2022 WI 49
SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP419
COMPLETE TITLE: In the interest of X. S., a person under the age
of 18:
State of Wisconsin,
Petitioner-Appellant,
v.
X. S.,
Respondent-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 323, 964 N.W.2d 553
(2021 – unpublished)
OPINION FILED: June 29, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 9, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Brittany C. Grayson
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined. ZIEGLER, C.J., filed a concurring opinion in which
ROGGENSACK and REBECCA GRASSL BRADLEY, JJ. joined. HAGEDORN,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent-petitioner, there were briefs
filed by Christopher P. August, assistant state public defender.
There was an oral argument by Christopher P. August.
For the petitioner-appellant, there was a brief filed by
Lisa E.F. Kumfer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer.
2022 WI 49
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP419
(L.C. No. 2020JV663)
STATE OF WISCONSIN : IN SUPREME COURT
In the interest of X. S., a person under the
age of 18:
State of Wisconsin, FILED
Petitioner-Appellant,
JUN 29, 2022
v.
Sheila T. Reiff
Clerk of Supreme Court
X. S.,
Respondent-Respondent-Petitioner.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and KAROFSKY, JJ.,
joined. ZIEGLER, C.J., filed a concurring opinion in which
ROGGENSACK and REBECCA GRASSL BRADLEY, JJ. joined. HAGEDORN,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY and
DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Modified and
affirmed and, as modified, cause remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, State v. X.S.,
No. 2021AP419, unpublished slip op. (Wis. Ct. App. July 20,
2021), reversing the decision of the Milwaukee County circuit
No. 2021AP419
court1 to deny a petition filed by the State to waive a juvenile,
X.S., into adult court for criminal proceedings. The court of
appeals remanded the case to the circuit court to conduct a new
waiver hearing.
¶2 A mass shooting occurred at the Mayfair Mall, located
outside of Milwaukee. X.S., armed with a concealed handgun,
entered the mall with a friend, became involved in a
confrontation with another group of four individuals, and opened
fire. In the process, X.S. shot and hospitalized eight people.
The victims included the friend of X.S., three individuals in
the other group, and four bystanders who happened to be at the
mall that day. X.S. fled the scene with the help of his family.
Subsequently, he was apprehended by police. He was charged with
eight counts of first-degree reckless injury with use of a
dangerous weapon, contrary to Wis. Stat. §§ 940.23(1)(a) and
939.63(1)(b) (2019-20),2 and one count of illegal possession of a
dangerous weapon by a person under 18 years of age, contrary to
Wis. Stat. § 948.60(2)(a). The State sought to have X.S. waived
into adult court instead of remaining in juvenile court. The
circuit court denied that request for waiver. The court of
appeals reversed the circuit court's decision and remanded the
case for a new waiver hearing.
1 The Honorable Brittany C. Grayson presided.
2 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
4
No. 2021AP419
¶3 We affirm the court of appeals' decision to reverse
the circuit court and remand the case. However, we conclude
that a new waiver hearing is unnecessary. We conclude that the
circuit court erroneously exercised its discretion by denying
the State's waiver petition. There exists no reasonable basis
for denying the State's waiver petition. Therefore, we remand
the case to the circuit court with instructions to grant the
State's waiver petition.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 Over the course of several months in 2020, X.S.
engaged in serious and escalating criminal behaviors, despite
juvenile court interventions and court-ordered conditions. X.S.
had been previously deemed to be delinquent.3 He had a
concerning history while in the juvenile justice system, and the
amount of resources and the remaining potential time available
to assist X.S. in the juvenile system was limited. The
Juvenile delinquency is an alternative to criminal
3
proceedings. Juvenile courts retain exclusive jurisdiction
"over any juvenile 10 years of age or older who is alleged to be
delinquent." Wis. Stat. § 938.12(1). In Wisconsin, a
"'juvenile' . . . means a person who is less than 18 years of
age," but "for purposes of investigating or prosecuting a person
who is alleged to have violated a state or federal criminal law
or any civil law or municipal ordinance, 'juvenile' does not
include a person who has attained 17 years of age." Wis. Stat.
§ 938.02(10m). "A juvenile adjudged delinquent may be subject
to, inter alia, placement in a juvenile correctional facility or
juvenile portion of a county jail, forfeiture, suspension of
driving privileges, counseling, supervision, electronic
monitoring, restitution, supervised work or community service,
or drug testing." State v. Sanders, 2018 WI 51, ¶6, 381
Wis. 2d 522, 912 N.W.2d 16.
5
No. 2021AP419
following facts were established through X.S.'s juvenile case
records and through undisputed testimony at X.S.'s waiver
hearing. As for all pretrial waiver determinations, these facts
are used only to determine whether waiver into adult court is
warranted, not to decide whether X.S. is guilty of a criminal
offense. Under the American system of law, "[a] person when
first charged with a crime is entitled to a presumption of
innocence, and may insist that his guilt be established beyond a
reasonable doubt." Herrera v. Collins, 506 U.S. 390, 398
(1993). By reciting and relying upon the following facts, we do
not establish X.S.'s guilt beyond a reasonable doubt, nor do we
impose any form of criminal liability on X.S.
¶5 In April 2020, X.S. and two of his friends, including
E.G., were in a car together and were involved in a drug deal.
An individual purchasing drugs from the car shot into the car
and hit X.S. X.S. was taken to a nearby hospital and was
treated for several days. X.S. was 15 years old at the time of
the shooting.
¶6 In July 2020, three months after X.S. was shot, X.S.,
E.G., and another individual were driving in a car when they
were pulled over by police in St. Francis. X.S. exited the
vehicle and ran from the police, resulting in a foot chase with
police. Police soon apprehended X.S. but recognized that X.S.
had discarded a backpack during his flight. After a K-9 unit
was called to the scene, police found the backpack X.S.
concealed and discovered 133 grams of marijuana packaged for
6
No. 2021AP419
distribution. Both X.S. and E.G. possessed drug trafficking
tools, cash, and a scale.
¶7 The State charged X.S. with possession with intent to
distribute marijuana and obstructing an officer. The charges
were brought in juvenile court, and the State did not petition
to waive into adult court. X.S. and the State entered into a
plea agreement whereby the State dismissed and read in the
possession with intent to distribute charge. X.S. was convicted
of obstructing an officer. The juvenile disposition order,
entered in August 2021, directed that X.S. participate in nine
months of court-ordered supervision, participate in the Running
Rebels Intensive Monitoring Program ("Running Rebels"),4 complete
a Global Appraisal of Individual Needs ("GAIN") assessment,5
attend school daily, refrain from association with or
participation in activities that could be deemed criminal,
refrain from consuming alcohol and drugs, follow household
rules, and meet as scheduled with X.S.'s assigned Human Service
Worker ("HSW").
¶8 Despite the resources and services devoted to X.S. in
the juvenile justice system, X.S. did not comply with the
conditions included in his juvenile disposition order. On
initial intake into the juvenile system, X.S. refused to
Running Rebels Intensive Monitoring Program provides
4
support, oversight, and mentoring to delinquent juveniles.
A GAIN assessment tests the extent of an individual's drug
5
and alcohol use. The assessment allows the juvenile justice
system to best structure its treatment and services to the needs
of a delinquent juvenile.
7
No. 2021AP419
cooperate with an HSW and provide information necessary to begin
his transition into supervision. After X.S.'s attorney and
parents were contacted, the information was provided. Around
the time when school was scheduled to begin for X.S., his HSW
received a text message from X.S. offering to sell her
marijuana.6
¶9 The beginning of school in mid-August 2020 did not
improve the situation for X.S. Despite being ordered to do so
and despite repeated check-ins from X.S's HSW and school social
workers, X.S. did not attend class for the first several weeks
of school. In mid-September, several weeks after the juvenile
disposition order was entered, Running Rebels contacted the HSW
to inform her that X.S. had not enrolled, received an
assessment, or participated in orientation with Running Rebels.
This was despite specific court-ordered directions and despite
Running Rebels staff contacting X.S. Several weeks later, in
early October, Running Rebels informed the HSW that X.S. had yet
to complete orientation and begin the Running Rebels program.
The HSW eventually got in contact with X.S. (after much effort)
through his mother, notified him of Running Rebels' repeated
attempts to contact him, and informed X.S. that his refusal to
register for Running Rebels would result in him being subject to
6The text message stated, "Out here all day with some gas.
LMK." Based on the HSW's training and experience, the HSW
provided uncontested testimony that this was an offer to sell
marijuana.
8
No. 2021AP419
a 24-hour electronic monitoring system. The same day X.S.
completed his Running Rebels orientation.
¶10 Between early October and late November 2020, X.S.
continued to violate the juvenile disposition order. In mid-
October, Running Rebels informed the HSW that X.S. was non-
compliant, did not contact Running Rebels when he left his
house, and was not participating in check-in calls. In mid-
November, Running Rebels reported that X.S. had been compliant
recently and was available for face-to-face contact. However,
by late-November, X.S. was again not communicating with Running
Rebels in violation of conditions. On numerous occasions, the
HSW attempted to contact X.S. as part of his court-ordered
supervision plan, and he did not answer or respond. The HSW
attained X.S.'s school records, which showed that X.S. had not
attended a single day of school since the start of the school
year; X.S. was failing every class. After the incidents at
issue in this case, X.S. admitted that he used marijuana during
his time under court-ordered supervision. Further, X.S. was
court ordered in August 2020 to complete a GAIN assessment. In
mid-October, X.S. was given a specific referral to complete his
GAIN assessment, but by the date of the shooting at issue in
this case, the assessment had not been completed.
¶11 An initial screening indicated X.S. was at high risk
of recidivism,7 but screening also found that he did not have
7The court system utilized the Youth Assessment and
Screening Instrument ("YASI") to determine X.S.'s risk of
recidivism.
9
No. 2021AP419
substantial mental health needs.8 The HSW asked X.S. and his
family on numerous occasions if they needed any assistance, if
any help could be provided for X.S.'s school, and if they had
any issues complying with court-ordered conditions. X.S. and
his family repeatedly said no.
