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Court of appeals reverses discretionary juvenile non-waiver in a way that seems pretty discretionary

State v. X.S., 2021AP419, 7/20/21, District 1 (one-judge decision; ineligible for publication); case activity

Xander (a pseudonym) shot several people in a well-known incident at the Mayfair Mall in Wauwatosa. The juvenile court concluded that it was the right forum for the case and denied the state’s motion to waive the matter into adult criminal court under WIS. STAT. § 938.18(5). The court of appeals reverses. This is a one-judge decision and so it makes no binding law. What it does instead is pay brief lip service to the deference it owes the lower court’s discretionary call before going on to recite–with a prosecutorial tenor–its own view of how that discretion ought to have been exercised.

For example:

As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, “empt[ied] the entire clip”) in a crowded public place, but then the juvenile court found that it was not contrary to the public’s best interest to hear the case in part because the juvenile court handles serious cases “all the time.” The seriousness of the offense in this matter “is certainly worthy of weight.” See G.B.K., 126 Wis. 2d at 259-60. Indeed, the seriousness of the offense may, at times, deserve “giving heavy
weight,” see id., and the seriousness of the offense alone can justify waiver into adult court, see B.B., 166 Wis. 2d at 209-10 (concluding that the juvenile court did not erroneously exercise its discretion by finding that the public’s interest was best served by waiver due to the serious nature of the offense). The juvenile court’s decision in this case “does not reflect a reasonable basis for the determination” given the manner in which the juvenile court described the unique and dangerous nature of this shooting during its ruling. See J.A.L. v. State, 162 Wis. 2d 940, 961, 471 N.W.2d 493 (1991).


See also:

In making its ruling, the juvenile court noted that Xander had already been placed in certain programs, such as Running Rebels, as a result of his prior delinquency adjudication and that the court “struggled with … how schooling was a major issue.” The juvenile court continued that it “was definitely shocked to see that … there’s no attendance at all for that semester.” The court indicated that it “just became increasingly concerned hearing things like … he was selling drugs…. That, in conjunction with no school attendance at all.” In specifically considering the factor of the adequacy and suitability of the juvenile justice system, the court said, “What we have as far as prior treatment history is that he has a history of really of declining and not engaging in several treatment options that have been – that had been provided and offered[.]” Following this description of Xander’s prior performance in the juvenile justice system, the juvenile court found that it “can’t accept the argument on its face that the amount of time left in the juvenile system would be inadequate[.]”

As was the case with the seriousness of the offense, the record made by the juvenile court detailing Xander’s failure to comply with the terms and conditions from his prior delinquency adjudication and the programs available to Xander in the juvenile system do not reflect a reasonable basis for a determination that the juvenile system can adequately protect the public interest and therefore evinces an erroneous exercise of discretion.

Lastly, this court also notes that the State argued at the waiver hearing that the time Xander had left in the juvenile justice system would result in Xander spending at most “six to nine months” at a facility and then Xander would be “back in the community.” The State also filed supplemental facts detailing the text messages exchanged between Xander and his family when, for example, his father arranged for Xander to take an Uber following the shooting and in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister after the shooting. It would be appropriate to consider Xander’s age and the amount of time Xander has left in the juvenile justice system when analyzing the waiver criteria. See G.B.K., 126 Wis. 2d at 260 (“It is not an abuse of discretion for a court to waive jurisdiction after giving heavy weight to the severity of the offense and the short period of time left in the juvenile system.”). It would likewise be appropriate to consider the supplemental facts provided by the State. See Kleser II, 328 Wis. 2d 42, ¶¶7-8.


One might instructively compare this degree of appellate deference to that which we see when a defendant claims an erroneous exercise of sentencing discretion.

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