State v. J. C.

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.
July 30, 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. 2024AP17 Cir. Ct. No. 2023JV324

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF J. C., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

J. C.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
AMBER RAFFEET AUGUST, Judge. Affirmed.
No. 2024AP17

¶1 COLÓN, J.1 Jacob2 appeals from a nonfinal order of the juvenile
court granting the State’s petition for waiver of jurisdiction and waiving Jacob into
adult court for charges of first-degree reckless injury, first-degree recklessly
endangering safety, and possession of a dangerous weapon, all stemming from a
shooting incident. For the reasons set forth below, we affirm.

BACKGROUND

¶2 On April 4, 2023, the State filed a delinquency petition charging
Jacob with one count of first-degree reckless injury contrary to WIS. STAT.
§ 940.23(1)(a), one count of first-degree recklessly endangering safety contrary to
WIS. STAT. § 941.30(1), and one count of possession of a dangerous weapon by a
person under eighteen contrary to WIS. STAT. § 948.60(2)(a), all for a shooting
incident that occurred in the early morning hours of April 3, 2023.

¶3 In the delinquency petition, the State alleged that Jacob and a group
of his teenage friends were hanging out on the night of April 2, 2023, and into the
early morning hours of April 3, 2023. Around 4 a.m., a group of “opps” arrived.3
Jacob became upset with their presence and started waiving a gun at them.4 The
opps eventually left, and Jacob followed them out. As they were driving away,

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, we adopt the pseudonym used by the parties in accordance with
WIS. STAT. RULE 809.19(1)(g).
3
As explained in the delinquency petition, “opp” is “a member of an opposing gang or
group.”

One of Jacob’s friends told the police that he stole the gun from a former “associate”
4

who had turned “opps.”

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No. 2024AP17

Jacob fired shots at their vehicle. The driver was shot in the back of the head,
causing the vehicle to lose control and crash. The driver went to the hospital for
treatment of his injuries and survived by, as the State later described, “sheer luck.”
Police recovered four bullet casings from the alley.

¶4 Along with the delinquency petition, the State filed a petition for
waiver of jurisdiction, and the State argued that “knowingly and intentionally
firing a handgun into a car occupied by multiple people, is so reckless, dangerous
and stupid” that Jacob could not be permitted to be released back into the
community at the time that he would have to be released from custody in the
juvenile court system. As the State explained, Jacob will turn eighteen in July
2024, and “with no Serious Juvenile Offender charges, he will have to be released
from custody.” Thus, the State argued that the juvenile system was “wholly
inadequate to provide the necessary accountability for this offense.”

¶5 In preparation for the waiver hearing, the Department of Youth and
Family Services submitted a waiver study that recommended that Jacob be kept in
the juvenile court system and not waived into adult court. Jacob’s counsel also
hired a licensed psychologist to evaluate Jacob and prepare a report. In her report,
she provided an opinion that Jacob’s treatment needs could be adequately
addressed in the juvenile court system. However, she only addressed the criteria
for waiver found in WIS. STAT. § 938.18(5) that related to Jacob’s personality and
Jacob’s treatment needs and later explained at the hearing that she considered
several of the criteria for waiver outside her area of expertise.

¶6 On October 10, 2023, the juvenile court held a waiver hearing at
which Jacob’s human service worker (HSW), Jacob’s mother, and his evaluating
psychologist testified.

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No. 2024AP17

¶7 The HSW testified that, if the juvenile court were to find Jacob
delinquent, her recommendation would be that Jacob should be placed in St.
Charles Intensive Monitoring Program with a stayed Department of Corrections
order, which would essentially result in probation in a home placement. In follow
up questioning, however, the HSW was made aware that she incorrectly believed
at the time that she made her recommendation that the offenses here were eligible
for the serious juvenile offender (SJO) program, and as result, Jacob was not
actually eligible for the order the HSW recommended. Rather, the HSW was
informed during questioning that enrollment in the Milwaukee County
Accountability Program (MCAP) was the “most significant penalty” available for
Jacob’s case in the juvenile court system.

¶8 The psychologist was additionally questioned about the services that
could be provided to Jacob in the juvenile court system, and during her testimony,
she testified that the juvenile court system could supervise Jacob “for another eight
months or so.” She further testified that Jacob would “continue to make ground”
during those eight months, and that if Jacob were placed in MCAP, the maximum
in-custody time he would receive would be 180 days.

¶9 Following the testimony, the juvenile court summarized the
testimony and enumerated each of the relevant criteria for waiver on the record.
When it reached the adequacy of the juvenile court system for Jacob’s case, the
juvenile court discussed the various options for orders presented by the parties at
the hearing, including whether an order placing Jacob in a “correctional
placement” such as Lincoln Hills or an order for MCAP would be available
through the juvenile court system. Within this context, the juvenile court stated:

I believe under this factor, has to be the time left in
the juvenile system if the [c]ourt keeps the case here.