¶12 On Friday, November 20, 2020, three months after X.S.
entered the juvenile system, he participated in the Mayfair Mall
mass shooting. One witness described how a group of four
individuals, three male and one female, were shopping at the
Mayfair Mall. Another male approached this group "screaming"
and was accompanied by another male associate. Video evidence
confirmed that the first male was E.G. and the second male was
X.S. The witness described E.G. and X.S. as "looking for
someone," not shopping. When E.G. approached the group of four,
X.S. reached for his waistband where the witness could observe a
concealed handgun. E.G. punched a member of the group of four,
and X.S. drew the handgun. X.S. pointed the gun at the group,
who were now moving toward E.G., and X.S. opened fire. The
person who E.G. hit fell to the ground immediately; E.G. and
another member of the group of four then fell to the ground.
¶13 The witness observed that X.S. was targeting the group
of four. One of the members of the group attempted to flee, and
the witness observed X.S. turn and shoot at that member as the
member attempted to flee. The witness stated that there were
volleys of shots, separated by time. X.S. unloaded around 10
8 The screening was conducted by Wraparound Services.
10
No. 2021AP419
rounds, paused, and then continued shooting. The witness's
account was corroborated by video evidence and the statements of
other witnesses. One other witness, for instance, described
E.G. punching a member of the group of four and X.S. taking a
"shooter's stance" and firing a gun.
¶14 Almost immediately after the shooting began, local
police received emergency calls. The first officers arrived
within one minute of reports of an active shooter. By the time
police arrived, X.S. had already fled the scene. The police
discovered that eight people in the mall had been shot,
requiring immediate medical care. All eight were taken to the
hospital for treatment. It was later determined that three of
the eight were members of the group of four, and one was E.G.
The other four victims were bystanders who happened to be at the
mall that day; they had no association or interaction with X.S.
Fortuitously, none of the victims died of their injuries.
¶15 Video evidence demonstrated that X.S. fled the mall
and was picked up by a car, later determined to be an Uber
called by X.S.'s father. X.S. was dropped off at his home.
Text messages revealed that X.S.'s family coordinated to help
X.S. flee out of state, board a flight, and hide from
authorities with a family member in Florida. However, that plan
did not succeed. Police arrested X.S. a few days after the
shooting traveling in a car and carrying the handgun used in the
shooting. Forensic investigators recovered the shell casings
and bullet fragments at the mall, and they were traced to the
11
No. 2021AP419
handgun X.S. possessed and used. At the time of the shooting,
X.S. was 15-1/2 years old.
¶16 After X.S. was detained, the State filed an amended
petition for juvenile delinquency, charging X.S. with eight
counts of first-degree reckless injury with use of a dangerous
weapon and one count of illegal possession of a dangerous weapon
by a person under 18 years of age. The petition described in
detail the corroborated witness testimony of the shooting and
the video evidence depicting X.S.'s involvement and flight from
the scene. The day after the charges were filed, the State
filed a petition to waive X.S. into adult court to face criminal
prosecution. The State explained that X.S. was adjudicated
delinquent in August 2020 and X.S. had failed to comply with
court-ordered conditions, and reasoned that, given X.S.'s
documented failures with the juvenile system, "the adult system
is better able to provide appropriate accountability and address
his long-term rehabilitative needs."
¶17 After a short period of discovery and psychological
evaluations of X.S., the circuit court held a combined sanctions
hearing for X.S.'s August 2020 case and a waiver hearing for the
November 2020 case. The defense did not contest the prosecutive
merit in the State's delinquency and waiver petitions.
¶18 At the hearing, X.S.'s HSW testified and described in
detail his treatment progression and lack of compliance with the
juvenile system. The testimony corresponded to X.S.'s past
behavior and treatment history recounted above. See, supra,
¶¶5-11. Nonetheless, the HSW recommended that X.S. remain in
12
No. 2021AP419
the juvenile system and concluded that the juvenile system can
provide effective treatment and services.
¶19 X.S. called Dr. David Thompson as a witness.
Dr. Thompson was a clinical psychologist hired by X.S. to
conduct a psychological evaluation of X.S. for the waiver
hearing. Dr. Thompson stated that he reviewed the delinquency
petition, as well as the August 2020 juvenile disposition order.
However, he did not consider X.S.'s record while on juvenile
supervision, police reports of the mall shootings, and video
evidence of X.S.'s actions while at the mall, specifically
X.S.'s pause in shooting and his taking aim at a fleeing victim.
Dr. Thompson was also unaware that X.S.'s family conspired to
move X.S. out of state and escape arrest. Dr. Thompson
explained in his written report that he relied on statements
from X.S.'s mother to conclude that X.S. was "compliant" and had
"completed" the Running Rebels program. Dr. Thompson concluded
that, because X.S. had "strong social support" and a "positive
attitude toward intervention and authority," X.S. was a low risk
to reengage in violent behavior with treatment.
¶20 Dr. Thompson explained that X.S. reported to him
emotional distress as a result of the April 2020 shooting where
X.S. was shot. X.S. told Dr. Thompson that since that date, he
had experienced serious episodes of paranoia, depression, and
anxiety. X.S. provided Dr. Thompson a description of the mall
shooting. According to Dr. Thompson, X.S. stated the four other
individuals at the mall had previously threatened X.S. X.S. and
E.G. were not looking for the group, but simply ran into them.
13
No. 2021AP419
E.G. approached the group and punched one member, and X.S. felt
threatened. Under this account, X.S. pulled out a gun, closed
his eyes, and fired until the magazine was empty. Based on all
this information, Dr. Thompson believed X.S. was experiencing
symptoms of Post-Traumatic Stress Disorder ("PTSD"), and his
needs with proper treatment could be "more than adequately
addressed within . . . twelve months" within the juvenile
system. X.S. offered no testimony, affidavits, or other
evidence to support this account of events.
¶21 At the hearing, the State noted that most juveniles,
even the most violent, spend only about six to nine months in
correctional placements before they are released into the
community under supervision. X.S. did not contest this
description of the probable length of confinement. It was also
uncontested that the most serious action that could be taken if
X.S. proceeded as a juvenile was confinement in a correctional
facility, which would at most last until X.S. turned 18 years
old. See Wis. Stat. §§ 938.355(4)(b), 938.34(4m). Given X.S.'s
birthdate and the circuit court's scheduling, any juvenile
disposition order could only have been entered several months
after X.S. turned 16 years old, leaving by statute less than two
years as the maximum confinement period. Id.
¶22 After receiving evidence, the circuit court denied the
State's petition for waiver, concluding that the State had not
met its burden to waive X.S. into adult court. The State filed
a petition with the court of appeals for leave to appeal the
circuit court's waiver decision as a nonfinal order.
14
No. 2021AP419
¶23 The court of appeals granted the State's petition for
leave to appeal. In July 2021, the court of appeals reversed
the decision of the circuit court and remanded the case to the
circuit court to conduct another waiver hearing. State v. X.S.,
No. 2021AP419, unpublished slip op., ¶¶1, 30. The court of
appeals reasoned that the circuit court inappropriately relied
on unverified hearsay, recounted through Dr. Thompson's
testimony of X.S.'s account of the mall shootings. Id., ¶18.
Further, the circuit court improperly considered statements that
contradicted the State's delinquency petition. Id., ¶¶19-21.
According to the court of appeals, the circuit court also failed
to provide adequate explanation or analysis on the seriousness
of the offenses, protection of the public, the time remaining in
the juvenile system, and X.S.'s familial support, specifically
X.S.'s family's assistance with his escape from police after the
shooting. Id., ¶¶22-29. The court of appeals concluded that
the circuit court erroneously exercised its discretion. Id.,
¶30.
¶24 X.S. petitioned this court for review, and we granted
the petition in October 2021.
II. STANDARD OF REVIEW
¶25 Wisconsin Stat. § 938.18 governs waiver of juvenile
court jurisdiction. "The decision to waive juvenile court
jurisdiction under Wis. Stat. § 938.18 is committed to the sound
discretion of the juvenile court." State v. Tyler T., 2012 WI
52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192. "We will reverse the
15
No. 2021AP419
juvenile court's decision to waive jurisdiction only if the
court erroneously exercised its discretion." Id. We explained
the process for reviewing discretionary juvenile waiver
decisions in J.A.L. v. State:
An appellate court first looks to the record to see
whether that discretion was in fact exercised.
McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512
(1971). Assuming discretion was exercised, the
appellate court will look for reasons to sustain the
trial court's discretionary decision. Loomans v.
Milwaukee Mut. Ins. Co., 38 Wis. 2d 656, 662, 158
N.W.2d 318, 320 (1968). An appellate court will
reverse a juvenile court's waiver determination if and
only if the record does not reflect a reasonable basis
for the determination or a statement of the relevant
facts or reasons motivating the determination is not
carefully delineated in the record. State v. C.W.,
142 Wis. 2d 763, 766–67, 419 N.W.2d 327 (1987).
162 Wis. 2d 940, 961, 471 N.W.2d 493 (1991).
III. ANALYSIS
¶26 We will first discuss the procedure for waiving
juveniles into adult court. We will then turn to the State's
waiver petition in this case. Reviewing the record and circuit
court findings, we conclude that the circuit court erroneously
denied the State's petition.
A. Juvenile Court Waiver Proceedings
¶27 There are two steps in the process to waive juvenile
court jurisdiction. First, "[t]he court shall determine whether
the matter has prosecutive merit." Wis. Stat. § 938.18(4)(a).
We have equated a determination of prosecutive merit in this
context with "a determination of probable cause at a preliminary
16
No. 2021AP419
examination." P.A.K. v. State, 119 Wis. 2d 871, 884, 350
N.W.2d 677 (1984) (citing T.R.B. v. State, 109 Wis. 2d 179, 192,
325 N.W.2d 329 (1982)).
¶28 Once prosecutive merit has been found, the juvenile
court advances to the second stage of the proceedings. At the
second stage, the juvenile court must determine whether to waive
jurisdiction.
