Updated 4/29/09

Reverse Waiver, § 970.032(2) – Admissibility of Facts Contrary to Complaint
State v. Corey Kleser, 2009 WI App 43, PFR granted
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
Issue: Whether § 970.032(2) (juvenile “reverse waiver”) prohibits admissibility of facts contradicting those in the criminal complaint.
¶26      As is suggested by the title and the fact that juvenile original jurisdiction cases have their own preliminary examination statute, [5] preliminary examinations on original jurisdiction cases require a slightly different finding than those on adult jurisdiction cases. In an original jurisdiction case, the court is required to determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused. In other words, when the court finds probable cause under Wis. Stat. § 970.032(1), it is finding that the juvenile probably committed the offense charged in the complaint.

¶27      Here, however, Corey waived his preliminary examinations on all his charges. Although the statute gives no special direction for the situation of a waiver of the preliminary hearing, it is clear under Wisconsin law that Corey’s waiver operates as a concession that the State had probable cause to believe he committed first-degree intentional homicide, battery by a prisoner, and substantial battery as charged in the criminal complaints. …

¶29      The proper place for the juvenile’s attack on the charges (before the actual trial) is at the preliminary hearing. If Corey had not waived the preliminary hearing, but had attempted to offer evidence contradicting the charges in the criminal complaint, the trial court would have had an opportunity under Wis. Stat. § 970.032(1) to decide the facts and make a decision as to whether the State had met its burden of probable cause on the charged offenses. Corey chose not to attack the facts at a preliminary hearing. The trial court found, upon Corey’s waiver, that there was probable cause that Corey had committed all of the offenses he was charged with in the criminal complaint.

¶31      … The only reasonable interpretation of § 970.032(2) is that the reverse waiver is limited to the facts already found at the preliminary examination, namely, in this case because Corey waived his right to a preliminary examination, those in the criminal complaint.

The court rejects the idea that State v. Dominic E.W., 218 Wis.  2d 52, 579 N.W.2d 282 (Ct. App. 1998) is “precedent for admitting facts contrary to the criminal complaint at a reverse waiver hearing,” ¶¶37-38. Hard to tell quite what the court is driving at. The thrust of the preceding discussion is that you can challenge the complaint at a reverse waiver hearing, it’s just that you can’t do so after waiving the prelim, and the court may mean that Dominic E.W. simply doesn’t override a waived prelim. To complicate things a bit more the court baldly states at the outset, “§ 973.032(2) prohibits the admission of evidence contradicting the offenses charged in the criminal complaint,” ¶4, so which is it: you can’t contradict the complaint’s facts at all, or you can’t do so if you waive the prelim? It appears that the language in ¶4 is unfortunately imprecise; ¶29 clearly says that “the proper place for the juvenile’s attack on the charges … is at the preliminary hearing.” The opinion is equally clear that you relinquish the right to make such an attack if you waive the prelim.

A bit oddly, the court suggests some bafflement about the underlying facts in Dominic E.W., ¶37. It is settled, though, that the court may take judicial notice of appellate briefs, e.g., State v. Ahern Ramel, 2007 WI App 271, ¶24 n. 9, and that would have been the place to examine the underlying facts. And, had the court not wanted to trouble itself to make a trek to the local law library, it could have accessed the Dominic briefs here; here; here; and here.

Reverse Waiver, § 970.032(2) – Hearsay Rule Applies
State v. Corey Kleser, 2009 WI App 43, PFR filed 4/9/09
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
¶46      Wisconsin Stat. § 970.032(2) makes no provision for the admission of hearsay at a reverse waiver hearing. Where a statute does not specifically authorize hearsay, it is generally prohibited, see Wis. Stat. § 908.02. It is true that an adult preliminary examination under Wis. Stat. § 970.03(11) permits hearsay in a few very limited circumstances, as to ownership of property or absence of consent, but counsel for Corey does not argue that any of those exceptions apply here.

¶47      The testimony of Dr. Beyer as to what Corey said happened during the offenses is clearly hearsay. There is no dispute about that from any party. Additionally, Corey does not attempt to justify the admission of that hearsay by any statute or rule. Corey admits the hearsay here would not be permitted at trial, but argues, without reference to any authority, that it is permissible at a reverse waiver hearing because this is not as significant a proceeding as a trial. While a reverse waiver hearing is certainly not as significant as a trial, it is nonetheless significant in that it determines jurisdiction. Corey argues that because the reverse waiver hearing is not a trial, there is no risk of hearsay being used improperly. But, as we have shown above, that is precisely what happened here. Accordingly, we conclude that the trial court erred in substantively relying on hearsay.

Reverse Waiver, § 970.032(2) – Admissibility of “Jensen / Haseltine” Opinion Testimony
State v. Corey Kleser, 2009 WI App 43, PFR filed 4/9/09
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
Issue/Holding: “(W)e see no reason why the principles of Jensen and Haseltine do not apply at a reverse waiver hearing just as they do at trial,” ¶51.
Reverse Waiver, § 970.032(2) – Competence of Juvenile Court to Hear
State v. Corey Kleser, 2009 WI App 43, PFR filed 4/9/09
For Kleser: Robin E. Dorman, SPD Milwaukee Trial; Debra Flynn-Parrino, Devon M. Lee, SPD, Milwaukee Juvenile
¶55      Under Milwaukee County Circuit Court Chief Judge Directive 96-18 Amended, signed by Chief Judge Patrick T. Sheedy on June 28, 1996, a juvenile who was charged with an original jurisdiction case was to be detained at the Children’s Court Center [9] and the initial appearance, preliminary hearing and subsequent trial (if reverse waived) were to be conducted by a circuit court judge assigned to the Children’s Division. The case was assigned to Judge Triggiano, a circuit court judge assigned to the Children’s Division. This order was within the Chief Judge’s powers under SCR 70.19(3)(a), 70.20 and 70.21(4)(12) (2008). Accordingly, the juvenile court here was competent to hear the preliminary hearing waiver and reverse waiver hearing.
Juvenile in Need of Protection and Services (JIPS) -- Truancy – School’s Compliance with Requirements for JIPS Order
Richland County HHS v. Brandon L.Y., 2008 WI App 73, PFR filed 5/27/08
For Brandon L.Y.: Suzanne Edwards
Issue/Holding: By its plain language, § 938.13 allows a JIPS order only if §§ 118.16(5) and (5m) have been satisfied (¶8). Where habitual truancy is the basis for the order, the school need not provide notice to the parent when the student initially becomes truant (¶¶10-11). The trial court found that a school official meet with the parent to discuss the truancy, prior to filing a JIPS petition, thus satisfying that particular statutory requirement (¶¶12-13). There was sufficient evidence to establish that the school provided an opportunity for educational counseling, curriculum modifications, and evaluations of the child’s background (¶¶15-17).
Juvenile Delinquency – Dispositional Order – Authority to Impose and Stay Secure Detention
State v. Richard J.D., 2006 WI App 242, PFR filed 11/2/06
For Richard J.D.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether a juvenile delinquency court has statutory authority to impose and stay 30 days in secure detention as part of its dispositional order.
¶10      In this case, then, the court had two options. First, the court could have chosen not to impose and stay any portion of its disposition. In that case, any violation of the disposition order would have been dealt with using the procedure set out in Wis. Stat. §§ 938.355 and 938.357. Second, the court could have chosen to impose any disposition authorized under Wis. Stat. §§ 938.34(1) through (15m), then stay all or part of that disposition under Wis. Stat. § 938.34(16). In that case, a violation of the order would trigger a new hearing “to determine whether the [stayed portion of the] original dispositional order should be imposed.” Wis. Stat. § 938.34 (16).

¶11      Here, the court chose the second option. As part of its disposition, it imposed thirty days’ secure detention, which it was authorized to do under Wis. Stat. § 938.34(3)(f). It then stayed that disposition under Wis. Stat. § 938.34(16). We therefore conclude that the court had the statutory authority to impose the disposition it did.

