State v. K.J.P. (In re Interest of K.J.P.)

984 N.W.2d 751 (Table)

2023 WI App 1

In the INTEREST OF K.J.P., a person under the age of 17:

State of Wisconsin, Petitioner-Respondent,

v.K.J.P.

, Respondent-Appellant.

Appeal No. 2022AP807

Court of Appeals of Wisconsin.

November 2, 2022

NEUBAUER, J.¹

¶1 K.J.P. appeals from a nonfinal order of the circuit court waiving juvenile court jurisdiction.² The State petitioned for an adjudication of delinquency regarding K.J.P. based on his alleged kidnapping, armed carjacking, armed robbery, and sexual assault of an eighty-seven-year-old victim. The State also petitioned for waiver of juvenile court jurisdiction. The circuit court held a hearing on the waiver petition and granted it, concluding that it was contrary to the best interests of K.J.P. or the public for the circuit court with juvenile jurisdiction to hear the case. This court affirms.

BACKGROUND

¶2 Waiver of juvenile court jurisdiction is governed by WIS. STAT. § 938.18. State v. X.S. , 2022 WI 49, ¶25, 402 Wis. 2d 481, 976 N.W.2d 425. As relevant to this appeal, § 938.18(5) sets out five criteria a court must consider in determining whether to waive juvenile jurisdiction: (1) the juvenile's personality; (2) the juvenile's prior record; (3) "[t]he type and seriousness of the offense"; (4) "[t]he 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 (5) "[t]he 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." Sec. 938.18(5)(a)-(d).³ The State bears the burden of establishing a basis for waiver by clear and convincing evidence. See Sec. 938.18(6).

¶3 The circuit court must state its findings with respect to the above criteria on the record, and if it determines that "it is contrary to the best interests of the juvenile or of the public to hear the case," the court must enter an order waiving juvenile jurisdiction. WIS. STAT. § 938.18(6). With these legal principles in mind, we turn to the allegations against K.J.P. and the evidence presented at the waiver hearing.⁴

¶4 On December 2, 2021, the State filed a petition charging K.J.P. with first-degree sexual assault, armed robbery, armed carjacking, and kidnapping. The State also filed a petition to waive juvenile jurisdiction over K.J.P.

¶5 The circuit court held a hearing on the State's waiver petition on March 9, 2022. The State presented testimony from three law enforcement officers who spoke with the victim and K.J.P. on the date of the incident. The officers’ testimony revealed that the victim reported being approached by a young male, later identified as K.J.P., while she was returning some books at the library. After helping her with the books, K.J.P. allegedly took out a knife and told the victim to get into the passenger seat of her vehicle. According to the victim, K.J.P. got in the driver's seat and drove the vehicle to the parking lot of a nearby apartment complex, where he forced the victim to perform oral sex on him. He also allegedly attempted to remove the victim's pants in order to have sex with her, but "she told him it would not work" because of her advanced age. The victim also reported being told to "shut up" by her assailant as she prayed out loud during the incident. When K.J.P. dropped the victim off, he told her he was "the devil," knew where she lived, and would kill her and her family "if she does anything." After relaying what had occurred and retracing the route K.J.P. had driven, the victim began shaking, crying, and hyperventilating, prompting officers to summon an ambulance to transport her to the hospital.

¶6 Officers eventually stopped the victim's vehicle and apprehended K.J.P. after a short foot pursuit. According to one of the testifying officers, K.J.P. was taken to the Waukesha Police Department and given Miranda⁵ warnings. The officer testified that K.J.P. said he "became enraged" after helping the victim with her library books, pulled a knife from his pocket and told the victim to get into the passenger seat of her vehicle. According to the officer, K.J.P. acknowledged driving away with the victim and taking her credit card after asking her for money but denied sexually assaulting her. The officer testified further that he checked K.J.P.’s record and learned that he had three prior citations for municipal ordinance violations. Officers later searched K.J.P.’s residence and located several items underneath grass clippings in a black trash bag that the victim had identified as being in her vehicle.

