State v. Armstead

• Decision Date: 23 June 1998
• Docket Number: No. 97-3056-CR,97-3056-CR
• Citation: 583 N.W.2d 444,220 Wis.2d 626
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Latosha ARMSTEAD, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 444

583 N.W.2d 444

220 Wis.2d 626

STATE of Wisconsin, Plaintiff-Respondent, v. Latosha ARMSTEAD, Defendant-Appellant. ^d

No. 97-3056-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 4, 1998.

Opinion Released June 23, 1998.

Opinion Filed June 23, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robin Shellow, Angela C. Kachelski, and Haresh Bhojwani of Law Offices of Robin Shellow of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Gregory M. Posner-Weber, Assistant Attorney General.

Before WEDEMEYER, P.J., SCHUDSON and CURLEY, JJ.

CURLEY, Judge.

Latosha Armstead appeals from a non-final circuit court order denying her motion to dismiss the charge of first-degree intentional homicide, party to a crime, and ordering that she should not be "reverse waived" to the juvenile court, but instead, should remain subject to the jurisdiction of the adult court. Armstead claims that the trial court erred because: (1) the "reverse waiver" statutory scheme violates her constitutional rights to equal protection and due process; (2) §§ 938.183 and 970.032, STATS., are unconstitutionally vague; (3) she has been denied effective assistance of counsel; (4) the method in which the circuit court conducted her reverse waiver hearing violated her constitutional right to substantive due process; (5) the application of §§ 938.183 and 970.032 constitutes cruel and unusual punishment; and (6) incarcerating her with adult inmates violates Article I, § 6 of the Wisconsin Constitution. Armstead also asks us to decide whether reverse waiver decisions are appealable as a matter of right. Finally, Armstead makes an emotional appeal, without legal citation or argument, for this court to return her to the juvenile system.

First, we decline to address Armstead's equal protection claim, ineffective assistance claim, cruel and unusual punishment claim, and Article I, § 6 claim. All of these claims would require us to decide issues based on future or hypothetical facts, and, therefore, they are not ripe for determination. Second, we conclude that §§ 938.183 and 970.032, STATS., are not unconstitutionally vague. Third, we conclude that Armstead's substantive due process claim regarding the method in which her reverse waiver hearing was conducted lacks merit. Fourth, we conclude that Armstead's claim regarding the method of appealing reverse waiver decisions is moot, and that, in any event, this court has recently determined that reverse waiver decisions are appealable by permission under § 808.03(2), STATS., in the manner and within the deadline specified in § 809.50(1), STATS. Finally, we decline to respond to Armstead's emotional appeal. Therefore, we affirm the circuit court's order.

I. BACKGROUND.

On March 14, 1997, the State of Wisconsin filed a criminal complaint charging then-thirteen-year-old Armstead with first-degree intentional homicide, party to a crime. The complaint alleges that on March 10, 1997, Armstead and her boyfriend, James Williams, strangled and stabbed Charlotte Brown because "they needed a car." The complaint also alleges that, in a statement given to police, Armstead admitted "[coming] up with the idea of strangling Charlotte Brown." Pursuant to § 938.183(1)(am), STATS., ¹ the adult criminal court asserted original jurisdiction in the matter. On May 30, 1997, Armstead filed briefs and a motion to dismiss the complaint which challenged the constitutionality of §§ 938.183 and 970.032, STATS. ² Pursuant to § 970.032, the trial court held a preliminary examination, in June 1997, in order to determine whether there was probable cause to believe Armstead had committed the charged crime, and whether Armstead should be "reverse waived" to juvenile court. The trial court declined to rule on Armstead's constitutional claims before conducting the preliminary hearing, and stated that it would issue its decision with respect to those claims at a later date. The trial court then conducted the preliminary hearing.

On October 6, 1997, the trial court issued an order finding probable cause to believe that Armstead had committed the charged offense and refused to transfer jurisdiction to the juvenile court. The trial court also considered and rejected each of Armstead's constitutional challenges. On November 3, 1997, the State filed an information charging Armstead with one count of first-degree intentional homicide, party to a crime, and on January 7, 1998, this court granted Armstead's petition for leave to appeal.