Juvenile Delinquency Dispositional Order – Exercise of Discretion, Generally
State v. Richard J.D., 2006 WI App 242, PFR filed 11/2/06
For Richard J.D.: Brian C. Findley, SPD, Madison Appellate
Issue/Holding1: Standards pertaining to sentencing discretion in adult court, State v. Gallion, 2004 WI 42, ¶5 n. 1 (must detail reasons for selecting particular sentence imposed); State v. Taylor, 2006 WI 22, ¶30 (but: need not explain why precise number of years selected), apply to juvenile delinquency dispositional orders, ¶12.
Talk about wanting it both ways. Gallion’s express purpose (¶4) was to “reinvigorate the McCleary directive that the exercise of sentencing discretion must be set forth on the record.” Instead of taking to heart the supreme court’s recognition and resolution of a growing problem, the court of appeals’ instantaneous, reflexive reaction was to mockingly acknowledge that it had “been reinvigorated.” State v. Wallace I. Stenzel, 2004 WI App 181, ¶9. (“Having been reinvigorated, we now turn to Stenzel’s arguments.”) As if that wasn’t enough, the court of appeals then energetically set about to eviscerate Gallion before the ink was even dry: in the very paragraph it thus sneeringly dismissed the supreme court’s mandate, Stenzel claimed that Gallion “does not make any momentous changes.” And yet, the court of appeals proceeded to assiduously reject the idea of Gallion’s retroactivity, see, e.g., State v. John C. Brown, 2006 WI App 44, ¶16, PFR granted 5/9/06—which only begs the question of why something that did not work any momentous changes would be prospective. (In fairness, Gallion itself, ¶¶8, 76, seems to limit retroactive application—perhaps because the supreme court thought its holding did work “momentous changes.”)

This somewhat convoluted background is required to fully appreciate the court of appeals’ current sleight-of-hand in hitching Taylor to Gallion: Taylor explicitly refuses to apply a Gallion analysis (“We note that because Taylor was sentenced a little less than a year before we released Gallion, its holding does not apply to this case,” ¶17 n. 9), and it therefore can’t simply be enfolded into Gallion; rather, Taylor belongs to a line of cases Gallion meant to supplant. To the court of appeals, then, the process of “reinvigoration” apparently means breathing life back into a non-viable line of cases. Of course, if you don’t really see any distinction between Gallion and pre- Gallion caselaw none of this would concern you anyway, would it? Or, perhaps the court simply takes the process of “be(ing) reinvigorated” way too far:

Was Dr. Frankenstein ahead of his time or did Mary Shelley just have a real good imagination?

Now to the meat of the question, as it were. Can modern science reanimate dead tissue?

Well, no, obviously. Otherwise we'd be doing it all the time.

Ah, but the judiciary isn’t bounded by the limitations of the physical world, and reanimating the dead tissue of lapsed cases is well within the court’s power as well as its real good imagination.
Issue/Holding2: The trial court adequately explained on the record its reasons for disposition, which included placement in a secure correctional facility and an imposed and stayed period of secure detention upon release:
¶13      In determining a disposition, the court is to consider the seriousness of the offense, the need to protect citizens from juvenile crime, the need to prevent further delinquent acts, and the juvenile’s needs for care and treatment. Wis. Stat. §§ 938.355(1), 938.01(2), 938.34. In this case, the court noted the serious nature of Richard’s offense and stated that Richard constituted a danger to the public. The court further noted Richard’s juvenile history and the fact that he had not taken advantage of past opportunities. Additionally, the court took into consideration Richard’s need for assessment, follow through, and direction. The court explained:
But the reality of the situation is that Richard needs some serious help …. It’s not a matter of having one more chance because, quite honestly, Richard, you’ve had a lot of chances. For the most part you disregard your opportunities. It’s too easy, it’s been too convenient for you up to this point in time to just disregard or neglect, if you will, some of the opportunities that you’ve had.
As to the secure detention, the court warned, “Richard, once you’re back in the community there’s absolutely no reason for you to spend additional time in secure detention unless you violate the rules.”
Juvenile Delinquency – Dispositional Order – Credit for Time Spent in Secure Detention
State v. Richard J.D., 2006 WI App 242, PFR filed 11/2/06
For Richard J.D.: Brian C. Findley, SPD, Madison Appellate
¶15      A juvenile is entitled to credit for time previously spent in secure detention provided that the time was “in connection with the course of conduct for which the detention … was imposed.” Wis. Stat. § 938.34(3)(f)(1). …

¶16      We are unable to determine exactly what Richard is seeking credit for or how much credit, if any, is due. [3] However, it is clear that the circuit court incorrectly applied the law when it held that it did “not need to give credit for time that’s previously spent in secure detention.” We therefore remand this issue for a new hearing on the proper amount of credit due. [4]

 [4]   Richard also apparently argues that this error in credit for time he spent in detention nullifies the entire sentence. … (T)his argument appears to be directly contrary to State v. Ogden, 199 Wis. 2d 566, 568, 544 N.W.2d 574 (1996) (remanding circuit court’s erroneous determination of Huber eligibility but keeping remainder of sentence intact).
Juvenile Delinquency – Restitution – Amount Exceeding Ability to Pay
State v. Anthony D., 2006 WI App 218
For Anthony D.: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding: A juvenile delinquency court is prohibited under § 938.34(5)(a) from setting restitution in an amount higher than the juvenile’s ability to pay; nor can the court set a “total damage” figure in excess of that amount and convert it to a civil judgment upon lapse of the delinquency order:
¶7        Anthony argues that Wis. Stat. § 938.34(5)(a), by its plain meaning, prohibits the court from ordering restitution in an amount higher than what the juvenile alone can pay. We agree that the language of § 938.34(5)(a) is quite clear and admits of no other reading. …

¶9        The State nevertheless urges us to affirm the order. The State’s position appears to be that there was no error in the restitution order since it set restitution at Anthony’s ability to pay ($900) and merely named $8727 as the total damage to the school. …

¶10      We agree with the State that a circuit court is required to determine total damages to the victim. …

¶12      However, by the plain meaning of Wis. Stat. § 895.035(2m)(a), the courts are without authority to order that this “total damage” figure be converted to a civil judgment. As we have noted, § 895.035(2m)(a) allows only for the conversion of restitution. Restitution cannot be set higher than the juvenile can pay. Wis. Stat. § 938.34(5)(a). Given the circuit court’s holding that Anthony could pay only $900, it could not set a higher amount of restitution; nor could it later use some other figure to arrive at a civil judgment. We therefore reverse and remand to the circuit court so that it may amend the restitution order to allow only the remainder of the $900 to become a civil judgment. [3] The civil judgment must also be amended to reflect the lower total. We wish to stress that nothing in our decision precludes the school district from filing a separate civil suit seeking compensation for the damage to its property. We only hold that the school could not make use of the conversion statute “shortcut” to obtain compensation greater than what the court found Anthony could pay.

Juvenile Delinquency -- Alternatives to Disposition
State v. Andrew J.K., 2006 WI App 126
For Andrew J.K.: George M. Tauscheck
Issue/Holding: Where a juvenile, in response to a State’s motion to lift a stay on corrections commitment, stipulated to placement in a local program, his subsequent termination from that program subjected him to a lifting of the stay notwithstanding that the program was not a statutorily authorized dispositional alternative:
¶18      Although the court approved the stipulation, the court never ordered Andrew to enter the ACE Program. The court did not grant the adjournment on the condition that Andrew enter the ACE Program. The court determined only that Andrew’s placement in the ACE Program supplied the “good cause” necessary to support the adjournment. [3] See Wis. Stat. § 938.315(2). We find nothing amiss with this practice.

¶19      The fact that the Juvenile Court of Racine County, Racine County Human Services Department and Racine Unified School District have joined together to offer a voluntary residential treatment program for adjudged juvenile delinquents that is an alternative to a “secured correctional facility” not found in Wis. Stat. § 938.34 does not make a juvenile’s participation illegal. As noted in Kendell G., a court is encouraged to give the juvenile a second opportunity to conform his or her behavior to any conditions the court imposed. Kendell G., 243 Wis. 2d 67, ¶16.

¶20      Furthermore, the court’s adjournment, at Andrew’s request, to permit him to participate in the ACE Program is in keeping with the spirit of Wis. Stat. ch. 938. … The ACE Program, by providing educational and behavior modification resources in an intensive residential setting, certainly advances this legislative intent. We therefore commend Racine county for the development of this creative alternative to placement in a secured correctional facility. We further praise the individuals involved with the ACE Program for having the foresight to obtain from the juvenile participant waivers of statutory time limits and consents to voluntary participation. [4]

 [4]  We also reject Andrew’s reliance on Grams v. Melrose-Mindoro Joint School District No. 1, 78 Wis. 2d 569, 254 N.W.2d 730 (1977). He quotes the following language from that case, “When the legislative will is expressed in peremptory terms of a statute it is paramount and absolute and cannot be varied or waived by the private conventions of the parties.” Id. at 578. From this he concludes that the “ACE Program could not have been transformed into a legal disposition by Andrew’s stipulation.”