[T]he court shall base its decision whether to waive
jurisdiction on the following criteria:
(a) The personality of the juvenile, including
whether the juvenile has a mental illness or
developmental disability, the juvenile's physical and
mental maturity, and the juvenile's pattern of living,
prior treatment history, and apparent potential for
responding to future treatment.
(am) The prior record of the juvenile, including
whether the court has previously waived its
jurisdiction over the juvenile, whether the juvenile
has been previously convicted following a waiver of
the court's jurisdiction or has been previously found
delinquent, whether such conviction or delinquency
involved the infliction of serious bodily injury, the
juvenile's motives and attitudes, and the juvenile's
prior offenses.
(b) The type and seriousness of the offense,
including whether it was against persons or property
and the extent to which it was committed in a violent,
aggressive, premeditated or willful manner.
(c) The adequacy and suitability of facilities,
services and procedures available for treatment of the
juvenile and protection of the public within the
juvenile justice system, and, where applicable, the
mental health system and the suitability of the
juvenile for placement in the serious juvenile
offender program under s. 938.538 or the adult
intensive sanctions program under s. 301.048.
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No. 2021AP419
(d) The desirability of trial and disposition of
the entire offense in one court if the juvenile was
allegedly associated in the offense with persons who
will be charged with a crime in the court of criminal
jurisdiction.
Wis. Stat. § 938.18(5).
¶29 Under Wis. Stat. § 938.18(6), the juvenile court
shall state its finding with respect to the criteria
on the record. . . . [I]f the court determines on the
record that there is clear and convincing evidence
that it is contrary to the best interests of the
juvenile or of the public to hear the case, the court
shall enter an order waiving jurisdiction and
referring the matter to the district attorney for
appropriate proceedings in the court of criminal
jurisdiction.
§ 938.18(6).
¶30 At juvenile waiver hearings, "common law and statutory
rules of evidence are not binding." Wis. Stat. § 938.299(4)(b).
"Hearsay evidence may be admitted if it has demonstrable
circumstantial guarantees of trustworthiness." Id.
¶31 As we explained in State v. Kleser in the analogous
reverse-waiver context, the time for the juvenile to contest the
factual basis for the offenses charged is when the court makes
its probable cause determination.9 2010 WI 88, ¶¶56-66, 328
Wis. 2d 42, 786 N.W.2d 144. Once prosecutive merit in a
juvenile waiver case has been found, the juvenile cannot then
contest or contradict the findings that the offenses charged
9 Reverse waiver is a procedure by which juveniles "subject
to the exclusive original jurisdiction of the adult criminal
court" may obtain a "transfer [of] jurisdiction [from adult
court] to juvenile court." State v. Kleser, 2010 WI 88, ¶¶1, 3,
328 Wis. 2d 42, 786 N.W.2d 144 (citing Wis. Stat. §§ 938.183(1),
970.032(1) and (2) (2005-06)).
18
No. 2021AP419
were committed at the second stage of the proceedings. Id., ¶66
("We see no basis for contradicting that finding after the
preliminary examination except at trial."). A waiver hearing is
not an opportunity to conduct a "minitrial" on the merits of the
case. Id., ¶69. However, a juvenile has latitude to present
supplementary evidence in order to allow the court to
effectively analyze the statutory criteria under Wis. Stat.
§ 938.18(5), recognizing that violations of the law "[have]
already been established." Id., ¶84.
B. The State's Petition To Waive X.S. Into Adult Court.
¶32 The circuit court's decision to deny the State's
waiver petition was not reasonably supported by the facts and
record. Tyler T., 341 Wis. 2d 1, ¶24 (explaining that "[a]
juvenile court erroneously exercises its discretion . . . if it
renders a decision not reasonably supported by the facts of
record"). We defer to a circuit court's exercise of discretion.
However, in this case, reversal of the circuit court's decision
is warranted.
¶33 Under J.A.L., we first look to "the record to see
whether that discretion was in fact exercised." 162 Wis. 2d at
961. The exercise of discretion incorporates a process of
reasoning and proper explanation. State v. Salas Gayton, 2016
WI 58, ¶19, 370 Wis. 2d 264, 882 N.W.2d 459 ("An exercise of
discretion contemplates a process of reasoning. This process
must depend on facts that are of record or that are reasonably
derived by inference from the record and a conclusion based on a
19
No. 2021AP419
logical rationale founded upon proper legal standards."
(quotations and citations omitted)); McCleary v. State, 49
Wis. 2d at 277, 282 (holding that a circuit court that did not
provide adequate reasoning or explanation for a discretionary
decision "fail[ed] to exercise discretion," and explaining that
"[d]iscretion is not synonymous with decision-making"); State v.
Hall, 2002 WI App 108, ¶¶16-17, 255 Wis. 2d 662, 648 N.W.2d 41
(reasoning that a discretionary decision that was supported by
minimal and inadequate explanation by a circuit court
"reflect[ed] decision making" but not "a process of reasoning
based on a logical rationale," as is required for a proper
exercise of discretion (citations and quotations omitted)). The
circuit court here concluded that waiver into adult court was
not justified and provided a statement on the record in support
of that conclusion. However, the circuit court's findings were
unclear, and reading the circuit court's transcript as a whole,
it is difficult to infer how the circuit court applied the facts
of this case to the statutory criteria provided under Wis. Stat.
§ 938.18(5).10 Nonetheless, we will assume, without deciding,
that the circuit court provided sufficient reasoning and
explanation to constitute an exercise of discretion.
The circuit court in this case discussed much of the
10
record at the waiver hearing and cited the statutory criteria.
In addition, the circuit court repeatedly stated in general
terms that it had heard evidence from different perspectives.
However, it is not clear from the circuit court transcript how
the circuit court interpreted and applied the facts in this case
to the statutory factors provided under Wis. Stat. § 938.18(5).
20
No. 2021AP419
¶34 Under J.A.L., "[a]ssuming discretion was exercised,"
we next "look for reasons to sustain the trial court's
discretionary decision." 162 Wis. 2d at 961. There are several
facts that may support the circuit court's decision to deny
waiver into adult court in this case.
¶35 First, at the Mayfair Mall, X.S. shot three
individuals in the other group with whom X.S. was engaged in a
confrontation, as well as four bystanders. However, in the
process, he also shot his own friend, E.G. Second, after X.S.
engaged in the shootings, he contacted his family to assist him
in his escape and had an Uber called to drive him away from the
mall. X.S. and his family formulated a plan to flee the state
after the shootings took place, and X.S. was apprehended by
police a few days after the shootings. From the available
record, X.S. does not appear to have created a well-developed
escape plan prior to the mall shootings. Third, X.S. was
diagnosed with PTSD as a result of being shot in April 2020, and
the State did not challenge the validity of that diagnosis.
X.S. could in the future receive treatment for any remaining
mental health issues he has. Proper treatment could improve the
possibility that X.S. will comply with court-ordered conditions
and decline opportunities to engage in future criminal behavior.
Fourth, many of the events that lay at the heart of the record
in this case occurred when both X.S. and E.G. were acting
together. X.S. was shot in April 2020 when he was at a drug
deal with E.G.; X.S. was arrested in July 2020 for possessing
with intent to distribute marijuana and obstructing an officer
21
No. 2021AP419
while he was with E.G.; and X.S. participated in the shooting at
the Mayfair Mall after E.G. and X.S. confronted the other group
of four individuals. It is possible X.S.'s past behavior could
be attributed in part to his associations with E.G. Fifth,
between when X.S. entered the juvenile system in July 2020 and
when he committed the shootings at issue in November 2020, he
was in the juvenile system for around four months. Although
X.S.'s record in the juvenile system was marked by non-
compliance with court-ordered conditions, there was not a long
history by which a court could judge the adequacy of the
juvenile system for X.S.
¶36 Under J.A.L. we "will reverse a juvenile court's
waiver determination if and only if the record does not reflect
a reasonable basis for the determination or a statement of the
relevant facts or reasons motivating the determination is not
carefully delineated in the record." 162 Wis. 2d at 961. We
conclude that the record does not reflect a reasonable basis for
denying the State's waiver petition.
¶37 The circuit court determined there was prosecutive
merit, which X.S. did not contest. Therefore, it is taken as
established for purposes of analyzing the State's waiver
petition that X.S. on November 20, 2020, engaged in eight acts
of first-degree reckless injury with use of a dangerous weapon,
in violation of Wis. Stat. §§ 940.23(1)(a) and 939.63(1)(b).
See Kleser, 328 Wis. 2d 42, ¶84. For purposes of a waiver
analysis, it is taken as established that X.S. on eight
different occasions "recklessly cause[d] great bodily harm to
22
No. 2021AP419
another human being under circumstances which show utter
disregard for human life." § 940.23(1)(a). In addition, it is
taken as established that X.S. illegally possessed a dangerous
weapon on that date, in violation of Wis. Stat. § 948.60(2)(a).11
1. The Type and Seriousness of the Offenses.
¶38 The offenses X.S. is charged with demonstrate that he
engaged in reckless conduct while showing an utter disregard for
human life. X.S. was willing and able to carry an illegal
weapon, use it, and thereby risk the lives of eight people.
¶39 Supplemental facts in the record, used "to put the
offense[s] in context," only highlight the dangerousness and
reckless nature of X.S.'s actions. Kleser, 328 Wis. 2d 42, ¶84.
According to witness testimony, X.S. and E.G. entered a public
mall on the Friday afternoon before Thanksgiving. E.G., with
X.S., then confronted the group of four other individuals,
consisting of three males and one female, who were shopping.
E.G. assaulted one of the members of the other group. X.S. drew
a concealed handgun and opened fire on the group. X.S. unloaded
around ten rounds, hitting E.G. and at least two of the members
of the other group. After firing, X.S. then paused, saw one of
the members of the other group attempting to flee, turned his
attention to this other individual, and he opened fire at that
11As we emphasized previously, at trial the State must
prove these offenses beyond a reasonable doubt to establish
X.S.'s guilt. See supra, ¶4. When reviewing the juvenile
waiver decision at issue in this case, we do not establish
X.S.'s guilt, nor do we attach any form of criminal liability to
X.S.
