State v. S. R.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 14, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1110 Cir. Ct. No. 2023JV187

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF S.R., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-APPELLANT,

V.

S.R.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
NIDHI KASHYAP, Judge. Affirmed.
No. 2023AP1110

¶1 DONALD, P.J.1 The State appeals from an order dismissing a
delinquency petition filed against S.R. (hereinafter Susan)2 and referring the
matter for a deferred prosecution agreement (DPA). The State contends that the
trial court erroneously exercised its discretion. For the reasons discussed below,
we reject the State’s argument and affirm.

BACKGROUND

¶2 On December 27, 2022, at 2:44 a.m., police observed a blue Honda
CRV operating without its headlights on and lacking registration plates. Police
attempted to stop the vehicle, but the CRV fled reaching a high level of speed at
one point and disregarding stop signs and red lights. Eventually, police conducted
a pursuit intervention maneuver and the CRV struck a tree and came to a stop.
Fourteen-year-old Susan, the driver, got out of the CRV and took off running.
Another peer-aged child remained in the passenger’s seat. Officers chased Susan,
tased her twice, and took her into custody. Officers located an uncapped bottle of
alcohol in the CRV’s center console. The State charged Susan with second-degree
recklessly endangering safety, attempting to flee or elude an officer, and
obstructing an officer.

¶3 Susan’s counsel filed a motion to dismiss and refer the matter for a
DPA pursuant to WIS. STAT. § 938.21(7). As grounds, counsel cited a number of
factors, including Susan’s young age, her predisposition cooperation, lack of a
prior juvenile record, positive academic record, low risk to reoffend on a risk

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading, in lieu of using the initials S.R., we use the pseudonym “Susan.”

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No. 2023AP1110

assessment tool, and participation in therapy. The motion asserted that a DPA
would satisfy the public’s interest in holding Susan accountable, monitoring her,
and providing her with services.

¶4 At the subsequent hearing, the State requested to file a response to
the DPA motion. The State also informed the trial court it was considering
resolving the matter via a consent decree pursuant to WIS. STAT. § 938.32
contingent upon whether the court granted a DPA.3

¶5 In its written response, the State argued that a DPA was insufficient
to serve Susan’s needs or protect the community. The State focused on the facts
of the underlying offense and alleged that a DPA would not hold Susan
accountable, provide individualized services, or protect the public. The State
argued that granting a DPA would communicate to the public that “your first one
is free,” and therefore exacerbate the problem. Along with the motion, the State
submitted the Intake Conference Assessment, a set of police reports, and an
example of a two-month DPA from another confidential case.

¶6 On June 1, 2023, the trial court held a hearing on the motion.
Susan’s counsel began by noting that Susan was fourteen years old, a straight-A
student with “great aspirations to be a doctor or lawyer,” and did not have any
prior or subsequent referrals. In addition, Susan was part of the “National Young
Junior Leaders.” Counsel also stated that Susan was not part of a gang, the vehicle
was not stolen, and she was at low risk to reoffend. Counsel noted that while there

3
A consent decree allows a juvenile to be placed outside of the juvenile’s home and may
be extended beyond a year. See State v. C.G.B., 2017 WI App 32, ¶¶7-8, 375 Wis. 2d 781, 896
N.W.2d 387.

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No. 2023AP1110

was alcohol in the vehicle, the police did not indicate that Susan showed any signs
of intoxication, and if she was intoxicated, she would have faced an additional
charge. Susan’s mother also noted that Susan was invited to go on a seven-day
college tour in Washington D.C. based on her good grades and her involvement
with the track and cheerleading teams.

¶7 The Human Services Worker, Angelica Soto, stated that there were
no alcohol and drug (AODA) concerns or absence without leave behavior. Soto
also reported that Susan was doing “very well following the placement rules” and
keeping in communication with her aunt and mother. Soto, however, did not
support a DPA and believed that a consent decree would be more appropriate
because Susan apparently had another matter open.4

¶8 Soto’s supervisor, Mike Hodge, equivocated on whether a DPA or a
consent decree would be more appropriate. Hodge indicated that a DPA would
likely be nine months. Hodge stated that if getting tased did not have an effect, it
“doesn’t matter how long or what type of order she’s going to be on; because, I
would imagine that would have [been] a traumatic experience [for] her.” Hodge
informed the court that on a DPA, services would be available including a GAIN
assessment5 and drug and alcohol counseling from various vendors.

