State v. Tyler T. (In re Tyler T.)

• Decision Date: 22 May 2012
• Docket Number: No. 2010AP784.,2010AP784.
• Citation: 814 N.W.2d 192,341 Wis.2d 1,2012 WI 52
• Parties: In the Interest of TYLER T., a person under the age of 17: State of Wisconsin, Petitioner–Respondent, v. Tyler T., Respondent–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

341 Wis.2d 1

814 N.W.2d 192

2012 WI 52

In the Interest of TYLER T., a person under the age of 17:State of Wisconsin, Petitioner–Respondent,

v.Tyler T., Respondent–Appellant–Petitioner.

No. 2010AP784.

Supreme Court of Wisconsin.

Argued Jan. 12, 2012.

Decided May 22, 2012.

For the respondent-appellant-petitioner there were briefs and oral argument by Susan E. Alesia, assistant state public defender.

For the plaintiff-respondent there was a brief by Zeke Wiedenfeld, assistant district attorney, Phillip A. Koss, district attorney, Elkhorn, and oral argument by Zeke Wiedenfeld.

ANNETTE KINGSLAND ZIEGLER, J.

[341 Wis.2d 4]¶ 1 This is a review of an unpublished decision of the court of appeals ¹ that affirmed an order by the Walworth County Circuit Court ² waiving juvenile court jurisdiction over Tyler T. (Tyler).

¶ 2 Tyler argues that the circuit court erred as a matter of law in denying his request to strike a waiver investigation report prepared by the Walworth County Department of Health and Human Services (DHHS). The DHHS prepared its report after conducting a staffing meeting in which the Walworth County Assistant District Attorney, who filed the petition alleging Tyler's delinquency, participated. Neither Tyler nor his defense counsel was invited to attend the staffing meeting. Comparing a waiver investigation report to a presentence investigation (PSI) report, Tyler contends that the assistant district attorney's participation in the staffing meeting constituted improper ex parte ³ communication that compromised the objectivity of the waiver investigation report. As such, Tyler requests that we vacate the circuit court's order waiving juvenile court jurisdiction, order the preparation of a new waiver investigation report, and order the circuit court to conduct a new waiver hearing before a different judge.

[341 Wis.2d 5]¶ 3 We decline Tyler's request and therefore affirm.

¶ 4 We conclude that the circuit court did not err in denying Tyler's request to strike the waiver investigation report prepared by the DHHS. While we have reservations about the DHHS's decision to invite only the assistant district attorney to its final staffing meeting, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report. Rather, consistent with the DHHS's role in delinquency proceedings and in furtherance of the express objectives of Wis. Stat. ch. 938, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 5 On July 21, 2009, the State, through Walworth County Assistant District Attorney Zeke Wiedenfeld (ADA Wiedenfeld), filed a petition in the Walworth County Circuit Court alleging that Tyler, then 15 years old, was delinquent. In support of its petition, the State alleged that on June 19, 2009, Tyler was a party to an armed robbery in violation of Wis. Stat. §§ 939.05⁴ and [341 Wis.2d 6]943.32(2).⁵ More specifically,the State alleged that Tyler and an adult male named Terrance Walker (Walker), both in gray hooded sweatshirts and wearing bandanas over their faces, held up a gas station in Elkhorn, Wisconsin by displaying black airsoft guns that resembled semi-automatic handguns. The gas station attendant, working alone at the time, reported that Tyler and Walker pointed their guns at him and demanded money. Tyler and Walker allegedly left the gas station with just under $1,000.

¶ 6 According to the petition, Tyler advised a detective from the Elkhorn Police Department that he and Walker were dropped off at the gas station by an adult male named Michael Boyle (Boyle) and that Tyler had been involved in “about 6 different robberies since April or May” of 2009.

[341 Wis.2d 7]¶ 7 In addition to its delinquency petition, the State, again through ADA Wiedenfeld, filed a petition for waiver of juvenile court jurisdiction over Tyler pursuant to Wis. Stat. § 938.18.⁶ In support of its petition for waiver, the State asserted that juvenile court jurisdiction would be contrary to the best interests of both Tyler and the public. The State noted that Tyler was charged with committing a serious crime that involved the threat of force with a weapon and which would constitute a felony if committed by an adult. Moreover, the State maintained, Tyler committed the crime with two adult conspirators under circumstances demonstrating aggression, premeditation, and willfulness. Finally, the State alleged that this crime was only one of several robberies committed by Tyler and that, in the event of his conviction, the remedies available to the criminal court would be more effective than those available to the juvenile court.