23
No. 2021AP419
individual. There was no evidence or indication that anyone at
the mall posed a danger to X.S., used or possessed a weapon, or
threatened X.S. with serious danger. This sequence of events
was corroborated by multiple witnesses and video evidence.
¶40 Local police were asked to respond to an active
shooter. They arrived in less than one minute after the first
emergency calls were made. They identified and addressed the
wounded, and one officer, Dexter Schleis, searched the mall for
the shooter. The police did not discover X.S. Although he did
not have a well-developed escape plan, X.S. chose not to
surrender to authorities. Instead, he fled the scene and
attempted to escape out of state. This resulted in a police
search for an at-large mass shooting suspect. X.S. was
eventually apprehended a few days later in possession of the
weapon used in the shootings.
¶41 As a result of X.S.'s actions, eight individuals
received serious bodily injury with gunshot wounds. One victim
was his own friend, E.G. Three of the victims were from the
other group, and four were completely unassociated bystanders.
After the shooting, the victims were transported immediately to
a hospital where they received emergency care. As the circuit
court accurately found, "it's a miracle that there were . . . no
deaths."
¶42 The record highlights how X.S. carried an illegal
handgun, entered a public location populated by bystanders and
innocents, and opened fire. X.S. targeted at least four members
of the other group, and in fact paused, turned, and shot at one
24
No. 2021AP419
member attempting to flee. At least four of the victims were
shot indiscriminately and without any association with X.S. In
addition, X.S. put his own, young life in serious jeopardy; as
the circuit court correctly found, it is "miracle" X.S. was not
shot or killed by a private citizen or police during the
incidents at issue.
¶43 With the offenses and record in mind, consideration of
the "type and seriousness of the offense[s]" overwhelmingly
support waiver into adult court. Wis. Stat. § 938.18(5)(b).
There are very few acts that are more deleterious and harmful,
to individuals and society at large, than a mass and
indiscriminate shooting at a place of public accommodation.
Further, witnesses and video evidence confirmed that X.S. paused
while he was shooting, turned toward a fleeing member of the
group, and fired several rounds at that member. The facts, as
shown by the delinquency petition and the record, demonstrate
that X.S. acted in a "violent," "aggressive," and "willful
manner" when he unloaded his handgun at the Mayfair Mall on
November 20, 2020. Id.
¶44 X.S. did not submit into evidence an alternative
account of the events the day of the shooting. At the waiver
hearing, Dr. Thompson stated that X.S. told him that the other
group of four at the mall had threatened X.S. in the past, X.S.
and E.G. were not looking for the group at the mall, and X.S.
simply closed his eyes and unloaded the full magazine of a
handgun he carried into the mall. Putting aside the fact that
closing one's eyes and firing indiscriminately in a public mall
25
No. 2021AP419
is extraordinarily serious, the waiver hearing transcript
indicates that the circuit court never relied on the hearsay
story provided by Dr. Thompson for the truth of the matter
asserted. See Wis. Stat. § 908.01(3) ("Hearsay is a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted.").
¶45 Although out-of-court statements can be relied upon to
form expert opinions, State v. Williams, 2002 WI 58, ¶28, 253
Wis. 2d 99, 644 N.W.2d 919, and hearsay is admissible at waiver
hearings, to be admitted hearsay statements must have
"demonstrable circumstantial guarantees of trustworthiness."
Wis. Stat. § 938.299(4)(b). The circuit court did not make any
findings that the story had "demonstrable circumstantial
guarantees of trustworthiness" sufficient to warrant admission
as hearsay statements under § 938.299(4)(b). The circuit court
did cite the story as one used by Dr. Thompson to formulate his
opinion, but that does not on its own constitute reliance by the
court on the truth of the matters asserted. See Williams, 253
Wis. 2d 99, ¶28. On appeal, X.S. did not argue that the hearsay
statements recounted by Dr. Thompson should be admitted for the
truth of the matter asserted. To the contrary, X.S. repeatedly
argued that the circuit court did not rely on those statements
for their truth and, therefore, no hearsay concern is warranted.
Therefore, while reviewing the record to determine whether there
was a reasonable basis for the circuit court's decision, we do
not accept the hearsay story recounted by Dr. Thompson for the
26
No. 2021AP419
truth of the matter asserted. J.A.L., 162 Wis. 2d at 961. The
"type and seriousness of the offense[s]" overwhelmingly support
waiver into adult court. Wis. Stat. § 938.18(5)(b).
2. The Adequacy and Suitability of Juvenile Disposition.
¶46 In addition to the seriousness of the offenses, under
the established record, the "adequacy and suitability" of
juvenile disposition heavily favors waiver into adult court.
Wis. Stat. § 938.18(5)(c). X.S. received an uncontested
diagnosis of PTSD, for which he could receive treatment. In
addition, X.S. may have been influenced by peer pressure from
E.G. Nonetheless, it was well documented and undisputed that
X.S. struggled mightily while in the juvenile system after he
was caught possessing with the intent to distribute marijuana
and obstructing an officer in July 2020. X.S. was given access
to programs and resources to help him conform to a socially
productive way of life and to avoid a life of crime. Not only
did X.S. fail to take advantage of these benefits, his
antisocial and criminal behavior escalated.
¶47 By court order in August 2020, X.S. was directed to
participate in the Running Rebels, complete a GAIN assessment,
attend school daily, refrain from association with or
participation in activities that could be deemed criminal,
refrain from consuming alcohol and drugs, follow household
rules, and meet as scheduled with X.S.'s assigned HSW. X.S.
performed poorly or outright failed to comply with almost all
these conditions.
27
No. 2021AP419
¶48 X.S. initially refused to participate in an intake
interview, which was corrected only after his attorney and
parents were made aware of possible consequences of non-
compliance. Soon after entering the juvenile system, his HSW
stated that X.S. texted the HSW an advertisement to purchase
marijuana from him. The HSW testified that on numerous
occasions, she attempted to contact X.S. in line with his
juvenile supervision plan, and he did not answer or respond. By
early October, X.S. had not enrolled, received an assessment,
nor participated in orientation with Running Rebels as directed,
despite repeated contacts from the HSW and Running Rebels'
representatives. X.S. registered for Running Rebels only after
the HSW threatened court sanctions. Even then, X.S. was only
sporadically compliant with the Running Rebels program. For
many weeks, he did not contact Running Rebels when he left his
house, nor did he participate in check-in calls. Despite
repeated contacts and offers of assistance from the HSW and
school social workers, X.S. did not attend a single day of
school from August 2020 to the date of shooting. X.S. was
failing in every class in which he was enrolled. After the
shootings, X.S. admitted to using drugs while on juvenile
supervision, and by the date of the shootings, X.S. had not
completed a GAIN assessment. As shown by the facts of the
instant case, X.S. continued to associate himself with E.G. and
engaged in criminal behavior while on supervision.
¶49 X.S.'s actions and history demonstrated that he was
deeply unresponsive to the juvenile system while he was a
28
No. 2021AP419
participant. Juvenile resources did not seem to improve X.S.'s
situation, and this period under juvenile supervision culminated
in a mass shooting. Although the HSW stated that X.S. could be
adequately treated in the juvenile system, offering a
correctional placement, the record and the HSW's own testimony
conclusively contradicted the notion that X.S. was receptive to
juvenile services and treatment.12 The State contended that, in
all likelihood, X.S. would at most spend six to nine months in
confinement if given a correctional placement. This was
undisputed before the circuit court and on appeal. By statute,
the maximum length X.S. could spend at a correctional placement
was up to his 18th birthday, which was less than two years. See
Wis. Stat. §§ 938.355(4)(b), 938.34(4m). Given X.S.'s criminal
actions at issue in this case, and his demonstrated responses to
juvenile interventions in the past, the amount of confinement
under consideration in this case is woefully inadequate to
address X.S.'s serious needs and his risk to the public.
¶50 X.S.'s hired expert Dr. Thompson testified in favor of
adjudicating X.S. as a juvenile. However, the contradictions
with the record and the information Dr. Thompson did not
consider placed his opinion in serious doubt. Dr. Thompson did
not consider X.S.'s record while on juvenile supervision, police
reports of the mall shootings, and video evidence of X.S.'s
The HSW described in
12 detail X.S.'s past history and
failures in complying with court-ordered conditions. See,
supra, ¶¶5-11. In addition, the HSW had access to a court-
ordered YASI risk assessment that concluded X.S. was at high
risk of reoffending.
29
No. 2021AP419
actions while at the mall, specifically pausing while shooting
and taking aim at a fleeing victim. Dr. Thompson reasoned,
relying on self-reported statements from X.S.'s mother, that
X.S. was "compliant" and had "completed" the Running Rebels
program. That is undeniably false. In addition, Dr. Thompson
explained that X.S. had "strong social support" and a "positive
attitude toward intervention and authority." This too is
completely at odds with the full record, which Dr. Thompson
admittedly did not consider. Dr. Thompson himself stated on
cross-examination that if he had considered the fact that X.S.'s
family conspired to help X.S. flee from the police, that would
present a "problem" for his favorable findings with regard to
X.S.'s social support. From an incomplete picture of the facts
and a series of faulty assumptions, Dr. Thompson opined that
X.S.'s needs could be "more than adequately addressed
within . . . twelve months" within the juvenile system. This
opinion does not alter the analysis that the "adequacy and
suitability" of juvenile disposition strongly favored waiver.
Wis. Stat. § 938.18(5)(c).
3. The Personality of the Juvenile.
¶51 The "personality of the juvenile" also strongly
supports waiver. Wis. Stat. § 938.18(5)(a). X.S. received a
diagnosis of PTSD and may have been influenced by negative peer
pressure. He nonetheless engaged in a mall shooting where he
carelessly gunned down eight people. X.S. concealed an illegal
handgun and, targeted, paused, and shot at a group of people
with whom he had gotten into a confrontation without provocation
30
No. 2021AP419
or any serious threat. After the shooting, he worked with his
parents and family to devise an escape plan. All these acts
were committed while X.S. was already in the juvenile system.