II. ANALYSIS.

A. Claims involving hypothetical or future facts which are not ripe for review.

If the resolution of a claim depends on hypothetical or future facts, the claim is not ripe for adjudication and will not be addressed by this court. See Pension Management, Inc. v. DuRose, 58 Wis.2d 122, 128, 205 N.W.2d 553, 555-56 (1973) (court will not decide issues based on hypothetical or future facts); State v. Verhagen, 198 Wis.2d 177, 194 n. 3, 542 N.W.2d 189, 194 n. 3 (Ct.App.1995) (appellate court will not decide issues which are not ripe for appellate review). We conclude that a decision regarding Armstead's equal protection claim, ineffective assistance claim, cruel and unusual punishment claim, or Article I, § 6 claim, would be based on hypothetical or future facts. Therefore, because these claims are not ripe for appellate review, we decline to address them.

1. Equal Protection Claim

Armstead claims that the reverse waiver statutory scheme violates her constitutional right to equal protection. Although Armstead's briefs are confusing, her claim appears to boil down to the following argument. Pursuant to § 938.183(2)(a), STATS., ³ adult criminal courts have original jurisdiction over a juvenile charged with committing first-degree intentional homicide, in violation of § 940.01, STATS., if the offense was committed on or after the juvenile's fifteenth birthday. However, according to § 938.183(2)(a)1 and 2, if the juvenile is convicted of a lesser offense, under certain conditions, the adult court may impose a "delinquent juvenile" disposition specified in § 938.34, STATS. ⁴

Similarly, pursuant to § 938.138(1)(am), adult criminal courts have original jurisdiction over a juvenile who is charged with committing first-degree intentional homicide, in violation of § 940.01, STATS., if the offense was committed on or after the juvenile's tenth birthday, but before the juvenile's fifteenth birthday. If a preliminary examination is held regarding such a child, according to § 970.032, STATS., the adult court may "reverse waive" jurisdiction back to the juvenile court if the child proves by a preponderance of the evidence all of the following:

(a) That, if convicted, the child could not receive adequate treatment in the criminal justice system.

(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

(c) That retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused under the circumstances specified in s. 938.138(1)(a), (am), (b) or (c), whichever is applicable.

If the child fails to prove all of the preceding factors, and if the adult court finds probable cause to believe the child has committed the violation of which he or she is accused, the adult court retains jurisdiction. See § 970.032. Section 938.183(1m)(c), STATS., however, states that "[i]f the juvenile is convicted of a lesser offense and if any of the conditions specified in s. 938.183(2)(a) 1. or 2. applies, the court of criminal jurisdiction may impose a criminal penalty or a disposition specified in s. 938.34." The "conditions specified in s. 938.183(2)(a) 1. or 2." are the same conditions which must be met in order for adult courts to impose a juvenile disposition specified in § 938.34, STATS., for juveniles who committed offenses on or after their fifteenth birthdays. See § 938.183(2)(a), STATS. Thus, the statutory scheme appears to allow the adult court to impose juvenile dispositions on juveniles who are convicted of certain lesser offenses, under certain conditions, whether they were over or under fifteen years old at the time they committed the offense.

Armstead, however, interprets the statutes differently. Armstead points out that although § 938.183(2)(a)1 and 2, STATS., define the conditions under which an adult court may impose a juvenile disposition after a juvenile has been convicted in adult court of certain lesser offenses, the specific language of § 938.183(2)(a) could be interpreted to restrict the application of § 938.183(2)(a)1 and 2 to juveniles who committed their offenses on or after their fifteenth birthday. This is because § 938.183(2)(a) states the following:

[A] juvenile who is alleged to have attempted or committed [an enumerated offense] on or after the juvenile's 15th birthday is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided except that the court of criminal jurisdiction shall impose a disposition specified in s. 938.34 if any of the following conditions [described in § 938.183(2)(a)1 and 2] applies:

Section 938.183(2)(a) (emphasis added). Essentially, Armstead argues that, although § 938.183(1m)(c) purports to allow an adult court to impose a juvenile disposition on a juvenile who committed an offense before his or her fifteenth birthday, if the conditions in § 938.183(2)(a)1 and 2 apply, § 938.183(2)(a) only allows those conditions to apply for juveniles who committed offenses on or after their fifteenth birthday. Thus, according to Armstead's interpretation, an adult court does not have the option of imposing a juvenile disposition on a juvenile who is convicted of committing certain lesser offenses, if the juvenile has committed the offense on or after his...