State v. J. A. N.

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. 2023AP1108 Cir. Ct. No. 2023JV36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

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

STATE OF WISCONSIN,

PETITIONER-APPELLANT,

V.

J.A.N.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
NIDHI KASHYAP, Judge. Affirmed.
No. 2023AP1108

¶1 DONALD, P.J.1 The State appeals from an order dismissing a
delinquency petition filed against J.A.N. (hereinafter James)2 and referring the
matter for a deferred prosecution agreement (DPA). The State contends that the
trial court erroneously exercised its discretion.3 For the reasons discussed below,
we reject the State’s argument and affirm.

BACKGROUND

¶2 On January 9, 2023, the State filed a delinquency petition charging
James with one count of possession of a dangerous weapon by a person under
eighteen. According to the petition, on January 7, 2023, police were dispatched to
a Walmart in the City of Greenfield based on a report of an argument between two
groups of people in the store. S.O., the employee who reported the incident, stated
that she saw a tan firearm in the waistband of one of the individuals, later
identified as James.

¶3 One of the groups, which included James, left the store in a red
SUV. Officers attempted to conduct a traffic stop. The SUV initially stopped, but
then fled reaching speeds of over one-hundred miles per hour. The SUV
eventually crashed into a parked car and the occupants in the SUV fled on foot.
James was apprehended a short distance away and identified himself verbally

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 J.A.N., we use the pseudonym “James.”
3
The State’s brief argues that the trial court “abused its discretion.” In 1992, our
supreme court abandoned the phrase “abuse of discretion,” and replaced it with “erroneous
exercise of discretion.” Seifert v. Balink, 2017 WI 2, ¶93 n.50, 372 Wis. 2d 525, 888 N.W.2d
816. As a result, we substitute “abuse of discretion” with “erroneous exercise of discretion.”
Both terms have an equivalent meaning. Id.

2
No. 2023AP1108

when taken into custody. James was not believed to be the driver. Inside the
SUV, officers located a pistol that matched the description provided by S.O., one
pound of marijuana in a blue backpack, two additional pistols, three cell phones,
and a debit card with James’ name.

¶4 Officers reviewed the Walmart security footage. On the video, the
officers were not able to make out the gun observed by S.O.; however, James was
observed fidgeting with his waistband in a manner which the officers believed was
consistent with being armed.

¶5 James’ counsel filed a motion requesting that the trial court dismiss
the case and refer the matter for a DPA. The motion noted that James was sixteen
at the time of the offense and it was his first and only offense. Subsequently, the
State filed a response asserting that a DPA was insufficient to serve James’ needs
or protect the community. In the motion, the State included images from the
Walmart surveillance video.

¶6 At the motion hearing on June 1, 2023, James’ counsel argued that a
DPA was appropriate because James had done “extremely well” on predisposition
supervision and did not have any negative reports. James’ counsel stated that if
James did not successfully complete the DPA, he would face adult charges based
on his age; however, James still wanted to pursue a DPA.

¶7 James’ counsel did not dispute the facts set forth in the petition and
stated that James was willing to take responsibility for what happened at Walmart.
James’ counsel, however, noted that he was not the driver of the car that fled and
his contact with the juvenile system “support[ed] him changing his group of
friends and associates.” Counsel argued that a “clean record” would allow him to

3
No. 2023AP1108

have employment and other opportunities in the future and would incentivize
continued good behavior in kids that appear before the courts.

¶8 The Human Services Worker (HSW) supported the DPA because
James had done “very well” on predisposition supervision, did everything that he
needed to do, and has “a really strong support system[.]”

¶9 The State argued that James did not engage with predisposition
services “in any meaningful way.” The State contended that dismissing the case
would not hold James accountable and would not protect the community. The
State noted that an individual other than James wore the blue backpack with the
marijuana, but believed that James was “adjacent to that behavior.”

¶10 The trial court began its remarks by noting that the surveillance
image reflected that there was a small child present with the other group, which
was “disturbing.” The court stated that the State “made a really persuasive
argument about how dangerous this type of behavior is. But then when I go back
to the petition the only charge is a misdemeanor.” The court stated that “[t]he
circumstances of how this all went down certainly strike me as suspicious” and
carrying a gun is a “huge deal” as it could have resulted in James getting shot and
James was “lucky” to be alive.