¶ 8 Pursuant to its authority under Wis. Stat. § 938.18(2m), the circuit court requested the DHHS to prepare a waiver investigation report analyzing the criteria for waiver with respect to Tyler. According to testimony derived from the waiver hearing, roughly ten members of the DHHS participated in a staffing meeting to determine the agency's recommendation as to whether the juvenile court should or should not waive jurisdiction over Tyler. At the invitation of the DHHS, ADA Wiedenfeld also participated in the staffing meeting, advocating in favor of waiver. Neither Tyler nor his defense counsel, Attorney Mary Burns (Attorney Burns), was invited to attend the staffing meeting. Still, in preparation for the staffing meeting, Erin Bradley (Bradley), a juvenile court intake worker who ultimately drafted the waiver investigation report on behalf of the DHHS, gathered information from both Tyler and Attorney Burns, as well as from Tyler's parents. In the end, the members of the DHHS failed to reach a consensus at the staffing meeting and consequently opted not to offer any formal recommendation as to waiver.

¶ 9 The DHHS filed its waiver investigation report on February 17, 2010. In its report, the DHHS explained that while Tyler had no prior criminal history in Walworth County, he had a fairly extensive record in Kenosha County. In 2007, when Tyler was 13 years old, he was referred to Kenosha County's Juvenile Intake Services on charges of criminal damage to property and disorderly conduct. That referral resulted in a deferred prosecution agreement, which terminated successfully in 2008. In addition, the DHHS noted that Tyler had a delinquency petition then pending in Kenosha County for a separate charge of armed robbery, party to a crime. In that case, the Kenosha County Circuit Court denied the district attorney's petition for waiver of juvenile court jurisdiction. Finally, the DHHS advised that in 2009, Tyler was subject to two petitions for adjudication of wardship in Lake County, Illinois, both stemming from charges of armed robbery, aggravated robbery, and burglary. On January 13, 2010, Lake County's Nineteenth Judicial Circuit Court placed Tyler on five years of juvenile court supervision and ordered him to participate in the county's “FACE–IT” residential treatment program for juvenile probationers. ⁷

[341 Wis.2d 9]¶ 10 Concerning Tyler's personal and social history, the waiver investigation report provided that Tyler has a ninth grade education, suffers from no mental illnesses or developmental disabilities, and “presents in a pleasant and respectful manner.” The DHHS further reported that Tyler maintains a positive and supportive relationship with his biological parents, his sister, and his grandparents. In addition, personnel from both the Illinois and Wisconsin detention centers indicated that Tyler is “very respectful to staff and follows directions without incident.” Still, pursuant to its assessment, the DHHS advised that Tyler presents a “moderate risk” of delinquency.

¶ 11 Relevant to Tyler's underlying charge of armed robbery, the DHHS's waiver investigation report described Boyle, the adult male who allegedly dropped Tyler and Walker off at the gas station, as “a step-father figure to Tyler.” Boyle reportedly dated Tyler's mother for a period of eight years, beginning when Tyler was 15 months old. After Tyler's mother ended the relationship, Tyler continued to visit Boyle on a regular basis. Tyler acknowledged that he assisted Boyle with several robberies and that Boyle regularly provided him with alcohol and other drugs. When asked why he agreed to assist in the robberies, Tyler explained that Boyle needed money in order to hire an attorney to get his roommate's two daughters out of foster care. According to Tyler, most of the money obtained from the robberies “went to the attorney fund and he kept little for himself.”

¶ 12 The waiver investigation report confirmed the seriousness of Tyler's offense, describing the robberyas planned, aggressive, and potentially violent. The DHHS further acknowledged that Tyler willfully participated “at his own discretion on multiple occasions over multiple dates.”

¶ 13 Finally, as to the adequacy of facilities, services, and procedures available to Tyler within the juvenile justice system, the DHHS explained that Tyler's offense met the criteria for the five-year Serious Juvenile Offender (SJO) Program operated by the Department of Corrections (DOC). If placed in the SJO Program, Tyler would serve a maximum of three years in a secure juvenile correctional institution.

¶ 14 As previously mentioned, the DHHS declined to offer a formal recommendation as to waiver, citing “the complexity of the matter.”

¶ 15 On February 19, 2010, in response to the DHHS's waiver investigation report, the State filed a memorandum arguing in favor of waiver of juvenile court jurisdiction over Tyler. The State contended that waiver was appropriate given Tyler's record of committing serious and violent crimes, his association with negative peers and adults, his history of substance abuse, and his high risk to...