State v. M.P. (In re M.P.)

1

In the interest of M.P., a person under the age of 17:

State of Wisconsin, Plaintiff-Respondent, v. M.P., Defendant-Appellant.

No. 2024AP32

Court of Appeals of Wisconsin, District II

June 26, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from an order of the circuit court for Calumet County: No 2023JV33 JEFFREY S. FROEHLICH, Judge. Affirmed.

GROGAN, J. ^[1]

¶1 M.P. appeals from an interlocutory order^[2] waiving him into adult court. He contends the circuit court erroneously exercised its discretion when it found the State proved by clear and convincing evidence that M.P.-who was sixteen years and four months old at the time-should be tried in adult court instead of juvenile court. This court affirms.

I. BACKGROUND

¶2 In November 2023, the State filed a Delinquency Petition charging M.P. with four counts: (1) first-degree recklessly endangering safety, use of a dangerous weapon (WIS. STAT §§ 941.30(1), 939.63(1)(b)); (2) endangering safety by reckless use of a firearm (WIS. STAT. § 941.20(2)(a)); (3) possession of a dangerous weapon by a person under eighteen (WIS. STAT. § 948.60(2)(a)); and (4) pointing a firearm at another (WIS. STAT. § 941.20(1)(c)). The charges stemmed from an incident where M.P. and some friends went to the home of another juvenile male to resolve a dispute by physically fighting. One of M.P 's friends brought a handgun, and during the fight, M.P. asked the friend to load the handgun for him. Witnesses told police that M.P. pointed the gun at the juvenile male who had started running back toward the house and fired multiple shots. Although no one was hit, two bullets penetrated the house where multiple children (ages two to fifteen) were inside.

¶3 The State filed a motion seeking to waive M.P. from juvenile to adult court. The motion stated that M.P. has had seven delinquency petitions filed over the last several years, not including the current Petition, for the following: (1) criminal damage to property; (2) theft/criminal damage to property as party to a crime; (3) manufacturing/delivery of THC for possessing and selling marijuana; (4) possession of narcotics/possession of drug paraphernalia/obstruction involving two pills containing fentanyl; (5) burglary and operating a motor vehicle without owner's consent involving stealing a car; (6) possession of drug paraphernalia (a pipe used to smoke Percocet) and for possession of Percocet; and (7) battery, disorderly conduct, and violation of a nonsecure custody order.

¶4 The waiver motion alleged that waiver was appropriate because M.P.'s behavior was escalating and becoming more dangerous and that "the adult court system is better equippe[d] to provide the interventions necessary to provide for [M.P.'s] safety and the safety of the community." The motion also addressed WIS. Stat. § 938.18's waiver criteria. With respect to M.P.'s personality and past record, the State said:

[M.P.] has an extensive juvenile record including multiple felony charges. [M.P.] is a healthy 16 year old male. There are no cognitive and developmental issues that the department has been made aware of. [M.P.] has been oppositional and unwilling to follow his supervision rules, parent's rules, and the law. He has run from the home, and is spending time with peers that are also engaged in delinquent behavior. [M.P.] has been provided services for the past three years aimed at rehabilitation. At this time, his attitude towards treatment, his rules, and what is expected of him is not being taken seriously. He continues to violate the rules set forth for him and has a blatant disregard for the safety of others.

Regarding the seriousness of the charges, the State explained that "[t]he potential for significant harm or loss of life was extremely high, and at least two bullets penetrated the structure and could have caused harm or loss of life to anyone inside the building. [M.P.] discharged the firearm and [physically] struck the victim knowingly, and he has a history of violent behavior." And, as to whether the juvenile system had facilities and programs available that would properly serve M.P., the State noted:

Given [M.P.'s] time on supervision, the dangerousness of his behavior, and the apparent inefficacy of programming and services provided to him through the juvenile court system, the juvenile system is no longer appropriate for [M.P.]. [M.P.] will turn 17 in 2024, and continues to disobey the law despite being on juvenile court supervision. He has been placed in secure detention multiple times, and has received charges while under home detention rules with electronic monitoring.

