J.V.R., In Interest of

• Decision Date: 20 December 1985
• Docket Number: No. 84-1855,84-1855
• Parties: In the Interest of J.V.R.: J.V.R., Appellant and Cross-Petitioner, v. STATE of Wisconsin, Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 266

378 N.W.2d 266

127 Wis.2d 192

In the Interest of J.V.R. J.V.R., Appellant and Cross-Petitioner, v. STATE of Wisconsin, Respondent-Petitioner.

No. 84-1855.

Supreme Court of Wisconsin.

Argued Oct. 29, 1985.

Opinion Filed Dec. 20, 1985.

Sally L. Wellman, Asst. Atty. Gen. (argued), for respondent-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Jay K. Nixon (argued) and Harvey, Goepel, Barta & Nixon, Racine, on brief, for appellant and cross-petitioner.

CALLOW, Justice.

The state seeks review of an unpublished decision of the court of appeals, 124 Wis.2d 778, 370 N.W.2d 294, reversing an order of the circuit court for Racine county, Judge Dennis J. Barry, waiving juvenile court jurisdiction. The dispositive issue on appeal is whether the waiver petition complied with sec. 48.18(2), Stats. We affirm the decision of the court of appeals and hold that under sec. 48.18(2) the state must include in its waiver petition a brief statement of the facts upon which it will rely in seeking waiver.

On May 20, 1984, at 1 a.m., a police officer observed J.V.R. and three other juveniles tampering with cars in a parking lot in Racine. In his report the officer related seeing the juveniles in the vicinity of a dark green Buick. After seeing the squad car, the juveniles fled the scene. A foot chase ensued.

The police successfully apprehended two of the youths, G.M. and B.L., and found a watch and a pair of sunglasses in B.L.'s possession. The owner of the Buick reported that a pair of sunglasses and a watch were taken from the car. After being advised of their constitutional rights, both juveniles identified J.V.R. as one of the individuals who had eluded the police. G.M. stated that J.V.R. had suggested they search the cars. G.M. also stated that J.V.R. had entered one of the cars and had taken a pair of sunglasses and a watch which he gave to B.L. B.L.'s statement to the police substantiated G.M.'s story. The police later apprehended J.V.R.

On July 2, 1984, pursuant to sec. 48.255, Stats., the state filed a delinquency petition in the Racine county juvenile court alleging that J.V.R. had committed the offenses of theft, party to a crime, contrary to secs. 943.20(1)(a), 939.05(1), and 939.32. The delinquency petition detailed the facts of the charged offense and the sources of the information. The state also filed a waiver petition, pursuant to sec. 48.18, seeking to have J.V.R. tried as an adult. ¹

Section 48.18(2), Stats., requires that a "waiver hearing shall be brought on by filing a petition alleging delinquency drafted under s. 48.255 and a petition for waiver of jurisdiction which shall contain a brief statement of the facts supporting the request for waiver." (Emphasis added.) In J.V.R.'s case the petition for waiver incorporated by reference the facts contained in the delinquency petition. The petition offered no other facts in support of waiver; it contained only a conclusive statement: "In the event of conviction the remedies available to the criminal court would be more effective under the circumstances of this case than those available to the juvenile court."

J.V.R. moved to dismiss the waiver petition, asserting that it did not comply with sec. 48.18(2), Stats., because it did not contain a sufficient statement of facts supporting the request for waiver. The juvenile court held a hearing on the motion on August 24, 1984. The court found that the language of sec. 48.l8(2) did not concern the content of the petition but focused on the manner in which hearings were to be conducted. Although the court concluded the petition could have been more specific, it held that under existing case law, specifically State ex rel. TDD v. Racine County Circuit Court, 91 Wis.2d 231, 280 N.W.2d 264 (1979), the facts set forth in the petition were sufficient to satisfy the statute. Accordingly, the court denied J.V.R.'s motion to dismiss.

On September 6, 1984, the court held a waiver hearing. Consistent with the procedures outlined in In Interest of T.R.B., 109 Wis.2d 179, 185, 325 N.W.2d 329 (1982), the court engaged in a two-step analysis during the waiver hearing. Initially, the court focused on the issue of prosecutive merit, hearing testimony from B.L. and G.M. on the events of May 20, 1984. After finding prosecutive merit, the court heard testimony from three additional witnesses on the question of waiver.

The state called John Merrill, an employee of the Juvenile Probation Unit of the Human Services Department. Merrill had been J.V.R.'s case manager, and testified to J.V.R.'s prior record and treatment history, relying upon information from Human Services Department files.

