T.R.B., In Interest of

• Decision Date: 02 November 1982
• Docket Number: No. 81-1052,81-1052
• Citation: 109 Wis.2d 179,325 N.W.2d 329
• Parties: In the Interest of T.R.B., alleged to be delinquent child under 18 years: T.R.B., Appellant-Cross Petitioner, v. STATE of Wisconsin, Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 329

325 N.W.2d 329

109 Wis.2d 179

In the Interest of T.R.B., alleged to be delinquent child

under 18 years:

T.R.B., Appellant-Cross Petitioner, v. STATE of Wisconsin, Respondent-Petitioner.

No. 81-1052.

Supreme Court of Wisconsin.

Nov. 2, 1982.

Argued Sept. 8, 1982.

Reconsideration Denied Dec. 15, 1982. ^*

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

Bradley J. Bloch, Milwaukee, argued, for appellant-cross petitioner; Gerald L. LaBarge, Thomas J. St. Ville and Jastroch & LaBarge, S.C., Waukesha, on brief.

ABRAHAMSON, Justice.

This is a review of a decision of the court of appeals ¹ reversing an order of the Circuit Court for Washington County, Richard T. Becker, Circuit Judge. The circuit court waived juvenile court jurisdiction ² and referred the matter to the district attorney to institute appropriate criminal proceedings. Because the district attorney had not presented testimony and the juvenile court had not heard testimony at the waiver hearing, the court of appeals reversed the order of waiver and remanded the case to the juvenile court to hold a hearing on the waiver issue. We affirm the decision of the court of appeals.

We note as a preliminary matter that the case is not moot, as T.R.B. argues. Even though T.R.B. reached the age of 18 on January 30, 1982, he is not beyond the juvenile court's jurisdiction. Sec. 48.12(2), Stats. 1979-80, provides that if a court proceeding has been commenced under sec. 48.12 before a child becomes 18 years of age, but the child becomes 18 years of age before admitting the facts of the petition at the plea hearing or if the child denies the facts before an adjudication, the court retains jurisdiction over the case to waive its jurisdiction.

The facts surrounding the waiver hearing are not in dispute. Pursuant to sec. 48.18(1) and (2), Stats. 1979-80, ³ the district attorney initiated proceedings to waive juvenile court jurisdiction by filing two petitions: A petition drafted under sec. 48.255 alleging delinquency and a petition for waiver.

The delinquency petition alleges that T.R.B. had operated a motor vehicle without the owner's consent, contrary to secs. 943.23(1) and 939.05, Stats. 1979-80. The petition recites the facts forming the basis of the district attorney's allegations and the names of those who gave him his information. Sec. 48.255, Stats. 1979-80, which governs the form and content of the petition initiating delinquency proceedings mandates that the delinquency petition set forth "with specificity" facts "sufficient to establish probable cause that an offense has been committed and that the child named in the petition committed the offense." Sec. 48.255(1)(d), Stats. 1979-80.

The district attorney's petition for waiver of juvenile court jurisdiction contains "a brief statement of the facts supporting the request for waiver," as required by sec. 48.18(2), Stats. 1979-80. The waiver petition briefly sets forth TRB's history before the juvenile court, namely, that the juvenile court had found him delinquent in 1977, and that T.R.B. had been involved in a series of incidents since the 1977 delinquency determination, and that although T.R.B. had "extensive prior treatment by the juvenile justice system," the treatment had had "little success."

A waiver hearing was held at which the following persons' appearances were noted in the record: an assistant district attorney, a person from the Wisconsin Department of Health and Social Services, two people from the sheriff's department, the parents of T.R.B., T.R.B., and T.R.B.'s attorney.

At the commencement of the waiver hearing, T.R.B.'s attorney announced that "we are not going to argue against the waiver." ⁴ Although the juvenile may file a petition to waive jurisdiction, sec. 48.18(1), T.R.B. had not filed such a petition. ⁵ T.R.B.'s attorney did not stipulate to any facts contained in the petitions that the district attorney filed.

After stating that "we" would not contest waiver, T.R.B.'s attorney asked the juvenile court how it wished to proceed. The juvenile court stated that the appropriate procedure was for it to review the petitions to determine prosecutive merit and to hear a statement by the state regarding the other factors relating to waiver. After stating that it had reviewed both petitions, the juvenile court concluded that the delinquency petition set forth sufficient facts for the court to find "prosecutive merit." The juvenile court then asked the district attorney if he wished to place anything on the record. Even though representatives of the Wisconsin Department of Health and Social Services and the sheriff's office were present in the courtroom, the district attorney did not call any witnesses to testify, and the court did not ask for testimony. Instead, the district attorney made a brief statement to the effect that the waiver petition showed that the juvenile system had not succeeded in helping T.R.B. to modify his conduct and that waiver of juvenile court jurisdiction would be in the juvenile's best interest. Although given the opportunity to speak, T.R.B.'s attorney declined to make a statement. T.R.B. remained silent throughout the hearing.

