from an order of the circuit court for Milwaukee County, No.
2012JV389A: T. CHRISTOPHER DEE, Judge. Reversed and cause
remanded with directions.
Brennan, P.J., Brash and Dugan, JJ.
We granted the State's petition for leave to appeal a
nonfinal order 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
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.
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
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.
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.
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
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."
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.
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
Nevertheless, the trial court 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.
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.
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 ...