≡ Menu

Court may order reexamination of juvenile found not likely to become competent to proceed

State v. A.L., 2017 WI App 72, petition for review granted 6/11/18, affirmed, 2019 WI 20; case activity; review granted 6/11/18

The court of appeals holds that § 938.30(5) permits a juvenile court to order the re-evaluation of competency of a juvenile previously found not competent to proceed even though the juvenile was also found not likely to regain competence within the relevant statutory time frame (12 months, or the maximum criminal sentence for the offense, whichever is less).

A delinquency petition was “suspended” as required by § 938.30(5)(d) after A.L. was found not competent and not likely to become competent due to his intellectual disability and mental illness. (¶¶7-8). The following year, after he turned 17, he was charged as an adult in a criminal case based on new conduct, found not competent, but then treated to become competent and found competent. (¶¶11-13). The state then moved to have A.L. re-evalutated in the suspended juvenile proceeding. (¶14). The circuit court refused, concluding it didn’t have authority to do so because § 938.30(5)(e)1., the only provision authorizing re-evaluation of a juvenile found not competent to proceed, applies only if the juvenile is likely to regain competency. (¶15).

The court of appeals reverses, concluding § 938.30(5) is ambiguous because it provides “no guidance” and “is completely silent” as to the procedure to follow when the juvenile has been found not likely to regain competency, as happened in A.L.’s case. (¶¶18, 23). It then looks to the legislative history of § 938.30(5) (the language of which was originally created in ch. 48 and then moved to ch. 938 when the juvenile code was rewritten in the mid-1990s). It finds the statute was intended to fill the gaps in the statute regarding the procedure to follow when juveniles were found not competent to proceed and was based on the criminal competency statute, § 971.14. (¶¶24-25).

The language of § 971.14(6)(a) has been interpreted to permit re-evaluations even in cases where the defendant was found not likely to regain competency to proceed, as allowing re-evaluations advances the purposes of the competency law of balancing the constitutional protection against perpetual competency commitment with the public’s interest in prosecuting criminals, State v. Carey, 2004 WI App 83, ¶¶14-15, 272 Wis. 2d 697, 679 N.W.2d 910. (¶¶26-30). Thus, § 971.14(6)(a) provides the “guidance” that is otherwise missing from § 938.30(5) for situations where the juvenile has been found not likely to gain competency (¶31), and, despite the suspended status of the delinquency proceeding, a circuit court has authority to order a competency re-evaluation for a juvenile previously found not competent and not likely to become competent.

Let’s grant, for the moment, the premise that § 938.30(5) is ambiguous about competency proceedings because of its silence on re-evaluations of juveniles found not likely to regain competency, and that looking at legislative history is therefore appropriate. Does that necessarily mean § 971.17(6)(a) and Carey give us the “guidance … missing from” § 939.30(5)? While the court’s affirmative answer to this question builds on the legislative history of the precursor to § 938.30(5) (without identifying the relevant enactment, 1993 Wis. Act 474), that history (most of which is not available online) is a bit more involved than the decision describes.

True, as the court says (¶24), the legislation was prompted by a circuit judge suggesting to a legislator that incompetent juveniles be subject to CHIPS proceedings as well as § 51.20 commitments; and, true, the drafter preparing the legislation added more detail meant to fill the gaps in the procedure for handling juvenile competency issues (¶25); however, the drafter also asked if there were any other provisions of § 971.14 that should be added. None were suggested, apparently. In particular, there was no suggestion or attempt to include the broad language about re-evaluations in § 971.14(6)(a), which existed in the 1993-94 statutes and which the court finds so helpful now (¶31). Instead, the first draft of the bill was revised to create the language now in § 938.30(5)(e)1. limiting re-evaluation to cases where the juvenile is likely to become competent.

So why doesn’t that plain language reflect a conscious choice to limit the cases in which re-evaluation is appropriate instead of copying the broad approach in § 971.14(6)(a)? Yes, the court cites a drafting attorney’s memo saying the intent was to allow re-evaluation in any case (¶34); but the legislature enacts statutory language, not drafting attorney memos, and the statutory language says something different from the memo. And, yes, one can hypothesize policy reasons to allow re-evaluations in all cases, not just those where the juvenile is initially found likely to be made competent, and not have the proceedings indefinitely suspended; but those are policy decisions for the legislature, not the courts, and in the face of the clear language of § 938.30(5)(e) the courts mustn’t second-guess the legislature.

The court criticizes A.L.’s position—that the juvenile court loses competency over the suspended proceedings and therefore must dismiss the delinquency petition with prejudice—because it requires adding language to § 938.30(5) that isn’t there. (¶¶33, 35). Yet the court’s resolution also effectively adds the language from § 971.17(6)(a) even though it appears from the very legislative history the court relies on that the legislature declined the chance to add that language. Given all this, the better approach would be to apply the plain language of § 938.30(5) despite the somewhat odd or infelicitous policy results (e.g., indefinite suspension of proceedings), and let the legislature decide if it wants to fix the statute and, if so, how.

{ 1 comment… add one }
  • Deborah Stahl November 1, 2017, 10:33 am

    The problem with this terrible decision, in addition to its tortured reasoning, is the consequences that flow from it. If the adult criminal court may reach back and order a reevaluation as to competency to stand trial by a now-adult as to prior juvenile proceedings, and the evaluator finds the person competent, then the result is that the juvenile delinquency may now proceed. If the juvenile is, or becomes age 18 during these proceedings, and is found delinquent, no juvenile services will be available at any disposition. See State v. Kleser, 2010 WI 88, ¶ 119, 328 Wis.2d 42, 786 N.W.2d 14: “the juvenile court would retain jurisdiction because a petition alleging Kleser delinquent was filed before he turned 17.   See Wis. Stat. § 938.12(2).   However, we do not see the juvenile court’s authority to issue a dispositional order after the juvenile turns 18, as the statute repeatedly uses the phrase “made before the juvenile attains 18 years of age.”  

    To make matters all the worse, if after a reevaluation the evaluator finds one’s adult client competent as to the juvenile proceeding, under Section 938.18(2), the state can then file a waiver to adult court: “The petition for waiver of jurisdiction shall be accompanied by or filed after the filing of a petition alleging delinquency and shall be filed prior to the plea hearing, except that if the juvenile denies the facts of the petition and becomes 17 years of age before an adjudication, the petition for waiver of jurisdiction may be filed at any time prior to the adjudication.”

    Therefore, by filing a request to evaluate your client’s competency to stand trial in a juvenile proceeding, under this decision you are exposing your client to, potentially years later, waiver to adult court of that juvenile charge, in a case in which waiver is at the time not an issue, a case in which the juvenile court has exclusive jurisdiction. All of these consequences flow from the client’s lack of competence to stand trial while a juvenile! This case provides another open door to adult court jurisdiction, that door is opened by defense counsel.

    This decision penalizes the juvenile for his or her lack of competence to stand trial. It brings into serious question a defense lawyer’s decision to bring competency issues to the attention of the court, though yes — we are obligated to do so. But doesn’t this obligation conflict with our obligation to protect our client’s rights, and shield them from adult court penalties? Should we challenge competence to stand trial when doing so exposes our clients to adult criminal penalties? Is it fair or is it a violation of due process to have a juvenile client who is mentally ill/developmentally unable or saddled another host of disabilities –
    is unable to understand the proceedings, to later have adult criminal penalties imposed, solely on the basis of the client’s incompetence to stand trial? The consequences of our young clients being incompetent to proceed now may prove to be devastating to our clients, carrying adult criminal penalties years later.

Leave a Comment