The state petitioned to waive Jace H. into adult court in two delinquency cases involving allegations of sexual assault of two different victims. (¶¶2-4). After the circuit court granted the waiver petition, Jace’s new lawyer determined–and the state conceded–the allegations in one of the cases occurred before Jace turned 15, a fact that precludes waiver under § 938.18(1)(c) (juvenile court may waiver jurisdiction over juvenile alleged to have violated a criminal law on or after his 15th birthday). Jace sought a new waiver hearing, arguing the waiver petition’s reliance on the case in which Jace could not be waived precluded waiver in both cases or, in the alternative, the court’s reliance on the conduct in that case “tainted” the waiver decision. (¶5). The court of appeals disagrees.
Jace’s first claim is based on § 938.18(4)(a), under which the court must deny the waiver petition if it finds that “the matter” lacks prosecutive merit. Jace argues that statute requires consideration of “the matter” and not “the offenses,” so that a juvenile court must deny a multiple-count petition that includes offenses that do not form the basis for waiver. Not so, says the court. The waiver statute distinguishes between “jurisdictional factors” and “prosecutive merit” and a court only considers the latter if the former are satisfied. P.A.K. v. State, 119 Wis. 2d 871, 875, 350 N.W.2d 677 (1984). Because the court could not waive jurisdiction on the counts occurring before Jace turned 15, it could not consider the prosecutive merit of those charges. But it could–and did–consider the prosecutive merit of the charges over which it could waive jurisdiction, and it was not required to deny the waiver petition as to those charges once it concluded they had prosecutive merit. (¶¶7-11).
As to Jace’s second claim, the court concludes there was ample evidence supporting its waiver decision based sole on the facts of record in the case with the charges alleged to have occurred after Jace turned 15. (¶¶12-15). While the juvenile court relied heavily on the seriousness of the offenses and the desirability of long-term supervision, that was an appropriate exercise of discretion under J.A.L. v. State, 162 Wis. 2d 940, 970-71, 471 N.W.2d 493 (1991), and G.B.K. v. State, 126 Wis. 2d 253, 260, 376 N.W.2d 385 (Ct. App. 1985).
The court also rejects Jace’s argument that the lawyer who represented him at the waiver hearing was ineffective for failing to recognize that the charges occurring before Jace turned 15 were not subject to waiver and for failing to present certain expert testimony relevant to the waiver factors under § 938.18(5). Consideration of the non-waivable offenses was harmless, and the experts’ opinions related only to criteria that the court already found to be in Jace’s favor. (¶¶16-19). “None of the evidence from the Machner hearing rebutted either the severity of the offense or that adult courts could provide longer-term oversight, where were the main criteria that the juvenile court relied upon to waive jurisdiction.” (¶18).