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A trio of defense wins: Circuit court properly exercised discretion in ruling on motions for DPA in juvenile cases

State v. J.A.N., 2023AP1108, 5/14/24, District I (1-judge decision; ineligible for publication); case activity

State v. Z.D.S., 2023AP1109, 5/14/24, District I (1-judge decision; ineligible for publication); case activity

State v. S.R., 2023AP1110, 5/14/24, District I (1-judge decision; ineligible for publication); case activity

In a series of appeals seemingly aimed at the discretionary decisions of an individual circuit court judge, COA affirms the circuit court’s decision to dismiss and refer these juvenile prosecutions for a DPA under a well-settled standard of review.

We’ve grouped these cases together as the issues and legal analysis are largely identical. These appeals all stem from what appears to be a concerted effort on the part of the State to challenge the method by which a DPA order is granted in juvenile court under § 938.21(7). Under the plain text of that statute, the circuit court is empowered to dismiss and refer a delinquency petition for a deferred prosecution agreement “[i]f the court determines that the best interests of the juvenile and the public are served […].” As all parties to this appeal seemingly agree, Wisconsin case law establishes that this is a discretionary decision for the circuit court. Given those background principles, these appeals play out as follows:


In “James’s” case, police were originally dispatched to a Walmart in response to a report of an argument. (¶2). Although a store employee claimed to see a gun in James’s possession, a later review of surveillance footage by law enforcement did not clearly corroborate his account. (¶4). James left the store with his friends and was a passenger in an SUV which fled from police at a high speed. (¶3). When police ultimately apprehended James, they discovered contraband–including a handgun and THC–inside the SUV. (Id.). He was charged with possession of a firearm by a person under the age of 18, a misdemeanor. (¶2).

Ultimately, the circuit court granted defense counsel’s motion under § 938.21(7). (¶13). On appeal, the State “concedes that the trial court applied the correct legal standard—the best interest of James and the best interest of the public.” (¶17). COA accepts that concession based on the record made by the circuit court. (Id.). However, following SCOW’s decision in X.S. , the State appears to argue that the court’s decision was simply unreasonable under these facts. (¶18). Although COA accepts that X.S. permits it to police the “bounds of reasonable decision-making,” (¶16), it holds that the trial court’s decision was not objectively unreasonable under the circumstances. (¶18). Although the State tries to argue that the statutory language fails to sufficiently guide trial courts and also that this statute is impliedly not available in cases of “intense public interest,” COA is unpersuaded by these thinly-developed arguments inviting it to depart from its plain text analysis which supports the circuit court’s decision and affirms.


This case also involves a high-speed chase, wherein a 14-year old student within a gifted and talented program made the somewhat inexplicable decision to first take his mother’s car without permission and then, when confronted by police, attempt to flee. (¶3). As a result, he was charged with three felonies in juvenile court. (¶2). “Zach’s” lawyer filed a motion for a DPA, which was ultimately granted despite the court admittedly “struggling” with the difficult decision it faced given the unique facts of this case. (¶12).

On appeal, the State once again concedes that the court considered the correct legal standard when reaching its discretionary decision; COA accepts that concession given the extensive circuit court record. (¶16). Following X.S., the State urges COA to reverse, however, as it believes the court’s decision was objectively unreasonable. (¶17). COA holds that the facts of this case were not so “extreme” that it must abandon its otherwise highly-deferential standard of review. (Id.). Moreover, “to the extent that the State is unhappy with the functioning of the DPA program or believes that there should be more stringent statutory requirements, this court is not the proper forum to address this complaint.” (¶20).


“Susan’s” case presents more of the same: a uniquely sympathetic and very young juvenile who nevertheless participated in a risky fleeing incident. (¶2). Once again, the circuit court–after a contested hearing and after thoroughly explaining its reasoning–granted the defense motion for a DPA while acknowledging this was a “hard” decision.  (¶12).

In this case, the State makes a slightly different argument, asserting that the record does not support the court’s finding with respect to the public interest and, as a result, there was not a “rational basis” for finding that a DPA would be in the public’s interest. (¶15). Searching the record for reasons to affirm, as COA is obligated to do, it holds that the information contained within Susan’s DPA motion constitutes adequate record support for the circuit court’s decision. (¶16). And, in analyzing the circuit court’s oral ruling, COA is satisfied that the discussion of the public interest was sufficient. (¶17). Under the deferential standard of review, COA quickly dispatches with this State’s appeal, as well.

These appeals are notable as they represent an attempt on the State’s part, the first we are aware of, to apply SCOW’s decision in X.S. to rein in what it believes to be “unreasonable” decisions, even while otherwise conceding that the circuit court appropriately considered correct legal standards. But-for X.S., then, it feels unlikely we’d even be addressing these appeals at all. Notably, while COA acknowledges that X.S. may have opened up a limited zone of “second-guessing” when confronted with exceptional or extreme fact patterns, COA is reluctant to exercise that authority here. Instead, it hews strictly to well-settled principles of deference and affirms without too many fireworks– potentially signalling that the impact of X.S., at least on run-of-the-mill cases, may be quite limited.

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