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Juvenile wins new hearing on whether stay of sex offender registration should be lifted; loses on judicial bias claim

State v. L.R.J., 2023AP1902, 5/8/24, District II (one-judge decision; ineligible for publication); case activity

“Lincoln” succeeds on his claim related to sex offender registration due to the State’s concession but fails to rebut the presumption that the court acted impartially when revoking a stayed Serious Juvenile Offender (SJO) order.

Lift of SJO Order

Following a court trial, Lincoln was adjudicated delinquent of four counts of first-degree sexual assault of a child, his younger brother. (¶2).  At the dispositional hearing, the court entered an order placing Lincoln in the SJO program. (¶13). It then stayed that order under § 938.34(16). (Id.). Roughly one month later, however, the State moved to revoke that stay, citing several rules violations. (¶15). At the conclusion of the hearing, the court granted the request and lifted the stayed SJO order, meaning that Lincoln was removed from his home and sent to a correctional placement. (¶22).

However, once the circuit court determines that a juvenile has violated the conditions of supervision, it is not obligated to lift the stay. Instead, the circuit court exercises discretion to determine whether a stay should be lifted depending on the specific circumstances as presented at the lift-of-stay hearing. See State v. Andrew J.K., ¶ 13. On appeal, Lincoln therefore cites those cases discussing prejudgment of a later discretionary decision as evidence of bias to argue that the court’s comments at the original dispositional hearing prove that the court was biased when it was asked to exercise that discretion in response to the State’s motion seeking to lift the stay. (¶26). COA summarizes the controverted comments as follows:

We recognize, of course, that at the December 2, 2022 hearing, the circuit court stated, as Lincoln points out, “[t]he court can stay the order but if he violates any of the conditions of his supervision, it means the stay is lifted and he goes.” Additionally, the court further expressed, “I’m requiring passing grades. Show me more. That means if you don’t go to school, it is a violation of your supervision and you’ll come back into court and I’ll lift the stay. It’s not a choice any more. Laziness is not a choice. This is your future.” And, near the end of the hearing, when addressing “sanctions warnings,” it stated that “the reality is if it reaches the level of needing a sanction … you’re going SJO.”


However, COA believes these comments need to be read in context, as nothing more than a stern talking to with the judge exercising a quasi-parental role in order to warn Lincoln of the dire consequences of noncompliance and to “instill a healthy fear in him in order to get him to finally start taking his future seriously.” (¶32). Moreover, the court’s careful weighing of the facts at the eventual lift-of-stay hearing further dispel any risk of bias. (¶33). Thus, while COA agrees with Lincoln that a circuit court is not permitted to prejudge a later discretionary decision, it holds that–at least under these facts–Lincoln has not overcome the presumption that the circuit court acted impartially in choosing to revoke the stayed order. (¶35).

Sex Offender Registration Stay

The court also ordered, but stayed, sex offender registration before also revoking that stay at the contested lift-of-stay hearing. (¶13). The problem, as the State acknowledges on appeal is that the moving party–the State–never asked for a revocation of the stay pertaining to sex offender registration. (¶38). Accordingly, it concedes that it failed to give Lincoln proper notice before the lift-of-stay hearing. (Id.). COA accepts that concession and reverses for a new hearing with respect to this issue, meaning Lincoln will be given another chance to avoid placement on the sex offender registry. (Id.)

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