State v. Tyler T.

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Justia Opinion Summary

The State filed a petition alleging that Tyler T., a juvenile, was delinquent and a petition for waiver of juvenile court jurisdiction over Tyler. The circuit court waived juvenile court jurisdiction over Tyler, and the court of appeals affirmed. Tyler appealed, arguing that the circuit court erred as a matter of law in denying his request to strike a waiver investigation report prepared by the county department of health and human services (DHHS). The DHHS prepared its report after conducting a staffing meeting in which the county assistant district attorney, who filed the petition alleging Tyler's delinquency, participated. Because neither Tyler nor his defense counsel was invited to attend the meeting, Tyler contended that the assistant district attorney's participation in the staffing meeting constituted improper ex parte communication that compromised the objectivity of the waiver investigation report. The Supreme Court affirmed, holding that the circuit court did not err in denying Tyler's request to strike the waiver investigation report prepared by the DHHS, as the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court.

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2012 WI 52 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP784 In the interest of Tyler T., a person under the age of 17: State of Wisconsin, Petitioner-Respondent, v. Tyler T., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 331 Wis. 2d 489, 795 N.W. 2d 64 (Ct. App. 2011 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: May 22, 2012 January 12, 2012 Circuit Walworth James L. Carlson BRADLEY, J., dissents (Opinion filed). ABRAHAMSON, C.J., joins dissent. PROSSER, J., did not participate. ATTORNEYS: For the respondent-appellant-petitioner there were briefs and oral argument by Susan E. Alesia, assistant state public defender. For the plaintiff-respondent there was a brief by Zeke Wiedenfeld, assistant district attorney, Phillip A. Koss, district attorney, Elkhorn, and oral argument by Zeke Wiedenfeld. 2012 WI 52 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP784 (L.C. No. 2009JV59) STATE OF WISCONSIN : IN SUPREME COURT In the interest of Tyler T., a person under the age of 17: FILED State of Wisconsin, Petitioner-Respondent, MAY 22, 2012 v. Diane M. Fremgen Clerk of Supreme Court Tyler T., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. This is a review of an unpublished decision of the court of appeals1 that affirmed an order by the Walworth County Circuit Court2 waiving juvenile court jurisdiction over Tyler T. (Tyler). 1 State v. Tyler T., No. 2010AP784, unpublished slip op. (Wis. Ct. App. Dec. 29, 2010). The decision of the court of appeals was decided by one judge pursuant to Wis. Stat. § 752.31(2)(e), (3) (2009-10). All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 2 The Honorable James L. Carlson presided. No. ¶2 2010AP784 Tyler argues that the circuit court erred as a matter of law in denying his request to strike a waiver investigation report prepared by the Walworth County Department of Health and Human Services conducting Assistant a (DHHS). staffing District delinquency, defense counsel a DHHS meeting Attorney, Tyler's Comparing The was waiver prepared in who which filed participated. invited to the the the report report Walworth petition Neither attend investigation its nor staffing a County alleging Tyler to after his meeting. presentence investigation (PSI) report, Tyler contends that the assistant district attorney's participation in the staffing meeting constituted improper ex parte3 communication that compromised the objectivity of the waiver investigation report. As such, Tyler requests that we order juvenile court jurisdiction, waiver vacate investigation the report, circuit order and court's the order preparation the circuit waiving of a court new to conduct a new waiver hearing before a different judge. ¶3 We decline Tyler's request and therefore affirm. ¶4 We denying conclude that Tyler's request the to report prepared by the DHHS. the DHHS's decision to circuit strike court the did waiver not err in investigation While we have reservations about invite only the assistant district attorney to its final staffing meeting, we decline to create a 3 "Ex parte," Latin for "from the part," is defined as "[o]n or from one party only, usu[ally] without notice to or argument from the adverse party." Black's Law Dictionary 597 (7th ed. 1999). 2 No. 2010AP784 bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report. with the DHHS's role in delinquency Rather, consistent proceedings and in furtherance of the express objectives of Wis. Stat. ch. 938, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court. I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE ¶5 On July 21, 2009, the State, through Walworth County Assistant District Attorney Zeke Wiedenfeld (ADA Wiedenfeld), filed a petition in the Walworth County Circuit Court alleging that Tyler, then 15 years old, was delinquent. In support of its petition, the State alleged that on June 19, 2009, Tyler was a party to an armed robbery in violation of Wis. Stat. §§ 939.054 4 Wisconsin Stat. § 939.05, "Parties to crime," states, in relevant part: (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act. (2) A person is concerned in the commission of the crime if the person: (a) Directly commits the crime; or (b) Intentionally aids and abets the commission of it . . . . 3 No. and 943.32(2).5 2010AP784 More specifically, the State alleged that Tyler and an adult male named Terrance Walker (Walker), both in gray hooded sweatshirts and wearing bandanas over their faces, held up a gas station in Elkhorn, Wisconsin by displaying airsoft guns that resembled semi-automatic handguns. station attendant, working alone at the time, black The gas reported that Tyler and Walker pointed their guns at him and demanded money. Tyler and Walker allegedly left the gas station with just under $1,000. 