Grams does not apply here. The contract at issue in Grams required a teacher to instruct courses that she was not certified to teach when the statutes expressly declared that “[a] teaching contract with any person not legally authorized to teach the named subject … shall be void.” Id. at 577; Holtzman v. Knott, 193 Wis. 2d 649, 690, 533 N.W.2d 419 (1995) (distinguishing Grams). Thus, the contract was explicitly proscribed by statute. Holtzman, 193 Wis. 2d at 690. Wisconsin Stat. ch. 938 does not expressly prohibit stipulations relating to a juvenile’s voluntary entry into an alternative program or prohibit a court from finding good cause for an adjournment on the basis of the juvenile’s entry into such a program. Indeed, as we have explained, the legislative will as expressed in Wis. Stat. § 938.01 and contemplated in State v. Kendell G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918, seems to support such actions.

Juvenile Delinquency Waiver-Petition – Delay Between Delinquency and Waiver Petitions
State v. Henry W. Aufderhaar, 2005 WI 108, reversing 2004 WI App 208
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding: Delay of 502 days between filings of delinquency and waiver petitions not a violation of due process, given absence of evidence of intent by State to delay proceeding in order to avoid juvenile court jurisdiction, ¶11.
Juvenile Delinquency Petition – Service of Process Requirements
State v. Henry W. Aufderhaar, 2005 WI 108, reversing 2004 WI App 208
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding1: The State did not acquire personal delinquent over the alleged delinquent when it mailed a summons for appearance to an address from which the juvenile had moved, and no one appeared in court in response to the summons:
¶17      Wisconsin Stat. § 938.27(3)(a)1 plainly requires notice "under s. 938.273" be given to the juvenile and "any parent."  Wisconsin Stat. § 938.273(1) provides three ways in which statutorily sufficient notice may be provided:  (1) by mailing a summons or notice for appearance in regard to the delinquency petition and the juvenile and any parent appear; (2) by personal service on the juvenile and any parent; or (3) if the court is satisfied that it is impracticable to serve the summons or notice personally, by certified mail addressed to the last known addresses of the persons to be served. 


¶27      Accordingly, we agree with Aufderhaar that unless the defect is waived by appearance, compliance with statutory provisions regarding service of process is required before a juvenile court has personal jurisdiction. [13]  Additionally, a juvenile's actual knowledge of the pendency of the action is not equivalent to service.  See Hagen v. City of Milwaukee< Employee's Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶13, 262 Wis. 2d 113, 663 N.W.2d 268  (citing Heaston v. Austin, 47 Wis. 2d 67, 71, 176 N.W.2d 309 (1970)).  Allowing the juvenile court to waive Aufderhaar into adult court, where the criminal penalties are more substantial, without its following the proper statutory procedure fails to "provide due process through which each juvenile offender and all other interested parties are assured fair hearings, during which constitutional and other legal rights are recognized and enforced," one of the stated purposes of the Juvenile Justice Code.  Wis. Stat. § 938.01(2)(d). 

[13]  We have previously stated that "[f]ailure to obtain personal jurisdiction over the defendant by statutorily proper service of process is a fundamental defect fatal to the action, regardless of prejudice."  Hagen, 262 Wis. 2d 113, ¶13 (citing Am. Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 534-35, 481 N.W.2d 629 (1992).
Issue/Holding2: (Remedy for lack of jurisdiction:)
¶28      Because personal jurisdiction never attached, the juvenile court could not waive Aufderhaar into adult court.  Therefore, the waiver order was ineffective, and we reverse the court of appeals decision affirming the circuit court's denial of Aufderhaar's motion to dismiss the criminal action in adult court.  However, we do so without prejudice.  Additionally, because the juvenile proceeding commenced before Aufderhaar turned seventeen years old, Wis. Stat. § 938.12(2); D.W.B. v. State, 158 Wis. 2d 398, 399, 462 N.W.2d 520 (1990) (juvenile court proceeding is commenced on the date the juvenile petition is filed), this proceeding should be returned to the point at which the jurisdictional defect occurred.  Thereafter, the juvenile court can determine whether it will attempt service sufficient to satisfy Wis. Stat. § 938.273(1).  If it does obtain sufficient service to accord personal jurisdiction over Aufderhaar, it may file yet another waiver petition to transfer the matter into adult court.  Or in the alternative, the court may dismiss the delinquency petition.  We leave that decision to the judgment of the juvenile court.
Delinquency – Extension Order, After Expiration of Dispositional Order, Timeliness
State v. Michael S., 2005 WI 82, reversing unpublished decision
For Michael S.: Susan Alesia, SPD, Madison Appellate
Issue: Whether § 938.365(6) (2001-02) supports temporary, 30-day extension of juvenile’s one-year disposition order, if the extension is entered after expiration of the dispositional order. Holding:
¶39 The State argues that the circuit court inferentially granted the temporary 30-day extension on October 2, 2002, when it scheduled the hearing for October 24 ….

¶40 The State argues that the circuit court can extend a dispositional order by implication or inference or nunc pro tunc. We disagree with the State.

¶41 Particularly in juvenile proceedings, the juvenile and his or her relatives must be aware of the dispositional status of a juvenile; inferential orders do not comport with that notion, the statutes, or due process. The juvenile's liberty interests are at stake. To allow an extension by inference undermines all the certainty the legislature has attempted to build into chapter 938. As a one-year dispositional order nears its end, all the parties are aware that unless the state initiates additional action before the expiration date of the order, the circuit court's authority over the juvenile ceases.

¶44 While the circuit court is not required to utter "magic words" to extend a dispositional order temporarily for 30 days, it must enter a written or oral order of extension prior to the expiration of the underlying dispositional order. …

