
procedure to be followed for a juvenile waiver hearing. This section does not require that the
juvenile be present. When a statute
designates the form of conduct, describes its performance and operation, and
designates the persons and things to which it refers, there is an inference
that all omissions should be understood as exclusions. Gottlieb v. City of Milwaukee,
90 Wis.2d 86, 95, 279 N.W.2d 479, 483 (Ct. App. 1979).
The
Hertzberg family received repeated notification about the various court
hearings scheduled. Before the first
hearing, Diane stated through her correspondence to the court and the district
attorney that she and David had no intention of appearing. Having failed to respond to the court
notification, David cannot now claim error because the hearing was held without
his presence.
David
next argues that the waiver was invalid because he was not represented by
counsel. Section 48.18(3)(a), Stats., states in relevant part: “The child shall be represented by
counsel at the waiver hearing.”
(Emphasis added.)
There
are a number of well-settled rules which must guide our analysis of a
statute. Our purpose is to ascertain
and give effect to the intent of the legislature. See State v. Annala, 168 Wis.2d 453, 461,
484 N.W.2d 138, 141 (1992). If the
meaning of a statute is clear and unambiguous, it is improper to employ
extrinsic aids to determine its meaning.
Id.
In
Annala, the supreme court noted an “unambiguous” distinction
between “child” and “adult” in the juvenile code. See id. at 462‑63, 484 N.W.2d at
142. According to the court, the plain
language of § 48.12(1), Stats.,
unambiguously applies only to allegations against a child, not
allegations against an adult. Annala,
168 Wis.2d at 462, 484 N.W.2d at 142.
The court also recognized that the juvenile code was enacted to address
the unique needs of children. Id. at 462, 484 N.W.2d at 141‑42.
Within
the statutory definition of the juvenile code, a “child” is a person who is
less than eighteen years of age. Id.
at 463, 484 N.W.2d at 142. Section
48.18(3), Stats., requires that
the child shall be represented by counsel at a juvenile waiver
hearing. David was no longer a
child. He had passed his eighteenth
birthday before the first hearing.
David had been given three opportunities to appear as a juvenile and
deal with the delinquency petition. By
ignoring repeated summons and court dates, David ignored every attempt by the
juvenile court to handle the matter. We
conclude that David was no longer afforded the right of this juvenile
protection. By his disregard of the
summons from the juvenile court, coupled with the fact that he had turned
eighteen, David effectively waived his right to counsel at the juvenile waiver
hearing.[7]
David also contends that
the waiver was invalid because § 48.18, Stats.,
requires that the district attorney shall present relevant testimony at a
waiver hearing. The requirement of
relevant testimony is found in § 48.18(5).
It 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 ....
This section of the statute requires the district
attorney to present relevant testimony to assist the court in making the
juvenile waiver determination. Because
there was no opposing counsel and David himself did not appear, the court
determined that a presentation of testimony under oath was unnecessary.[8]
The
court was presented with relevant information at the hearing. The case was summarized for the record, and
the court heard a statement from the social worker assigned to David's case
concerning her lack of contact with David.
The assistant district attorney presented information pertaining to the
notification that David and his parents had been given of all three juvenile
hearings.
The
assistant district attorney informed the court that “the reason David did come
to Milwaukee for a short time is that he was in ... similar trouble in a similar
situation in Michigan and did ... flee Michigan to come to Wisconsin.” In addition, the assistant district attorney
stated, “[Because] this juvenile ... has intentionally fled the State of
Wisconsin to avoid further proceedings, the [S]tate does not believe that a
consent decree would be a viable or appropriate option.” The State then requested that the court, on
its own motion, waive its jurisdiction on the two-count delinquency petition. See § 48.12(2), Stats.
We conclude that any requirement of formal
testimony under oath was waived by David's failure to appear, alone or through
counsel. It is evident that the
juvenile court utilized its only viable option when it waived David into adult
court. If there was any error in the
process or proceedings, it was brought about by David's total disregard of the
juvenile system. “In order to
discourage criminal conduct by juvenile offenders, the message that we must
convey is that there will be punishment for criminal behavior.” Annala, 168 Wis.2d at 472, 484
N.W.2d at 146.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[3] At the time
David and his father were arrested, David was placed temporarily in shelter
care because Charles was jailed. The
social worker who spoke to David at that time told him “how important it was
that he follow the appointment that would be set with me, that he stay out of
trouble and, you know, follow the rules of the father.” Two days before David's intake interview
with the social worker, Charles reported that he came home from work one day
and David was gone. Charles received a
phone call later that evening in which David stated that he had decided to go to
Michigan to visit his mother.
[4] In bold type at
the top of the summons it stated:
IT IS YOUR RESPONSIBILITY TO CONTACT THE PUBLIC DEFENDERS OFFICE IMMEDIATELY
UPON RECEIPT OF THIS NOTICE TO HAVE AN ATTORNEY REPRESENT YOU AT THIS HEARING.
[5] At this hearing,
the assistant district attorney reported that she too had received a letter
from Diane approximately three weeks prior to the August 9 hearing. In that letter, Diane requested that the
district attorney hire an attorney for David and inform the court that Diane and
David did not have any intention of appearing for these proceedings because
David was in Michigan. The assistant
district attorney's reply informed Diane that the district attorney's office
did not have any authority to comply with either of these requests. She did provide Diane with the name, address
and telephone number of the state public defender's office and the juvenile
court clerk.
[6] Because David
had reached his eighteenth birthday, the court had only three options under the
juvenile code: (1) to dismiss the
action with prejudice, (2) to enter into a consent decree or (3) waive its
jurisdiction under § 48.18, Stats. See § 48.12(2), Stats.
The court set the matter for a contested waiver hearing, concluding that
under these facts, this was the only warranted option.