5 Wisconsin Stat. § 943.32, "Robbery," provides: (1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means is guilty of a Class E felony: (a) By using force against the person of the owner with intent thereby to overcome his or her physical resistance or physical power of resistance to the taking or carrying away of the property; or (b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property. (2) Whoever violates sub. (1) by use or threat of use of a dangerous weapon, a device or container described under s. 941.26(4)(a) or any article used or fashioned in a manner to lead the victim reasonably to believe that it is a dangerous weapon or such a device or container is guilty of a Class C felony. (3) In this section "owner" means a person in possession of property whether the person's possession is lawful or unlawful. 4 No. ¶6 from 2010AP784 According to the petition, Tyler advised a detective the Elkhorn Police Department that he and Walker were dropped off at the gas station by an adult male named Michael Boyle (Boyle) and that Tyler had been involved in "about 6 different robberies since April or May" of 2009. ¶7 In addition to its delinquency petition, the State, again through ADA Wiedenfeld, filed a petition for waiver of juvenile court jurisdiction over Tyler pursuant to Wis. Stat. § 938.18.6 In support of its petition for waiver, the State asserted that juvenile court jurisdiction would be contrary to the best interests of both Tyler and the public. The State noted that Tyler was charged with committing a serious crime that involved the threat of force with a weapon and which would constitute a felony if committed by an adult. State maintained, conspirators Tyler under committed circumstances premeditation, and willfulness. the crime Moreover, the with demonstrating two adult aggression, Finally, the State alleged that this crime was only one of several robberies committed by Tyler and that, in the event of his conviction, the remedies available to the criminal court would be more effective than those available to the juvenile court. ¶8 Pursuant to its authority under Wis. Stat. § 938.18(2m), the circuit court requested the DHHS to prepare a 6 Wisconsin Stat. § 938.18 provides, in relevant part, that the district attorney, the juvenile, or the court may petition for waiver of juvenile court jurisdiction if "[t]he juvenile is alleged to have violated any state criminal law on or after the juvenile's 15th birthday." See § 938.18(1)(c), (2). 5 No. 2010AP784 waiver investigation report analyzing the criteria for waiver with respect to Tyler. According to testimony derived from the waiver hearing, roughly ten members of the DHHS participated in a staffing meeting to determine the agency's recommendation as to whether the juvenile court jurisdiction over Tyler. should or should not waive At the invitation of the DHHS, ADA Wiedenfeld also participated in the staffing meeting, advocating in favor of waiver. Neither Tyler nor his defense counsel, Attorney Mary Burns (Attorney Burns), was invited to attend the staffing meeting. Still, in preparation for the staffing meeting, Erin Bradley (Bradley), a juvenile court intake worker who ultimately drafted the waiver investigation report on behalf of the DHHS, gathered information from both Tyler and Attorney Burns, as well as from Tyler's parents. In the end, the members of the DHHS failed to reach a consensus at the staffing meeting and consequently opted not to offer any formal recommendation as to waiver. ¶9 The DHHS filed February 17, 2010. its waiver investigation report on In its report, the DHHS explained that while Tyler had no prior criminal history in Walworth County, he had a fairly extensive record in Kenosha County. In 2007, when Tyler was 13 years old, he was referred to Kenosha County's Juvenile Intake Services on charges of criminal damage to property and disorderly prosecution In conduct. That referral agreement, which addition, the DHHS noted resulted terminated that a deferred successfully in 2008. Tyler had in a delinquency petition then pending in Kenosha County for a separate charge of 6 No. armed robbery, party to a crime. 2010AP784 In that case, the Kenosha County Circuit Court denied the district attorney's petition for waiver of juvenile court jurisdiction. Finally, the DHHS advised that in 2009, Tyler was subject to two petitions for adjudication of wardship in Lake County, Illinois, both stemming from charges of armed robbery, aggravated robbery, and burglary. On January 13, 2010, Lake County's Nineteenth Judicial Circuit Court placed Tyler on five years of juvenile court supervision and ordered him to participate in the county's "FACE-IT" residential treatment program for juvenile probationers.7 ¶10 Concerning Tyler's waiver investigation grade education, developmental respectful maintains report disabilities, The positive biological parents, addition, personnel and provided that suffers manner." a personal and his from and DHHS further both and the history, Tyler mental "presents supportive sister, from no social in has ninth illnesses or pleasant and a reported relationship his a the that with Tyler his grandparents. Illinois and In Wisconsin detention centers indicated that Tyler is "very respectful to staff and follows directions without incident." to its assessment, the DHHS advised that Still, pursuant Tyler presents a "moderate risk" of delinquency. 7 On January 14, 2010, Tyler returned to Kenosha County on a court-ordered capias, see Wis. Stat. § 938.19(1), at which time he was placed in secure custody at the Washington County Juvenile Detention Center pending disposition in Kenosha County. 7 No. ¶11 Relevant to Tyler's underlying charge 2010AP784 of armed robbery, the DHHS's waiver investigation report described Boyle, the adult male who allegedly dropped Tyler and Walker off at the gas station, as "a step-father figure to Tyler." Boyle reportedly dated Tyler's mother for a period of eight years, beginning when Tyler was 15 months old. ended the relationship, regular basis. Tyler continued After Tyler's mother to visit Boyle on a Tyler acknowledged that he assisted Boyle with several robberies and that Boyle regularly provided him with alcohol and other drugs. When asked why he agreed to assist in the robberies, Tyler explained that Boyle needed money in order to hire an attorney to get his roommate's two daughters out of foster care. According to Tyler, most of the money obtained from the robberies "went to the attorney fund and he kept little for himself." ¶12 The seriousness waiver of Tyler's investigation offense, report describing planned, aggressive, and potentially violent. acknowledged that Tyler willfully confirmed the robbery the as The DHHS further participated "at his own discretion on multiple occasions over multiple dates." ¶13 Finally, as to the adequacy of facilities, services, and procedures available to Tyler within the juvenile justice system, the DHHS explained that Tyler's offense met the criteria for the five-year Serious Juvenile Offender operated by the Department of Corrections (DOC). (SJO) Program If placed in the SJO Program, Tyler would serve a maximum of three years in a secure juvenile correctional institution. 