Prior to entering the juvenile system, X.S. dealt drugs and
obstructed police. Despite the access to the benefits of
juvenile disposition, X.S. performed abysmally. In his time on
juvenile supervision, X.S. violated almost every court-ordered
condition with which he was obliged to comply, and he committed
at least eight serious felonies and one misdemeanor. Through
Running Rebels, GAIN assessment, school social workers and
teachers, and access to a HSW and an overseeing juvenile court,
X.S. was given the opportunity to receive support, obtain any
needed help, and put his life on a path to becoming a productive
member of society. X.S. was completely unreceptive to these
resources. Given the evidence currently available, his "pattern
of living, prior treatment history, and apparent potential for
responding to future treatment" heavily weighed in favor of
waiver. Id.
4. The Prior Record of the Juvenile.
¶52 As thoroughly explained above, X.S.'s "prior record"
supports waiver into adult court. Wis. Stat. § 938.18(5)(am).
X.S. was not previously waived into adult court, and before he
committed a mass shooting, his prior record did not include acts
of violence. Further, X.S.'s motives and attitudes may have
been influenced by his association with E.G. However, at the
waiver hearing, it was undisputed that in April 2020, he was in
a drug deal with two of his friends and was shot. In July 2020,
31
No. 2021AP419
he was arrested for distribution of marijuana and obstructing an
officer, and he was brought into the juvenile system. He
pleaded guilty to the obstruction charge. The marijuana
distribution charge was dismissed but read in. In August 2020,
X.S. was court ordered to comply with conditions of supervision,
to participate in a number of services, and to attend school.
During his time in the juvenile system, X.S.'s record
demonstrates that he engaged in criminal behavior and violated
his conditions of supervision in numerous ways. According to
X.S.'s records and testimony at the waiver hearing, X.S. still
used drugs, his text to his HSW indicated that he continued to
deal drugs, he refused to attend any classes at school, and he
was largely non-responsive to professionals at Running Rebels
and the juvenile system which sought to give him help and
support. After all this, he participated in a mass shooting and
attempted to flee the state, while still on supervision. X.S.'s
escalated criminal activity and non-compliance with court orders
and programming in the juvenile justice system is nothing short
of frightening. His "prior record" demonstrates that juvenile
court is inadequate to address X.S.'s behaviors, needs, and
predispositions, and that adult adjudication can best ensure the
protection of the public and the safe reintroduction of X.S.
into society.13 Id.
Because X.S. was not "associated in the offense with
13
persons who will be charged with a crime in the court of
criminal jurisdiction," Wis. Stat. § 938.18(5)(d) is not
applicable.
32
No. 2021AP419
¶53 Appellate courts defer to the discretionary decisions
of circuit court judges, who are in the best position to observe
the facts and apply the law. Tyler T., 341 Wis. 2d 1, ¶24. But
while a circuit court's discretion is broad, it is "not
unlimited." Salas Gayton, 370 Wis. 2d 264, ¶24; Hartung v.
Hartung, 102 Wis. 2d 58, 66-69, 306 N.W.2d 16 (1981) ("[T]he
exercise of discretion is not the equivalent of unfettered
decision-making."). It has been long established that circuit
courts must exercise their discretion within the bounds of
reasonable decision-making. Tyler T., 341 Wis. 2d 1, ¶24. We
cannot search the record to find reasons to overturn circuit
courts' discretionary decisions. Id. ("In reviewing the
juvenile court's discretionary decision to waive jurisdiction,
we look for reasons to sustain the court's decision.").
However, we cannot stand by while discretionary decisions
falling outside the bounds of reasonable action are executed and
enforced in this state. See J.A.L., 162 Wis. 2d at 961 ("An
appellate court will reverse a juvenile court's waiver
determination if . . . the record does not reflect a reasonable
basis for the determination."). As an appellate court, to sit
back and allow the implementation of wholly unjustified orders
would be as great a misuse of our judicial role as would be the
overriding of discretionary decisions simply due to a lack of
comfort, or mere disagreement with those decisions. See Casper
v. Am. Int'l S. Ins. Co., 2011 WI 81, ¶30, 336 Wis. 2d 267, 800
N.W.2d 880 (explaining that when reviewing a circuit court's
exercise of discretion "we do not look to whether this court
33
No. 2021AP419
would or would not have granted relief but rather whether the
circuit court [erroneously exercised] its discretion").
¶54 We have a duty as appellate courts to review lower
court decision making, just as lower courts have an obligation
to reasonably exercise their discretion. If lower courts
erroneously exercise their discretion, we have the
responsibility to intervene. See, e.g., Miller v. Hanover Ins.
Co., 2010 WI 75, ¶48, 326 Wis. 2d 640, 785 N.W.2d 493 (reasoning
that a circuit court's discretionary decision to deny a motion
for relief from default judgment because it was "not reasonable
in light of the extraordinary circumstances present," despite
the fact that the defendant was already a named and noticed
party in the lawsuit, the defendant received several notices of
the action, including to the defendant's registered agent, and
the defendant's attorney of record told the plaintiff in a
letter he represented the defendant as to an unrelated issue);
Martindale v. Ripp, 2001 WI 113, ¶¶46-73, 246 Wis. 2d 67, 629
N.W.2d 698 (holding that a plaintiff had set an adequate
foundation for expert testimony, the expert was professionally
competent to testify in the area, and the expert testimony met a
reasonable degree of medical probability, despite circuit court
findings with factual citations to the contrary); Hartung, 102
Wis. 2d at 66-69 (concluding that a circuit court erroneously
exercised its discretion by awarding alimony and child support
at 27 percent of the payor's income and limiting alimony for 18
months, even recognizing that there is an interest in ensuring
self-sufficiency, that it was unrealistic for the payor to
34
No. 2021AP419
afford payments without the recipient beginning some form of
work, and that the payor and recipient signed a divorce
agreement in consideration for the stated alimony); McCleary, 49
Wis. 2d at 278-86 (holding that a nine-year sentence for forging
a $50 check was an erroneous exercise of discretion by relying
in part on the defendant's testimony and the weaknesses of a
professional report favoring the sentence, despite the fact that
the circuit court believed the defendant's explanation was not
credible and that the defendant thought he was above the law and
lacked a sense of responsibility).
¶55 The facts of this case are extreme, and the circuit
court's decision is distinctly out of the ordinary: it is
erroneous. Considering the criteria enumerated under Wis. Stat.
§ 938.18(5), the record reasonably supports only the conclusion
that there is "clear and convincing evidence that it is contrary
to the best interests of the juvenile [and] the public to hear
the case" in juvenile court. § 938.18(6); Tyler T., 341
Wis. 2d 1, ¶24. While we are hesitant to overturn a
discretionary decision of a circuit court, the circuit court's
35
No. 2021AP419
decision below to deny the State's waiver petition cannot be
upheld.14
IV. CONCLUSION
¶56 We affirm the court of appeals' decision to reverse
the circuit court and remand the case. However, we conclude
that a new waiver hearing is unnecessary. We conclude that the
circuit court erroneously exercised its discretion by denying
the State's waiver petition. There exists no reasonable basis
for denying the State's waiver petition. Therefore, we remand
the case to the circuit court with instructions to grant the
State's waiver petition.
By the Court.—The decision of the court of appeals is
modified and affirmed and, as modified, the cause remanded to
the circuit court.
14After the court of appeals reversed the circuit court,
X.S. filed a motion for reconsideration. The court of appeals
denied the motion for reconsideration without providing
reasoning. Before this court, X.S. argues that the court of
appeals erroneously exercised its discretion in denying the
motion for reconsideration without providing explanation. Even
if we assume without deciding that the court of appeals
erroneously exercised its discretion by failing to give adequate
reasoning, we will not reverse the court of appeals' decision.
As a matter of law, the court of appeals' decision was correct
on the merits. See Peplinski v. Fobe's Roofing, Inc., 193
Wis. 2d 6, 20, 531 N.W.2d 597 (1995) ("While the basis for an
exercise of discretion should be set forth in the record, it
will be upheld if the appellate court can find facts of record
which would support the [lower] court's decision."). The
circuit court's denial of waiver in this case was erroneous and
must be reversed.
36
No. 2021AP419
37
No. 2021AP419.akz
¶57 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). The
circuit court below determined that waiver into adult court was
not warranted. As the majority opinion correctly concludes,
there was no reasonable basis for the circuit court to deny the
State's waiver petition in this case. Majority op., ¶56; see
also J.A.L. v. State, 162 Wis. 2d 940, 961, 471 N.W.2d 493
(1991). Therefore, the circuit court erroneously exercised its
discretion, and the circuit court's decision to deny waiver must
be reversed. I write separately because there is a second
reason why the circuit court's decision must be reversed: the
circuit court failed to provide sufficient reasoning to support
its decision.
¶58 A circuit court erroneously exercises it discretion
when "if it fails to carefully delineate the relevant facts or
reasons motivating its decision."1 State v. Tyler T., 2012 WI
52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192; McCleary v. State, 49
Wis. 2d 263, 282, 182 N.W.2d 512 (1971) ("[T]he failure to
exercise discretion (discretion that is apparent from the
"Regardless of the extent of the trial court's reasoning,
1
a reviewing court will uphold a discretionary decision if there
are facts in the record which would support the trial court's
decision had it fully exercised its discretion." State v.
Hurley, 2015 WI 35, ¶29, 361 Wis. 2d 529, 861 N.W.2d 174
(quotations omitted); accord McCleary v. State, 49 Wis. 2d 263,
282, 182 N.W.2d 512 (1971). We cannot reverse a valid juvenile
waiver decision simply due to the circuit court's failure to
articulate reasoning without providing the opportunity for a
rehearing. See Paschong v. Hollenbeck, 16 Wis. 2d 284, 286, 114
N.W.2d 438 (1962) (explaining that appellate courts "remand to
the trial court to exercise discretion" when "there [is] room in
the facts which did not confine the court to one result").
