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COA upholds order waiving juvenile into adult court based on finding that juvenile’s treatment needs currently being met just fine in less-restrictive placement

State v. T.H., Jr., 2023AP285, 10/3/23, District III (one-judge decision; ineligible for publication); case activity

In yet another juvenile waiver appeal demonstrating the power of the discretionary standard of review, COA affirms the circuit court’s order despite the potential internal inconsistencies of that ruling.

“Thomas” was 16 when he caused a fatal accident, killing two passengers. (¶2). As a result, a delinquency petition charged him “with six crimes, including two counts of
second-degree reckless homicide and one count of second-degree reckless injury.” (Id.). While his delinquency case pended, he ultimately ended up at the Rawhide Boys Ranch. (Id.). The State then moved to waive Thomas into adult court, arguing that because of Thomas’ age, he could only be supervised by the juvenile justice system for 1 year and 5 months. (¶4). In the State’s view, that was simply not enough time to hold Thomas “accountable” for his actions. (Id.).

At the waiver hearing, the circuit court heard from both a psychologist who identified multiple diagnoses for Thomas that could be treated via the Rawhide placement and who opined that Thomas would fare better in the juvenile system overall, as well as a social worker who explicitly testified that removing Thomas from his current placement would be “contrary to Thomas’ best interest[…].” (¶¶5-8).

To allay any concerns about an insufficient amount of time to treat Thomas, counsel asked the circuit court to consider an order placing Thomas in the Serious Juvenile Offender (SJO) program, which would allow the juvenile court to retain jurisdiction over Thomas for the next 5 years. (¶9). As another alternative, counsel also proposed that the court could impose but stay that dispositional order. (Id.).

The circuit court then determined that SJO was “not available” given that Thomas’ current placement at Rawhide, not a corrections placement, was “appropriate.” (¶10). Having determined there was no way to retain jurisdiction over Thomas for a lengthier period of time, the court therefore agreed with the State that the remaining time was insufficient given the “seriousness of the offenses and the need to protect the public.” (¶11).

On appeal, Thomas raises a number of arguments. First, he argues that the circuit court misapprehended the law when it appeared to suggest that it could not impose and stay the SJO order as an alternative to waiving Thomas into adult court. (¶17). While COA agrees that it is black letter law, under both §938.34(16) and State v. Cesar G.that a dispositional order placing the juvenile in the SJO program under §938.34(4h) can be stayed, COA disagrees that the circuit court endorsed a contrary understanding of the law during its oral ruling. (¶17). Instead, COA holds that the circuit court made a proper discretionary determination that Thomas was not eligible for that program, meaning the applicability of a stay is irrelevant. (¶21).

Under §938.34(4h), the circuit court could only place Thomas in the SJO program if it determined “that the only other disposition that is appropriate for the juvenile is placement in a juvenile correctional facility.” Here, however, the circuit court agreed that placement in a correctional facility was not appropriate and, in fact, accepted the defense-friendly testimony of witnesses establishing the suitability and desirability of Thomas’ less-intensive current placement. The circuit court then waived Thomas into the adult system….where, if convicted and sentenced to prison (a fair possibility under these facts), he will, in fact, start his correctional journey at Lincoln Hills (until he is old enough to transfer to the Racine Youthful Offender Correctional Institution). Thus, the circuit court’s order exposes Thomas to the real possibility of incarceration in a correctional institution for the basic reason that incarceration in a correctional facility is not an “appropriate” placement.

Next, Thomas argues that the circuit erred when it made what he terms “dispositional findings” at the waiver hearing. (¶25). While the statute explicitly requires the circuit court to assess the “adequacy and suitability” of the SJO program, Thomas argues that the circuit court went beyond that directive when it determined he would “not qualify” for SJO. (Id.). COA rejects these arguments and holds that a “suitability” finding necessarily implies an assessment of eligibility. (¶27). To hold otherwise would engender an absurd result, wherein the court could only ascertain the hypothetical availability of such a program, but not determine whether the juvenile was in fact eligible to be placed in that program before exercising its discretionary waiver authority. (¶28).

Finally, Thomas attacks the sufficiency of the circuit court’s discretionary reasoning. (¶29). The standard of review, as COA reminds the reader, is overwhelmingly difficult to overcome and Thomas’ arguments do not prevail here. (¶30). The circuit court appropriately emphasized two factors in its oral ruling: “the seriousness of Thomas’ offenses and his significant treatment needs.”  (¶31). Applying a deferential standard of review, COA is satisfied that the “record therefore reflects that the circuit court’s order was based upon the need for protection of the public.” (¶34). There was a “sufficient articulation” as to why the court believed waiver was the appropriate outcome and that is all the law requires. (Id.).

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