COURT OF APPEALS
DATED AND FILED
December 29, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
In the interest of Tyler T., a person under the age of 17:
State of Wisconsin,
from an order of the circuit court for Walworth County: James
L. Carlson, Judge. Affirmed.
¶1 REILLY, J. Tyler
T. appeals from an order of the circuit court waiving him into adult court. He argues that it was improper for the
assistant district attorney to appear at a waiver recommendation meeting when
neither Tyler nor his attorney were asked to attend. As Tyler
believes the waiver investigation report was tainted by the assistant district
attorney’s presence, he asks that we vacate the circuit court’s order and order
a new waiver investigation report. We
hold that there is nothing to preclude the prosecution from appearing at a
waiver recommendation meeting. The order
of the circuit court is affirmed.
¶2 On June 19, 2009, Tyler
was allegedly involved in an armed robbery of a gas station. As Tyler was
fifteen years old at the time, Walworth
County filed a delinquency petition
alleging that Tyler
was a party to an armed robbery in violation of Wis. Stat. §§ 939.05 and 943.32(2). The State also requested that the juvenile
court waive Tyler
into adult court because armed robbery is a felony and it involves aggression
¶3 Pursuant to Wis. Stat.
§ 938.18(2m), the circuit court requested that the Walworth County
Department of Health and Human Services (WDHHS) prepare a waiver investigation
report. Members of the WDHHS held a
staffing meeting to decide whether the WDHHS would recommend that Tyler be tried as an
adult. The assistant district attorney
was invited to this meeting but Tyler and his defense counsel were not. At the meeting, the assistant district
attorney recommended that Tyler
be tried as an adult. The WDHHS
eventually chose to make no recommendation in its report as to whether Tyler should be tried in
adult court or juvenile court because the staffing members could not reach a
¶4 Roughly a week later, the circuit court held a waiver hearing
to determine whether Tyler
would be waived into adult court. At the
attorney objected to the fact that the assistant district attorney was present at
the WDHHS meeting. Tyler’s attorney argued that because she was
not invited, the meeting constituted an ex parte communication and the WDHHS’s
waiver investigation report was invalid.
¶5 The circuit court waived Tyler into adult court. The court noted that while it did not think that
it was a good idea to invite the assistant district attorney but not Tyler’s attorney to the WDHHS
staffing meeting, there was no evidence in the record that the WDHHS’s report
was “coerced” by the assistant district attorney’s presence. Tyler
appeals the circuit court’s order.
STANDARD OF REVIEW
¶6 This appeal requires us to decide whether the prosecution can
appear at a waiver investigation meeting under Wis. Stat. § 938.18(2m).
The interpretation of a statute is a question of law subject to de novo
review. See City of Muskego
v. Godec, 167 Wis.
2d 536, 545, 482 N.W.2d 79 (1992).
argues that the waiver investigation report was tainted by the assistant district
attorney’s presence, and that he is therefore entitled to a new report and a
new waiver hearing. Tyler asserts that a waiver investigation
report should be treated the same as a presentence investigation (PSI) report.
¶8 After a petition to waive a juvenile into adult court is
filed, Wis. Stat. § 938.18(2m)
permits the circuit court to designate an agency to submit a report analyzing
whether a juvenile should be tried as an adult.
Section 938.18(2m) is permissive and does not require the circuit court
to order a waiver investigation report. If
the circuit court does request a waiver investigation report, it is then
entitled to use the report to determine whether to waive the juvenile into
adult court. Id.
A PSI, on the other hand, occurs after a defendant is convicted. Wis.
Stat. § 972.15(1). It is for
the circuit court to decide whether to order a PSI. See id.
The purpose of a PSI report is to assist the circuit court in selecting
the appropriate sentence for the defendant.
State v. Washington, 2009 WI
App 148, ¶9, 321 Wis.
2d 508, 775 N.W.2d 535.
argues that because an administrative agency gathers information for the court
in both a waiver investigation report and a PSI report, the two reports should
be treated the same. Specifically, Tyler points out that this
court has held that a convicted defendant does not have a constitutional right
to have his attorney present during a PSI interview because it would threaten
the independence of the PSI. See State v. Perez, 170 Wis. 2d 130, 140-42, 487 N.W.2d 630 (Ct.
App. 1992). Additionally, Tyler cites State
v. Suchocki, 208 Wis. 2d 509, 520, 561
N.W.2d 332 (Ct. App. 1997), abrogated on
other grounds by State v. Tiepelman,
2006 WI 66, 291 Wis.
2d 179, 717 N.W.2d 1, where we held that a PSI report is biased as a matter of
law when the report’s author is married to the prosecutor. Finally, Tyler refers to State v. Howland, 2003 WI
App 104, ¶¶32, 37, 264 Wis. 2d 279, 663 N.W.2d 340, where we held that it was
inappropriate for the district attorney to contact a parole agent to complain
about a PSI report recommendation after the prosecution agreed in a plea
bargain not to make a sentence recommendation.
would like us to extend these PSI cases and hold that a prosecutor may never be
present at a waiver investigation recommendation meeting. We decline to do so.
