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In re A.L.

Court of Appeals of Wisconsin, District I

October 31, 2017

In the interest of A.L., a person under the age of 17:
A. L., Respondent-Respondent. State of Wisconsin, Petitioner-Appellant,

         APPEAL from an order of the circuit court for Milwaukee County, No. 2012JV389A: T. CHRISTOPHER DEE, Judge. Reversed and cause remanded with directions.

          Before Brennan, P.J., Brash and Dugan, JJ.

          BRASH, J.

         ¶1 We granted the State's petition for leave to appeal a nonfinal order[1] of the trial court in which it denied the State's request for a re-evaluation of a juvenile's competency in a suspended delinquency matter. The trial court determined that Wis.Stat. § 938.30(5)(d) did not permit such re-evaluation; instead, the trial court concluded that a juvenile delinquency petition remains suspended in cases where, as here, the juvenile was found incompetent and unlikely to regain competency within the statutory time frame.

         ¶2 Upon review, we find that Wis.Stat. § 938.30(5)(d) is ambiguous. In our interpretation of the statute, we find that the legislature did not intend for the trial court to lose competency over the suspended juvenile proceedings under these circumstances. Consequently, we find no inferred requirement that the suspended petition be dismissed with prejudice, as suggested by A.L.

         ¶3 In the following opinion, we address the narrow issue of whether Wis.Stat. § 938.30(5)(d) permits the possibility of re-evaluation of competence. We conclude that the statute does permit re-evaluation under the circumstances described in this case. We therefore reverse and remand this matter to the trial court for further proceedings consistent with this decision.


         ¶4 The delinquency petition at issue stems from an incident that occurred on November 21, 2012, when A.L. had just turned fifteen years old. Several officers from the Milwaukee Police Department were dispatched to a residence located at 2919 West Vliet Street, Milwaukee, to investigate a homicide. The officers found the victim, A.B., lying on the front porch of the residence with a stab wound to his chest. He was pronounced dead at the scene.

         ¶5 Initially, police officers were told by people at the residence that A.B. had been "jumped at the front door." The police obtained consent to search the residence from the tenant, A.L.'s mother. During the search police recovered a silver metal knife from the kitchen sink. Subsequently, A.L. admitted to an officer that he had stabbed A.B., who was his cousin, after observing A.B. violently fighting with A.L.'s brother.

         ¶6 A delinquency petition was then filed on November 27, 2012, charging A.L. with second-degree reckless homicide. At a plea hearing held on December 6, 2012, A.L.'s defense counsel challenged his competency. The trial court suspended the proceedings and ordered both medical and psychological evaluations.

         ¶7 A psychological evaluation of A.L. in early January 2013 found that A.L. was not competent. The psychologist stated that "[A.L.'s] self-presentation and behavior were consistent with that of an elementary school-age child" and that he displayed "[q]uestionable judgment" during the evaluation. Furthermore, A.L. did not appear to understand the charge against him or the proceedings related to it. The psychologist also noted A.L.'s "substantial roster of psychoactive medications." Ultimately, she recommended that A.L. be recognized as "lacking [the] mental competency to proceed, " and further, because his "deficits" were due to an intellectual disability as well as mental illness for which he was already receiving treatment, she did not believe that there were "any interventions available that would facilitate his attainment of mental competency within the statutory time limits."

         ¶8 A second psychological evaluation performed by a different psychologist in late January 2013 also found A.L. not competent, finding him to be "substantially lacking in mental capacity, " and that his condition was "static" in that the psychologist "would not see an ability to educate him to the point where competency would be established." Based on those evaluations, the trial court on February 5, 2013, found A.L. not competent to proceed and not likely to regain competency within the statutory time frame.

         ¶9 The statutory time frame to which the trial court referred is set forth at Wis.Stat. § 938.30(5)(e). It describes the procedure trial courts are to follow in circumstances where a juvenile is found not competent to proceed but likely to become competent "within 12 months or within the time period of the maximum sentence that may be imposed on an adult for the most serious delinquent act with which the juvenile is charged, whichever is less." Id. Problematically, in this case A.L. was found unlikely to become competent within those time constraints.

         ¶10 Nevertheless, the trial court[2] suspended the delinquency proceedings against A.L. and entered a juvenile in need of protective services ("JIPS") order on March 28, 2013. A.L. was then placed in a residential treatment center. The JIPS order was extended for an additional year, eventually expiring on March 28, 2015.

         ¶11 Subsequently, A.L. faced charges for two other incidents: (1) a June 2014 juvenile delinquency petition filed for criminal damage to property; and (2) a December 2014 charge for battery, criminal damage to property, and disorderly conduct, for which A.L. was charged as an adult because the incident occurred after he had turned seventeen years old.

         ¶12 With regard to the juvenile delinquency petition of June 2014, A.L.'s defense counsel again raised the issue of competency, and A.L. was again found not competent and unlikely to regain competency within the one-year statutory time frame of Wis.Stat. § 938.30(5)(e). Therefore, that juvenile prosecution was suspended as well, and ...

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