In deciding whether to waive a juvenile into adult court a judge must consider the criteria set out in § 938.18(5). The judge has the discretion to determine how much weight to give to each criterion. J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991). According to A.O., the juvenile court in his case didn’t properly apply § 938.18(5)(c), which obliges the court to consider the adequacy and suitability of facilities and services available in the juvenile justice system to treat the juvenile and protect the public. According to the court of appeals, the juvenile court properly exercised its discretion.
A.O. was involved in two carjackings and charged with multiple counts of armed robbery and operating without owner’s consent. (¶¶3-7). He was arrested for these charges not long after he had been released from Lincoln Hills, where he had been sent after his juvenile supervision in a previous case was revoked. (¶¶9, 13). While at Lincoln Hills A.O. did multiple treatment programs but also had multiple “security incidents,” including some while his waiver hearing was pending. (¶¶10-14, 17). DOC witnesses testified that if A.O. stayed in the juvenile system he could only be offered programs he’s already completed at least once, and they opined A.O.’s continued behavior problems showed the programs hadn’t worked a change in him. (¶¶15-16, 18).
The crux of A.O.’s claim is that the juvenile court didn’t fully consider the availability of the Serious Juvenile Offender Program and that A.O., who made some claims he had been sexually assaulted, could benefit from sex offender treatment. (¶25). But the record shows the juvenile court did consider those facts and concluded Lincoln Hills was not suitable for A.O., mainly because he had completed the core programs twice but wasn’t successfully rehabilitated and because his age limited the length of time (three years) he’d be in SJOP. The court therefore gave more weight to the seriousness of A.O.’s offenses and the need to protect the public, which it was permitted to do as part of its exercise of discretion and which was reasonable based on the record in this case. (¶¶26-41).