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No. 2024AP17

[Jacob] turns [eighteen] at the end of July 2024, meaning
that the [c]ourt would only have jurisdiction over him until
that time, and that is not a significant period of time for
continued supervision. I also note that these are not SJO
eligible offenses as was referenced before, and therefore,
there would not be an availability of Department of
Corrections placement and extended placement time for
DOC or Lincoln Hills.

….

In terms of the protection of the public, it’s an
extremely serious allegation that gives rise to the petition.
And again, the [c]ourt is concerned about the time left
available to assist [Jacob] and hold him accountable in the
juvenile system and still provide for the protection of the
public.

¶10 After finding that the State met its burden to prove by clear and
convincing evidence that waiver was appropriate, the juvenile court continued:

The allegations in this case are extremely serious.… I can’t
find that the period of time left in the juvenile justice
system is sufficient to protect the interest of [Jacob] in
receiving services and being held accountable if found
delinquent or the public in holding him accountable for the
alleged behavior and ensuring safety.

¶11 In the end, the juvenile court granted the State’s waiver petition and
entered an order waiving Jacob into adult court. Jacob petitioned to appeal the
juvenile court’s order, and this court granted leave to appeal. See WIS. STAT.
RULE 809.50(3).

DISCUSSION

¶12 On appeal, Jacob argues that the juvenile court erroneously
exercised its discretion when it granted the State’s petition for waiver and waived
jurisdiction over him. Specifically, Jacob argues that the juvenile court mistakenly
believed that waiver of the juvenile court’s jurisdiction was necessary because any
services provided to Jacob would end upon his turning eighteen years old, and

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No. 2024AP17

Jacob contends that he is entitled to a new waiver hearing because he is eligible
for an order in the juvenile court system that extends beyond his eighteenth
birthday. We disagree.

¶13 Waiver of the juvenile court’s jurisdiction is governed by WIS. STAT.
§ 938.18. We review the juvenile court’s decision to waive jurisdiction under
§ 938.18 for an erroneous exercise of discretion. State v. Tyler T., 2012 WI 52,
¶24, 341 Wis. 2d 1, 814 N.W.2d 192. “A juvenile court erroneously exercises its
discretion if it fails to carefully delineate the relevant facts or reasons motivating
its decision or if it renders a decision not reasonably supported by the facts of
record.” Id. “[W]e look for reasons to sustain the court’s decision.” Id.

¶14 The decision to waive jurisdiction requires that the juvenile court
consider the following five factors: (1) the juvenile’s personality; (2) the
juvenile’s prior record; (3) the “type and seriousness of the offense”; (4) “[t]he
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 (5) “[t]he desirability of trial and disposition of the entire offense in
one court” if the juvenile was “associated” with individuals charged in adult court.
WIS. STAT. § 938.18(5). The weight assigned to each factor is within the
discretion of the juvenile court. G.B.K. v. State, 126 Wis. 2d 253, 259, 376
N.W.2d 385 (Ct. App. 1985).

¶15 Ultimately, to waive jurisdiction and considering the above factors,
the juvenile court must find 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.”
WIS. STAT. § 938.18(6).

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No. 2024AP17

¶16 In this case, Jacob takes issue with the juvenile court’s consideration
of the fourth factor because, as Jacob contends, the juvenile court erroneously
believed that Jacob must be waived into adult court because the juvenile court
could not enter an order extending beyond Jacob’s eighteenth birthday. We reject
Jacob’s argument, and we conclude that the juvenile court did not erroneously
exercise its discretion when it granted the State’s waiver petition.

¶17 As both parties recognize, there are orders available in the juvenile
court system that could extend past a juvenile’s eighteenth birthday and that these
orders could apply in Jacob’s case. See WIS. STAT. § 938.355(4) (providing for
certain orders that terminate one year after the date issued). Both parties
additionally recognize that these orders would not involve any time spent in
custody and would generally involve “placement of the juvenile in his or her
home.” See id.

¶18 Further, the record plainly demonstrates that the HSW and
psychologist endorsed certain arrangements involving placements within the
community, as opposed to placements in custody, which could extend beyond
Jacob’s eighteenth birthday. Similarly, the record demonstrates that MCAP was
presented during the hearing as the “most significant penalty” available in Jacob’s
case, and MCAP would have involved a maximum of 180 days in custody.

