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COURT OF
APPEALS DECISION DATED AND
RELEASED February
1, 1996 |
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(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2341
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF KOUA V.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
KOUA
V.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for La Crosse County: JOHN J. PERLICH, Judge. Affirmed.
EICH,
C.J.[1] Koua V., a minor, challenges an order
waiving juvenile jurisdiction with respect to three criminal charges filed
against him--all of them "gang-enhanced": possession of a dangerous
weapon; providing a dangerous weapon to a child; and possession of a stolen
firearm. We reject his argument that
the trial court erroneously exercised its discretion in ordering waiver and
affirm the order.
Waiver
of juvenile jurisdiction is committed to the sound discretion of the trial
court. Interest of J.A.L.,
162 Wis.2d 940, 960, 471 N.W.2d 493, 501 (1991). And while the best interest of the child is the "paramount
consideration" in all juvenile court proceedings,
[t]he ... court has discretion as to the weight it
affords each of the [statutory] criteria ... in deciding whether to waive
jurisdiction. A juvenile judge is to
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 for the juvenile court to hear the case, the judge must
enter an order waiving jurisdiction and referring the matter to the district
attorney for appropriate ... proceedings in the criminal court.
Id. (Citation omitted.)
Our
review of a discretionary determination is limited.
We review a
court's exercise of discretion to determine if there is an abuse. An appellate court first looks to the record
to see whether that discretion was in fact exercised. Assuming discretion was exercised, the appellate court will look
for reasons to sustain the trial court's discretionary decision. An appellate
court will reverse a juvenile court's waiver determination if and only if the
record does not reflect a reasonable basis for the determination or a statement
of the relevant facts or reasons motivating the determination is not carefully
delineated ....
Id. at 960-61, 471 N.W.2d at 501 (citations omitted).
Before
a minor may be waived into adult criminal court, the juvenile judge must
determine whether the charges have "prosecutive merit." That determination is not challenged on this
appeal.
If
prosecutive merit is found, the judge is to make the determination whether to
waive jurisdiction based on consideration of several criteria, including the
child's "personality and prior record," the nature of the offense,
and the adequacy and suitability of facilities and services available in the
juvenile system. Sections 48.18(5)(a),
(b) and (c), Stats. Koua V. argues that the trial court
erroneously exercised its discretion in its consideration of the first two
criteria.
Section
48.18(5)(a), Stats., insofar as
it is pertinent to Koua V.'s arguments on this appeal, states that the court
shall consider:
The personality and prior record of the child, including
whether the child is mentally ill or developmentally disabled,... 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.
Section
48.18(5)(b), Stats., requires the
court to consider the "type and seriousness of the offense" charged,
and subsection (c) requires consideration of 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."
In
its decision, the trial court referred to Koua V.'s prior adjudications of
delinquency, including one involving a knife, his continuing involvement with
gangs, his physical and mental immaturity, and the inability of the juvenile
court system and his parents to control his behavior. The court discussed Koua V.'s prior treatment and services
history in the juvenile system, noting that "[h]e has frustrated those
efforts that have been made on his behalf....
[E]verything that was tried he frustrated." The court went on to conclude that the facilities
and services in the juvenile court system "are just not adequate for the
kind of problems that we have to deal with" as far as Koua V. was
concerned. The court then stated:
In my mind the area that is of most concern is
the type of the offense, the seriousness of the offense, and the pattern of the
offense. We have gone from a situation
where a young man is pulling a knife and threatening other kids with that
knife, to the point where now he is carrying a loaded, concealed, stolen
pistol, concealed under his clothing. I think that that obviously indicates
that the severity of the situation, the severity of the crimes has increased
substantially.
The activities that he has engaged in obviously
have some serious risk to the community as well as the participants ....
I am satisfied that even though he professes
some remorse, that without some severe, extensive services, those not available
in the juvenile system, we're not going to see any changes in his behavior.
....
I am satisfied
that it is not in his best interests, nor is it in the best interests of the
public that this case remain in juvenile court. There are some activities that are so dangerous, so serious to
the community, that when you look back at his history and compare it to these
acts, the history of pulling the knife, the history of threatening to use it,
and now the guns, concealed weapons, waiver is demanded.
Koua
V. argues that the court should not have placed any emphasis on the prior
delinquency adjudication involving use of a knife, because it was simply a
matter of the "poor judgment ... one might expect from a [then]
13-year-old Hmong boy." He also
asserts that he was adjudged delinquent on only two prior occasions, and that
the court placed undue reliance on his prior delinquencies in making the waiver
decision.
There
was evidence, however, that Koua V. had also been adjudged delinquent on
charges of sexual assault and reckless use of a weapon, and that he had at
least ten separate referrals to the juvenile system in past years.
Koua
V. also points to testimony describing him as, in his words, "cooperative,
open, and quite pleasant" and as "trying to get out" of gangs,
and he asserts that the court "abused it's [sic] discretion in electing
[sic] testimony that was contradicted by all the other witnesses to suit the
court's purpose." We see
absolutely no substantiation in the record to support Koua V.'s accusation that
the trial court ignored the evidence in order to fashion a result to suit some
private or personal preference.
The
weight to be accorded the various statutory criteria is within the court's
discretion, Interest of B.B., 166 Wis.2d 202, 209, 479 N.W.2d
205, 207 (Ct. App. 1991), and we are satisfied that the court's decision is
easily justified by the evidence of Koua V.'s past contacts with the juvenile
system and his prior delinquency adjudications. In addition, the incidents underlying the present charges--as
recited in the delinquency petitions--concerned his presence at, and tacit
involvement in, two and possibly three gang shootings, even though Koua V. may
not, as he claims, have been "violent or aggressive" himself in those
incidents.
We
think the same is true with respect to his complaint that the court erred in
finding the juvenile system to be inadequate to deal with his problems. While there was testimony that he was doing
well in juvenile detention and might also do well in an out-of-home placement
within the system, the same witnesses also stated that he does not "take[]
the juvenile system ... very seriously," but rather "tries to work
around it, and he tries to manipulate and seems pretty sophisticated [in] doing
that." And, as the court noted,
there was also evidence of his many prior contacts with the system, and that
all the efforts expended by the system on his behalf were continually
frustrated by his own conduct.
Where
the record shows that the trial court looked to and considered the facts of the
case and reasoned its way to a conclusion that is one a reasonable judge could
reach and consistent with applicable law, we will affirm the decision even if
it is not one with which we ourselves would agree. Burkes v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d
37, 39 (Ct. App. 1991). We believe the
trial court met those requirements here, and Koua V.'s arguments have not
persuaded us to the contrary.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.