8 No. ¶14 2010AP784 As previously mentioned, the DHHS declined to offer a formal recommendation as to waiver, citing "the complexity of the matter." ¶15 On February 19, 2010, in response to the DHHS's waiver investigation report, the State filed a memorandum arguing in favor of waiver of juvenile court jurisdiction over Tyler. The State contended that waiver was appropriate given Tyler's record of committing serious and violent crimes, his association with negative peers and adults, his history of substance abuse, and his high risk to reoffend. The State further maintained that Tyler's behavior warranted rehabilitation and confinement beyond what the provide. juvenile court, including the SJO Program, could In addition, the State stressed the desirability of prosecuting Tyler, Walker, and Boyle in the same court response to of criminal jurisdiction. ¶16 State's On March memorandum 9, and investigation report. 2010, an Tyler filed objection a to the DHHS's the waiver Tyler requested the juvenile court to retain jurisdiction, arguing that his offense, while serious, was committed demonstrated at his court supervision. the waiver Wiedenfeld's the behest potential to of Boyle respond and favorably that to he has juvenile Tyler further requested the court to strike investigation ex parte report on participation the in grounds the DHHS's that ADA staffing meeting unduly influenced what was supposed to be an objective report prepared by an independent body. Absent ADA Wiedenfeld's participation in the staffing meeting, Tyler posited, the DHHS 9 No. would have recommended that the juvenile 2010AP784 court retain jurisdiction over Tyler, in accordance with the decision of the Kenosha County Circuit Court. ¶17 The circuit court held a two-day waiver hearing on March 10 and 12, 2010. Attorney DHHS's At the hearing, both ADA Wiedenfeld and Burns questioned staffing meeting investigation report. Bradley and the extensively preparation regarding of the the waiver Bradley confirmed that she spoke about Tyler's case with both ADA Wiedenfeld and Attorney Burns prior to drafting the waiver investigation report. While acknowledging that her conversations with Attorney Burns were "basically short hallway conversations," Bradley testified that ADA Wiedenfeld was not present for those conversations and that she relayed at the staffing meeting the information she gathered from Attorney Burns. ADA Wiedenfeld's Bradley further testified that even with participation in the staffing meeting, the meeting remained "well balanced" in terms of DHHS members in favor of waiver and those against waiver. When asked how common it is for the DHHS not to offer a recommendation as to waiver, Bradley responded, "I would say that's probably not very common." ¶18 Bradley's testimony was largely echoed by Dr. David Thompson (Dr. Thompson), the Deputy Director of the DHHS who was also present at the staffing meeting. Dr. Thompson testified that the DHHS chose not to offer a recommendation as to waiver because the members "simply couldn't reach a consensus on what the recommendation should be." 10 Dr. Thompson recounted that No. 2010AP784 "[t]here were strong feelings in [the DHHS] staffing that Tyler should be waived into adult court, and there were also strong feelings that he was a suitable candidate for remaining in the juvenile justice system." Moreover, Dr. Thompson volunteered that some members of the DHHS exhibited "fairly strong feelings for waiver" even prior to ADA Wiedenfeld's presence at the staffing meeting. ¶19 At the close of the hearing on March 12, 2010, the circuit court announced its decision to waive juvenile court jurisdiction over Tyler. The court was satisfied that the State had proven by clear and convincing evidence that juvenile court jurisdiction would be contrary to the best interests of both Tyler and the public. The court acknowledged that Tyler had behaved well in secure detention but expressed concern over his alcohol and reoffending. offenses, "would drug a and his moderate to high risk of Given the dangerous and serial nature of Tyler's the be abuse court found serious that disservice juvenile to the court public." jurisdiction The court further noted that Tyler's rehabilitative needs could still be served through the facilities and services afforded by the Kenosha County and Lake County juvenile courts. ¶20 The circuit court made clear that its decision to waive juvenile court jurisdiction over Tyler was based upon the court's "own feelings" investigation report. and not upon the DHHS's waiver While remarking that it was "not a good idea" for the DHHS to invite only ADA Wiedenfeld to its staffing meeting, the court was satisfied 11 that his presence was not No. 2010AP784 coercive and that positions both in favor of waiver and against waiver were represented. The court therefore denied Tyler's request to strike the waiver investigation report. ¶21 entered Three days later, on March 15, 2010, the circuit court its order granting the State's petition to waive juvenile court jurisdiction over Tyler. ¶22 Tyler appealed, and the court of appeals affirmed. State v. Tyler T., No. 2010AP784, unpublished slip op. (Wis. Ct. App. Dec. 29, 2010). Concluding that a waiver investigation report is distinct from a PSI report, id., ¶10, the court of appeals found Wiedenfeld no was support precluded staffing meeting, id., ¶14. for from Tyler's argument participating in that the ADA DHHS's In any event, the court of appeals determined that the circuit court's decision to waive juvenile court jurisdiction over Tyler was made independent of the waiver investigation report. ¶23 Tyler Id., ¶15. petitioned this court for review, which we granted on September 13, 2011. II. STANDARD OF REVIEW ¶24 The decision to waive juvenile court jurisdiction under Wis. Stat. § 938.18 is committed to the sound discretion of the juvenile court. J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991) (applying Wis. Stat. § 48.18 (1989-90))8; 8 Effective July 1, 1996, as part of its creation of Wis. Stat. ch. 938, the Juvenile Justice Code, the legislature repealed Wis. Stat. § 48.18 (1993-94) and replaced it with Wis. Stat. § 938.18. 