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OK to waive first-time 16-year-old offender into adult court on burglary charge

State v. Kadeem R., 2013AP2769, District 2, 4/2/14; court of appeals decision (1-judge; ineligible for publication); case activity

The juvenile court didn’t erroneously exercise its discretion under § 938.18 when it waived jurisdiction over a 16-year-old with no prior juvenile history for being an accomplice to an attempted nonviolent burglary. (¶¶2-5). There was no issue as to prosecutive merit, § 938.18(4), so the question was the application of the criteria under § 938.18(5). All those factors favored Kadeem except, in the mind of the juvenile court, the seriousness of the offense, and that criterion drove the waiver decision. (¶¶5, 7-8).

¶10      So, the real question is whether the seriousness of the crime merited waiver. Here, the court said that it considered attempted burglary to be a serious crime, one of the most serious a juvenile can commit. A strong argument can be made that when one considers all the Class A, B, C, D, and E crimes, a Class F crime is not quite the same. This is especially so when reading Wis. Stat. § 938.18(5)(b), the criterion which states that one consideration is “[t]he type and seriousness of the offense, including whether it was against persons or property and the extent to which it was committed in a violent, aggressive, premeditated or willful manner.” The crime here was against property and was not violent or aggressive.

¶11      However, what makes this crime serious, and what this court believes the juvenile court was concerned about when it called this a serious crime, is that a rash of burglaries were being committed in Racine with the use of latex gloves; that one of the juveniles here admitted that he had obtained a pair of blue latex gloves from a box that an adult person, last name unknown, had in his house; and that this same adult provided the machete to use. This suggests more than simply two kids coming up with a spur-of-the-moment idea to get into a vacant house and see what they could find. Rather, it suggests that Kadeem is part of a premeditated, willful, and recurring plan to burglarize places with the aid of gloves so as to avoid detection. That is what makes this serious.

The court treats the waiver decision as an exercise of discretion (¶6), but notes that § 938.18(6) seems to make it a question of fact by requiring a statement of “findings” and a waiver of jurisdiction if there is “clear and convincing evidence” that juvenile court jurisdiction is contrary to the best interests of the juvenile or of the public. “The legislature is thus speaking of fact-finding with a clear and convincing evidentiary burden. The courts are speaking of the decision as a discretionary one. No case has resolved this anomaly. And since the supreme court has cited both standards, one right after another, without explanation, this court is in no position to tackle the issue. See, e.g., J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991).” (¶6 n.4). The court says it would affirm in this case under either standard; but if the statutory standard gives you a better argument, think about asserting that the courts have been wrong to say the waiver decision is merely discretionary. At some point the supreme court will have to “resolve[] this anomaly.”

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