In Interest of PAK

350 N.W.2d 677, 119 Wis. 2d 871, 1984 Wisc. LEXIS 2613
CourtWisconsin Supreme Court
DecidedJune 29, 1984
Docket83-176
StatusPublished
Cited by80 cases

This text of 350 N.W.2d 677 (In Interest of PAK) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of PAK, 350 N.W.2d 677, 119 Wis. 2d 871, 1984 Wisc. LEXIS 2613 (Wis. 1984).

Opinions

WILLIAM A. BABLITCH, J.

The issue for review is whether, in a contested juvenile waiver hearing, the juvenile court may find prosecutive merit on the basis of the delinquency and waiver petitions alone. The state appeals a decision holding that the state must present testimony and evidence in addition to the delinquency and waiver petitions to establish prosecutive merit whenever the juvenile contests the issue of prosecutive merit. We hold that the provisions of the Children’s Code, ch. 48, Stats., do not require the state to present testimony and evidence in addition to the petitions on the issue of prosecutive merit in a contested juvenile waiver hearing, and that the court may rely on the delinquency and waiver petitions alone to determine that issue. We therefore reverse the decision of the court of appeals.

On December 22, 1982, P.A.K. was taken into custody following a high speed chase by police officers. P.A.K. was seventeen years old at that time. The state filed a delinquency petition on December 22. The petition alleged that P.A.K. feloniously endangered another person’s safety by conduct imminently dangerous and evincing [874]*874a depraved mind, regardless of human life, contrary to sec. 941.30, Stats. On December 23, the state filed a petition requesting that the juvenile court waive jurisdiction over the matter.

The juvenile court held a waiver hearing on January 21,1983. During the hearing, the state asked the court to make a finding under sec. 48.18(4), Stats., that the matter had prosecutive merit based solely on the facts alleged in the delinquency petition. Section 48.18(4) provides: “The judge shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive its jurisdiction.” The state offered no testimony or additional evidence on that issue. Although P.A.K.’s attorney indicated that he was contesting the issue of prosecutive merit, he offered no testimony or evidence disputing the allegations in the delinquency petition, nor did he contend that the petition contained unreliable evidence or failed to establish probable cause. He instead argued that the court could not make a finding of prosecutive merit on the basis of the delinquency petition alone, and that the state was required to present testimony and evidence in addition to the delinquency and waiver petitions to establish prosecutive merit.

The juvenile court held that it could determine whether the matter had prosecutive merit based solely on the facts alleged in the delinquency petition, and it found prosecutive merit on that basis. After making findings concerning the criteria governing waiver specified in sec. 48.18(5), Stats., the court ordered that its jurisdiction be waived.

The court of appeals granted P.A.K. leave to appeal the nonfinal waiver order of the juvenile court. The court of appeals reversed the order, holding that the juvenile court erred in relying solely on the delinquency petition to find prosecutive merit. The state then filed a petition for review with this court, which we granted.

[875]*875In In Interest of T.R.B., 109 Wis. 2d 179, 325 N.W.2d 329 (1982), we noted that secs. 48.18(4), Stats., and 48.18(5), 1979, when read with sec. 48.18(1), 1979-80, set forth a two-stage juvenile waiver hearing. Sections 48.18(1), 48.18(4) and 48.18(5), 1981-82, are the same as secs. 48.18(1), 48.18(4) and 48.18(5), 1979-80, which were applicable when T.R.B. was decided. The first stage involves the juvenile court’s determination whether the “jurisdictional factors” exist that would allow it to then consider the criteria for waiver set forth in sec. 48.18 (5). The “jurisdictional factors” are whether the juvenile was sixteen years of age or older on the date of the alleged offense, sec. 48.18 (1), and whether the state’s allegation that the juvenile has violated a state criminal law has prosecutive merit, sec. 48.18(4). The second stage of the waiver hearing involves the juvenile court’s consideration of the criteria for waiver in sec. 48.18(5), and its determination whether to waive jurisdiction. 109 Wis. 2d at 185.

In T.R.B., we also discussed the meaning of prosecutive merit and the basis upon which the juvenile court may make a finding of prosecutive merit under sec. 48.18 (4), Stats., when the juvenile has not contested the issue of prosecutive merit. We analogized a determination of prosecutive merit under sec. 48.18(4), to a determination of probable cause in a preliminary examination and held that prosecutive merit is the same degree of probable cause required to bind over an adult after a preliminary examination:

“. . . the juvenile court, before considering the waiver criteria, must satisfy itself that the record establishes to a reasonable probability that the violation of the criminal law alleged has been committed and that the juvenile has probably committed it. This is the degree of probable cause required to bind over an adult for criminal trial.” 109 Wis. 2d at 192.

[876]*876In addition, we held that if waiver is not contested, the juvenile court may determine whether the matter has prosecutive merit under sec. 48.18(4), Stats., solely on the basis of the delinquency and waiver petitions without taking testimony or considering evidence other than the petitions. Because the juvenile in T.R.B. did not content the issue of proscutive merit, we specifically did not reach the question of whether the state must submit relevant testimony or evidence other than the petitions if the issue of prosecutive merit is contested. See 109 Wis. 2d at 194. That issue is now before us.

A determination whether a juvenile court may rely solely on the delinquency and waiver petitions to find prosecutive merit when the juvenile contests the issue of prosecutive merit involves an interpretation of secs. 48.18(4), Stats., and 48.18(5). Those are questions of law, which we may independently decide without deferring to the circuit court’s conclusions. See Engineers & Scientists v. Milwaukee, 38 Wis. 2d 550, 554, 157 N.W.2d 572 (1968).

The state argues that the holding of T.R.B. should apply even when the juvenile contests the issue of prosecutive merit. As we recognized in T.R.B., neither the language nor legislative history of sec. 48.18(4), Stats., indicates that when prosecutive merit is uncontested, the district attorney is required to present relevant testimony or that the juvenile court is required to consider relevant testimony and evidence prior to determining under that provision whether the matter has prosecutive merit. Similarly, we find nothing in the language or history of sec. 48.18(4) to indicate that when prosecutive merit is contested, the legislature intended to require the state to present, and the juvenile court to consider, testimony and evidence in addition to the petitions prior to determining whether the matter has [877]*877prosecutive merit under sec. 48.18(4). Regardless of whether the issue of prosecutive merit is contested or uncontested, the juvenile court must make the same determination in both cases; namely, whether the matter has prosecutive merit. Thus, the fact that the issue of prosecutive merit may be contested does not change the nature of the prosecutive merit determination.

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Bluebook (online)
350 N.W.2d 677, 119 Wis. 2d 871, 1984 Wisc. LEXIS 2613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-pak-wis-1984.