1
No. 2021AP419.akz
record) when discretion is required, constitutes an [erroneous
exercise] of discretion.").
¶59 The statute governing juvenile waivers into adult
court adds support and clarification to this standard.
Wisconsin Stat. § 938.18(4)(b) states that circuit courts "shall
base [their] decision[s] whether to waive jurisdiction on the
[five] criteria" specified in § 938.18(5). Section 938.18(5)
reiterates this requirement: "If prosecutive merit is found,
the court shall base its decision whether to waive jurisdiction
on the [five] criteria." Finally, § 938.18(6) explains that,
"[a]fter considering the criteria under sub. (5), the court
shall state its finding with respect to the criteria on the
record." The plain text of § 938.18 indicates that circuit
courts must consider, address, and analyze each of the five
criteria used in juvenile waiver proceedings before making a
waiver determination. § 938.18(5). Of course, the weight and
importance of some criteria may differ depending on the case.
"The juvenile court has discretion as to the weight it affords
each of the criteria." J.A.L., 162 Wis. 2d at 960. There may
be some cases, for instance, in which the seriousness of the
offense alone justifies wavier into adult court. See B.B. v.
State, 166 Wis. 2d 202, 209, 479 N.W.2d 205 (Ct. App. 1991)
(affirming as a reasonable exercise of discretion a circuit
court decision to waive a juvenile charged with five counts of
first-degree intentional homicide into adult court when all
criteria favored retaining jurisdiction, except the seriousness
of the offense). Nonetheless, no matter how the circuit court
2
No. 2021AP419.akz
decides the criteria are best weighed, it must still evaluate
each of the five statutory criteria and state its findings on
the record. Tyler T., 341 Wis. 2d 1, ¶24; § 938.18(4)(b), (5),
(6).
¶60 While the circuit court in this case discussed much of
the record at the waiver hearing and cited the statutory
criteria, it failed to perform that final, invaluable step of
proper judicial reasoning: analyzing and applying the facts to
the relevant criteria. The circuit court stated in broad and
generalized terms that it had received evidence on different
topics. It stated, "we have talked and I heard a lot of
testimony about school and how schooling was a major issue"; "we
all know that connection between education and risk of
offending"; "[the HSW] did talk about . . . [her] frequent
contact with [X.S.], trying to identify how she could help him";
a YASI risk assessment finding X.S. a high risk to reoffend
"really highlighted . . . history, school, and family"; "[w]e
heard from Dr. Thompson" who "went through his assessment."
¶61 The circuit court then turned to the statutory
criteria. It stated, "we talked about some of [X.S.'s]
personality traits" and his "family life"; "[w]e also talked
about his age and maturity level"; "[X.S.'s] continued
association with [E.G.] . . . came out when we discussed the
nature of this offense that we're discussing"; "we can talk
about [maturity] in a number of ways"; "[p]attern of living, so
we talked about that." For prior history, the circuit court
stated "we talked and I heard . . . [X.S] has been on
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No. 2021AP419.akz
supervision"; "[X.S.] didn't comply with Running Rebels or his
GAIN assessment"; and X.S.'s prior delinquency "came in with two
charges" and "we talked in detail about that prior case." For
the seriousness of the offense, the circuit court stated that
"we spent a lot of time on this criteria"; "the allegations are
incredibly serious"; and the record "shed[s] some light on our
discussion about whether the act was premeditated." For the
adequacy of the juvenile system, the circuit court stated "we
have . . . a history of really declining and not engaging in
several treatment options"; "legal history, school, and
family . . . are the risk factors we're talking about"; and "I
didn't hear any testimony on a timeline that [X.S.] would need
for treatment."
¶62 Finally, the circuit court explained that "much of the
conversation focused on the nature of the offense . . . and the
adequacy of the system." It stated that it has "no information
to . . . find that the juvenile system is inadequate" and "[w]e
handle serious cases all the time in juvenile court." The
circuit court appeared to conclude that the "adequacy and
suitability" of juvenile facilities weighed against waiver; the
circuit court explained that the seriousness of the offense
"does not bar" juvenile proceedings.
¶63 The lack of analysis provided in the circuit court's
transcript is striking. The circuit court repeatedly stated in
general terms that it and the parties, i.e., "we," heard
evidence from different perspectives. The transcript leaves the
reader anxiously awaiting how the circuit court will weigh those
4
No. 2021AP419.akz
facts and apply them to the statutory criteria. Alas, the
reader is ultimately left disappointed, learning only after the
fact that the circuit court had "already discussed" those
issues, unbeknownst to any reasonable observer. Contrary to the
circuit court's statements, it never actually provided analysis.
It never individualized the statutory criteria to the facts of
this case, and it never fully articulated how it came to its
decision.
¶64 The circuit court reiterated the substantial body of
evidence that favored waiver, including X.S.'s abysmal treatment
history, his prior conduct, the serious issues with X.S.'s
family support, and the extreme and violent nature of his
crimes. None of these facts, at the center of a proper waiver
analysis in this case, were weighed or properly balanced against
any offsetting considerations. They were simply cited, along
with the statutory criteria. The circuit court then declared
they "were discussed." Similarly, the circuit court cited the
HSW's and Dr. Thompson's opinions in opposition to waiver. But
the court never fully explained how much, if any, weight it was
giving to those opinions and whether and to what extent the
opinions were credible, given the information relied upon by the
HSW and Dr. Thompson in the formation of their opinions. The
circuit court did not compare the HSW's final opinion to the
body of evidence the circuit court cited and the HSW herself
produced, which included a YASI risk assessment indicating a
high likelihood of recidivism, serial violations of the prior
juvenile disposition order, minimal respect for court-ordered
5
No. 2021AP419.akz
conditions, and little receptiveness to outreach and treatment.
The circuit court did not discuss the shocking discrepancy
between the established record and Dr. Thompson's findings that
X.S. was compliant with court orders, had a positive attitude
toward state authority, and had a strong network to support law-
abiding behaviors.
¶65 From reading the circuit court transcript, we cannot
readily determine whether the circuit court believed "[t]he
personality of the juvenile," "[t]he prior record of the
juvenile," or the "type and seriousness of the offense" weighed
in favor or against waiver. Wis. Stat. § 938.18(5)(a), (am),
(b). And if we cannot, we seriously doubt others, especially
the lay public, can. While the circuit court appeared to
conclude that the "adequacy and suitability" of the juvenile
system did not support waiver, that is only one criteria.
§ 938.18(5)(c). The circuit court provided no material analysis
as to how that one criteria compared, interacted, and countered
considerations of other factors. No substantive discussion was
provided as to how all the factors, considered and weighed
together as a whole, supported denial of the State's waiver
petition.
¶66 More is required to ensure a proper exercise of
discretion. See McCleary v. State, 49 Wis. 2d at 268-70
(describing how a sentencing court read from evidence, concluded
it agreed with the evidence without further analysis or
explanation, and provided cursory findings on the seriousness of
the offense and the defendant's motives; reasoning that the
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No. 2021AP419.akz
Wisconsin Supreme Court could not infer whether the sentencing
court had applied the applicable sentencing factors, thus
resulting in an erroneous exercise of discretion); Hartung v.
Hartung, 102 Wis. 2d 58, 67, 306 N.W.2d 16 (1981) (explaining in
the context of circuit court rationale for a alimony and child
support order that "[i]t is not enough that the relevant factors
upon which discretion could have been based may be found
obscurely in the record"); State v. Hall, 2002 WI App 108, ¶¶16-
17, 255 Wis. 2d 662, 648 N.W.2d 41 (explaining that the circuit
court indicated it "[took] into consideration" evidence and
"mentioned a number of the sentencing factors," which reflected
"decision-making" but not a "process of reasoning based on a
logical rationale," in an erroneous exercise of discretion
(quotations omitted)).
¶67 Circuit courts have the responsibility to "carefully
delineate the relevant facts [and] reasons motivating its
decision." Tyler T., 341 Wis. 2d 1, ¶24. They are statutorily
obligated to "state [their] finding[s] with respect to the
criteria on the record." Wis. Stat. § 938.18(6). This ensures
clear and well reasoned decisions for the benefit of the public,
appellate courts, and the individuals subject to waiver
proceedings. Here, the circuit court failed to provide adequate
reasoning for its decision, and that was an erroneous exercise
of discretion.
¶68 As the majority opinion correctly concludes, there was
no reasonable basis for the circuit court to deny the State's
waiver petition in this case. Majority op., ¶56; see also
7
No. 2021AP419.akz
J.A.L., 162 Wis. 2d at 961. However, there is a second reason
why the circuit court's decision must be reversed: the circuit
court failed to provide adequate reasoning as required under the
law.
¶69 For the foregoing reasons, I respectfully concur.
¶70 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this concurrence.
8
No. 2021AP419.bh
¶71 BRIAN HAGEDORN, J. (dissenting). In the face of a
deeply disturbing crime, the State sought to waive a juvenile
offender out of the jurisdiction of the juvenile court and into
adult court. The circuit court denied the State's request.
Although another judge might have reasonably reached a different
conclusion on the same set of facts, this decision was within
the discretion the law affords to circuit court judges. The
majority, however, displaces the circuit court's discretion with
its own, even as it pays lip service to the deferential standard
of review we are duty-bound to apply. After reviewing cold
transcripts of testimony the circuit court heard firsthand, the
majority concludes it knows better and grants the State's waiver
petition——a remedy even the State didn't think to ask for. The
majority errs.
¶72 The majority's essential misstep is that it brushes
aside the circuit court's decision and conducts the analysis
afresh——both in finding its own facts and deciding the issue
without the proper deference to the circuit court. To be sure,
the circuit court's analysis left something to be desired in
both content and clarity. But that should not doom its
determination. Read reasonably and in context, the transcript
reveals that the circuit court examined the relevant facts,
applied the proper standard of law, and rationally connected the
facts to the law. See Lane v. Sharp Packaging Sys., Inc., 2002
WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. Given this standard
of review, the law instructs that the ultimate judgment call is
the circuit court's to make, even for decisions we dislike. The
1
No. 2021AP419.bh
majority acknowledges this rule, and then promptly ignores it.