¶9 The State played the squad car video of the chase. The State
indicated that this was “not the most aggravated fleeing I’ve ever seen,” as it was

4
No additional information was submitted regarding this matter.
5
A GAIN assessment is a comprehensive bio-psychosocial assessment, which can be
used to screen for substance use and disorders. See generally www.gaincc.org (last visited
May 6, 2024).

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No. 2023AP1110

“somewhat of a low-speed fleeing.” According to the State, a DPA was not
appropriate because Susan could have killed or seriously injured herself, her
passenger, or someone else. The State also noted its skepticism that Susan had not
consumed alcohol considering the uncapped bottle of alcohol, a jug of what
appeared to be fruit punch in the well of the front passenger’s seat, and a cup in
the driver’s side door pocket which appeared to contain some liquid. The State
contended that reckless driving and fleeing are a “chronic problem” in Milwaukee
County and dismissing this type of case would only exacerbate the problem. In
addition, the State argued that a DPA would not provide sufficient supervision and
pointed to the confidential juvenile DPA filed with its motion.

¶10 The trial court began its decision by stating that “[t]his is a tough
case because I agree with a lot of what has been said by everyone[.]” The court
indicated that, like the State, it believed that Susan has an AODA need based on
the bottle of alcohol in the vehicle. The court stated that any use of alcohol at
Susan’s age was inappropriate.

¶11 Next, the trial court examined whether it was in Susan’s best interest
for a DPA to be granted. The court noted that Susan has good grades, no prior
record, and was at a low risk to reoffend. The trial court found that a DPA would
benefit Susan because she could receive services without further court
involvement.

¶12 The trial court then stated “now, comes a harder question, does it
benefit the community.” The court noted that Susan put herself, her passenger,
other civilian drivers, and the police in danger. The court then stated that the
biggest question was therefore whether “the community [will] be sufficiently
protected with a DPA.” The court stated that Susan was at a low risk to reoffend

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No. 2023AP1110

and had “a lot to lose.” The court further stated that her “biggest concern” with
Susan was an AODA need, which could be addressed with a DPA. Thus, the court
found that it was in the best interest of the public to dismiss the case and refer the
matter for a DPA. The State now appeals.

DISCUSSION

¶13 WISCONSIN STAT. § 938.21(7) provides that a court has discretion to
dismiss a juvenile case and refer the matter for a deferred prosecution, if it is in
“the best interests of the juvenile and the public[.]” See also State v. Hezzie R.,
219 Wis. 2d 848, 874, 580 N.W.2d 660 (1998).

¶14 On appeal, we “defer to the discretionary decisions of [trial] court
judges, who are in the best position to observe the facts and apply the law.” State
v. X.S., 2022 WI 49, ¶53, 402 Wis. 2d 481, 976 N.W.2d 425. We will not search
the record to find reasons to overturn a trial court’s decision, however, a trial court
“must exercise their discretion within the bounds of reasonable decision-making.”
Id.

¶15 The State contends that “there is nothing in the record that
demonstrates dismissing the petition was in the public’s interest” and
“[c]consequently, there is not a rational basis in the record for finding that
dismissing the case was in the public’s interest.” The State also asserts that the

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No. 2023AP1110

trial court “did not engage in a process of reasoning or proper explanation when it
concluded that the best interest of the public would be served by a [DPA].”6

¶16 First, we disagree that the record is deficient with respect to the
public’s interest. Susan’s motion asserted that a DPA would satisfy the public’s
interest in holding Susan accountable, monitoring her, and providing her with
services. Additionally, the motion asserted a DPA would “minimize the potential
for further negative behavior.”

¶17 Second, the trial court appropriately considered the best interest of
the public. The court stated that this was a hard question and acknowledged the
seriousness of the offense. The court then addressed the State’s arguments
regarding whether a DPA would adequately protect the public. The court
considered Susan’s risk assessment and that Susan has “a lot to lose” given that
she is a good student who wants to go to college. The court further stated that her
“biggest concern” with Susan was AODA, which could be addressed with a DPA.
The court then found that it is in the best interest of the public to dismiss the case
and refer the matter for a DPA. Thus, the trial court examined the evidence and
delineated its reasoning. Based on the record and the court’s comments, we are
not persuaded that granting Susan’s motion was unreasonable.

¶18 Therefore, for the reasons stated above, we affirm.

By the Court.—Order affirmed.

6
The State additionally asserts that “[i]t is debatable whether there was a reasonable
basis for the trial court to find that dismissing the petition was in [Susan’s] best interest[.]” The
State, however, does not further discuss or address Susan’s best interest. We do not address
conclusory and undeveloped arguments. State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (1992).

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No. 2023AP1110

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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