In Re B.J.N., 162 Wis. 2d 635, 469 N.W.2d 845 (1991) (failure to hold extension hearing within prescribed time limit resulted in loss of circuit court competency even in absence of objection, under prior Juvenile Code) remains applicable, notwithstanding current text assigning waiver for failure to object to hearing “not held within the time limit specified”: once the one-year dispositional order expires without extension it no longer retains “validity.” ¶¶49-62. The “duration” of an order is something different from a “time limit” within which to act, ¶¶63-68, relying on In re Sarah R.P., 2001 WI App 49. Nor does the rule of Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (challenge to circuit court’s competency waivable) extend to this context or otherwise overrule B.J.N., ¶¶69-74 (“The present case involves a statutory time period that Mikrut left undisturbed”).
Delinquency -- Judicial Substitution
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding1: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)
¶10. Our conclusion that the chief judge has authority to review the denial of the juvenile's request for substitution is consistent with our holding in Barbara R.K. v. James G., 2002 WI App 47, 250 Wis. 2d 667, 641 N.W.2d 175. There we held that "Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge." Id., ¶15. We recognized that review by the chief judge promotes judicial economy and efficiency. Id., ¶11. The failure to obtain review by the chief judge is akin to the failure to exhaust administrative remedies and constitutes waiver of the right for appellate review. Id., ¶¶14-15. The goal of judicial efficiency in a juvenile proceeding requires that the chief judge review the denial of a substitution request before the issue is brought to this court.
The implication is clear: though the review provision is couched in the permissive “may,” it is mandatory in effect (“requires that the chief judge review”). If you don’t seek review by the chief judge you’ve almost certainly waived the issue.
Issue/Holding2: Judicial substitution request may be signed by counsel on behalf of the juvenile, who need not sign the request him or herself. ¶¶11-14.
Delinquency -- Delinquency Adjudication: Challenge to Placement Order, Timeliness
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.
¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late, and that this is an improper forum for a collateral attack on that order. We disagree. Tremaine does have the right to challenge that placement order in the context of this WIS. STAT. ch. 980 proceeding. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985). “When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time.” Id. (citation omitted). Furthermore, collateral attack is a proper method for challenging the order or judgment. Id. If Tremaine can demonstrate that the order was void, he is entitled to have it treated as a “legal nullity.” Id. at 99 (citation omitted). We will therefore consider Tremaine’s argument in the context of the ch. 980 petition.
Delinquency -- Delay in Prosecuting
State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
¶29. The second issue regards the 502-day delay. Again, we point out that the State did not really defend this delay in its response to the petition, and based on the meager information before us at the time, we believed there was substantial merit to this issue. Now that we have the full record, we are convinced otherwise. As Aufderhaar admits, only an intentional delay by the State to avoid juvenile jurisdiction would constitute a due process violation requiring dismissal. See State v. Montgomery, 148 Wis. 2d 593, 595, 436 N.W.2d 303 (1989). If the State deliberately attempts to delay a juvenile delinquency petition until the juvenile is older, thus making it more likely that waiver will be ordered, it is a due process violation. See S.N. v. State, 139 Wis. 2d 270, 277, 407 N.W.2d 562 (Ct. App. 1987). The juvenile court found that the delay was not intentional and that finding is not clearly erroneous. There is no evidence that the State was sitting on the case, waiting for Aufderhaar to turn seventeen. Had this been the case, the State would have acted when he actually turned seventeen or soon thereafter, around August 3, 2002. Instead, it is clear that the State filed its waiver petition and began pursuing Aufderhaar in earnest after the Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in sexual activity in Montana and providing a current address for Aufderhaar. Thus, it is quite apparent that Aufderhaar was himself the catalyst for the State's renewed interest in him. While the State certainly could have located Aufderhaar at the petition stage, and was negligent in not doing so, the resultant delay was probably due to a decision to leave Aufderhaar alone, not to wait until he was older. That is the only inference that we can arrive at, and therefore, we conclude the delay was not an intentional attempt by the State to manipulate the system.
Delinquency -- Disposition: Change of Placement – Secured Correctional Facility, Otherwise Prohibited by Age Restriction at Time of Original Disposition
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue/Holding: A juvenile under delinquency adjudication may have placement changed to a secure correctional facility, though such placement would have been impermissible due to statutory age restriction, where the juvenile is no longer under the age limit at the time placement change is ordered, ¶¶11-12.
Delinquency – Initial Hearing, § 938.273 – Failure to Obtain Proper Service
State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue: Whether violation of § 938.273 (service of delinquency petition) at the initial hearing deprived the court of personal jurisdiction over the juvenile.
Holding: The error was nonjurisdictional, given that the juvenile eventually received notice (by mail that was unreturned and therefore presumptively delivered) of the waiver petition which included the delinquency petition:
¶19. The State first argues that regardless of the trial court's failure to say so, a continuance would have been useless because personal service or service by certified mail would have been ineffectual. The State submits that it did not know where Aufderhaar was, other than that he was somewhere in Montana. We reject this argument. Based on the factual record before us, the State could easily have found Aufderhaar. It knew Aufderhaar was attending school in Hot Springs, Montana. It would have taken little effort to obtain the address. Instead, the State simply sat on its hands and did nothing.

¶20. Alternatively, the State appears to argue that if a mailing comes back as undeliverable, the State has no obligation to find the new address or otherwise look for the juvenile. …

¶21. We will not do so. A district attorney, like all attorneys, is an officer of the court. See Wis. Stat. § 946.65(2). As an officer of the court, a district attorney must exercise "reasonable diligence" in attempting to locate victims and witnesses prior to asking for adjournments. See Scarbrough v. State, 76 Wis. 2d 87, 96, 250 N.W.2d 354 (1977) (missing witness as a valid reason to adjourn a trial); State v. Williams, 2004 WI App 56, 37, 270 Wis. 2d 761, 677 N.W.2d 691, review denied, 2004 WI 50, 271 Wis. 2d 110, 679 N.W.2d 546 (Wis. Apr. 20, 2004) (Nos. 03-0603-CR, 03-0604-CR) (citing Scarbrough for proposition that locating the missing victim was a valid reason to delay trial and noting that the prosecutor had exercised "reasonable diligence" in finding her). It is not too much to require that a district attorney also exercise due diligence in attempting to notify a juvenile that the force of government has caused a petition to be filed against him or her. If our system of justice requires due diligence on the part of plaintiffs in civil cases to serve a defendant personally where they have information concerning the possible whereabouts of the defendant, requiring them to inquire further when they possess information that could reasonably be expected to lead to the discovery of the party sought, see, e.g., West v. West, 82 Wis. 2d 158, 166-67, 262 N.W.2d 87 (1978); Welty v. Heggy, 124 Wis. 2d 318, 325, 369 N.W.2d 763 (Ct. App. 1985), then we conclude district attorneys have an equivalent obligation to locate the subject of a juvenile proceeding, whose liberty interests are at stake.7

¶23. The State now posits that, assuming it erred in failing to follow the statute regarding notification to Aufderhaar when the juvenile proceeding commenced, this error was nonjurisdictional. For this proposition, the State relies on State v. Jermaine T.J., 181 Wis. 2d 82, 85-88, 510 N.W.2d 735 (Ct. App. 1993). …

¶28. When Aufderhaar received the waiver petition in the mail, that petition notified him that the power of the government had called him to account for an allegation in the criminal law and put him on constructive notice that the allegation had been reduced to a legal document filed in the Wisconsin circuit court and that a delinquency petition existed that spelled out the probable cause that the government had before acting. Therefore, the court had jurisdiction over his person. The issue is therefore decided in the same way our appellate courts have decided Jermaine T.J. and Smith. In all three cases, there was a formal document filed with the court, and in all three cases, the defendant had notice of the invocation of the court's jurisdiction and the grounds for such invocation before the court took the action complained of by the defendant. Jermaine T.J. and Smith control here.

Constitutional Rights -- Trial by Jury.
Interest of Hezzie R., 219 Wis.2d 848, 580 N.W.2d 660 (1998), on certification and bypass, reconsideration denied, 220 Wis.2d 360, 580 N.W.2d 660 (1998).
For Hezzie R.: Eileen A. Hirsch, Debra Flynn-Parrino, Stacy B. Walker, SPD.
Issue: Whether denial of jury trial in juvenile code is unconstitutional in light of provisions which allow transfer of juvenile offenders to adult prisons.
Holding: The court rejects the argument that the juvenile code overall is a "criminal code," but severs the transfer provisions from the remainder of the code, which does not require trial by jury. The court's denial of reconsideration added the following language to the end of footnote 15: "We intend, by severing the provisions allowing for transfer to an adult (Type 1) prison in Wis. Stats. §§ 938.538(3)(a)1, 938.538(3)(a)1m, and 938.357(4)(d), to prevent the placement of Serious Juvenile Offender Program participants in a Type 1 prison, as defined in Wis. Stats. § 301.01(5). All other provisions of the Serious Juvenile Offender Program remain unaffected by the severance. A juvenile who has been adjudicated delinquent may not be placed in an adult (Type 1) prison, since there is no opportunity for a trial by jury under the Juvenile Justice Code.
Disposition -- Sex Offender Registration -- Constitutionality
State v. Jeremy P., 2005 WI App 13
For Jeremy P.: Adam B. Stephens
Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate rights to jury trial or procedural due process, ¶¶8-15.
¶16. Moreover, if one considered mandatory sex registration by juveniles to be punishment, the supreme court's decision in Cesar effectively attaches a "best interest of the child" consideration to that punishment by permitting the trial court to exercise its discretion to stay that part of the dispositional order. See 272 Wis.  2d 22, ¶2. With that additional safeguard, which is unavailable to adults in the mandatory registration class, the traditional concerns with, and consideration of, the best interests of the child remain an important aspect of this part of the juvenile code.
(Cesar‘s discretionary authority similarly defeats a substantive due process argument, because its “practical effect … is to provide the court with the very discretion Jeremy seeks in this appeal,” ¶22. An equal protection argument is also rejected, at least with regard to children-as-suspect-class analysis, ¶¶23-29.)
Disposition -- Sex Offender Registration -- Discretion to Stay
State v. Jeremy P., 2005 WI App 13
For Jeremy P.: Adam B. Stephens
Issue/Holding: The trial court’s failure to exercise discretion to stay mandatory sex offender registration requires remand so that such discretion may be exercised pursuant to State v. Cesar G., 2004 WI 61, ¶2, 272 Wis. 2d 22, 682 N.W.2d 1.
¶31. We conclude that it is appropriate to give the trial court an opportunity to exercise discretion, as of the date of its original decision, with respect to staying the sex offender registration component of Jeremy's dispositional order. Although Jeremy did not explicitly seek this remedy, the heart of his appeal is his desire to avoid having to register as a sex offender. Given this desire, as well as the trial court's opinion implying that if it had the authority to do so, it would consider staying the dispositional order, we conclude that the trial court should have an opportunity to exercise its discretion in this case.
Disposition -- Sex Offender Registration, Stay of -- Factors
State v. Cesar G., 2004 WI 61, reversing unpublished opinion
For Cesar G.: Eileen Hirsch, SPD, Madison Appellate
¶50. The factors set forth by the legislature in Wis. Stat. §§ 938.34(15m)(c) and § 301.45(1m)(e) and which this court adopts, along with the seriousness of the offense, for the circuit court to consider in deciding whether to grant a stay of that part of a dispositional order requiring a juvenile to register as a sex offender, are as follows:
1. The ages, at the time of the violation, of the juvenile and the victim of the violation;