Because the law entrusts these judgment calls to locally elected
circuit court judges, and not to us, I respectfully dissent.
I. BACKGROUND
¶73 This case began when the State filed a delinquency
petition against Xander (a pseudonym), alleging eight counts of
first-degree reckless injury with the use of a dangerous weapon
and a single count of possession of a dangerous weapon. The
charges stemmed from a shooting that occurred at Mayfair Mall in
Wauwatosa; eight people were senselessly injured. Xander, the
alleged shooter, was 15 at the time.
¶74 The day after the delinquency petition was filed, the
State petitioned for waiver of jurisdiction into adult court.
At the waiver hearing, the State presented only one witness, an
employee of the Milwaukee County Division of Youth and Family
Services (DYFS) who recommended against waiving Xander into
adult court. Xander called his own expert witness, Dr.
Thompson, who, like the State's witness, testified against
waiver. He opined that Xander could be effectively treated in
the juvenile system. No witness called by either the State or
Xander testified in favor of the waiver petition. After hearing
testimony from both witnesses and argument from the attorneys,
the circuit court denied the State's petition for waiver,
providing a lengthy explanation from the bench for its
reasoning.
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No. 2021AP419.bh
¶75 The State sought leave to appeal the waiver denial,
which the court of appeals granted. The court of appeals
reversed and remanded with directions to conduct a new waiver
hearing. State v. X.S., No. 2021AP419, unpublished slip op.
(July 20, 2021). Xander moved for reconsideration, which the
court of appeals summarily denied.1 We granted Xander's petition
for review.
II. DISCUSSION
¶76 This case centers on the relevant legal standards for
waiver of a juvenile into adult court under Wis. Stat. § 938.18.
Under the system the legislature has designed, not all criminal
conduct is treated the same. In particular, the legislature
established a justice system for juveniles aiming to "impose
accountability for violations of law and equip juvenile
offenders with competencies to live responsibly and
productively." Wis. Stat. § 938.01(2); see also State v.
Toliver, 2014 WI 85, ¶26, 356 Wis. 2d 642, 851 N.W.2d 251.
Juvenile courts have "exclusive jurisdiction . . . over any
juvenile 10 years of age or older who is alleged to be
delinquent." Wis. Stat. § 938.12(1). Rather than impose
criminal penalties, juvenile courts may impose a variety of
dispositions on juveniles to protect the public and hold
1 Xander and the State both argue this summary denial was
erroneous. The court of appeals did not erroneously exercise
its discretion; nothing in Wis. Stat. § (Rule) 809.24(2)
requires the court of appeals to explain its rationale for
denying a party's reconsideration motion. See also State v.
Jendusa, 2021 WI 24, ¶21, 396 Wis. 2d 34, 955 N.W.2d 777.
3
No. 2021AP419.bh
offenders accountable. Compare Wis. Stat. §§ 973.01, 973.03,
973.09 (criminal penalties) with Wis. Stat. § 938.34 (juvenile
dispositions); Wis. Stat. § 938.01(2) (purposes of Wis. Stat.
ch. 938). They also work with service providers, such as DYFS
to provide treatment and care that will redirect juveniles away
from further delinquent behavior. § 938.01(2). However, a
court may waive jurisdiction over a juvenile and transfer
jurisdiction to adult criminal court via statutory procedures
outlined in § 938.18.
¶77 Waiver under Wis. Stat. § 938.18 is a discretionary
decision, reviewed under the highly deferential erroneous
exercise of discretion standard. State v. Tyler T., 2012 WI 52,
¶24, 341 Wis. 2d 1, 814 N.W.2d 192. "A juvenile court
erroneously exercises its discretion if it fails to carefully
delineate the relevant facts or reasons motivating its decision
or if it renders a decision not reasonably supported by the
facts of record." Id. On review, appellate courts affirm the
wavier determination if the record reflects "a reasonable basis
for the determination or a statement of the relevant facts or
reasons motivating the determination." J.A.L. v. State, 162
Wis. 2d 940, 961, 471 N.W.2d 493 (1991). Unless they are
clearly in error, we accept the circuit court's findings of
fact. State v. Van Linn, 2022 WI 16, ¶10, 401 Wis. 2d 1, 971
N.W.2d 478. And while circuit courts are given the authority to
make reasonable decisions based on the facts and law, a decision
based on a misapplication of the law must be reversed. State v.
4
No. 2021AP419.bh
Patrick G.B., 2001 WI App 85, ¶12, 242 Wis. 2d 550, 627
N.W.2d 898.
A. Waiver Hearings Under Wis. Stat. § 938.18
¶78 A petition waiving jurisdiction of the juvenile court
may be filed if the "juvenile is alleged to have violated any
state criminal law on or after the juvenile's 15th birthday."
Wis. Stat. § 938.18(1)(c). This petition "may be filed by the
district attorney or the juvenile or may be initiated by the
court," and it "shall contain a brief statement of the facts
supporting the request for waiver." § 938.18(2). The petition
"shall be accompanied by or filed after the filing of a petition
alleging delinquency and shall be filed prior to the plea
hearing"——subject to certain exceptions. Id.
¶79 The waiver hearing that follows is a two-step process.
First, the court must determine "whether the matter has
prosecutive merit." Wis. Stat. § 938.18(4)(a). While not
defined in Wis. Stat. § 938.18, this court previously noted
"that the determination of 'prosecutive merit' is analogous to
the determination of probable cause in a criminal proceeding and
that a finding of prosecutive merit must be based on a showing
that reasonable grounds exist to believe that the juvenile has
committed the violation of state criminal law charged." T.R.B.
v. State, 109 Wis. 2d 179, 187, 325 N.W.2d 329 (1982).
¶80 Once prosecutive merit is established, the circuit
court proceeds to decide, in its discretion, whether it should
waive jurisdiction. Wis. Stat. § 938.18(4)(a). This decision
5
No. 2021AP419.bh
must be based on five criteria articulated in § 938.18(5), all
of which are explored in depth below. After consideration of
§ 938.18(5)'s criteria,
the court shall state its finding with respect to the
criteria on the record, and, if the court determines
on the record that there is clear and convincing
evidence that it is contrary to the best interests of
the juvenile or of the public to hear the case, the
court shall enter an order waiving jurisdiction and
referring the matter to the district attorney for
appropriate proceedings in the court of criminal
jurisdiction.
§ 938.18(6). Thus, a circuit court's duty is to state its
findings on the record. Then it must determine whether the
State met its burden to prove by clear and convincing evidence
that waiver is appropriate because it is in the best interests
of the juvenile or the public.
B. The Circuit Court's Discretionary Decision
¶81 Here, the circuit court determined there was
prosecutive merit, which Xander did not contest. The dispute
therefore centers entirely on whether the circuit court
permissibly exercised its discretion when it denied the State's
petition to waive Xander into adult court.
¶82 The circuit court heard a full day's worth of
testimony, and several hours of argument, before announcing its
decision on waiver. Only two witnesses testified: Xander
called Dr. Thompson, his expert, and the State presented a DYFS
employee. Both testified in support of the juvenile court
retaining jurisdiction. To reiterate, the circuit court's
choice to deny waiver was based on testimony from two witnesses
6
No. 2021AP419.bh
who testified against waiver and zero witnesses who recommended
waiver.
¶83 The court began its decision with a high-level
overview of the testimony and identified the correct legal
standards: Wis. Stat. § 938.18(5), (6). It then worked through
the criteria one by one and discussed the pertinent testimony
for each.
¶84 The circuit court started by reading the first
criterion under Wis. Stat. § 938.18(5)(a): "The personality of
the juvenile, including whether the juvenile has a mental
illness or developmental disability, the juvenile's physical and
mental maturity, and the juvenile's pattern of living, prior
treatment history, and apparent potential for responding to
future treatment." It then summarized the testimony and
argument it had heard with respect to this factor over the
course of two days. Specifically, it noted Dr. Thompson's
diagnosis of Xander; that Xander's mental and physical maturity
seemed consistent with his age; Xander's home life and his
association with another individual allegedly present at the
shooting and involved in his first juvenile adjudication; and
Xander's past treatment history, noting that Xander was under
supervision when the allegations at issue in the present
petition surfaced. Finally, the court indicated that it
received differing opinions on Xander's potential for responding
to future treatment——a subject it also addressed at the end of
its decision. In identifying the relevant and uncontested
testimony pertinent to this criterion, the only reasonable
7
No. 2021AP419.bh
reading of the transcript is that the circuit court did exactly
as the statute requires: "state its finding with respect to the
criteria on the record." § 938.18(6).
¶85 The circuit court next looked to the second criterion:
The prior record of the juvenile, including whether
the court has previously waived its jurisdiction over
the juvenile, whether the juvenile has been previously
convicted following a waiver of the court's
jurisdiction or has been previously found delinquent,
whether such conviction or delinquency involved the
infliction of serious bodily injury, the juvenile's
motives and attitudes, and the juvenile's prior
offenses.
Wis. Stat. § 938.18(5)(am). The circuit court noted Xander's
prior juvenile delinquency and that Xander had no prior adult
convictions. It stated that the prior delinquency did not
involve the infliction of serious bodily injury. Again, this
cannot help but be understood as factual findings regarding
Xander's prior record.
¶86 The third criterion requires consideration of the
"type and seriousness of the offense, including whether it was
against persons or property and the extent to which it was
committed in a violent, aggressive, premeditated or willful
manner." Wis. Stat. § 938.18(5)(b). The circuit court
unequivocally addressed this head on. It explained that
"there's no dispute that this was an incredibly dangerous,
serious, series of events. These allegations are incredibly
serious." The court largely adopted the district attorney's
summation of the allegations made previously in the hearing,
adding that some information, particularly regarding Xander's
mental state, might be speculative. Notably, the circuit court
8
No. 2021AP419.bh
acknowledged that these alleged events occurred in a public
place where more people could have died or been injured——once
more underscoring the serious nature of these offenses.
