State v. X.S.

2022 WI 49, 976 N.W.2d 425, 402 Wis. 2d 481

• Court: Wisconsin Supreme Court
• Decided: June 29, 2022
• Docket: 2021AP000419
• Status: Published

Opinion

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REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 399 Wis. 2d 323, 964 N.W.2d 553 (2021 – unpublished)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an unpublished decision of the court of appeals, State v. X.S.,

No. 2021AP419, unpublished slip op.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.

17 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,

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

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

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

3 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

6 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.

2 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.

13 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.

15 No. 2021AP419.bh

¶96 I am authorized to state that Justices ANN WALSH

BRADLEY and REBECCA FRANK DALLET join this dissent.