2. The relationship between the juvenile and the victim of the violation;

3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim;

4. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions;

5. The probability that the juvenile will commit other violations in the future; and

6. Any other factor that the court determines may be relevant to the particular case.

¶51. We also hold that, upon moving the circuit court to issue a stay of the sex offender registration requirement, the juvenile has the burden to prove by clear and convincing evidence that, based on these factors, a stay should be granted in his or her case. We so hold because the legislature placed this burden of proof on the person seeking an exception to the registration requirement under Wis. Stat. § 301.45(1m)(e). The burden of proof we set forth attaches when a juvenile files a motion requesting a stay of the sex offender registration requirement; the circuit court may, on its own initiative, without a motion by the juvenile, decide to stay the sex offender registration requirement as part of its dispositional order.
Disposition -- Authority to Stay Sex Offender Registration
State v. Cesar G., 2004 WI 61, reversing unpublished opinion
For Cesar G.: Eileen Hirsch, SPD, Madison Appellate
Issue: Whether the juvenile delinquency court has authority under § 938.34(16) to stay that part of the dispositional order requiring the delinquent child to register as a sex offender.
¶19. The State argues that the sex offender registration requirement is a condition rather than a disposition for two reasons: It "cannot stand alone"; and Wis. Stat. § 938.354(16) allows for a stay of a dispositional order, not a stay of conditions or parts of a dispositional order….

¶20. The State's argument relies in large part on the court of appeals decision in In re Daniel T.

¶24. We are not persuaded by either the State's or the Daniel T. court of appeals' reading of these statutes. …

¶25. Upon examination of the text, history, and purpose of these statutory provisions, we conclude that the sex offender registration requirement is part of a disposition under Wis. Stat. § 938.34 and that § 938.34(16) allows a circuit court to stay a dispositional order or any number of the dispositions set forth within the dispositional order.

¶32. Moreover, the State's argument that the circuit court should be prevented from staying portions of a dispositional order is inconsistent with the purpose of the Judicial Justice Code. A goal of the Code is to "allow[] the judge to utilize the most effective dispositional plan" in order to "respond to a juvenile offender's needs for care and treatment, consistent with the prevention of delinquency, each juvenile's best interest and protection of the public."

¶33. Allowing a stay of that part of the dispositional order requiring registration might, in a given case, be consistent with the offender's needs, the prevention of delinquency, the protection of the public and the juvenile's best interest. A statutory scheme designed to give circuit courts flexibility to tailor dispositional orders to the circumstances of a particular case would give a circuit court discretion to stay all or some portions of a dispositional order, including sex offender registration.

¶36. The State's emphasis on the public protection purpose exaggerates this aspect of the Juvenile Justice Code at the expense of the other purposes, including rehabilitation. The purpose of the Juvenile Justice Code was to adopt an approach that "balances rehabilitation, personal accountability and public protection and which best serves both the offender and society." Allowing a circuit court to stay sex offender registration is consistent with this purpose and approach. A circuit court should have the flexibility to tailor a juvenile's dispositional plan to achieve the equally important goals.

Disposition -- Authority to Stay Sex Offender Registration
State v. Daniel T., 2003 WI App 200, PFR filed 9/11/03
For Daniel T.: Leonard Kachinsky, Tajara Dommershausen
(NOTE: The holding seems no longer viable in light of State v. Cesar G., 2004 WI 61, summarized immediately above.)
Issue/Holding: A juvenile court lacks authority to stay an order for sex offender registration:
¶9. Here, the more specific statute is the mandatory registration of Wis. Stat. § 301.45. If § 301.45 did not exist, a different sanction could replace it for adjudicatory purposes under Wis. Stat. § 938.34(15m)(bm). In other words, when the court is confronted with a juvenile sex offender, the general juvenile justice statute refers courts to the specific statute of § 301.45 to discover the penalty. Section 301.45(1m) is very specific about when the registration requirement is inapplicable-no part of § 301.45 allows registration to be superceded by a judicial stay. Moreover, § 301.45(5)(a) makes the registration requirements applicable for fifteen years after adjudication, 3 with no mention of the court's ability to toll this time limit by issuing a stay. Thus, a stay may not be issued to circumvent § 301.45 registration requirements.

¶10. Alternatively, we disagree that Wis. Stat. § 938.34(16) would allow a trial judge to stay a condition of a dispositional order. 4 The statute allows the dispositional order to be stayed provided the stay is contingent on the juvenile fulfilling the conditions set forth in the original dispositional order. Here, the disposition is the year-long placement; registration as a sex offender is a condition "specified in the dispositional order ...." If a stay were issued, the most it could do would be to stay Daniel's placement at Northwest Child and Adolescent Center. Even then, he would have to fulfill the registration condition to keep the full disposition in abeyance.

3 There are actually several subsections, but they simply refer to different dates on which to start the fifteen-year "clock."

4 We also disagree that the court can stay a part or single condition of a dispositional order. Wisconsin Stat. § 938.34(16) allows a stay of "the execution of the dispositional order ...." It does not say that a stay of a section of the dispositional order or that a stay of conditions of the order is allowed. We acknowledge that in State v. Kendell G., 2001 WI App 95, ¶11, ¶16, 243 Wis. 2d 67, 625 N.W.2d 918, we wrote that the court might stay all or part of a disposition. However, the question in Kendell G. was whether, when there is a stay, counting the one-year maximum placement begins on the day the order is entered or the day the stay is lifted. Moreover, there was no dispute over whether the court could stay the dispositional order. Consequently, an interpretation of how much of an order § 938.34(16) allows to be stayed is dicta.

Evidence of "Sexual Immaturity"
State v. Stephen T., 2002 WI App 2
For Stephen T.: Raymond M. Dall'Osto
¶1. ... Stephen particularly argues that the trial court erred in refusing to admit his evidence that he was not mature enough to form the criminal intent underlying the sexual assault charge. We determine that evidence of sexual immaturity is relevant as a matter of law to a preadolescent's affirmative defense that he or she is not capable of having sexual contact with the purpose of becoming sexually aroused or gratified. The trial court erred in excluding this evidence and because this ruling was not harmless, we reverse the orders. Ordinarily we would remand for a new trial; however, in this case Stephen has already served the disposition which the trial court deemed was in the best interests of Stephen and the public. In our view, remand to the trial court for further proceedings would be futile, even if we have authority to do so. Therefore, we order that the case be dismissed without remand, with the instruction that Stephen's DNA sample on file be removed or destroyed.
Note: Stephen was 10 years old. He was charged with sexual contact of two girls, 6 and 7, while they were playing "capture the flag." The judge said he didn't know whether this sexually excited the boy, given his age, but nonetheless "the only logical reason" for it was sexual gratification. ¶¶4-5. The judge's logic inexorably led to a number of conditions, including Stephen's provision of a DNA sample and registration as a sex offender. Both prosecutor and judge thought there was no legal distinction between a child's and an adult's intent to become aroused. ¶¶18-19. The judge rejected expert offers of proof to the effect that a 10-year-old doesn't have the capacity to become aroused; and that the kind of touching alleged is common with boys in Stephen's age range. The court of appeals' treatment is worth a detailed look:
¶20. We reject this line of reasoning. We do not agree that the law 'criminalizes' sexual contact between children on the basis that they are 'sexual beings' capable of seeking out sexual gratification. Nor do we believe that 'goofy child's play' or 'exploration' is within the parameters of first- degree sexual assault. To the contrary, the law 'criminalizes' a child's sexual contact with another child only when the perpetrator possesses the intent to become sexually aroused in a manner that is inconsistent with childhood behavior. In other words, it 'criminalizes' children when they behave like adults, not when they behave in a manner normative to their age. This is why we determine that Stephen's theory of defense was eminently reasonable as a means to rebut the inference established by the State. The essence of his theory was that he was at a level of psychosexual development where he did not experience sexual arousal or gratification in the same manner as adults or adolescents and, therefore, his intent was not criminal.