¶19 The record likewise plainly demonstrates that the juvenile court
considered the options for out-of-custody orders presented by the HSW and the
psychologist, and rejected them. After detailing the out-of-custody services and
programs available, the juvenile court turned to the additional consideration of the
public stating, “In terms of the protection of the public, it’s an extremely serious
allegation that gives rise to the petition…. [T]he [c]ourt is concerned about the

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No. 2024AP17

time left available to assist [Jacob] and hold him accountable in the juvenile
system and still provide for the protection of the public.” (Emphasis added.)
Thus, taken in context, the record demonstrates that, in light of all of the relevant
considerations, which necessarily includes the nature of the allegations and the
protection of the public, the juvenile court considered that an in-custody
arrangement would be the most appropriate option applicable in Jacob’s case.
Further, the juvenile court considered the availability of in-custody arrangements
for Jacob inadequate in the juvenile system with his eighteenth birthday
imminently approaching.

¶20 In other words, the juvenile court considered that once a juvenile
turns eighteen and is not eligible for placement in custody as part of the SJO
program or otherwise, the juvenile court has no ability to hold the juvenile in
custody, and the juvenile court considered this lack of ability to keep Jacob in
custody inadequate in light of the nature of the allegations and the need to protect
the public. See WIS. STAT. §§ 938.02(10r), 938.208, 938.209 (limiting juvenile
detention facilities to those under the age of eighteen and excluding those under
the age of eighteen from jails and prisons); see also WIS. STAT. §§ 938.355(4)(b),
938.34(4m) (stating that correctional placement orders “may apply” for up to two
years or until the juvenile’s eighteenth birthday).

¶21 As the State argued below, the juvenile court system is “very
limited” in a case like Jacob’s and a maximum sentence of 180 days in MCAP for
shooting someone in the head “is wholly insufficient to hold him accountable to
the community and to society.” Given that the fourth factor requires that the
juvenile court consider the adequacy of the juvenile court system for both Jacob’s
needs and the public’s, see WIS. STAT. § 938.18(5)(c), this court concludes that the
juvenile court did not erroneously exercise its discretion.

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No. 2024AP17

¶22 In arguing that the juvenile court here erroneously exercised its
discretion and that he should be granted a new waiver hearing, Jacob relies on
State v. M.C., No. 2021AP301, unpublished slip op. (WI App Aug. 11, 2021).5
Jacob’s reliance on M.C. is misplaced.

¶23 In M.C., the court remanded for reconsideration of the decision to
grant a waiver after the juvenile court failed to consider the “suitability” of the
SJO program and instead considered waiver appropriate because the juvenile
system could not provide services to the juvenile after his eighteenth birthday. Id.,
¶¶1, 8-9. Importantly, the court’s decision to remand to reconsider the
appropriateness of waiver was clearly driven by the express statutory requirement
that the juvenile court consider the adequacy of the SJO program on the record at
the hearing and the fact that the SJO program would extend beyond the juvenile’s
eighteenth birthday. Id., ¶¶4-5, 8 (citing WIS. STAT. § 938.18(5)(c)).

¶24 Despite any similarity between the stated views of the juvenile
courts in M.C. and here that the juvenile system cannot reach the juvenile beyond
the juvenile’s eighteenth birthday, this court nonetheless finds M.C. inapposite. In
contrast to M.C., there is no dispute here that the SJO program is inapplicable to
Jacob’s case, and there is no way for the juvenile system to reach Jacob after his
eighteenth birthday by way of the SJO program or other in-custody placement, as
was the case in M.C. Further, there is also no argument here that the juvenile
court failed to consider an express statutory requirement at Jacob’s waiver hearing.
Thus, we reject Jacob’s reliance on M.C.

5
Pursuant to WIS. STAT. RULE 809.23(3)(b), an opinion from a one-judge panel issued
on or after July 1, 2009, may be cited as persuasive authority. While we need not distinguish or
discuss an opinion issued by a one-judge panel, id., we do so here for the sake of completeness.

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No. 2024AP17

¶25 Having considered the relevant facts and made a decision reasonably
supported by the record, we conclude that the juvenile court did not erroneously
exercise its discretion when it granted the State’s petition to waive jurisdiction of
the juvenile court.6 See Tyler T., 341 Wis. 2d 1, ¶24. “[E]ligibility is not the same
as ‘suitability,’ the latter of which is the consideration for the court as part of its
overall determination on whether waiver is appropriate.” M.C., No. 2021AP301,
¶8. In this case, while Jacob may have been eligible for orders extending beyond
his eighteenth birthday, the record reflects that the juvenile court did not consider
them suitable, and thus, found that the juvenile court system was not adequate in
this case because the suitable orders would not extend past Jacob’s eighteenth
birthday.

By the Court.—Order affirmed.

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

6
As a result of our conclusion, we do not address the State’s additional argument that the
case would become moot if remanded for a new waiver hearing. See State v. Blalock, 150
Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should be decided on the narrowest
possible ground[.]”).

10