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SCOW: Court’s failure to specify crime for which probable cause found didn’t invalidate bindover of juvenile charged in adult court

State v. Cortez Lorenzo Toliver, 2014 WI 85, 7/23/14, affirming an unpublished per curiam court of appeals decision; majority opinion by Justice Prosser; case activity

When a juvenile is charged with a crime that gives the criminal court exclusive original jurisdiction, § 970.032(1) expressly requires the judge conducting the preliminary hearing to find probable cause for the specific felony that gives the court jurisdiction. In this case the supreme court addresses what happens when the trial judge doesn’t follow the statute’s clear mandate. On Point asked Eileen Hirsch, an attorney with the SPD’s Madison Appellate Office and all-around juvenile law guru, to discuss the decision. Here’s her take:

Cortez Toliver was 16 years old when he was charged with attempted first degree intentional homicide. Although he was a juvenile, he was charged in adult criminal court under § 938.183(1); thus, § 970.032(1) governed his preliminary hearing. The court holds, as it previously held in State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, ¶47, 786 N.W. 2d 144:

¶ 35. . . [W]hen conducting a preliminary hearing pursuant to § 970.032, the court should: (1) acknowledge on the record that the individual being charged is a juvenile; (2) refer to the specific charge or charges that require adjudication in adult court under Wis. Stat. § 938.183(1); and (3) state on the record that there is probable cause to believe the juvenile offender has committed the specific crime or crimes charged.

Here, the issue was whether the adult criminal court properly retains jurisdiction when the preliminary hearing court makes no specific probable cause finding, but merely finds probable cause to believe “a felony” has been committed. The court splits 5-2. The dissenters (Abrahamson and Bradley) point out that § 970.032(1) specifies the remedy when the court does not make a finding of probable cause on the “violation of which he or she is accused.” The statute states: “If the court does not make that finding, the court shall order that the juvenile be discharged. . . .”  (¶38). An appellate court should “follow the statute.” (¶43).

The majority holds that an appellate court may “inspect the record ab initio to determine whether there is sufficient evidence” to support a finding of probable cause for the crime charged. (¶10). If there is sufficient evidence, it can conclude that the circuit court “implicitly” found probable cause to believe the juvenile committed the specific crime charged. (¶10). Here, the majority admits that the trial judge’s “finding should have been more precise.” (¶35). Nevertheless, it concludes that the preliminary hearing evidence “demonstrates” that the circuit court implicitly found probable cause Toliver had committed attempted first degree intentional homicide. (¶11). Therefore, the bindover and prosecution was proper. (¶12).

This analysis adds a novel twist to the familiar standard that a reviewing court may search the record to determine whether there is sufficient evidence to support a finding of probable cause. State v. Williams, 104 Wis. 2d 15, 310 N.W.2d 601 (1981). While citing that standard, the court goes one step further: Its search of the record “demonstrates” the judge’s state of mind, showing that the judge “was aware that Toliver was a juvenile and found probable cause to believe that Toliver committed attempted first-degree intentional homicide.” (¶33).

The decision emphasizes that the result might have been different “if Toliver had introduced evidence of mitigating circumstances to support a charge that was not consistent with the exclusive original jurisdiction of the adult court.” (¶34). It  repeats its holding in Kleser, 328 Wis. 2d 42, ¶60, that a juvenile “has a strong incentive to negate that specific offense during the preliminary examination—to prevent the state from prevailing on the specific offense charged, or possibly, to deprive the criminal court of its ‘exclusive original jurisdiction.’” (¶29). In Kleser, the court concluded that the juvenile “must be given some latitude in attacking the specific offense charged if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court.” Id., ¶65. This is strong language, and should encourage trial attorneys to challenge evidence of intent, and to litigate degrees of recklessness. It can also be used to argue for discovery of the prosecution’s evidence before the preliminary hearing, so that the defense has the information it needs to “attack the specific offense charged.”

The court’s decision avoids a trickier jurisdictional issue that had been briefed by the parties. Toliver appealed after he had pled guilty and had been convicted of lesser charges in criminal court. (¶20). The state argued that his challenge to the reverse waiver decision was waived by his subsequent plea. Toliver countered that by challenging the reverse waiver decision, he was challenging the jurisdiction of the adult criminal court, and jurisdictional issues are not waived by a plea, an argument. Toliver’s argument is supported by the Kleser decision, which finds that the purpose of § 970.032(1) is to “assure that the criminal court has ‘exclusive original jurisdiction.’” Id., ¶57. On the other hand, “jurisdiction” has been redefined in a number of settings as “competency.” See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶2, 30, 273 Wis. 2d 76, 681 N.W. 2d 190. But the court concludes that it need not reach this issue. (¶12). While this issue is in flux, the better practice is to appeal reverse waiver decisions by filing an interlocutory appeal. State v. Dominic E.W., 218 Wis. 2d 52, 54 fn. 2, 579 N.W. 2d 282  (Ct. App. 1998).

On Point offers kudos and thanks to Jeffrey Davis, Matthew Vogel, and James Goldschmidt, of Quarles & Brady, Milwaukee, who represented Toliver pro bono publico in the supreme court.


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