State v. M. P.

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.
June 26, 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. 2024AP32 Cir. Ct. No. 2023JV33

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF M.P., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

M.P.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Calumet County:
JEFFREY S. FROEHLICH, Judge. Affirmed.
No. 2024AP32

¶1 GROGAN, J.1 M.P. appeals from an interlocutory order2 waiving
him into adult court. He contends the circuit court erroneously exercised its
discretion when it found the State proved by clear and convincing evidence that
M.P.—who was sixteen years and four months old at the time—should be tried in
adult court instead of juvenile court. This court affirms.

I. BACKGROUND

¶2 In November 2023, the State filed a Delinquency Petition charging
M.P. with four counts: (1) first-degree recklessly endangering safety, use of a
dangerous weapon (WIS. STAT. §§ 941.30(1), 939.63(1)(b)); (2) endangering
safety by reckless use of a firearm (WIS. STAT. § 941.20(2)(a)); (3) possession of a
dangerous weapon by a person under eighteen (WIS. STAT. § 948.60(2)(a)); and
(4) pointing a firearm at another (WIS. STAT. § 941.20(1)(c)). The charges
stemmed from an incident where M.P. and some friends went to the home of
another juvenile male to resolve a dispute by physically fighting. One of M.P.’s
friends brought a handgun, and during the fight, M.P. asked the friend to load the
handgun for him. Witnesses told police that M.P. pointed the gun at the juvenile
male who had started running back toward the house and fired multiple shots.
Although no one was hit, two bullets penetrated the house where multiple children
(ages two to fifteen) were inside.

¶3 The State filed a motion seeking to waive M.P. from juvenile to
adult court. The motion stated that M.P. has had seven delinquency petitions filed

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
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3).

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No. 2024AP32

over the last several years, not including the current Petition, for the following:
(1) criminal damage to property; (2) theft/criminal damage to property as party to
a crime; (3) manufacturing/delivery of THC for possessing and selling marijuana;
(4) possession of narcotics/possession of drug paraphernalia/obstruction involving
two pills containing fentanyl; (5) burglary and operating a motor vehicle without
owner’s consent involving stealing a car; (6) possession of drug paraphernalia (a
pipe used to smoke Percocet) and for possession of Percocet; and (7) battery,
disorderly conduct, and violation of a nonsecure custody order.

¶4 The waiver motion alleged that waiver was appropriate because
M.P.’s behavior was escalating and becoming more dangerous and that “the adult
court system is better equippe[d] to provide the interventions necessary to provide
for [M.P.’s] safety and the safety of the community.” The motion also addressed
WIS. STAT. § 938.18’s waiver criteria. With respect to M.P.’s personality and past
record, the State said:

[M.P.] has an extensive juvenile record including
multiple felony charges. [M.P.] is a healthy 16 year old
male. There are no cognitive and developmental issues that
the department has been made aware of. [M.P.] has been
oppositional and unwilling to follow his supervision rules,
parent’s rules, and the law. He has run from the home, and
is spending time with peers that are also engaged in
delinquent behavior. [M.P.] has been provided services for
the past three years aimed at rehabilitation. At this time,
his attitude towards treatment, his rules, and what is
expected of him is not being taken seriously. He continues
to violate the rules set forth for him and has a blatant
disregard for the safety of others.

Regarding the seriousness of the charges, the State explained that “[t]he potential
for significant harm or loss of life was extremely high, and at least two bullets
penetrated the structure and could have caused harm or loss of life to anyone
inside the building. [M.P.] discharged the firearm and [physically] struck the

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victim knowingly, and he has a history of violent behavior.” And, as to whether
the juvenile system had facilities and programs available that would properly serve
M.P., the State noted:

Given [M.P.’s] time on supervision, the dangerousness
of his behavior, and the apparent inefficacy of
programming and services provided to him through the
juvenile court system, the juvenile system is no longer
appropriate for [M.P.]. [M.P.] will turn 17 in 2024, and
continues to disobey the law despite being on juvenile court
supervision. He has been placed in secure detention
multiple times, and has received charges while under home
detention rules with electronic monitoring.