1995 Wis. Act 77, §§ 87-99, 629, 9400; see also State v. Kleser, 2010 WI 88, ¶42, 328 Wis. 2d 42, 786 N.W.2d 144. 12 No. 2010AP784 D.H. v. State, 76 Wis. 2d 286, 304-05, 251 N.W.2d 196 (1977) (applying Wis. Stat. § 48.18 (1975-76)). juvenile court court's decision erroneously Wis. 2d at 960. to waive exercised A its juvenile We will reverse the jurisdiction only if the J.A.L., 162 exercises its discretion. court erroneously 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. D.H., 76 Wis. 2d at 305. discretionary decision In reviewing to waive the juvenile jurisdiction, reasons to sustain the court's decision. Id. at 961; we court's look for J.A.L., 162 Wis. 2d at 961. ¶25 At the same time, whether ADA Wiedenfeld's participation in the DHHS's staffing meeting entitles Tyler to a new waiver investigation report and a new waiver hearing before a different judge presents a question of law that we review without deference to the juvenile court. III. ANALYSIS ¶26 court In this case, Tyler does not argue that the circuit erroneously exercised its discretion juvenile court jurisdiction over Tyler. when it waived Rather, Tyler argues that the circuit court erred as a matter of law in denying his request to strike the DHHS's waiver investigation report. Comparing a waiver investigation report to a PSI report under Wis. Stat. participation § 972.15, in the Tyler contends DHHS's that staffing ADA meeting Wiedenfeld's constituted improper ex parte communication that compromised the objectivity 13 No. of the waiver investigation report. 2010AP784 As such, Tyler requests that we vacate the circuit court's order waiving juvenile court jurisdiction, order the preparation of a new waiver investigation report, and order the circuit court to conduct a new waiver hearing before a different judge. In support of his position, Tyler relies almost exclusively upon a series of cases in which the court of appeals concluded that the integrity of the sentencing process requires that a PSI report be objective. We therefore begin our analysis by discussing those cases. ¶27 In State v. Knapp, 111 Wis. 2d 380, 385, 330 N.W.2d 242 (Ct. App. 1983), the court of appeals held that a defendant's Sixth Amendment9 right to the assistance of counsel does not entitle the defendant to have counsel present at a PSI interview. assists 9 The court of appeals explained that a PSI report the The provides: sentencing Sixth court Amendment of in the selecting United an appropriate States Constitution In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The Sixth Amendment is made applicable to the states through the Fourteenth Amendment. State v. Imani, 2010 WI 66, ¶20 n.8, 326 Wis. 2d 179, 786 N.W.2d 40 (citing Gideon v. Wainwright, 372 U.S. 335, 342 (1963); State v. Klessig, 211 Wis. 2d 194, 202, 564 N.W.2d 716 (1997)). 14 No. 2010AP784 sentence for the defendant by gathering information concerning the defendant's personality, social circumstances, and pattern of behavior. Id. at 384, 386. equally responsible public, the court fullest to information both Because the sentencing court is the of appeals convicted determined possible" is defendant that "[h]ighly and access the to "the relevant, essential" to the sentencing court's decision. if not Id. at 384-85. The court of appeals concluded that defense counsel's presence at the PSI interview could "seriously impede" the sentencing court's ability to obtain and consider all relevant facts that might aid decision. ¶28 the court in forming an intelligent sentencing Id. at 385. Nearly ten years later, in State v. Perez, 170 Wis. 2d 130, 142, 487 N.W.2d 630 (Ct. App. 1992), the court of appeals cited the same concerns in rejecting the defendant's argument that due process requires the presence of counsel at a PSI interview. The court of appeals reiterated that a PSI report serves as the sentencing court's information base, id. at 140, adding that the author of the PSI report acts exclusively on behalf of the independent judiciary, id. at 141. In order to safeguard the reliability and accuracy of the PSI report, the court of appeals ruled that "the probation and parole agent preparing the report must be neutral and independent of either the prosecution or the defense." court of appeals reasoned, Id. at 140. the PSI Otherwise, the interview would be transformed from an unbiased, information-gathering proceeding into an adversarial proceeding. 15 Id. at 141. In sum, "[t]he No. 2010AP784 active involvement of an advocate defense counsel or, for that matter, could the prosecution in cause a serious the information-gathering degradation in the reliability impartiality of the sentencing court's information base." ¶29 Drawing upon Perez, in State process v. and Id. Suchocki, 208 Wis. 2d 509, 520, 561 N.W.2d 332 (Ct. App. 1997), overruled on other grounds by State v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1,10 the court of appeals concluded that the circuit court erred in denying the defendant's motion to strike the PSI report, reasoning that the marital relationship between the prosecutor and the author of the PSI report was itself sufficient to draw into question the objectivity of the PSI report. In that case, the PSI report was prepared by an agent of the Division of Corrections11 who was married to the district attorney who prosecuted the defendant. Suchocki, 208 10 In Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶46, 326 Wis. 2d 729, 786 N.W.2d 78, this court held that unless we "explicitly state[] otherwise, a court of appeals opinion overruled by this court no longer retain[s] any precedential value." In the instant case, neither Tyler nor the State discusses whether Suchocki retains any precedential value in light of our holding in Blum. In fact, neither party even acknowledges that Suchocki has been overruled in part. In any event, because we conclude that Suchocki is inapplicable to the instant case, see infra ¶37, we need not decide today whether Suchocki retains any precedential value. 