J.D.B., In Interest of
| Decision Date | 26 September 1989 |
| Docket Number | No. 89-0658,89-0658 |
| Citation | 449 N.W.2d 338,152 Wis.2d 407 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Interest of J.D.B. J.D.B., Petitioner, v. STATE of Wisconsin, Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for La Crosse county: PETER G. PAPPAS, Judge.
J.D.B. appeals from an order granting the state's petition under sec. 48.18(1), Stats., to waive juvenile court jurisdiction and permitting the state to prosecute J.D.B. as an adult. 1 He was alleged to be a delinquent child because he delivered a controlled substance, contrary to sec. 161.41(1)(h), Stats., and because he possessed a controlled substance with intent to deliver, contrary to sec. 161.41(1m)(h).
The appeal presents two issues. First, did the trial court lose competency to exercise its jurisdiction because J.D.B. was not given the notices required by sec. 48.18(3)(a), Stats. Second, did the judge abuse his discretion by waiving jurisdiction over J.D.B. The court concludes that the state's failure to give notice as required by sec. 48.18 did not deprive the trial court of its jurisdiction to consider the state's petition for waiver. The court concludes, however, that the state failed to establish by clear and convincing evidence that it would be contrary to the best interests of J.D.B. or of the public for the juvenile court to hear J.D.B.'s case. The court concludes that the evidence establishes that J.D.B.'s chemical dependency problem may be addressed if the juvenile court retains jurisdiction and that the state failed to show that that problem can be addressed in the adult criminal system. The court therefore reverses the order and remands the cause to the trial court to consider the availability and effectiveness of a consent decree under sec. 48.12(2), Stats., to retain jurisdiction over J.D.B.
As to the failure to give notice, J.D.B. states that the issue is whether the trial court abused its discretion by not requiring the state to comply with sec. 48.18(3)(a), Stats. The court sees the issue as more fundamental and related to the court's competency to exercise its jurisdiction. Failure to observe a mandatory procedural statute may deprive the trial court of competency to exercise its jurisdiction. See In Interest of R.H., 147 Wis.2d 22, 433 N.W.2d 16 (Ct.App.1988), aff'd, 150 Wis.2d 432, 441 N.W.2d 233 (1989).
In R.H., the court concluded that strict compliance with the mandatory time limits of secs. 48.30(6) and 48.31(7), Stats., was necessary to protect the due process rights of the juvenile and the juvenile's parents. Id. at 35, 433 N.W.2d at 22. Failure to give written notice of the waiver hearing does not deny the juvenile or the parent due process, as long as adequate notice is given. In Interest of D.H., 76 Wis.2d 286, 299, 251 N.W.2d 196, 203 (1977). J.D.B. does not claim that he did not receive adequate notice of the waiver hearing.
Section 48.18(3)(a), Stats., requires that the written notice of the waiver hearing contain a statement of the requirements of sec. 48.29(2), with regard to the substitution of the judge. Section 48.29(2) provides:
If the request for substitution of a judge is made for the judge scheduled to conduct a waiver hearing under s. 48.18, the request shall be filed before the close of the working day preceding the day that the waiver hearing is scheduled. However, the judge may allow an authorized party to make a request for substitution on the day of the waiver hearing. If the request for substitution is made subsequent to the waiver hearing, the judge who conducted the waiver hearing may also conduct the plea hearing.
J.D.B. does not claim that he was not aware of his right to substitute the trial judge. At the outset of the waiver hearing, his counsel read sec. 48.18(3)(a), Stats., into the record. At that time, J.D.B. could have substituted the judge. He chose not to and waived that right.
The court reviews a trial judge's decision to waive juvenile jurisdiction under an abuse of discretion standard. In Interest of D.H., 76 Wis.2d at 302-03, 251 N.W.2d at 205. 2
The criteria which guide in exercising the junvenile court judge's discretion are set forth in sec. 48.18(5), Stats., as follows:
If prosecutive merit is found, 3 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 child has been previously found delinquent, whether such 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 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.
"This nonexhaustive list of factors is drawn largely from the United States Supreme Court's decision in Kent v. United States, 383 U.S. 541, 566-67 (1966)." In Interest of J.V.R., 127 Wis.2d 192, 201, 378 N.W.2d 266, 270 (1985). Prior to the creation of sec. 48.18, Stats., standards, also based on Kent v. United States, had been shaped by decisions of the Wisconsin Supreme Court. See generally In Interest of D.H.; In re Interest of F.R.W., 61 Wis.2d 193, 212 N.W.2d 130 (1973), cert. denied, 416 U.S. 974 (1974); Mikulovsky v. State, 54 Wis.2d 699, 196 N.W.2d 748 (1972).
THE JUDGE'S ORDER
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.
The judge's order granting the petition for waiver of jurisdiction recites:
It would be contrary to the best interests of the child and/or the public for the Court to hear the case because:
1. The Court finds that [J.D.B.]'s date of birth is 04/24/71, making him about one month short of his 18th birthday.
2. The Court finds that his mother, [K.B.], considers him to be fairly mature. According to social worker, James Fox, he appears to be age appropriate and physically mature.
3. The Court finds that according to James [Fox's] review of the La Crosse County Department of Social Services records, there is no indication [J.D.B.] is developmentally disabled or mentally ill.
4. The Court finds that [J.D.B.] has never been adjudicated delinquent. La Crosse County Department of Social Service records indicate[ ] that [J.D.B.] entered into an Informal Disposition Agreement for truancy in 1986. According to James [Fox's] review of the records, he was ordered to comply with the Intensive Tracking Program and did successfully complete the Informal Disposition Agreement.
5. The Court finds that a review of La Crosse Police Department records indicate that [J.D.B.] has had police contacts in 1986 for theft, in 1987 for possession of malt liquor and for shoplifting, and in 1988 for curfew violation. [J.D.B.] was found guilty in municipal court for each violation.
6. The Court finds that the pending delinquency petition involves a serious offense in that he is charged with delivering marijuana and possession with intent to deliver marijuana. A search warrant was executed at his house on 03/10/89. Attached and incorporated within this waiver petition is a copy of the search warrant return, which indicates that [J.D.B.] possessed paraphernalia not only for his personal use of marijuana but also for sale. Also, the petition and supporting police reports indicate that [J.D.B.] has been selling marijuana to juveniles.
7. The Court finds that the confidential informant who provided information to support the search warrant also provided information that [J.D.B.] has in the past travelled to Madison to purchase LSD.
8. The Court finds that according to [K.B.], some of [J.D.B.]'s friends are adults in their 20's or late teens. His best friend is reportedly [C.L.]. La Crosse County District Attorney's records indicate that [C.L.'s] date of birth is 03/20/70, so he will be 19 years old on 03/20/89.
9. The Court finds that again, according to [K.B.] and Jim [Fox's] review of the records, [J.D.B.] is not currently attending school. He dropped out of school in the 1987-88 school year without attaining his diploma. [J.D.B.] has been working at the New Image Car Wash for approximately six months. He works approximately 35 hours per week.
10. The Court finds that at the time of the commission of the offense alleged in the petition, [J.D.B.] was living on his own with [S.B.], a juvenile. [J.D.B.] was...
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