After making findings regarding the criteria relevant for waiver, including T.R.B.'s age, the nature of the alleged offense, T.R.B.'s record of prior offenses, and T.R.B.'s history in juvenile facilities, the juvenile court ordered that its jurisdiction be waived. ⁶

Both on appeal to the court of appeals and on review in this court the parties raise three issues: (1) whether sec. 48.18(4), Stats. 1979-80, requires the juvenile court to consider evidence other than the delinquency and waiver petitions before it can find "prosecutive merit"; (2) whether the district attorney must present testimony at the waiver hearing when the district attorney petitions for waiver and the juvenile's attorney does not contest waiver; and (3) whether the juvenile court must determine on the record that the juvenile has personally made an informed and voluntary decision not to contest waiver of juvenile court jurisdiction. ⁷

The court of appeals held that the juvenile court may find prosecutive merit on the basis of the petitions alone ⁸ and that sec 48.18(4) does not require testimony on the issue of prosecutive merit when the juvenile does not contest the waiver. The court of appeals also held, however, that even when the juvenile's counsel does not contest waiver, sec. 48.18(5), Stats. 1979-80, requires the district attorney to present testimony on the issue of whether the juvenile court should waive its jurisdiction. The court of appeals did not decide whether the record must show that the juvenile had personally made an informed and voluntary decision not to contest the waiver. We shall consider each issue in turn.

I.

We begin with the issue of the basis on which a finding of prosecutive merit must be made. The term "prosecutive merit" appears three times in sec. 48.18, Stats. 1979-80. First, sec. 48.18(4), Stats. 1979-80, provides that "the judge shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive its jurisdiction." Second, sec. 48.18(5) provides that "if prosecutive merit is found," the juvenile court shall consider relevant testimony and other relevant evidence to decide whether to waive jurisdiction. Finally, one of the criteria set forth in sec. 48.18(5)(b) on which the waiver decision is to be based is prosecutive merit. Sec. 48.18(5)(b) provides:

"(5) If prosecutive merit is found, the judge ... shall base its decision whether to waive jurisdiction on the following criteria:

"...

"(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." Sec. 48.18(5)(b), Stats. 1979-80. (Emphasis added.)

Sec. 48.18(4) and sec. 48.18(5), when read with sec. 48.18(1), Stats. 1979-80, set forth a two-stage waiver hearing. The first stage of the waiver hearing, sec. 48.18(1), (4), consists of the juvenile court's determination that the "jurisdictional factors" exist that would allow it to proceed to consider the waiver criteria: Whether the juvenile was 16 years of age or over on the date of the alleged offense, sec. 48.18(1), ⁹ and whether the state's allegation that the juvenile has violated a state criminal law has prosecutive merit, sec. 48.18(4). In the second stage of the waiver hearing, sec. 48.18(5), the juvenile court determines whether to waive jurisdiction. ¹⁰ The determination of prosecutive merit under sec. 48.18(4), although separate from the determination of waiver under sec. 48.18(5), is part of the waiver hearing. As the court of appeals noted in In Interest of D.E.D., 101 Wis.2d 193, 206, 304 N.W.2d 133 (Ct.App.1980), "[T]he statute provides for a single hearing with a sequential order of proof before the same judge."

T.R.B. raises two questions about "prosecutive merit" as that phrase is used in sec. 48.18(4), Stats. 1979-80: The meaning of the phrase prosecutive merit and the manner in which the district attorney may demonstrate prosecutive merit.

Neither the legislature nor this court has defined prosecutive merit. ¹¹ Before the adoption of sec. 48.18(4) and (5), this court first used the term "prosecutive merit" in Mikulovsky v. State, 54 Wis.2d 699, 705, 196 N.W.2d 748 (1972), a juvenile waiver case. The phrase prosecutive merit was borrowed from the Policy Memorandum of the Juvenile Court of the District of Columbia appended to Kent v. United States, 383 U.S. 541, 566-68, 86 S.Ct. 1045, 1059-60, 16 L.Ed.2d 84 (1966), where the phrase first appears. ¹² In Mikulovsky, the juvenile court applied the "Kent criteria" and heard the testimony of two police officers on the evidentiary basis of the charges against the juvenile. This...