¶10 A waiver investigation report is distinct from a PSI report. A petition to waive a juvenile into adult
court can be filed by the prosecution, the juvenile, or the court. See Wis. Stat. § 938.18(2). A PSI is ordered exclusively by the
court. See § 972.15(1). In this case, the assistant district attorney
filed the waiver petition. While §
938.18 does not address whether a prosecutor may be present at a waiver
recommendation report meeting, there is nothing in the Wisconsin
statutes or case law that precludes a prosecutor from appearing. Indeed, it is entirely appropriate for the
prosecution to appear at this meeting given that the assistant district
attorney was the one who requested that Tyler
be tried as an adult.
¶11 The cases that Tyler
cites to are unpersuasive. In Perez, the
agent preparing the PSI report refused to allow Perez’s attorney to attend the
PSI interview. Perez, 170 Wis. 2d at 136. Perez argued that there was a due process right
to have counsel present. Id. We rejected his argument and held that there
is no due process right to have counsel present for a PSI interview because “[t]he
presence of counsel could jeopardize the neutral objectivity of the PSI author
and the cooperative surroundings of an independent investigation.” Id.
¶12 Perez held that a defendant does not have a constitutional
right to have his attorney present during a PSI interview—that case did not hold that a defense attorney or a
prosecutor may never be present
during a PSI interview. While the Perez
court noted that “[t]he active involvement of an advocate—defense
counsel or, for that matter, the prosecution—in the information-gathering
process could cause a serious degradation in the reliability and impartiality
of the sentencing court’s information base,” this statement does not imply that
it is unlawful for the prosecution to be present during a PSI interview. Perez, 170
Wis. 2d at 141. Rather, the PSI report
author still has discretion over whether he will allow the defense attorney or
the prosecution to be present during a PSI interview.
¶13 The Howland and Suchocki decisions are also
inapplicable. In Howland, the prosecution agreed
not to make a sentencing recommendation in exchange for Howland pleading no
contest. Howland, 264 Wis. 2d 279, ¶2. The prosecution then effectively ran an “end
run” around the plea bargain by repeatedly contacting the Division of Community
Corrections to complain about the PSI report recommendation. Id.,
¶¶29, 31. We held that this was an
inappropriate ex parte communication on the part of the prosecution that
violated the terms of the plea bargain. Id., ¶¶32,
37. In Suchocki, we held that a
PSI report prepared by an agent who was married to the prosecutor was
impermissibly biased as a matter of law.
Suchocki, 208 Wis.
2d at 520.
¶14 Neither of these cases support Tyler’s
argument that it was unlawful for the assistant district attorney to be present
waiver recommendation meeting. In Howland,
we found that it was inappropriate for the prosecution to contact Howland’s
probation and parole agent to complain about the PSI report recommendation
because Howland’s plea bargain stated that the prosecution would not make a
recommendation. Howland, 264 Wis. 2d 279, ¶¶2, 29, 31-32. In Tyler’s
case, there is no plea bargain that would have prevented the assistant district
attorney from appearing at the waiver recommendation meeting. And the facts in Suchocki—where the
prosecutor was married to the PSI report author—are far more egregious than the
prosecution appearing at a waiver recommendation meeting. Additionally, Perez, Howland,
all dealt with PSIs, which as we noted earlier, are distinct from
waiver investigation reports. None of
these cases stand for the proposition that a prosecutor cannot attend a waiver
¶15 Finally, we note that waiver of juvenile jurisdiction under Wis. Stat. § 938.18 is within the sound
discretion of the circuit court. Elmer
J.K. v. State, 224 Wis.
2d 372, 383, 591 N.W.2d 176 (Ct. App. 1999), superseded by statute on other grounds, Wis. Stat. ch. 938. We review the circuit court’s decision for a
misuse of discretion. Id.
We will also look for any reason to sustain the circuit court’s
discretionary decision, and will reverse a waiver determination only if the
record does not reflect a reasonable basis for the circuit court’s decision or
the basis of the circuit court’s rationale is not found in the record. Id. Here, the circuit court made an
independent decision to waive Tyler
into adult court. The waiver
investigation report did not make a recommendation. Furthermore, the circuit court stated that “I
have judged this on my own feelings and not based on the recommendations.”
¶16 As a waiver investigation report is distinct from a PSI, we
decline to apply the case law governing PSI reports to waiver investigation
reports. The record demonstrates that
the circuit court’s decision was made independently. The order of the circuit court is
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)(4).