COA construes second juvenile waiver petition as motion for reconsideration; affirms denial
State v. A.V., 2026AP359, 6/30/26, District I (ineligible for publication); case activity
AV turned 17 after the circuit court denied the state’s first waiver petition. The state petitioned again to waive A.V. into adult criminal court, citing WIS. STAT. § 938.18(2) as the statutory basis for the petition and making new allegations. COA affirms the circuit court’s denial of the state’s second petition without an evidentiary hearing.
The state charged AV, then 16, with two counts of physical abuse of a child, recklessly causing great bodily harm, and one count of child neglect resulting in great bodily harm. (¶1). The circuit court held an evidentiary hearing on the state’s waiver petition and denied the petition one day before AV turned 17. (¶¶2-3, 8-26). The state then filed a second waiver petition, which the circuit court denied without an evidentiary hearing. It questioned whether the second petition should be construed as a motion for reconsideration based on newly discovered evidence, and ultimately concluded that the new evidence, even if true, would not have changed its decision to deny waiver. (¶¶3-4).
The state appeals from the circuit court’s order denying its second waiver petition, arguing that it was entitled to a second evidentiary waiver hearing under §§ 938.18(2), which allows the filing of a waiver petition if the juvenile denies the facts of the petition and becomes seventeen years old before adjudication, and 938.18(4)(b). (¶5). COA disagrees, holding that while § 938.18(4)(b) mandates that evidentiary hearings be held on contested waiver petitions, the state’s second waiver petition was not a waiver petition–it was a motion for reconsideration. Thus the circuit court’s denial was appropriate. (¶6).
The State argues that the circuit court improperly treated its second waiver petition as a motion for reconsideration, specifically asserting that there is no statutory limit on the number of waiver petitions that can be filed so long as a condition listed under WIS. STAT. § 938.18 is met. Because AV denied the facts of the petition, and she turned seventeen years old prior to adjudication, the state argues it was permitted to file a second waiver petition and entitled to an evidentiary hearing. (¶30). AV argues essentially that the statute does not authorize a second waiver petition. (¶31).
COA analyzes the statutory language. As relevant here, § 938.18(2) states that a waiver petition must be filed prior to the plea hearing “except that if the juvenile denies the facts of the petition and becomes 17 years of age before an adjudication, the petition for waiver of jurisdiction may be filed at any time prior to the adjudication.” (¶33).
In doing so, COA relies on its earlier interpretation in State v. Pablo R., 2000 WI App 242, ¶8, 239 Wis. 2d 479, 620 N.W.2d 423, in which it stated that, in isolation, § 938.18(1) and (2) are unambiguous, but “were ambiguous as applied to the facts of that case.” (¶34). In Pablo R., the juvenile could not be waived into adult court under § 938.18(1), but he absconded for almost 2 years and had turned 17 by the time the state filed a waiver petition under § 938.18(2). Thus, the question before COA was whether the juvenile court could waive its jurisdiction solely on the basis of § 938.18(2). (¶35). There, COA held that § 938.18(2), “is an expression of legislative will that when a person becomes seventeen and adjudication has not yet been accomplished because of some unlawful action by that person, the situation has changed and waiver into adult court is an appropriate response to the person’s action” and concluded that § 938.18(2) allowed the juvenile court “to redefine its jurisdiction to waive when faced with conditions not contemplated or anticipated.” Pablo R., 239 Wis. 2d 479, ¶14. (¶36).
Applying that holding to AV’s case, COA reasons that AV did not delay the adjudication beyond her 17th birthday by committing some unlawful action, and it was actually expected that she would turn 17 before adjudication based on her age at the time of the delinquency petition. Her age and the amount of time the court had to provide services and supervise AV was “a significant focus of the evidence and arguments related to the State’s first waiver petition.” (¶37). Thus, the court concludes that § 938.18(2) is not a valid basis for the state’s second waiver petition in this case and the circuit court correctly construed it as a motion for reconsideration based on newly discovered evidence. (¶38).
COA goes on to consider whether the circuit court erroneously exercised its discretion by denying the state’s second petition without an evidentiary hearing under the reconsideration standard. (¶39). If the state meets its burden under the newly discovered evidence reconsideration test, the court must determine whether a reasonable probability exists that a different result would be reached in a proceeding that included that evidence. Here, the circuit court essentially assumed without deciding that the state’s new allegations were true, and concluded that it would have reached the same result even with that information. (¶42). COA affirms because the court did consider the newly presented evidence, but assigned it less weight than the state desired. (¶44). COA also determines that the evidence was not newly discovered, as the facts the state presented occurred prior to the first waiver hearing. (¶45).
COA also addresses the state’s brief argument that the circuit court improperly considered imprisonment as a potential outcome of waiver. The circuit court made “brief references to the adult system being at least partially ‘punitive’ in purpose wit them possibility of confinement” given the seriousness of the crimes with which AV would be charged. COA concludes that these considerations go to the factors set forth by the statute, and rejects this final argument.