The circuit court erroneously exercised its discretion in deciding to waive M.C. into adult court on a sexual assault charge, so the waiver is reversed and the case remanded for the circuit court to exercise its discretion properly.
Section 938.18(5)(c) provides that when deciding whether to waive jurisdiction over a juvenile, the court “shall base its decision” on, among other factors, “the suitability of the juvenile for placement in the serious juvenile offender [SJO] program under s. 938.538….” The case law is also clear the circuit court must consider all of the § 938.15(5) criteria and state its findings with respect to each criterion. State v. C.W., 142 Wis. 2d 763, 768-70, 419 N.W.2d 327 (Ct. App. 1987). (¶¶4-5).
In this case the circuit court decided to waive M.C. into adult court but failed to state in its ruling or give any other indication that it considered the suitability of M.C. for the SJO program. This was a clear erroneous exercise of discretion. (¶¶1, 4).
The state argues the error was harmless, but the court rejects this position because the arguments is undeveloped and because “we do not see how the error could be considered harmless. The circuit court said it considered as a significant factor in its ruling the fact that it believed services available to M.C. would necessarily end upon him turning eighteen years old.” (¶7). Though it’s not clear whether the circuit court also believed that M.C.’s ability to benefit from the SJO program would end on his eighteenth birthday, that’s because “the court gave no indication that it considered that program at all in making its ruling.” (¶8).
Thus, the case must be remanded for the circuit court to consider the suitability of M.C. for placement in the SJO program in addition to the other § 938.18(5) criteria it already considered and make a new determination as to whether waiver of M.C. is appropriate. (¶9). The court notes that on remand the circuit court may conclude and explain why M.C. is not suitable for the serious juvenile offender program. Or the court might conclude and explain why even though M.C. may be suitable for the program, the balance of considerations still weigh in favor of waiver. “But, one way or another, reasoned consideration of this mandatory criteria must be shown.” (¶10).