¶7 The State also presented testimony from a social worker with the Waukesha Department of Health and Human Services (DHHS) who prepared a report recommending against waiver. The social worker testified that DHHS based its recommendation on a belief that K.J.P. should be placed into the "Serious Juvenile Offender Program," or SJO, under which he would be supervised by the Department of Corrections for up to five years if adjudicated delinquent on the sexual assault count. The social worker described the allegations against K.J.P. as "probably if not the most severe[,] probably one of the more severe allegations" he had seen in his twenty years of experience. He agreed that the alleged offenses were premeditated and committed violently, aggressively, and willfully. The social worker was unable to determine K.J.P.’s potential for responding to future treatment because he was not receiving any treatment while in custody.

¶8 In addition to the witness testimony, the circuit court admitted into evidence two reports, one prepared by the social worker and the other prepared by Karyn L. Gust-Brey, Ph.D., a psychologist who had been appointed by the court to examine K.J.P. and evaluate whether he met the criteria for waiver. Gust-Brey's report contained information about K.J.P.’s family, educational history, past traumatic experiences, and mental health. The report also summarized the results of several psychological, behavioral, and cognitive tests administered to K.J.P. as part of the examination. In her report, Gust-Brey diagnosed K.J.P. with posttraumatic stress disorder with dissociative symptoms, cannabis use disorder, and adolescent antisocial behavior. She rated him "at the upper limit of the low range" of dangerousness, "in the middle range in terms of his violent and aggressive tendencies and planned criminality," and "within the high range" of the scale for amenability to treatment. In her opinion, "[K.J.P.]’s case should remain in juvenile court."

¶9 The circuit court announced its findings in an oral ruling on April 28, 2002.⁶ After reviewing the allegations against K.J.P., the court explained the legal standards governing waiver determinations. The court then analyzed the evidence in light of the five criteria in WIS. STAT. § 938.18(5) and concluded that the State had met its burden to show "that it would be in the best interest of this child ... as well as in the best interest of the public to waive [K.J.P.] to adult court." Specific findings made by the court that are relevant to the issues raised on appeal are discussed below.

DISCUSSION

¶10 "The decision to waive juvenile court jurisdiction under WIS. STAT. § 938.18 is committed to the sound discretion of the [circuit] court." X.S. , 402 Wis. 2d 481, ¶25 (quoting State v. Tyler T. , 2012 WI 52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192 ). The discretion conferred upon the circuit court includes the ability to determine how much weight should be afforded to each of the statutory criteria. See J.A.L. v. State , 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991).

¶11 On review, this court "first looks to the record to see whether ... discretion was in fact exercised." Id. at 961. "The exercise of discretion incorporates a process of reasoning and proper explanation." X.S. , 402 Wis. 2d 481, ¶33. If discretion was exercised, this court will look for reasons to sustain the decision. Id. , ¶34. We will reverse a 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." J.A.L. , 162 Wis. 2d at 961.

¶12 K.J.P. does not argue that the circuit court failed to exercise discretion entirely, but rather that it erroneously exercised its discretion in four respects. We address each below.

Pattern of Living

¶13 K.J.P. argues that the circuit court did not consider his "pattern of living." See WIS. STAT. § 938.18(5)(a). A juvenile's "pattern of living" is one factor a court must consider in examining the juvenile's personality. Specifically, § 938.18(5)(a) requires consideration of "[t]he 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."

¶14 The circuit court made findings as to each of these factors in assessing K.J.P.’s personality. It began by noting the generally positive impressions of K.J.P. offered by his mother and DHHS. The court stated that K.J.P. did not have any previous mental health diagnoses or developmental disabilities, that he was physically mature, and that the social worker did have concerns about his mental maturity. The court stated further that K.J.P. "primarily lived with his mother," that his father "has a history of incarceration and drug use," and that his mother also "has criminal matters pending in another county." It noted that K.J.P. had "reported mistreatment in his prior foster home" but was not able to provide many details. The court also noted the social worker's belief that K.J.P. "had a lower mental maturity but may not have been on track at school because...