State v. T.G.

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 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP351 Cir. Ct. No. 2020JV288

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF T.G., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

T. G.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
JODI L. MEIER, Judge. Affirmed.
No. 2021AP351

¶1 NEUBAUER, C.J.1 T.G. appeals from a juvenile court order
waiving him into adult court.2 Whether to waive jurisdiction, once prosecutive
merit is found, is within the discretion of the juvenile court. Because the court did
not err in finding prosecutive merit or erroneously exercise its discretion in
waiving jurisdiction, we affirm.

BACKGROUND

¶2 In late 2020, the State filed a delinquency petition against T.G.
following a serious car accident involving a stolen car that T.G., who was ten days
shy of his sixteenth birthday at the time of the accident, admitted he had been
driving when it crashed. T.G. and at least two passengers in the vehicle were
seriously injured in the accident. The delinquency petition alleged that T.G.
committed one count of “Drive or Operate a Vehicle Without Owner’s Consent,”
contrary to WIS. STAT. § 943.23(3), and two counts of “Knowingly Operate Motor
Vehicle Without a Valid License-Cause Great Bodily Harm,” contrary to WIS.
STAT. § 343.05(3)(a) and (5)(b)4. Each of the charged counts is a Class I Felony,
punishable by imprisonment of not more than three years and six months
confinement and a fine of not more than $10,000 if committed by an adult.

¶3 At the same time it filed the delinquency petition, the State filed a
petition for waiver of jurisdiction, asking that T.G. be waived into adult court
based on his alleged offenses. In support of waiver, the State cited T.G.’s age, the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
This court granted leave to appeal from this nonfinal order. See WIS. STAT.
RULE 809.50(3).

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limited time left for disposition of the charges and adequate treatment in the
juvenile court system, and the seriousness of the offenses.

¶4 The juvenile court held a hearing on the waiver petition. The court
first heard arguments from the parties regarding whether there was prosecutive
merit as to the count charging T.G. with operating without the owner’s consent.
Pointing out the “low threshold for prosecutive merit,” the court found that T.G.’s
own statement that he had been driving when the accident happened and the fact
that the car was stolen supported the finding of prosecutive merit.

¶5 After hearing testimony and arguments and reviewing the
delinquency petition, waiver petition, T.G.’s school records, and the waiver report
prepared by a county social worker, the juvenile court addressed the statutory
factors delineated in WIS. STAT. § 938.18(5).3 Specifically, the court considered

3
WISCONSIN STAT. § 938.18(5) provides that a court is to consider the following factors
in determining whether waiver of jurisdiction 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 which it was
committed in a violent, aggressive, premeditated or willful
manner.

(continued)

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“the personality of [T.G.],” “whether [T.G.] has a mental illness or developmental
disability,” his “physical and mental maturity,” his “pattern of living,” “his prior
treatment history” and “apparent potential for responding to future treatment,” his
“prior record,” “jurisdiction that’s been previously waived,” including whether
T.G. has “been convicted following a waiver … been previously found
delinquent,” and “whether any conviction or delinquency involved the infliction of
serious bodily injury.”

¶6 The juvenile court also considered T.G.’s “motives and attitudes,”
“the type and seriousness of these [charged] offenses,” and whether the “offenses
were committed in a violent, aggressive, premeditated[,] or willful manner.”
Finally, the court “look[ed] to the adequacy and suitability of facilities, services[,]
and procedures available for treatment of [T.G.] as well as the protection of the
public within the juvenile justice system.”

¶7 After applying the facts presented at the hearing to the statutory
factors, the juvenile court ultimately granted the waiver petition. The court found
that T.G. needs intensive intervention and “there needs to be some serious

(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 [WIS. STAT. §] 938.538 or the adult intensive sanctions
program under [WIS. STAT. §] 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.

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protection of the public and I lean on the protection of the public the most.” T.G.
appeals.

DISCUSSION

Standards of Review and Applicable Legal Standards

¶8 The waiver process first requires the juvenile court to determine if
the delinquency petition has prosecutive merit. WIS. STAT. § 938.18(4)(a). If
prosecutive merit is found, the court must review the facts of the case in light of
the factors set forth in § 938.18(5). See D.H. v. State, 76 Wis. 2d 286, 305, 251
N.W.2d 196 (1977) (addressing WIS. STAT. § 48.18 (1975-76)).4 The court does
not, however, need to determine that every statutory criterion supports waiver.
See B.B. v. State, 166 Wis. 2d 202, 209, 479 N.W.2d 205 (Ct. App. 1991).

¶9 The parties disagree over the proper standard of our review of a
juvenile court’s prosecutive merit determination—T.G. argues that it is de novo
and the State argues for an erroneous exercise of discretion standard. Our supreme
court has explained that it is “functionally similar to the determination of probable
cause in the preliminary examination.” T.R.B. v. State, 109 Wis. 2d 179, 190, 325
N.W.2d 329 (1982). Accordingly, the court explained that in order to find
prosecutive merit, a juvenile court must satisfy itself to “the degree of probable
cause required to bind over an adult for criminal trial.” Id. at 192. “When
reviewing a circuit court’s bindover decision, ‘we will examine the factual record
ab initio and decide, as a matter of law, whether the evidence constitutes probable

4
When the Legislature passed the Juvenile Justice Code in 1996, WIS. STAT. § 48.18 of
the Children’s Code became WIS. STAT. § 938.18(5) of the Juvenile Justice Code. 1995 Wis. Act
77.