¶21. Based on our understanding of criminal intent, we determine that the expert testimony and other evidentiary submissions were highly relevant to Stephen's theory of defense. The trial court rejected the submissions based on the mistaken belief that as long as Stephen intended to become sexually aroused, he 'fit[] in the same gambit as adults.' We conclude that the trial court's discretionary ruling was in error. Moreover, because the erroneous ruling deprived Stephen of the opportunity to present an affirmative defense, we determine that the error was not harmless.

Extension of "Original Disposition Order"
State v. Terry T., 2003 WI App 21
For Terry T.: Michael Yovovich, SPD, Madison Appellate
Issue/Holding: Original dispositional order of placement in secure correctional facility can’t be extended if order expires after juvenile is 17. ¶1. This is an appeal after remand, in State v. Terry T., 2002 WI App 81, which overruled a revised placement. On remand, the trial court for the first time ordered secure correctional placement. The court of appeals regards this as an “original” secure placement, because it was the first time the necessary findings had been made. Because § 938. 355(4)(a) provides that an “original dispositional order” can’t be extended beyond the juvenile’s 17th birthday, and because Terry T. turned 17 during the period covered by the remand order, the order couldn’t be extended beyond its expiration date. ¶¶11-13.
Jurisdiction/Competency -- Disposition -- Post-Judgment Serous Juvenile Offender Program Placement
State v. Terry T., 2002 WI App 81
For Terry T.: Gregory Bates
¶1 In this case the State seeks to place a juvenile in the Serious Juvenile Offender Program (SJOP) even though such placement was not part of the original dispositional order. The State argues that the juvenile's current age and escalating sexually offensive conduct qualifies him for the SJOP and it asks us to affirm the trial court's order changing placement and extending the original dispositional order. We determine that the juvenile justice code authorizes a trial court to consider an SJOP placement only as part of an original disposition; it has no authority to consider the SJOP as a dispositional tool in any subsequent proceeding. The order of the trial court is reversed.…

¶17 In conclusion, we determine that the five-year SJOP is a placement that must occur at an original disposition; it is not a tool to extend, revise or change a placement already in effect. To do so would violate the clear statutory mandate that all extensions not exceed one year and that no revision or change of placement extend the expiration of the original dispositional order. Therefore, we reverse the order for extension of the dispositional order and change of placement. The terms of any further extensions shall be limited to one year and Terry shall not be subject to the provisions of the SJOP in the absence of new charges being filed.

Jurisdiction/Competency -- Effect of Stay on Subsequent Revision of Dispositional Order
State v. Kendell G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918
For Kendell G.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the statutory one-year limitation period on juvenile dispositional orders was tolled while a stay of a secure placement order was in effect.
¶13 We conclude that the juvenile court's decision to stay Kendell's placement pursuant to WIS. STAT. § 938.34(16) eliminated the need for any extension of the original dispositional order, including any revisions thereof. Kendell's placement at Ethan Allen under the revised order was not executed against him because it was stayed, meaning the trial court was 'refrain[ed] from enforcing it.' Instead, the placement would become effective only if the stay was lifted. We therefore conclude that the running of the one-year limitation of WIS. STAT. § 938.355(4) as to Kendell's placement at Ethan Allen commenced when the juvenile court lifted the stay on the placement....

¶16 WISCONSIN STAT. § 938.34(16) permits a juvenile court to stay the imposition of a dispositional order or a portion thereof, including revisions, in order to give the juvenile a second chance to conform his or her behavior to any conditions imposed by the court. Failure to comply with the conditions can trigger the commencement of the stayed portion of the dispositional order. It would be unreasonable for this court to conclude that a dispositional order that has been stayed pursuant to § 938.34(16) commences any earlier than the date the stay is lifted by the juvenile court. As such, it would be equally unreasonable to conclude that the order terminates earlier than it expressly provides. See Nutter v. Milwaukee Ins. Co., 167 Wis. 2d 449, 458, 481 N.W.2d 701 (Ct. App. 1992).

Jurisdiction/Competency -- Expired Consent Decree
State v. Sarah R.P., 2001 WI App 49, 241 Wis. 2d 530, 624 N.W.2d 872
For Sarah P.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether a juvenile delinquency consent decree may be vacated after its expiration date.
Holding: "This court holds that the court's authority to adjudicate Sarah delinquent was revoked when the consent decree expired. The dispositional order is therefore reversed and the case is remanded to the juvenile court with directions to enter an order dismissing the original petition with prejudice." ¶1.
Analysis: A juvenile court order for supervision (or "consent decree") is entered under § 939.32, suspends the proceedings, and remains in effect for one year. The juvenile proceedings may be continued upon a proper finding by the court if accomplished prior to the decree's expiration. § 938.32(3). A case decided under the prior statute, § 48.32(3), holds that this one year limitation is jurisdictional. In re Leif E.N., 189 Wis. 2d 480, 526 N.W.2d 275 (Ct. App. 1994). The court now says that Leif survives various statutory changes, most prominently § 938.315(3). That statute exempts from jurisdictional defect any passage of a "time limit." However, a consent decree violation finding must be accomplished prior to "the expiration of the consent decree," rather then within a "time limit," and it therefore doesn't come within the jurisdiction-saving statute. ¶¶9-12. Where the intent is to reserve jurisdiction, the act to be done is described in terms of a time limit -- such as filing the petition within 40 days of receipt of referral information, § 938.24(5). By contrast, "expiration" suggests becoming void through passage of time. "Tautologies are seldom useful but in this instance it is axiomatic that once a decree expires, it is expired. At a minimum, in order to prevent expiration, something must occur prior thereto." ¶14. (Note: a similar argument can be made relative to a term of adult probation, which must be extended -- or revoked -- prior to its expiration, § 973.09(3)(a), else the department loses jurisdiction over the probationer. See State v. Stefanovic, 215 Wis.2d 310, 572 N.W.2d 140 (Ct. App. 1997).)
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Jurisdiction/Competency -Indian Tribe agreement with DOC.
State v. Elmer J.K., 224 Wis.2d 372, 591 N.W.2d 176 (Ct. App. 1999).
For Elmer J.K.: Eileen Hirsch, SPD, Madison Appellate
Holding: Elmer J.K.'s commission of an off-reservation delinquent act confers state jurisdiction, notwithstanding that he was at the time under a Menominee Tribal delinquency adjudication, which transferred him to DOC pursuant to an agreement.
Go To Brief
Jurisdiction/Competency - time limit, inter-county referral.
State v. Jamerrel Everett, 231 Wis.2d 616, 605 N.W.2d 633 (Ct. App. 1999).
For Everett: Timothy T. Kay; Michael Patrick Cotter.
Issue: Whether a delinquency petition must be dismissed because it was filed in the referred-to county more than twenty days after the initial intake worker sent it to the prosecutor in the referring county.
Holding: "Pursuant to J.L.W. v. Waukesha County, 143 Wis. 2d 126, 420 N.W.2d 398 (Ct. App. 1988), we hold that each district attorney had twenty days within which to take action under the statute. Since both district attorneys acted within twenty days following the respective referrals by the intake workers of each county, we hold that the delinquency petition was timely filed." ¶3.
Mootness -- Delinquency -- Expired Dispositional Order
State v. Stephen T., 2002 WI App 2
For Stephen T.: Raymond M. Dall'Osto
Issue: Whether appeal of a juvenile delinquency adjudication is rendered moot by expiration of its dispositional order.
Holding: No: Certain facets of the order (DNA sample; sex offender registration) survive, and appellate review will therefore have a practical effect. ¶11. Moreover, the case presents an issue of great public importance likely to recur (namely, "whether a ten-year-old may be inferred to possess the same specific intent to become sexually aroused or gratified as an adolescent or adult"), an exception to the mootness doctrine. Id.
Procedure - Delinquency – Dismiss-and-Refer, § 938.21(7) (1999-2000) –Custody of Juvenile not Required

State v. Lindsey A.F., 2003 WI 63, affirming 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116

For Lindsey A.F.: Eileen Hirsch, SPD, Madison Appellate

Issue: Whether a juvenile must be in custody in order for a circuit court to dismiss and refer a delinquency petition to the intake worker for deferred prosecution.