11 Prior to the creation of the DOC in 1990, see 1989 Wis. Act 31, §§ 2569, 3203(23)(a), the Division of Corrections was contained within the Department of Health and Social Services. See Wisconsin Department of Corrections, Special Reports: A Brief History of the Department of Corrections, http://www.widoc.com/DOC_History.htm (last visited May 2, 2012). 16 No. Wis. 2d at 513. 2010AP784 The defendant moved to strike the PSI report, arguing that the marital relationship between the prosecutor and the author of the PSI report compromised the objectivity of the report and thereby tainted the sentencing process. Id. at 514. The circuit court denied the motion but permitted the defendant to file an alternative PSI report. Id. considered both PSI reports at sentencing. ¶30 The court then Id. On appeal, the court of appeals concluded that the circuit court erred in denying the defendant's motion to strike the PSI report. Id. at 520. Citing Perez, 170 Wis. 2d at 140- 41, of observed the court appeals that the Division of Corrections, in fulfilling its role of gathering information for a PSI report, functions as an agent of the sentencing court. Suchocki, 208 Wis. 2d at 518. Because the integrity of the sentencing process demands that the PSI report be objective, the court of appeals reaffirmed that the author of the PSI report must be "neutral and independent from either the prosecution or the defense." Id. When a marital relationship exists between the prosecutor and the author of the PSI report, the court of appeals remarked, the author may be subconsciously influenced in forming her impressions of the defendant recommendation to the sentencing court. and in Id. at 519. making a Thus, the court of appeals held that the marital relationship alone was sufficient to draw into question the objectivity of the PSI report, regardless of whether or not the author was biased in fact. Id. at 520. 17 No. ¶31 Still, the Suchocki court denied the 2010AP784 defendant's request for resentencing, concluding that the defendant failed to show that the tainted PSI report prejudiced the sentencing process. Id. at 521. The court of appeals explained that the circuit court was conscious of the defendant's objection to the PSI report and expressly based its sentence on the defendant's uncontroverted conduct rather contained in the PSI report. ¶32 than on the recommendation Id. at 521-22. Finally, in State v. Howland, 2003 WI App 104, ¶37, 264 Wis. 2d 279, 663 N.W.2d 340, the court of appeals held that the prosecutor's contacts with the Division of Community Corrections (DCC),12 in which he expressed his dissatisfaction with the recommendation contained in the PSI report, constituted a material and substantial breach of the plea agreement. In that case, the defendant was charged with second-degree sexual assault of a child and misdemeanor bail jumping. exchange for the defendant's plea of no Id., ¶2. contest, the In State agreed, inter alia, to dismiss the charge of bail jumping and to not make a specific sentence recommendation. that agreement, on at least three Id. occasions, In spite of the prosecutor contacted the DCC to complain about the PSI report's sentence recommendation of probation. See id., ¶29. Subsequent to these contacts, the author of the PSI report amended the report by changing the recommendation from 12 probation to five to seven The DCC is a division of the DOC that oversees the supervision of individuals on probation, parole, or extended supervision. 18 No. years of incarceration. Id. The circuit court 2010AP784 ultimately sentenced the defendant to 20 years imprisonment, comprised of nine years of supervision. ¶33 initial confinement and 11 years on extended Id., ¶16. The court of appeals reversed and remanded the cause to the circuit court for resentencing conducted by a different judge. Id., ¶¶37, 38. The court of appeals concluded that the State effectively procured a sentence recommendation through the DCC by expressing its concerns with the PSI report, committing an "end run" around the plea agreement. In addition to holding that the State thereby Id., ¶31. materially and substantially breached the plea agreement, id., ¶37, the court of appeals made a point to note that the prosecutor's contacts with the DCC "border[ed] on ex parte communications," id., ¶32. Citing Suchocki, 208 Wis. 2d at 518, the court of appeals explained that the issue was not the mere existence of contact between the prosecutor and the DCC but rather whether the contacts subconsciously influenced the author of the PSI report. Howland, 264 Wis. 2d 279, ¶35. must be court "accurate, of appeals Again stating that a PSI report reliable and, advised above that a all, objective," cooperative and the open relationship between the defendant and the author of the PSI report "would be impossible" if the defendant perceived the latter "to be a mere puppet of the district attorney's office." Id., ¶36. Accordingly, in order "to avoid any further taint," the court of appeals ordered a new PSI report to be prepared by a department from a different county. 