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cause.’” State v. Anderson, 2005 WI 54, ¶26, 280 Wis. 2d 104, 695 N.W.2d 731
(citation omitted). Following this logic, our review of the juvenile court’s
prosecutive merit decision is de novo, as it is when reviewing bindover
determinations. See id.

¶10 Whether to waive a juvenile into adult court, however, is a
discretionary determination made by the juvenile court. State v. Tyler T., 2012
WI 52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192. Reviewing courts will reverse
waiver decisions only if we conclude that the juvenile court erroneously exercised
discretion. Id. “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. “In
reviewing the juvenile court’s discretionary decision to waive jurisdiction, we look
for reasons to sustain the court’s decision.” See id.

The Juvenile Court Did Not Err in Concluding That There is Prosecutive Merit to
Count One of the Delinquency Petition

¶11 T.G. first argues that the juvenile court erred in determining that
there is prosecutive merit to count one of the delinquency petition, which alleged
that he operated a motor vehicle without the owner’s consent, causing great bodily
harm in the process. He argues that despite the fact that the petition alleges that he
was driving the vehicle at the time of the accident, there are no allegations that
support the inference that T.G. knew that he did not have consent to drive it.

¶12 As with a preliminary hearing in an adult case, for a juvenile court to
conclude that there is prosecutive merit, it “must satisfy itself that the record
establishes to a reasonable probability that the violation of the criminal law alleged
has been committed and that the juvenile has probably committed it.” T.R.B., 109

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Wis. 2d at 192. Like a preliminary hearing, a waiver hearing “is not a proper
forum to choose between conflicting facts or inferences, or to weigh the state’s
evidence against evidence favorable to the defendant.” See Anderson, 280
Wis. 2d 104, ¶24 (citation omitted). As the juvenile court here noted, this is a
fairly low threshold, requiring only that the delinquency petition sets forth “a
believable or plausible account of the [juvenile]’s commission of a felony.” See
id., ¶25 (citations omitted).

¶13 Based on our independent review of the hearing testimony, the
allegations in the delinquency petition, and other record documents, we conclude
that the juvenile court did not err in determining that there is prosecutive merit to
the count alleging that T.G. operated the vehicle without the owner’s consent. The
petition sets forth a “believable or plausible account” of T.G.’s commission of this
offense. See id. Specifically, one of the passengers told officers at the scene that
T.G. had been driving at the time of the accident; T.G. himself told officers that he
had been driving at that time; the vehicle that T.G. was driving had a Texas
registration and been reported stolen; and the vehicle’s owner told officers that he
did not give T.G. or anyone else in the vehicle consent to drive it.

¶14 It is a reasonable inference, based on these facts, that T.G.
committed the offense charged in count one of the petition. Thus, we are satisfied
that there is prosecutive merit as to this count.

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The Juvenile Court Did Not Erroneously Exercise its Discretion in Granting the
Waiver Petition

¶15 As stated above, if a juvenile court finds prosecutive merit, then the
court is to determine whether waiver is appropriate in light of the factors set forth
in WIS. STAT. § 938.18(5). See D.H., 76 Wis. 2d at 305. T.G. argues that the
court erroneously exercised its discretion in deciding that waiver was appropriate.
He particularly takes issue with the court’s reliance on the seriousness of the
offense and the need to protect the public as weighing in favor of its decision
toward waiver.

¶16 The juvenile court found that T.G. had adult behavior and attitudes;
that the offenses before the court were serious; that there were serious injuries
inflicted on the other persons in the vehicle; and that the offenses were
premeditated, willful, and aggressive. The court also found that T.G. was not
likely to get the services necessary and for the length of time that is appropriate.
Ultimately, the court afforded the most weight to the need to protect the public and
granted the waiver petition.

¶17 T.G. asks us to conclude that the court erroneously exercised its
discretion in weighing the facts and the factors. In essence, he is asking us to
substitute our judgment for that of the juvenile court. However, we are to uphold
the court’s decision if our review reveals that the court considered the appropriate
facts and applied the appropriate law. See Hartung v. Hartung, 102 Wis. 2d 58,
66, 306 N.W.2d 16 (1981). There is no doubt that the court here did both.

¶18 As to the facts, the juvenile court considered the delinquency and
waiver petitions, the testimony at the hearing, the waiver report filed by the social
worker, and T.G.’s school records. “[T]he weight and credibility of the evidence

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No. 2021AP351

[are] matters … that are left to the discretion of the [juvenile] court.” Schorer v.
Schorer, 177 Wis. 2d 387, 400, 501 N.W.2d 916 (Ct. App. 1993). Thus, we will
not reweigh the evidence as T.G. requests.

¶19 As to the law, T.G. concedes that “[t]he [juvenile] court considered
each of the statutory factors.” The court applied the facts in evidence to each of
the factors and reached a rational determination supported by the record.
Moreover, the court appropriately stated that it considered the best interest of T.G.
and the need to protect the public and determined that the evidence supported a
finding that it needed to waive jurisdiction. See WIS. STAT. § 938.18(6). It did not
erroneously exercise its discretion in so doing.

CONCLUSION

¶20 Based on our review of the record and the applicable legal standards,
we conclude that the juvenile court did not err in finding prosecutive merit as to
count one, nor did it erroneously exercise its discretion in concluding that waiver
of its jurisdiction over T.G. is appropriate.

By the Court.—Order affirmed.

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

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