¶5 At the waiver hearing, Sergeant Chad Riddle of the Appleton Police
Department testified about the investigation into the incident, including the
witness statements regarding M.P. having pointed a gun at a juvenile female,
asking his friend to load the gun, and shooting it in the direction of the juvenile
male who was running toward his house.

¶6 Social Worker Jason Halbach of the Brown County Health and
Human Services Department also testified. Halbach testified that he was M.P.’s
case worker and explained that this was not M.P.’s first contact with the juvenile
justice system. According to Halbach, M.P. had previously been on a delinquency
petition for one year in 2020 for criminal damage to property and theft of movable
property and confirmed that M.P. had also been on a separate petition “relating to
manufacture or delivery of THC in ‘20[.]” M.P. lived in Green Bay (Brown
County) with his father at the time of those events, and as a result of the 2020
delinquency petitions, the Brown County Health and Human Services Department
connected M.P. with a mentoring program called Advocates for Healthy
Transitional Living, which provided group sessions once or twice a week to work
“on errors in thinking.” Halbach testified that M.P. participated in the program “at

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No. 2024AP32

times[,]” but that at other times “he was withdrawing from … wanting to be a part
of it.”

¶7 Next, Halbach testified about a June 2022 delinquency petition for
burglary (a felony) and operating a motor vehicle without the owner’s consent,
which resulted in a deferred prosecution agreement (DPA). As a part of the DPA,
M.P. was to move to Wausau and live with his father’s ex-wife because she had a
background in counseling and would assist in obtaining services for M.P. in the
Wausau area. The apparent rationale behind this plan was that it would be
beneficial to remove M.P. from the negative peer group in Green Bay.

¶8 M.P. appeared to be doing well in Wausau from September 2022 to
November 2022. However, the DPA was revoked in December 2022 after M.P.
was found to be in possession of narcotics. M.P. subsequently returned to Green
Bay, and as a result of the drug possession, he was “placed at Brown County
Secure Detention and then later placed at Brown County Shelter Care under
electronic monitoring.”

¶9 While at the Brown County Shelter Care, M.P. slapped or hit a staff
member, which resulted in M.P. returning to juvenile court. The disposition
following that event resulted in a joint custody placement with his father and
grandmother. He was on electronic monitoring during this timeframe. M.P. went
to live with his grandmother in Neenah with the hope that removing him from the
Green Bay area would help him stop breaking the law. Halbach testified that
things seemed to be going relatively well—despite one incident that was resolved
with the help of the school liaison officer—and that M.P. struggles with “getting
up at times for school,” but that M.P. was otherwise doing well until the incident
underlying this case. Halbach also acknowledged that M.P. was taking medication

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No. 2024AP32

for ADHD, but did not need special education classes and was not aware whether
he had been under an IEP (individualized education plan).3 According to Halbach,
M.P. was working in addition to going to school, and he was also aware that M.P.
had been using marijuana.

¶10 When asked about the appropriateness of the juvenile system in
addressing the most recent allegations against M.P., Halbach expressed concerns
given the seriousness of the counts and the fact that less than two years remained
before M.P. would turn eighteen He explained that although this somewhat
limited timeframe might be sufficient, because of M.P.’s repeated pattern of
choosing negative influences, he would have recommended waiver to adult court
had this case been heard in Brown County, where Halbach had been M.P.’s case
worker. Halbach said the approximate year and a half that would be available for
M.P. if he remains in the juvenile system might be sufficient if M.P. cooperated,
but ultimately, Halbach opined that this was not enough time to address the safety
needs of the community.

¶11 Halbach further testified that the typical alternate correctional
placement facilities available to juveniles such as Rawhide or Homme Home were
unlikely options for M.P. because he did not believe those resources/programs
were likely to admit M.P. into their respective programs given the severity of the

3
M.P. states in his brief that he had been on an IEP, which his attorney also alluded to at
the hearing.

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No. 2024AP32

charges in this case.4 Moreover, when asked if M.P., based on Halbach’s training,
experience, and knowledge of M.P., could “be safely supervised in the
community” “at this point,” Halbach responded “No.”