¶25. Therefore, based on our examination of the statutory language, the legislative history, context, and purpose, we determine that the legislature did not intend the interpretation advanced by the State. Rather, we conclude that the legislature intended that a court would have the authority to dismiss-and-refer under § 938.21(7) even when the juvenile is not in custody.

(This holding is narrower than the court of appeals’, which turned on the question of prosecutorial consent to dismiss rather than whether the juvenile is in custody. See ¶6 n. 3. But the supreme court’s resolution, though on a different rationale, hasn’t “overruled, withdrawn, or modified,” the court of appeals’ holding which therefore continues to have precedential effect. State v. Gary M.B., 2003 WI App 72, ¶13, PFR granted 5/5/03.)

Procedure - Delinquency – Dismiss-and-Refer, § 938.245(6) (1999-2000) – Consent of Prosecutor not Required

State v. Lindsey A.F., 2003 WI 63, affirming 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116

For Lindsey A.F.: Eileen Hirsch, SPD, Madison Appellate

Issue: Whether the district attorney has authority under § 938.245(6) to terminate a deferred prosecution agreement (following the court’s dismissal under § 938.21(7)) by filing a second delinquency petition which contains the same charge and factual allegations as the first petition.


¶32. Section 938.245(6) is not a blanket grant of authority empowering a district authority to terminate a deferred prosecution agreement. Rather, the authority is triggered by receipt of the § 938.24(5) notice. However, as noted above, a § 938.24(5) notice is a part of the initial intake procedures, not a part of a court ordered deferred prosecution.


¶33. When a court orders deferred prosecution under § 938.21(7), there is no statutory notice requirement. Unlike the notice requirement set forth in § 938.24(5) which triggers termination authority under § 938.245(6), here there is no required notice to provide the necessary triggering event. The fact that the termination authority under § 938.245(6) is tied to and triggered by an intake worker notice is not unique. An intake worker notice is also required to trigger the district attorney's termination authority under § 938.245(7) which addresses noncompliance with a deferred prosecution agreement.


¶34. Accordingly, we agree with the court of appeals that while § 938.245(6) authorizes a district attorney to override a determination made by an intake worker within 20 days after receipt of notice, it does not authorize a district attorney to override a determination made by the circuit court. Lindsey A.F., 257 Wis. 2d 650, ¶¶13, 16. Based on a proper reading of the notice requirement of § 938.24(5), the scope of the district attorney's ability to terminate a deferred prosecution agreement under § 938.245(6), and the authority granted to judges under § 938.21(7), we conclude that the district attorney did not have the authority to terminate the deferred prosecution agreement in this case.

Procedure - Ability to Comprehend Dispositional Conditions and Possible Sanctions
State v. Eugene W., 2002 WI App 54
For Eugene W.: Michael Yovovich, SPD, Madison Appellate
¶3 We conclude that WIS. STAT. § 938.355(6)(a) requires that a juvenile court assure that the juvenile has the ability to comprehend the conditions of the dispositional order and potential sanctions whether informed of them at the dispositional hearing or at a later time. Since we decide this case on this statutory ground, we do not reach Eugene’s constitutional challenge. We further conclude that once the juvenile raises this issue, the State has the burden to establish by clear and convincing evidence that the juvenile has such ability. Because the State did not make such a showing and because the juvenile court did not make a finding as to Eugene’s ability to comprehend the conditions and possible sanctions at the time of the dispositional order, we reverse the sanctions order.”
(Note: The juvenile had been held incompetent in an underlying delinquency proceeding, causing this comment:
¶20 We caution that our holding does not create a per se rule that a juvenile who has been declared incompetent to participate in the underlying proceedings is necessarily incompetent to understand the conditions and sanctions warnings issued in a JIPS case. There are different levels of incompetence and it may very well be that a juvenile who is not competent to participate in the underlying proceeding may nonetheless be capable of understanding the conditions of the dispositional order and the possible sanctions. All we hold is that once the juvenile’s ability to understand the conditions and sanctions is put at issue, the court must ascertain whether the juvenile is indeed capable of understanding the conditions and potential sanctions.
The court nonetheless recognizes that failing to require an ability to comprehend warnings and conditions “would raise the serious due process constitutional question posed by Eugene.” ¶19.)
Procedure - Competency
State v. Eugene W., 2002 WI App 54
For Eugene W.: Michael Yovovich, SPD, Madison Appellate
¶23 A juvenile’s incompetence to proceed in a juvenile proceeding is the equivalent of an adult defendant’s incompetence to proceed in a criminal proceeding. When the criminal law has a counterpart in juvenile law, we sometimes look to the criminal law for assistance in interpreting the juvenile counterpart. See In Interest of Jermaine T.J., 181 Wis. 2d 82, 90-91, 510 N.W.2d 735 (Ct. App. 1993), and State v. Tawanna H., 223 Wis. 2d 572, 576-78, 590 N.W.2d 276 (Ct. App. 1998). Since the criminal code obligates the State to establish a defendant’s competence to proceed when that issue is raised, we see no reason why the same burden should not be assigned to the State in a JIPS proceeding where the juvenile asserts an inability to understand the conditions and sanctions warnings required by WIS. STAT. § 938.355(6)(a). This is especially so in a case such as this where the juvenile has already been adjudged incompetent to proceed in an underlying proceeding.
Procedure - amendment of petition without notice.
State v. Tawanna H., 223 Wis.2d 572, 590 N.W.2d 276 (Ct. App. 1998).
For Tawanna: Michael Yovovich, SPD, Madison Appellate.
Holding: Tawanna was charged by delinquency petition with misdemeanor battery. She was tried to the court, which ruled that battery hadn't been proved but then, over defense objection, entered judgment on (uncharged) disorderly conduct. The amendment was made without notice, and violated § 938.263(2). The COA therefore reverses the delinquency order. (The court should have also ordered dismissal of the petition with prejudice, on double jeopardy grounds, in light to of the trial court's explicit acquittal of the charged offense; perhaps that result is implicit.)
Sanctions – Violation of Dispositional Order: Permissible “Unit” of Sanction

State v. Ellis H., 2004 WI App 123

For Ellis H.: Brian Findley, SPD, Madison Appellate
¶1. Ellis H. argues that when he ran away from his foster home, his resultant failure to report to a social worker and his failure to show up for his scheduled community service were both incidental to his running away and must be considered one incident. Therefore, he posits, he can only be given one ten-day secured detention pursuant to Wis. Stat. § 938.355(6)(d), not three separate ten-day detentions. We agree with Ellis that para. (6)(d) requires a sanction to be meted out per incident rather than per condition violation, and that the three separate condition violations are considered as one incident. We reverse and remand with directions.