¶5 At the waiver hearing, Sergeant Chad Riddle of the Appleton Police Department testified about the investigation into the incident, including the witness statements regarding M.P. having pointed a gun at a juvenile female, asking his friend to load the gun, and shooting it in the direction of the juvenile male who was running toward his house.

¶6 Social Worker Jason Halbach of the Brown County Health and Human Services Department also testified. Halbach testified that he was M.P.'s case worker and explained that this was not M.P.'s first contact with the juvenile justice system. According to Halbach, M.P. had previously been on a delinquency petition for one year in 2020 for criminal damage to property and theft of movable property and confirmed that M.P. had also been on a separate petition "relating to manufacture or delivery of THC in '20[.]" M.P. lived in Green Bay (Brown County) with his father at the time of those events, and as a result of the 2020 delinquency petitions, the Brown County Health and Human Services Department connected M.P. with a mentoring program called Advocates for Healthy Transitional Living, which provided group sessions once or twice a week to work "on errors in thinking." Halbach testified that M.P. participated in the program "at times[,]" but that at other times "he was withdrawing from ... wanting to be a part of it."

¶7 Next, Halbach testified about a June 2022 delinquency petition for burglary (a felony) and operating a motor vehicle without the owner's consent, which resulted in a deferred prosecution agreement (DP A). As a part of the DP A, M.P. was to move to Wausau and live with his father's ex-wife because she had a background in counseling and would assist in obtaining services for M.P. in the Wausau area. The apparent rationale behind this plan was that it would be beneficial to remove M.P. from the negative peer group in Green Bay.

¶8 M.P. appeared to be doing well in Wausau from September 2022 to November 2022. However, the DPA was revoked in December 2022 after M.P. was found to be in possession of narcotics. M.P. subsequently returned to Green Bay, and as a result of the drug possession, he was "placed at Brown County Secure Detention and then later placed at Brown County Shelter Care under electronic monitoring."

¶9 While at the Brown County Shelter Care, M.P. slapped or hit a staff member, which resulted in M.P. returning to juvenile court. The disposition following that event resulted in a joint custody placement with his father and grandmother. He was on electronic monitoring during this timeframe. M.P. went to live with his grandmother in Neenah with the hope that removing him from the Green Bay area would help him stop breaking the law. Halbach testified that things seemed to be going relatively well-despite one incident that was resolved with the help of the school liaison officer-and that M.P. struggles with "getting up at times for school," but that M.P. was otherwise doing well until the incident underlying this case. Halbach also acknowledged that M.P. was taking medication for ADHD, but did not need special education classes and was not aware whether he had been under an IEP (individualized education plan).^[3] According to Halbach, M.P. was working in addition to going to school, and he was also aware that M.P. had been using marijuana.

¶10 When asked about the appropriateness of the juvenile system in addressing the most recent allegations against M.P., Halbach expressed concerns given the seriousness of the counts and the fact that less than two years remained before M.P. would turn eighteen He explained that although this somewhat limited timeframe might be sufficient, because of M.P.'s repeated pattern of choosing negative influences, he would have recommended waiver to adult court had this case been heard in Brown County, where Halbach had been M.P.'s case worker. Halbach said the approximate year and a half that would be available for M.P. if he remains in the juvenile system might be sufficient if M.P. cooperated, but ultimately, Halbach opined that this was not enough time to address the safety needs of the community.

¶11 Halbach further testified that the typical alternate correctional placement facilities available to juveniles such as Rawhide or Homme Home were unlikely options for M.P. because he did not believe those resources/programs were likely to admit M.P. into their respective programs given the severity of the charges in this case.^[4] Moreover, when asked if M.P., based on Halbach's training, experience, and knowledge of M.P., could "be safely supervised in the community" "at this point," Halbach responded "No."

¶12 After hearing closing arguments, the circuit court identified the pertinent facts and engaged in a careful and thoughtful analysis of how those facts fit within WIS. STAT. § 938.18(5)'s statutory factors. The court seemed bothered and concerned that Brown County had twice sent M.P. to other communities as its only apparent solution to M.P.'s unlawful acts and noted that some of the statutory factors therefore favored keeping M.P. in the...