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COURT OF APPEALS DECISION DATED AND RELEASED January 9, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2726
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
IN THE INTEREST OF
GERALD D. T.,
A PERSON UNDER THE AGE
OF 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
GERALD D. T.,
Respondent-Appellant.
APPEAL from a nonfinal
order of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY,
Judge. Affirmed.
SULLIVAN,
J. Gerald T., a juvenile, appeals from a nonfinal order waving
him into adult court. He argues that
the juvenile court erroneously exercised its discretion in granting the State's
petition to waive him into adult court because he alleges that it failed “to
consider the best interests of the juvenile as paramount” in reaching its
conclusion. The juvenile court properly
considered and weighed all of the relevant factors; thus, it properly exercised
its discretion. Hence, this court affirms.[1]
As alleged in the
delinquency petition filed by the State, on the night of July 11, 1995,
Gerald T. committed two counts of first-degree sexual assault, as a party
to a crime, while using a dangerous weapon, and while concealing his identity,
contrary to §§ 940.225(1)(b), 939.05, 939.63, and 939.641; and two counts
of armed robbery—threat of force, as a party to a crime, while concealing his
identity, contrary to §§ 943.32(1)(b) & (2), 939.05, and 939.641. The petition alleged that Gerald T. and
two other juveniles were in Martin Luther King Park when they spotted the
juvenile victim and her boyfriend. They
approached the couple, wearing bandannas over their faces and brandishing a
handgun; they stole the couple's property and then demanded that the victims
take off their clothes; they then forced the juvenile victim to perform oral
sex on all three accomplices; and then Gerald T. and one of his
accomplices forced her to have intercourse with them. The three juveniles then left the couple in the park. The petition also alleged that earlier in
the night, the juveniles robbed another victim at gunpoint while wearing the
bandannas.
After being apprehended
by the police, both Gerald T. and another accomplice gave
incriminating statements about their involvement in the crimes. The State then separately filed delinquency
petitions against each of the juveniles and petitions to waive them into adult
court. After reviewing the evidence,
including a waiver study and a psychological profile, and on hearing testimony
from both State and defense witnesses, the juvenile court granted the waiver
petition on September 27, 1995.
Gerald T. petitioned this court for leave to appeal from the
nonfinal order waiving him into adult court.
This court granted the petition on October 5, 1995.
Whether to waive
jurisdiction over a juvenile under § 48.18, Stats., is a matter within the sound discretion of the
juvenile court. J.A.L. v. State,
162 Wis.2d 940, 960, 471 N.W.2d 493, 501 (1991). Section 48.18(5), Stats.,
provides the factors the juvenile court is to consider, and while the court has
the discretion to decide how much weight to accord each factor, the “best
interest of the child” is the paramount consideration. Id. The juvenile court is to:
[S]tate 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 criminal proceedings in the
criminal court.
Id.
(citation omitted); see also § 48.18(6), Stats. “Furthermore,
although the juvenile court is directed to give its primary or foremost weight
to the child's interests; it has the discretion in weighing all the factors
under sec. 48.18(5), Stats., and in waiving a juvenile into adult court because
it is either in the juvenile's or the public's best interest under sec.
48.18(6).” B.B. v. State,
166 Wis.2d 202, 209, 479 N.W.2d 205, 207 (Ct. App. 1991).
Further, “[a]n 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 in the record.” J.A.L.,
162 Wis.2d at 961, 471 N.W.2d at 501 (emphasis added).
Section 48.18(5), Stats., delineates the factors the
juvenile court must consider:
(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.
Gerald T. concedes
that the juvenile court considered all of the above factors in reaching its
determination to waive its jurisdiction; however, he argues that the juvenile
court failed to consider the “best interest of the child” as paramount. The record belies his argument.
At several points in its
decision, the juvenile court discussed Gerald T.'s need for treatment and
concluded that it was “dramatic.”
Further, the juvenile court concluded that possibly the juvenile system
provided better and “more intensive” treatment methods. While the court never evoked the talismanic
phrase “in the best interests of the child,” the record is clear that the court
considered Gerald T.'s interests before reaching its decision. Nonetheless, after properly considering and
weighing all of the factors under § 48.18(5), Stats., the juvenile court concluded that the evidence
favored waiver. B.B., 166
Wis.2d at 209, 479 N.W.2d at 207.
Gerald T. has not shown this court how the juvenile court
erroneously exercised its discretion; thus, this court will not reverse.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.