¶7. Wisconsin Stat. § 938.355(6)(d) provides:

If the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order, the court may order any of the following sanctions as a consequence for any incident in which the juvenile has violated one or more conditions of his or her dispositional order[.]
Looking at the plain meaning of the statute, we conclude that the language informs the reader that the court may order a sanction as a consequence for "any incident in which the juvenile has violated one or more conditions of his or her dispositional order." The statute therefore clearly recognizes that multiple conditions may be violated in any one incident but only allows one sanction per incident, not per condition violation. Stated another way, the statute plainly anticipates that any incident may consist of more than one condition violation, but nonetheless informs that only one of a number of available sanctions may be instituted for an incident. Therefore, to the extent that the juvenile court's bench decision can be read to say that the statute allows courts to apply a sanction for each condition violation, we respectfully disagree.
The court eventually goes on to apply multiplicity analysis [roughly: unit of allowable prosecution turns on actor’s volition, i.e., extent to which s/he intentionally invaded distinct interests], citing Harrell v. State, 88 Wis. 2d 546, 554, 277 N.W.2d 462 (Ct. App. 1979), and State v. Eisch, 96 Wis. 2d 25, 27-29, 291 N.W.2d 800 (1980). ¶17.
¶21. The reasoning in Harrell and the other cases easily translates to our discussion of what constitutes a sanctionable "incident" or, as we have defined it, "an occurrence of an action or situation felt as a separate unit of experience." As we noted earlier, the purpose of the statute permitting sanctions is not to punish a juvenile but to impress upon him or her the importance of making proper life decisions. Thus, each time the juvenile has an opportunity to reflect and make a life decision or, in other words, has "come to a fork in the road," the statute dictates that he or she should be held accountable for whatever course of conduct he or she elects to pursue. Accordingly, as Harrell and other cases have taught us-albeit in different contexts-the proper question to ask when determining whether a juvenile's conduct constitutes separate "incidents," or separate units of experience permitting multiple sanctions, or a continuous "incident," or a single unit of experience permitting only one sanction, is whether the juvenile came to a "fork in the road" and nevertheless "invade[d] a different interest." This means we must determine whether the juvenile's course of conduct is marked by different and distinct volitional acts in between which the juvenile had sufficient time to reflect and choose to commit himself or herself to a particular act.
Ellis H. ran away three separate times, which strongly supports the idea of three separately sanctionable violations. ¶23. However, the State filed but one petition for all three, thereby evincing a view that they were part of the same incident. The court then cautions: “Had the State separated the foster home violation petition into three separate petitions-one for each time Ellis ran away-the outcome of this case might have been different.” ¶24. Uh-oh.
Waiver -- Absconding as Basis
State v. Pablo R., 2000 WI App 242, 239 Wis.2d 479, 620 N.W.2d 423
For Pablo R.: Ness Flores, Elizabeth A. Cavendish-Sosinski
Issue: "The issue in this case is whether Pablo R., who committed an offense at age fourteen for which he could not have been waived into adult court had he been adjudicated as a juvenile, may now be waived into adult court as an adult because he absconded." ¶1.
Holding: "(W)e conclude that § 938.18(2) is an expression of legislative will that when a person becomes eighteen and adjudication has not yet been accomplished because of some unlawful action by that person, the situation has changed and waiver into adult court is an appropriate response to the person's action." ¶14. "The Juvenile Justice Code must be construed to give effect to 'its leading idea.' And the leading idea is to keep juveniles away from the adult system in all but a few instances because there is so much hope that we can use the capabilities of the juvenile system to turn the child around before it is too late. But when the child absconds and becomes an adult, it is absurd to believe that the leading idea still has some force to it. While there may be a few instances where keeping the adult under juvenile jurisdiction is still appropriate, the legislature was not interested in fencing the court in. This is why it promulgated WIS. STAT. § 938.18(2). We affirm the waiver into adult court." ¶17.
Waiver -- Reconsideration
State v. Vairin M., 2002 WI 96, on certification
For Vairin: Michael Yovovich, SPD, Madison Appellate; Janice Balistreri, SPD, Madison Trial
On-line (COA) brief : http://www.wisspd.org/html/appellate/briefbank/briefs/010656.pdf
Issue: Whether § 938.19(6) permits a court with juvenile jurisdiction to reconsider its order waiving a juvenile into adult court after the state has filed charges against the juvenile in adult court.
¶3. ... We hold that a juvenile court has jurisdiction to reconsider its waiver order or to stay its waiver order pending appeal only until the filing of a complaint in criminal court. After the filing of a criminal complaint, the juvenile court loses jurisdiction and the criminal court has exclusive jurisdiction....

¶6. We conclude that a juvenile seeking prompt review of a waiver order, after the criminal court has assumed jurisdiction, has two options. First, the juvenile may bring a timely interlocutory appeal under Wis. Stat. § 809.50 and may move the court of appeals or the criminal court to stay the criminal proceedings pending appeal.

¶7. Second, if the juvenile has compelling new grounds bearing on waiver, he or she may file a motion with the criminal court asking the court to relinquish its jurisdiction by transferring the matter to juvenile court. As grounds for the motion, the juvenile must allege a new factor that:

(1) was not in existence at the time of the waiver decision or, if it was in existence, was unknowingly overlooked by all parties;
(2) is highly relevant to the criteria for waiver under Wis. Stat. § 938.18(5); and
(3) likely would have affected the juvenile court's determination that it would be contrary to the best interests of the juvenile or of the public for the juvenile court to hear the case.
¶8. After reviewing the motion, the criminal court may, in its discretion, conduct a hearing. If the court finds good cause, it may relinquish jurisdiction by transferring jurisdiction to the juvenile court. The juvenile may then file a motion for reconsideration with the juvenile court, which will have regained exclusive jurisdiction to entertain the motion.
Note: The court relies on plain wording of statute -- assigning "exclusive jurisdiction" to adult court after waiver -- and on the principle that where two courts are given concurrent jurisdiction, but one proceeds to assume jurisdiction over the matter, the other may not assume jurisdiciton. ¶32. It follows that the juvenile court may reconsider its waiver order before the criminal complaint is filed. ¶35. The state, somewhat oddly, resists the idea of pre-complaint reconsideration. "Oddly," because the state itself has a right to file a motion for relief from non-waiver. ¶36, citing H.N.T. v. State, 125 Wis. 2d 242, 252, 371 N.W.2d 395 (Ct. App. 1985). And because the court, though obliquely referring to reconsideration as being "part of our common law," fails to acknowledge recently published authority that "a trial court has inherent power to vacate or modify an order pursuant to Wis. Stat. § 807.03." State v. Brockett2002 WI App 115, ¶14. What about after the complaint is filed? Interlocutory and post-conviction review are uncontroversial options. ¶¶45-46. A paper-thin majority allows the juvenile to seek reconsideration if there are "compelling new grounds bearing on waiver." ¶54. This requires something in the nature of a "new factor" required to support sentence modification. Id. n. 23. But the stringent new factor test isn't wholly imported -- the juvenile need show only that the new factor "likely would have affected waiver," a much more forgiving test than the remorseless sentence-modification requirement that the original sentencing purpose was frustrated or thwarted.
Waiver/Reverse Waiver - Constitutionality of Reverse Waiver Procedure
Jeremy Armstrong v. Bertrand, habeas dened on review of unpublished decision of Wis. court of appeals
For Armstrong: Angela C. Kachelski
Issue/Holding: Wis. Stat. § 938.183(2), which allows for the possibility, however, remote, of treating a juvenile as a juvenile though originally charged in adult court, surivives constitutinal challenge:
We agree with the state that the statute does not create such an irrebuttable presumption. Indeed, while the burden may seem impossibly high, some juveniles could hypothetically receive a juvenile disposition based on § 938.18(5)(a), (c) and (d). For example, subsection (a) takes into account, among other factors, the personality, mental health, previous record and pattern of living of the juvenile. Had the trial judge made findings on these criteria more favorable to Armstrong, it is possible that they would have outweighed the seriousness of Armstrong’s offense. The language of the statute, at least, does not forbid such a hypothetical balancing. Further, even if the application of the § 938.18(5) criteria always resulted in an adult disposition for juveniles charged with intentional homicide, it is not at all clear that the statutes would be unconstitutional. For one, Armstrong provides us with no case law suggesting that the state does not have authority to impose adult sentences on all juveniles charged with intentional homicide without a hearing to determine whether the juvenile should instead be given a juvenile disposition. Although we agree that the procedure laid out in § 938.183(2) might, in most cases, have a foreordained outcome for juveniles charged with intentional homicide, it is certainly preferable to have such a process to allow for the rare exception than to have no process at all. At least, Armstrong had an opportunity to present his case for a juvenile disposition and to appeal the unfavorable decision through the state courts.
(Nor is this procedure subject to vagueness challenge, which "can only be made against substantive statutes prohibiting specific conduct and not against procedural statutes.")
Waiver/Reverse Waiver - deferential review.
State v. Elmer J.K., 224 Wis.2d 372, 591 N.W.2d 176 (Ct. App. 1999).
For Elmer J.K.: Eileen Hirsch, SPD, Madison Appellate
Holding: Waiver to adult court upheld, for fact-specific reasons, as non-erroneous exercise of discretion.
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