¶12 After hearing closing arguments, the circuit court identified the
pertinent facts and engaged in a careful and thoughtful analysis of how those facts
fit within WIS. STAT. § 938.18(5)’s statutory factors. The court seemed bothered
and concerned that Brown County had twice sent M.P. to other communities as its
only apparent solution to M.P.’s unlawful acts and noted that some of the statutory
factors therefore favored keeping M.P. in the juvenile court. However, the court
also found that the “two biggest” factors—“the extreme seriousness of the
offense” and the short length of time before M.P. turned eighteen—outweighed
any of the factors that favored keeping M.P. in the juvenile court. Accordingly, it
determined that it was in both M.P.’s and the public’s best interest to waive M.P.
into adult court. M.P. appeals.

II. DISCUSSION

¶13 “WISCONSIN STAT. § 938.18 governs waiver of juvenile court
jurisdiction.” State v. X.S., 2022 WI 49, ¶25, 402 Wis. 2d 481, 976 N.W.2d 425.
Appellate courts review the circuit court’s decision on juvenile waiver under the
erroneous exercise of discretion standard, and this court will uphold the circuit

4
Although Halbach testified during his direct testimony that he did not believe such
resources would be available to M.P. if M.P. remained in the juvenile system, on
cross-examination and re-direct, he elaborated that whether or not M.P. would qualify for such
programs would ultimately depend upon the screening process and that he could not definitively
say whether M.P. would be accepted without M.P. having been screened. He further confirmed
that if M.P. was initially placed at Lincoln Hills, it was possible that he could be transferred to
one of the aforementioned facilities at a later point.

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No. 2024AP32

court’s waiver decision if it considered the pertinent facts, applied § 938.18, and
reached a reasonable determination. X.S., 402 Wis. 2d 481, ¶25. This court
reviews the circuit court Record to determine whether the circuit court exercised
discretion, and if it did, this court looks for reasons to uphold the discretionary
decision. Id. An appellant bears the burden on appeal to show that the circuit
court erred. Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d 448, 899
N.W.2d 381.

¶14 As noted above, WIS. STAT. § 938.18 sets forth the requirements and
procedures a circuit court must follow in deciding a motion seeking to waive a
juvenile into adult court and provides for a two-step process. First, the circuit
court must determine whether there is prosecutive merit. Sec. 938.18(4). M.P.
does not dispute that there was prosecutive merit, and therefore this court need not
address the first step. Second, the circuit court determines whether the juvenile
should be waived into adult court by considering the specific criteria listed in
§ 938.18(5), which identifies the following five factors the circuit court must
consider in determining whether waiver is appropriate:

(a) The personality of the juvenile, including whether
the juvenile has a mental illness or developmental
disability, the juvenile’s physical and mental maturity, and
the juvenile’s pattern of living, prior treatment history, and
apparent potential for responding to future treatment.

(am) The prior record of the juvenile, including
whether the court has previously waived its jurisdiction
over the juvenile, whether the juvenile has been previously
convicted following a waiver of the court’s jurisdiction or
has been previously found delinquent, whether such
conviction or delinquency involved the infliction of serious
bodily injury, the juvenile’s motives and attitudes, and the
juvenile’s prior offenses.

(b) The type and seriousness of the offense, including
whether it was against persons or property and the extent to

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No. 2024AP32

which it was committed in a violent, aggressive,
premeditated or willful manner.

(c) The adequacy and suitability of facilities, services
and procedures available for treatment of the juvenile and
protection of the public within the juvenile justice system,
and, where applicable, the mental health system and the
suitability of the juvenile for placement in the serious
juvenile offender program under s. 938.538 or the adult
intensive sanctions program under s. 301.048.

(d) The desirability of trial and disposition of the entire
offense in one court if the juvenile was allegedly associated
in the offense with persons who will be charged with a
crime in the court of criminal jurisdiction.

¶15 In analyzing the statutory factors, the circuit court addressed all but
the fifth factor, which M.P. agrees does not apply here. As to the remaining
factors, the court determined that although several factors weighed in favor of
M.P. remaining in juvenile court, both M.P.’s age and the seriousness of the
offense weighed in favor of waiver into adult court. M.P. concedes that the
seriousness of the crime factor favors waiver to adult court, but contends that none
of the other factors do. Thus, he argues that the circuit court erroneously exercised
its discretion both in failing to properly explain why M.P.’s age favored waiver
and in concluding that the only other factor supporting waiver—seriousness of the
crime—outweighed all other factors in his case.