19 Id., ¶38. No. ¶34 2010AP784 Turning back to the instant case, Tyler urges us to apply the above series of cases to waiver investigation reports under Wis. Stat. § 938.18(2m). is comparable to a waiver Tyler suggests that a PSI report investigation report because both reports serve as the court's information base and because the author of both reports independent judiciary. acts exclusively on behalf of the It follows, according to Tyler, that because we require a PSI report to be objective, we must equally require a waiver investigation report to be objective. In the instant case, relying on Suchocki and Howland, Tyler contends that ADA Wiedenfeld's participation in the DHHS's staffing meeting could have subconsciously influenced the DHHS in forming its impressions of Tyler and in choosing not to offer any formal recommendation as to waiver, thus drawing into question the objectivity of the waiver investigation report as a matter of law. As a result, similar to the remedy afforded in Howland, Tyler contends that he is entitled to the preparation of a new waiver investigation report and to a new waiver hearing before a different judge. ¶35 not We disagree. err in denying We conclude that the circuit court did Tyler's request to investigation report prepared by the DHHS. strike the waiver While we, like the circuit court, have reservations about the DHHS's decision to invite only ADA Wiedenfeld to its final staffing meeting, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing 20 a waiver investigation No. report. 2010AP784 Rather, consistent with the DHHS's role in delinquency proceedings and in furtherance of the express objectives of Wis. Stat. ch. 938, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court. ¶36 Wisconsin Stat. § 938.18(2m) grants the circuit court discretionary authority to "designate an agency, as defined in s. 938.38(1)(a), to submit a report analyzing the criteria [for waiver of juvenile court jurisdiction] specified in sub. (5)." Wisconsin Stat. § 938.38(1)(a) defines "agency" as the DOC, a county department (like the DHHS in this case), or a licensed child welfare provides that agency. "[t]he Wisconsin court may Stat. rely on § 938.18(2m) further facts in stated the report in making its findings with respect to the criteria under sub. (5)." Pursuant to § 938.18(5), the criteria for waiver of juvenile court juvenile; the seriousness suitability for jurisdiction prior of of treatment record the the of juvenile; juvenile's facilities, of include the the offense; services, juvenile and and personality the of the type and adequacy and the procedures protection of available the public within the juvenile justice system; and, if the juvenile was allegedly associated in the offense with persons who will be charged in the court of criminal jurisdiction, the desirability of trial and disposition of the entire offense in one court. ¶37 To be sure, as Tyler notes, a waiver investigation report under Wis. Stat. § 938.18(2m) bears some similarities to a PSI report under Wis. Stat. 21 § 972.15. For example, both No. 2010AP784 reports may be ordered and relied upon at the circuit court's discretion, compare Wis. a Stat. § 938.18(2m), § 972.15(1) ("After conviction presentence investigation . . . ."), designed to assist decision by the compiling circuit the court and court information with may both in Wis. Stat. order reports making a are informed the concerning an specific defendant, compare Wis. Stat. § 938.18(2m), (5), with Knapp, 111 Wis. 2d at 386 ("[P]resentence reports are designed to gather information concerning a defendant's personality, social circumstances and general pattern of behavior, so that the judge can make an informed sentencing decision."). Wis. 2d at hearing). 973 (comparing a waiver hearing Cf. J.A.L., 162 to a sentencing Still, it does not follow, as Tyler suggests, that we must apply to waiver investigation reports the same objectivity requirements that we demand of PSI reports. In other respects, a waiver investigation report is fundamentally different than a PSI report. ¶38 A PSI report employee of the DOC. is prepared post-conviction See Wis. Stat. § 972.15(1). by an The DOC is "a neutral and independent participant in the sentencing process." State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990); cf. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971) ("In Wisconsin, the entire sentencing process is to be a search for the truth and an evaluation of alternatives. Any advance understanding between prosecutor and defendant must not involve the trial judge or investigation for such any persons trial judge 22 conducting or a court."). presentence Thus, in No. 2010AP784 preparing a PSI report, "[i]t necessarily follows that a parole or probation officer acts on behalf of an independent judiciary," not as an agent of either the State or the defense. McQuay, 154 Wis. 2d at 131; see also State v. Washington, 2009 WI App 148, ¶9, 321 Wis. 2d 508, 775 N.W.2d 535 ("The DOC does not function as an agent of either the State or the defense in fulfilling its PSI role but as an agent of the court in gathering information relating to a specific defendant."). In this respect, a waiver investigation report is distinct from a PSI report. Unlike the author of a PSI report who, in order to protect the integrity of the sentencing process, must remain neutral and defense, independent see Wis. 2d at Howland, 518; from both the 264 170 Perez, Wis. 2d 279, Wis. 2d at prosecution ¶36; 140, and the Suchocki, 208 the author of a waiver investigation report, here, DHHS, is necessarily involved with both the juvenile and the State from the start of the delinquency process. The DHHS is responsible for providing "24 hours a day, 7 days a week" intake services for the purpose of screening juveniles § 938.067(1). taken Intake into services custody. "shall" Wis. inter include, Stat. alia, interviewing the juvenile, § 938.067(2), determining whether and where the juvenile should be held in custody, § 938.067(3), (4), providing crisis counseling to the juvenile, § 938.067(5), requesting that a delinquency petition be filed or entering into a deferred juveniles juvenile prosecution into is not agreement, § 938.067(6), custody, § 938.067(8m). taken custody, into 23 and Likewise, delinquency taking when a proceedings No. 2010AP784 begin with a referral by law enforcement to an intake worker. See Wis. Stat. § 938.24(1). The intake worker must then "conduct an intake inquiry on behalf of the court to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of the juvenile and of the public with regard to any action to be taken." § 938.24(1). Within 40 days of receiving the referral, the intake worker must determine whether to (1) request that the district attorney file a delinquency petition under Wis. Stat. § 938.25; (2) enter into a deferred prosecution agreement; or (3) close the case. Stat. § 938.24(3)-(5). Wis. Once the district attorney receives