¶11 In regards to James’ best interest, the trial court focused on the fact
that James would be going to adult court if he “mess[ed] up on the DPA[.]” The
court noted James’ age, his performance on supervision, and that James filled his
time by taking care of his disabled mother. The court therefore found that it was
in James’ best interest to give him an opportunity to avoid an adjudication or
conviction.

4
No. 2023AP1108

¶12 As to the best interest of the public, the trial court noted that if James
was convicted, he would not be subject to a lifetime firearm ban. The court
explained that this was relevant to its assessment of the need to protect the public.
While the court agreed with the State that “showing somebody a firearm is an act
of violence in and of itself[,]” the court observed that James was not the driver of
the SUV and did not wear the backpack with the marijuana.

¶13 The trial court then found that it was in the public’s best interest and
James’ best interest to grant the dismissal and refer the matter for a DPA. The
court told James that this is his “final shot” and if he made a mistake, he was going
to adult court before a different judge.

¶14 The State now appeals. Additional relevant facts are referenced
below.

DISCUSSION

¶15 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.”

¶16 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.

¶17 The State concedes that the trial court applied the correct legal
standard—the best interest of James and the best interest of the public. In regards

5
No. 2023AP1108

to whether a DPA would be in the best interest of James, the court found that
James deserved a “chance.” The court considered James’ age, performance on
supervision, and that he had a job. With respect to whether a DPA would be in the
best interest of the public, the court considered that a conviction would not
disqualify James from possessing a firearm, James was not the driver of the SUV
that fled, and he was not wearing the backpack with the marijuana.

¶18 The State, however, contends that there was “no reasonable basis”
for the trial court to find that it was in either the public’s best interest or James’
best interest to dismiss the case and refer it for a DPA. We disagree. Given
James’ lack of a prior juvenile history, his performance on supervision, James’
family support, the HSW’s support, and the fact that this was a single
misdemeanor, we are not persuaded that this was an unreasonable decision. To
the extent that the State believes the DPA program should function differently or
that there should be more rigorous statutory requirements, this court is not the
proper forum to address this complaint.

¶19 The State also contends that WIS. STAT. § 938.21(7) provides “little
guidance” for trial courts. The statutory language, however, is plain. A trial court
“may” dismiss a petition and refer the matter for a DPA if it “determines that the
best interests of the juvenile and the public are served” by such an order.
Sec. 938.21(7). If the legislature wished to require the consideration of additional
factors or exclude specific offenses from eligibility, it would have done so.

¶20 In addition, the State contends that the “limited case law relating to
Dismissal/DPA Motions suggests that it is rarely used in cases of intense public
interest.” Not only is this speculation, but, as stated above, the statute does not
provide any limitation regarding what type of offenses are eligible for a DPA and

6
No. 2023AP1108

we will not read one in. State v. A.L., 2019 WI 20, ¶20, 385 Wis. 2d 612, 923
N.W.2d 827 (stating that we do not read limiting language into a statute).

¶21 Therefore, for the reasons above, we reject the State’s arguments and
affirm. The trial court properly examined the evidence, reviewed the correct
factors, explained its reasoning, and reasonably granted James’ motion.4

By the Court.—Order affirmed.

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

4
We note that the State’s initial brief also discusses WIS. STAT. § 938.01, which sets
forth the legislative intent of Wisconsin’s Juvenile Justice Code. In response, James addresses
each part of the statute in detail. In reply, the State clarifies that its discussion of § 938.01 was
“simply to point out that the ‘best interest of the public’ was not so broad as it sounds. The
legislature provided an extensive list of the goals for Wisconsin’s Juvenile Justice System and
those goals are completely in harmony with the State’s position in this appeal.” Given this
clarification and the State’s failure to specifically respond to James’ arguments, thereby
conceding them, we do not address § 938.01 further. United Coop. v. Frontier FS Coop., 2007
WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (holding that an appellant’s failure to
respond in a reply brief to an argument made in the respondent’s brief may be taken as a
concession).

7