¶16 Having reviewed the Record, it is clear that the circuit court
struggled with its decision given that the services M.P. had received through
Brown County were seemingly incomplete. However, in discussing the
seriousness of the crime, the court recognized that M.P.’s actions in this case were
an escalation of his prior juvenile criminal activity, and it gave significant weight
to M.P.’s having intentionally fired a gun without regard for the potentially deadly
consequences of his actions—particularly given the presence of young children in

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No. 2024AP32

the line of fire. Specifically, the court described M.P.’s crimes as “[e]xtremely
serious, extremely dangerous,” noting that “somebody could be dead” because of
M.P.’s actions, and found that M.P.’s actions were premeditated, willful acts given
that he had intentionally gone to the victim’s home to engage in a physical fight
and chose to use a gun during that interaction. The court also observed that M.P.
made poor friend choices despite being moved out of Green Bay twice, noting that
M.P. “seems to be able to find those individuals at the bottom of the barrel no
matter where you place him,” that M.P. had “school attendance issues,” and that
he was considered a runaway at one point.

¶17 The circuit court was also troubled by M.P.’s inability to abide with
the law despite his prior delinquency petitions and the repeated opportunities he
was given and further noted that when M.P. was on the DPA for burglary and
operating a motor vehicle without owner’s consent, the DPA was ultimately
revoked. The court also expressed concern about the short length of time
remaining for juvenile court jurisdiction due to M.P.’s age and questioned
whether, under the circumstances and in light of the seriousness of the alleged
crime, that the approximate one year and eight months available prior to M.P.
turning eighteen would be sufficient to rehabilitate M.P. and keep the public safe.

¶18 At the same time, the circuit court acknowledged there were some
services in the juvenile system available to M.P.—including “education, mental
health resources, and family therapy.” And, it noted that M.P. had not yet been
provided AODA (alcohol and other drug abuse) treatment, that he had not “had a
mental illness screening,” and that he “has never refused treatment.” The court
also recognized that M.P. had some success in the juvenile system—“he’s
responded to treatment in the past,” he had not been waived into adult court
previously, and he has “no prior criminal convictions.” In addressing the types of

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No. 2024AP32

facilities and services that would be available to M.P. if he remained in the
juvenile system as opposed to the adult system, the court both questioned the
quality of the services available—particularly those available in Brown County,
which the court commented had done “such a poor job that we can’t count on
them to protect the community”—and acknowledged that the juvenile system’s
resources had not yet been fully exhausted.

¶19 Ultimately, after analyzing all of the factors, the circuit court
concluded that “the juvenile system has just absolutely failed,” but that despite the
factors “that would seem to suggest retention in the juvenile system” is
appropriate, given the seriousness of the offenses and the short time left before
M.P. turns eighteen, it is in both M.P.’s and the public’s best interest to waive him
into adult court.5

¶20 Based on its analysis, and consistent with WIS. STAT. § 938.18(6),
the circuit court stated its finding that the State had met its burden of proving “that
it would be contrary to the best interest of the juvenile and the public to hear the
case in the juvenile court.”6

5
The circuit court made one confusing statement that it clarified almost immediately.
Specifically, the court first said: “And while the juvenile system has just absolutely failed on the
extreme seriousness of the offense just cannot outweigh all of the other factors that would seem to
suggest retention in the juvenile system to be appropriate.” However, the court followed up by
explaining that it was granting the waiver because of the “extreme seriousness of the offense and
the little time that’s available in the juvenile system[.]” It is therefore clear that the court found
that these two factors outweighed the factors that favored remaining in the juvenile system, and
this court therefore concludes the circuit court’s confusing statement was simply a misstatement.
6
WISCONSIN STAT. § 938.18(6) provides:

(continued)

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No. 2024AP32

¶21 M.P. raises several arguments in attempting to establish that the
circuit court erroneously exercised its discretion in waiving him to adult court.
Specifically, M.P. asserts that “the circuit court lacked the factual record necessary
to support its waiver ruling” as “there were significant holes in the evidence the
State offered to support its waiver petition[.]” M.P., however, did not make this
argument in the circuit court, and it therefore did not have an opportunity to
specifically address any purported deficiency. Because M.P. failed to raise this in
the circuit court, this court will not address this argument further. See
Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10-11, 261 Wis. 2d 769, 661
N.W.2d 476 (argument forfeited because appellant failed to fully develop this
argument before the circuit court).