Finally, the circuit court mentioned that both the State and the
defense discussed the seemingly impulsive nature of the alleged
crime. A review of the transcript thus reveals that the circuit
court took care to incorporate the frightening details of the
charges against Xander into its consideration; it did not ignore
or minimize the seriousness of the allegations.
¶87 The circuit court then turned to the fourth criterion:
The adequacy and suitability of facilities, services
and procedures available for treatment of the juvenile
and protection of the public within the juvenile
justice system, and, where applicable, the mental
health system and the suitability of the juvenile for
placement in the serious juvenile offender program
under s. 938.538 or the adult intensive sanctions
program under s. 301.048.
Wis. Stat. § 938.18(5)(c). When analyzing this criterion, the
circuit court identified what evidence it had heard, and what it
had not. The circuit court took note that because of Xander's
age, he could be placed at Lincoln Hills, the juvenile
correction facility, for only "six to nine months." The court
acknowledged the State's view that a six-to-nine month window
was too short to address Xander's risk factors. But the circuit
court did not adopt that view. Instead, it concluded that
because there was no evidence in the record regarding how long
Xander might need for treatment, it could not find that the time
remaining was insufficient. The circuit court's approach is
consistent with the legal requirement that it is the State's
9
No. 2021AP419.bh
burden to prove its case by clear and convincing evidence. See
§ 939.18(4)(b), (6). The circuit court also acknowledged this
was not Xander's first delinquency, but it explained that the
juvenile system could address and work to change Xander's
behavior and school attendance. All told, the circuit court
made a series of factual findings regarding the fourth criterion
based on the testimony it heard.
¶88 Finally, the circuit court addressed the fifth
criterion: "The desirability of trial and disposition of the
entire offense in one court if the juvenile was allegedly
associated in the offense with persons who will be charged with
a crime in the court of criminal jurisdiction." Wis. Stat.
§ 938.18(5)(d). The circuit court correctly stated this
criterion was not applicable.
¶89 After finishing this review and identification of
relevant evidence for each of the five criteria under Wis. Stat.
§ 938.18(5), the circuit court turned to the main question
before it, supplementing its determination with additional
references to the evidence it had heard. We quote this portion
of its decision in full:
But a major part of our focus is on this -- this
nature of this offense and the time that we have left
in the juvenile system.
You know, I've said this before as well, this Court
relies on – I'm not the one that gets to do the
assessments. I'm not the one that gets to do the
treatment plan. I'm not the one that gets to -- I'm
not the expert. I'm not a psychologist.
I rely on the experts in the fields to tell me what
information is appropriate in order to both keep our
youth safe and rehabilitate them and to some -- and to
10
No. 2021AP419.bh
an extent keep the public safe, right? And they know
that usually the State is the person saying that they
represent the public and community safety but that's a
part of my job too, as well. So that's what I rely
on. I'm relying on the information provided by DYFS
at least to give me some context on what was going on
at the time of this offense. I'm considering the fact
that when we talk about the adequacy of this system I
have no information to opine or find that the juvenile
system is inadequate to meet [Xander's] needs. I
don't have information that -- I would -- I would have
to accept the State's argument that jurisdiction until
he is 18 is inadequate, but again I don't have
information that supports that -- that assertion.
I'd have to find that without any sort of expert
testimony or psychologist saying, "Hey, based on these
treatment needs and this plan this is not going to
work". I don't have that. We handle serious cases
all the time in juvenile court. So the offense being
serious, this offense, because this is an individual
assessment, does not bar or indicate that this Court
that this system would be inadequate on its face.
I've been given a diagnosis with a treatment plan.
That is not uncommon for treatment plans that we give
other youth, in other cases, who are similarly
situated. I don't have information that would lead me
to find -- that could support a finding that this
system is inadequate, particularly given that there
are a number of treatment options and secure settings
that have not been utilized.
And aside from that, I know, that there -- based on
the evidence based tool that we use to assess risk
factors and protective factors. That there are
factors within [Xander's] risk -- I should say or
within his assessment -- that can be addressed. I
have no information that would lead me to find that
DYFS and the juvenile system as a whole cannot address
these risk factors, cannot address the treatment needs
that were identified, and cannot do those things while
both keeping [Xander] safe and the public safe.
Back to that standard that I mentioned before, the
Court would be required to find that the State has
proven by clear and convincing evidence that it is
contrary to the best interests of the juvenile or of
the public to hear the case. I don't find that it's
11
No. 2021AP419.bh
contrary to [Xander's] best interests, based on the
information that I just provided, regarding the risk
factors, the potential treatment, and the services
that are available to him in the juvenile justice
system.
I don't have information that would support a finding
that the remainder of the time that this Court would
have left is insufficient. I'm not finding that it
would be in the public's -- that it would be contrary
of the public's best interest either.
We do have an ability to both keep the public safe and
keep [Xander] in a structured setting, which I think
it's apparent is what he needs, based on what I've
heard from the prior -- how his supervision was going
on his underlying case on his older pending case,
while this was occurring. And for those reasons I am
going to deny the State's petition for waiver.
¶90 To summarize the foregoing, the circuit court
reiterated several of its key findings on the various criteria
under Wis. Stat. § 938.18(5). The court expressed its reliance
on the information provided by the two witnesses when
considering if the juvenile system was adequate to address
Xander's needs——emphasizing that the record did not support the
State's assertion that jurisdiction until Xander is eighteen was
inadequate. It noted that the juvenile court had the ability to
handle serious cases. And the circuit court stated its
conclusion that the juvenile system could address Xander's
treatment needs while keeping the public and Xander safe. The
circuit court then centered on the proper legal framework: the
State had to prove by clear and convincing evidence that
retaining jurisdiction in juvenile court is contrary to Xander's
and the public's best interest. The State did not do so, the
court held, once more citing the treatment and services
available to Xander in the juvenile justice system, and its
12
No. 2021AP419.bh
conclusion that the State had not proven this was contrary to
the public's best interests.
¶91 The circuit court's decision in this case was
reasonable and within its broad discretion. It identified the
correct legal standard, Wis. Stat. § 938.18(5), (6), and noted
the relevant facts with respect to each of the criteria under
§ 938.18(5). Then, the court rationally applied the facts to
the law to reach its decision——explaining its conclusion that
retaining jurisdiction was in the best interest of Xander and
the public. Could the circuit court have more clearly
articulated its factual findings and legal conclusions? Sure.
However, when we review discretionary decisions, we do not
require a perfectly polished transcript or magic words. Rather
we "look for reasons to sustain the trial court's discretionary
decision," reversing "if and only if the record does not reflect
a reasonable basis for the determination or a statement of the
relevant facts or reasons motivating the determination is not
carefully delineated in the record." J.A.L., 162 Wis. 2d at
961. That simply is not the case here.2
The State also argues that the circuit court committed a
2
legal error by introducing and relying on inadmissible hearsay
testimony from Dr. Thompson. The State forfeited this argument.
The State never objected to the introduction of this testimony
before the circuit court and in fact elicited this testimony
from Dr. Thompson during cross-examination. It cannot now seek
to invalidate the circuit court's decision on waiver based on
testimony it elicited and did not object to.
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No. 2021AP419.bh
C. The Majority
¶92 The majority opinion takes a different tack. It
oversteps its role as an appellate court and supplants the
circuit court's discretionary decision-making authority with its
own. It conducts what amounts to a de novo review, concluding
waiver into adult court is required. See Majority op., ¶¶32-55.
The majority analyzes the relevant criteria under Wis. Stat.
§ 938.18(5), not by referencing the circuit court's factual
findings and legal conclusions, but by evaluating the record
anew——effectively sitting in the place of the circuit court.
This is wholly inappropriate in light of our scope of review in
these cases.
¶93 The majority also argues that because the "facts of
this case are extreme," that lends credence to its conclusion
that the circuit court acted in error. Majority op., ¶55. Yes,
the facts of this case are extreme. Eight people suffered
dangerous gunshot injuries resulting from the actions for which
Xander was charged. But facts——extreme or not——do not change
the legal standard that we are called to apply as an appellate
court. The majority's reasoning seems to be that any juvenile
committing a serious crime should be waived into adult court.
This is contrary to legislature's policy choice reflected in the
juvenile justice code; it is not what Wis. Stat. § 938.18
requires or allows. Here, the circuit court acknowledged the
severity of Xander's actions, along with the other relevant
criteria it must consider under Wis. Stat. § 938.18(5) and (6).
Because this is precisely the type of discretionary decision
14
No. 2021AP419.bh
entrusted to locally elected circuit court judges who hear these
matters day-in and day-out, we cannot now reverse such a
decision simply because we feel strongly that the court should
have concluded otherwise.
¶94 Finally, the majority errs by declining to order a new
waiver hearing upon the finding of error. Majority op., ¶¶3,
56. The State did not ask for such relief; it asked us to
remand for a new waiver hearing. Additionally, as already
explained, a decision to waive jurisdiction of a juvenile court
requires a court to make factual findings and legal
determinations under Wis. Stat. § 938.18. Appellate courts are
not equipped or authorized in the ordinary course to make
factual findings. Douglas L. v. Arika B., 2015 WI App 80, ¶18,
365 Wis. 2d 275, 872 N.W.2d 357. And we are ill-suited to make
credibility determinations regarding the testimony the circuit
court witnessed in its courtroom. Given the majority's
conclusions, the better course would be to award the State the
relief it asked for and remand for a new waiver hearing.
III. CONCLUSION
¶95 All told, the majority confronts a discretionary
decision it thinks was wrong, and burns through the law in an
effort to override it. Applying the proper standard of review
as we must, the circuit court did not erroneously exercise its
discretion in denying the State's petition for waiver. I
respectfully dissent.
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No. 2021AP419.bh
¶96 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
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