an intake worker's request, the district attorney has 20 days to "file the petition, close the case, or refer the case back to intake or, with notice to intake, the law enforcement agency investigating the case." § 938.25(2). As these statutes demonstrate, unlike the sentencing process, which requires the DOC to remain neutral and independent from both the prosecution and the defense, the delinquency process requires immediate contact between the DHHS and both the juvenile and the State. ¶39 Given the DHHS's role in delinquency proceedings as outlined in Wis. Stat. ch. 938, we do not think that the DHHS's contact with the juvenile and the State must necessarily cease at the preparation of a waiver investigation report. Indeed, in light of the criteria under Wis. Stat. § 938.18(5) that the DHHS is directed to analyze, a waiver investigation report may not be complete unless the DHHS juvenile and the State. continues to communicate with the As previously mentioned, the criteria 24 No. 2010AP784 for waiver of juvenile court jurisdiction include, inter alia, "[t]he personality of the juvenile" and "[t]he adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system." proceedings, the interests of the public. that the DHHS follows district § 938.18(5). In attorney "shall" See Stat. must Wis. necessarily delinquency represent the § 938.09(1). It communicate with the juvenile in order to analyze the juvenile's personality and must necessarily communicate with the district attorney in order to analyze whether the facilities, services, and procedures available within the juvenile justice system are sufficiently adequate to protect the public from the juvenile. ¶40 juvenile Moreover, and the permitting State for the DHHS purposes to of contact preparing both a the waiver investigation report effectuates the express objectives of Wis. Stat. ch. intended 938. to By "promote enacting a Chapter juvenile 938, justice the system legislature capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively." Wis. Stat. § 938.01(2). To that end, one of Chapter 938's express objectives is "[t]o respond to a juvenile offender's needs for care and treatment, consistent with the prevention of delinquency, each juvenile's best interest and protection of the public, by allowing the court to utilize the most effective 25 dispositional option." No. § 938.01(2)(f). jurisdiction, In our the courts context have of waiving recognized 2010AP784 juvenile that the court juvenile court's dual responsibility to protect both the juvenile and the public is "best served when the court has access to the fullest information possible." S.N. v. State, 139 Wis. 2d 270, 275, 407 N.W.2d 562 (Ct. App. 1987);13 see also D.H., 76 Wis. 2d at 303. Permitting the DHHS to contact both the juvenile and the State for purposes of preparing a waiver investigation report ensures that the court has access to a wider range of information. Indeed, the application of rigid rules to a waiver proceeding is more likely to impair the court's ability to make an informed 13 Advancing that S.N. v. State, 139 Wis. 2d 270, 407 N.W.2d 562 (Ct. App. 1987), is the decisive authority on the instant case, the dissent concludes that the distinctions between a PSI report and a waiver investigation report "are without a difference" and that both reports must be held to an identical standard of objectivity. See dissent, ¶¶56-61. The dissent overstates the impact of S.N. In S.N., a decision that spans just over seven pages, the court of appeals held that the then-existing Children's Code, Wis. Stat. ch. 48 (1985-86), did not prohibit the juvenile court from considering a waiver investigation report prepared by the county department of social services, even though the report went beyond the facts contained in the waiver petition. 139 Wis. 2d at 274-75. The court reasoned that § 48.18(5) (1985-86) "does not provide that such additional evidence may be only presented by the juvenile," and in fact, the juvenile court's dual function of protecting the juvenile and the public through its decision on waiver is "best served when the court has access to the fullest information possible." Id. at 275. As the dissent correctly points out, see dissent, ¶60, the S.N. court's determination that a juvenile court may consider a waiver investigation report prepared by a county department of social services is now codified at Wis. Stat. § 938.18(2m). Contrary to the dissent's insinuations, however, the S.N. decision is void of any discussion pertaining to the manner in which the county department must compile information for its waiver investigation report. 26 No. 2010AP784 and intelligent decision than to lead to a just result. 76 Wis. 2d at 303. D.H., Accordingly, we decline to create a bright- line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report. that the DHHS is free to compile Rather, we conclude information for a waiver investigation report in the manner it deems most beneficial to the circuit court. ¶41 That being said, in the instant case, we share the circuit court's reservations about the DHHS's decision to invite only ADA Wiedenfeld to its final staffing meeting. Inviting only one party to a final staffing meeting creates a perception of imbalanced instant information, case may imbalance caused staffing meeting prove by perception inaccurate. ADA was a Here, Wiedenfeld's refuted which like by any the perceived participation the in circuit in the court's uncontroverted findings that ADA Wiedenfeld's presence was not coercive and that positions both in favor of waiver and against waiver were expressly represented. stated jurisdiction over that its Tyler In addition, decision was to based the circuit court waive juvenile court upon the court's "own feelings" and not upon the DHHS's waiver investigation report. In the future, however, it may be a better practice for the DHHS to invite both parties, or neither party, to its final staffing meeting. We will leave that decision to the DHHS. IV. CONCLUSION 27 No. ¶42 We conclude that denying Tyler's request the to report prepared by the DHHS. the DHHS's decision to circuit strike court the did waiver not 2010AP784 err in investigation While we have reservations about invite only the assistant district attorney to its final staffing meeting, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report. with the DHHS's role in delinquency Rather, consistent proceedings and in furtherance of the express objectives of Wis. Stat. ch. 938, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court. By the Court. The decision of the court of affirmed. ¶43 DAVID T. PROSSER, J., did not participate. 