On four occasions in 1981, J.V.R. was charged with crimes ranging from shoplifting, to theft, to carrying a concealed weapon. The juvenile court found him delinquent on two of these charges, initially ordering him to complete twenty hours of community service and later placing him under supervision for six months.

J.V.R. next appeared in court on June 7, 1983, at which time the juvenile court found him delinquent on charges of theft and carrying a concealed weapon. Again, the juvenile court placed him under supervision. It also ordered him to attend school on a full-time basis and complete thirty hours of community service work. Then, on September 13, 1983, the juvenile court found J.V.R. delinquent on charges of operating a vehicle without a driver's license and fleeing and eluding a traffic officer. The juvenile court transferred his custody to the State Department of Health and Social Services and committed him to Ethan Allen School for Boys for a period of six months.

Summarizing J.V.R.'s experience with the rehabilitation services, Merrill explained that, although J.V.R. occasionally benefited from the services, on the whole the services had not been successful in rehabilitating J.V.R. J.V.R. continued to display negative behavior; he acted up in school and sometimes became physically aggressive. Merrill acknowledged that he had not met with J.V.R. in the six months prior to the waiver hearing because he ceased to be J.V.R.'s case manager when J.V.R.'s commitment expired in March, 1984. Nonetheless, Merrill opined that the services available in the juvenile system would not be of benefit to J.V.R. absent a change in J.V.R.'s attitude. The state already had attempted out-of-home placement with little success. In Merrill's experience, residential placements were always more difficult the second and third time than the first. He concluded that the only untried alternative available to the juvenile court would be forfeiture. ²

Merrill also testified regarding the results of a psychological evaluation of J.V.R. which a psychologist from Racine Psychological Services had performed on August 29, 1983, prior to J.V.R.'s commitment to Ethan Allen. The evaluation revealed J.V.R. had a history of behavior problems stemming from an aggressive and rebellious orientation. It indicated J.V.R. was emotionally volatile and negativistic, and generally externalized blame for his unacceptable behavior. J.V.R. showed no awareness of or concern about problems in his behavior, no sensitivity to the danger in which he placed others, and no understanding of the need for self-change. The psychological report concluded that the most effective treatment alternative would be a residential facility in which J.V.R.'s behavior could be controlled.

Notably, the conclusive statement contained in the waiver petition did not give J.V.R. any notice of the evidence the state offered at the waiver hearing other than the evidence regarding the underlying charge. However, J.V.R. did call two witnesses on his behalf. First, he called his father. J.V.R.'s father testified that he had been separated from J.V.R.'s mother since 1977. He admitted that he had not played a significant role in J.V.R.'s upbringing prior to J.V.R.'s commitment to Ethan Allen, but stated that he has had much more contact with J.V.R. since J.V.R.'s release. He had been discussing with J.V.R.'s mother the possibility of reconciling their marriage. He believed that J.V.R.'s problems were attributable to his absence from the home and the types of kids with whom J.V.R. associated, and felt his presence in the home would help J.V.R.

Second, J.V.R. called David Goehner, a clinical social worker with Catholic Social Services who had been J.V.R.'s supervising officer prior to J.V.R.'s commitment to Ethan Allen. Goehner testified that the treatment most likely to be effective with J.V.R. would be residential placement. Goehner cautioned, however, that the success of any juvenile treatment would depend upon J.V.R.'s attitude.

Having heard the testimony of the witnesses and the arguments of counsel, the juvenile court made findings on each of the relevant factors contained in sec. 48.18(5), Stats., and granted the petition for waiver. Taking all the relevant factors into account, the court concluded that it would be in the best interests of both J.V.R. and the public to waive the case into adult court.

J.V.R. requested leave to appeal the waiver order, and the court granted the request. On appeal, J.V.R. contended the juvenile court erred in finding the waiver petition adequate. He argued that because the conclusive statement in the state's waiver petition failed to give him notice of the facts upon which the state intended to rely, the waiver petition did not satisfy sec. 48.18(2), Stats. The state countered that the waiver petition was adequate and conformed to the petition used in State ex rel. TDD v. Racine County Circuit Court, supra. The state maintained that, taken together, the delinquency and waiver petitions put the juvenile on notice that all of the facts and circumstances delineated in sec. 48.18(5), Stats., would be considered at the waiver hearing. The court of appeals, however, ruled that the waiver petition failed to provide J.V.R. with the notice required by sec. 48.18...