¶22 M.P. next argues that the circuit court’s decision was unreasonable
because two criteria should not outweigh all other factors favoring retention in
juvenile court, particularly given the purpose of the juvenile system and the fact
that M.P. has potential to be rehabilitated. This court is not persuaded. First, the
weight to be given to the various factors is left to the circuit court’s discretion.
G.B.K. v. State, 126 Wis. 2d 253, 259, 376 N.W.2d 385 (Ct. App. 1985). Second,
the analysis does not require a straight-up counting of factors—in other words,
whether waiver is appropriate is not dependent solely on the number of factors that

After considering the criteria under sub. (5), the court shall state
its finding with respect to the criteria on the record, and, if the
court determines on the record that there is clear and convincing
evidence that it is contrary to the best interests of the juvenile or
of the public to hear the case, the court shall enter an order
waiving jurisdiction and referring the matter to the district
attorney for appropriate proceedings in the court of criminal
jurisdiction. After the order, the court of criminal jurisdiction
has exclusive jurisdiction.

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No. 2024AP32

favor waiver versus the number of factors that do not As is evident from the
Record, the circuit court engaged in a careful and thoughtful analysis of what was
in M.P.’s and the public’s best interest under the facts of this case and noted its
reliance on two cases—G.B.K., 126 Wis. 2d 253, and B.B. v. State, 166 Wis. 2d
202, 479 N.W.2d 205 (Ct. App. 1991)—in making its determination.

¶23 In G.B.K., we upheld a circuit court waiver decision where the
circuit court assigned great weight to the seriousness of the offense because the
weight to be assigned the statutory factors is left to the circuit court’s discretion.
Id., 126 Wis. 2d at 259. In B.B., the only statutory factor that favored waiver to
adult court was the seriousness of the offense, but we still concluded the circuit
court did not err in ordering waiver to adult court. Id., 166 Wis. 2d at 209. Here,
the seriousness of the offense and the short time left for juvenile jurisdiction were
significant to the circuit court in its analysis, and, as a result, it afforded greater
weight to these factors than the others because it recognized that time was running
out for M.P. in the juvenile court and that the seriousness of his offenses had
escalated. A reasonable basis therefore supports the circuit court’s decision to
weigh these factors more heavily.

¶24 Finally, M.P. contends the circuit court did not adequately explain
why his age mattered in determining that waiver was appropriate. This court
disagrees. A juvenile’s age will likely always matter in that as a juvenile
approaches the age of eighteen, the less time the juvenile will remain within the
juvenile court’s jurisdiction. Although the court here could have perhaps stated
this more explicitly, the relevance and importance of M.P.’s age is rather obvious
and can be readily inferred from what the court did say given the testimony at the
waiver hearing. Specifically, at the time of the hearing, the court noted that M.P.
had one year and eight months before his eighteenth birthday. Although Halbach

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No. 2024AP32

testified somewhat inconsistently as to whether this limited timeframe would be
sufficient to rehabilitate M.P. and keep the community safe, given the escalation
of M.P.’s actions—particularly after having already been on multiple prior
petitions and having been given multiple chances to conform his conduct over a
three-to-four-year period and having failed to do so—it was reasonable for the
court to ultimately conclude that the time remaining before M.P. aged out of
juvenile jurisdiction was insufficient to address his serious needs and the risks to
the public. This is particularly so given that, as the court noted, M.P.’s offenses
were escalating from nonviolent crimes to extremely violent ones and that M.P., in
engaging in such dangerous actions, did not show any regard or concern for the
lives of others.

¶25 Based on the foregoing, this court concludes that the Record reflects
that the circuit court properly considered the relevant statutory factors, assigned
greater weight to the factors it saw as the most significant under the facts of this
case, applied the proper law, and expressed its reasons for concluding that M.P.
should be waived into adult court. It clearly exercised its discretion, and it had a
reasonable basis for its discretionary decision. Therefore, M.P. has failed to
satisfy his burden of establishing that the circuit court erroneously exercised its
discretion in granting the waiver motion.

By the Court.—Order affirmed.

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

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