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Manipulation of Adult Jurisdiction over Juvenile Offense; Bail Jumping – Jurisdiction to Impose Conditions; Sanctions – Appellate Violations

State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply

Manipulation of Adult Jurisdiction over Juvenile Offense

When  the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction, ¶11, citing State v. Becker, 74 Wis. 2d 675, 677, 247 N.W.2d 495 (1976) and State v. Montgomery, 148 Wis. 2d 593, 603, 436 N.W.2d 303 (1989). The record in this instance indisputably shows such manipulation: the intake worker’s notes, based on her conversations with the district attorney’s office, reflected a prosecutorial decision to charge (the still-juvenile) Bergwin as an adult, so that the intake worker simply closed her file without an intake conference and referred the matter to the district attorney’s office. This evidence, which amounted to “clear, credible evidence of manipulation by the State,” ¶13, wasn’t contradicted by any testimony from the prosecutor’s office, in contrast to other cases which involved evidence of an ongoing investigation or good-faith effort to locate the defendant, ¶15.

¶14      We have previously noted that law enforcement, intake workers, and the district attorney all serve important, but different, roles in our juvenile justice system. “[I]t is not the task of a juvenile intake worker to investigate the juvenile’s alleged crime.” J.W.T. v. State, 159 Wis. 2d 754, 761-62, 465 N.W.2d 520 (Ct. App. 1990). Nor is it the intake worker’s duty to determine whether a petition could actually be filed before inquiring into the appropriate disposition of the case.[5] Id. at 762. Instead, the purpose of the intake inquiry is to ascertain, on behalf of the court, the best interests of the juvenile and of the public. WIS. STAT. § 938.24(1). Juvenile intake workers must exercise independent judgment when determining whether to recommend that a petition be filed, enter into an informal disposition, or close a case within forty days of the receipt of the referral information. See WIS. STAT. §§ 938.24(3)-(5). In short, juvenile intake workers do not perform their statutory duties by simply acceding to the demands of other institutions.

¶16 The testimony elicited at the motion hearing establishes that the State inappropriately invaded the intake worker’s domain and improperly deprived the juvenile court of jurisdiction. The State’s actions circumvented the statutory juvenile justice process and, in turn, abrogated Bergwin’s right to due process of law. Accordingly, we reverse his convictions for burglary and, on remand, direct that those charges be dismissed.

Bail Jumping – Jurisdiction to Impose Conditions

¶17      Because the State improperly deprived the juvenile court of jurisdiction, we also reverse Bergwin’s bail jumping convictions. The adult criminal court lacked jurisdiction to adjudicate Bergwin’s case, and therefore also lacked authority to establish bond conditions. Cf. Becker, 74 Wis. 2d at 678 (“jurisdiction in a criminal court cannot be maintained on a charge brought after the child becomes eighteen, unless it is affirmatively shown that the delay was not for the purpose of manipulating the system to avoid juvenile court jurisdiction”). Further, even if the case had been properly filed in juvenile court, Bergwin could not be prosecuted for bail jumping because the Juvenile Justice Code does not provide for monetary conditions of release.[7] Accordingly, we reverse Bergwin’s bail jumping convictions and direct that those charges also be dismissed.

Sanctions – Appellate Violations

¶18      We also sanction Bergwin’s appellate counsel. Bergwin does not include citations to the record to corroborate the facts set out in his brief. An appellant’s failure to provide record citations violates WIS. STAT. RULE 809.19(1)(d)-(1)(e) and seriously hampers our ability to efficiently resolve the appeal. That burden is magnified where, as here, the respondent elects not to provide a full statement of the case. See WIS. STAT. RULE 809.19(3)(a)2. Failure to provide record citations does a disservice to the client, too, as it precludes any challenge on reconsideration to the facts stated in the opinion. State v. Haynes, 2001 WI App 266, ¶1 n.2, 248 Wis.2d 724, 638 N.W.2d 82. We therefore sanction Bergwin’s appellate counsel and direct her to pay $200 to the clerk of this court within thirty days of this decision. See WIS. STAT. RULE 809.83(2).

You have a due process right to allocution before a court may impose a contempt sanction, even for summary contempt committed in the court’s presence. Granted that a blatant rule violation is similar enough to misconduct committed in the court’s presence so as to support the rough equivalent of summary contempt: why doesn’t the right to allocution attach here as well?

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