28 appeals is No. ¶44 the ANN WALSH BRADLEY, J. juvenile Health and report. court Human asked (dissenting). the Services to Walworth prepare In this case, County a 10ap784.awb Department waiver of investigation Under the authority of Wis. Stat. § 938.18(2m), the Department's role is to serve as an independent agent gathering information to aid the court's determination about whether Tyler T. should be tried in juvenile or adult court. It held a meeting to formulate its recommendation to the court. ¶45 We are asked attorney's ex parte constituted improper to determine advocacy at involvement whether the in the prosecuting Department's what should have neutral and independent decision-making process. meeting been a The answer to this question should be a resounding "yes." ¶46 Instead, the majority equivocates. reservation about the Department's that such a information. procedure creates procedure, a Expressing it perception of acknowledges imbalanced Ultimately, however, it answers the question with a halfhearted "no." ¶47 setting The majority up a fallacy addressing the instead applying of reaches of question the this halfhearted false choice presented and most relevant conclusion instead by by of squarely selective analysis case law. Because I conclude that the prosecuting attorney's ex parte advocacy at the Department's decision-making meeting was improper, and because I cannot determine that Tyler suffered no prejudice as a result, I respectfully dissent. I 1 No. ¶48 10ap784.awb The majority acknowledges that a waiver investigation report "bears some similarities to a PSI report," and that PSI reports are required to be independent. It also acknowledges that the Majority op., ¶¶37, 38. presence of an advocate risks transforming a meeting "from an unbiased, information-gathering proceeding into an adversarial proceeding" and could "cause a serious degradation in the reliability and impartiality of the [] court's information base." cataloging the similarities Id., ¶28. and Nevertheless, after differences between PSIs and waiver investigation reports, id., ¶¶37-39, the majority asserts that "it does not follow . . . that we must apply to waiver investigation reports the same objectivity requirements that we demand of PSI reports," id., ¶37. ¶49 Ultimately, the majority "decline[s] to create a bright-line rule" because it "do[es] not think that the DHHS's contact with the juvenile and the State must necessarily cease at the preparation ¶¶35, 39. of a waiver investigation report." Id., Although it expresses "reservations about the DHHS's decision to invite only [the prosecuting attorney] to its final staffing meeting," the majority concludes: "[T]he DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court." Id., ¶¶41, 40. ¶50 The majority result of two errors. reaches this dubious conclusion as a The first is an error of logic, and the second is one of selective analysis. A 2 No. ¶51 10ap784.awb The first error in the majority opinion is that it relies on a fallacy of false choice an error of logic. Tyler asserts that the prosecuting attorney's ex parte advocacy at the Department's decision-making meeting was improper. He does not argue that all direct contact between the Department and the parties is prohibited. ¶52 majority Despite frames the the narrow issue scope overshoots the issue on review. Tyler's argument, more much of broadly and the therefore Its broad framing of the issue allows it to skirt an otherwise obvious result. ¶53 The implicit rationale is as follows: if it is improper for the Department to invite the prosecuting attorney's advocacy at its decision-making meeting, then it must likewise be improper for the Department to have any contact with the State or the juvenile at all for the purpose information relevant to the waiver decision.1 however, this false choice falls apart. of gathering Once examined, To conclude that there was procedural error here, the court need not "create a brightline rule" or require all contact between the Department and the parties to "necessarily cease." Rather, it need only answer the question presented. 1 See majority op., ¶39 ("[W]e do not think that the DHHS's contact with the juvenile and the State must necessarily cease at the preparation of a waiver investigation report."); id., ¶40 ("[P]ermitting the DHHS to contact both the juvenile and the State for purposes of preparing a waiver investigation report ensures that the court has access to a wider range of information."); id. ("[W]e decline to create a bright-line rule precluding the DHHS from communicating directly with either party . . . for the purposes of preparing a waiver investigation report."). 3 No. ¶54 10ap784.awb There is a difference between soliciting information and soliciting advocacy. I agree with the majority that the Department has a great deal of discretion in how it would like to prepare the report and that it is required to have some interaction with both the parties to fulfill its informationgathering function. However, consistent with the juvenile court in this case,2 I conclude that the Department compromises its role as an independent agent of the court when it solicits the ex parte advocacy of one party at the meeting in which it makes crucial decisions about its waiver recommendation and the contents of its report. B ¶55 The majority's error in framing the question is compounded because it focuses its analysis on the wrong cases and overlooks the important principles derived from the most relevant case. It asserts that there are differences between PSIs and waiver investigation reports, and I agree. Yet, with no clear explanation of how the distinctions it identifies make 2 After being apprised of the Department's proceedings, the court explained: "[A]pparently the District Attorney was invited and the defense was not. I tend to think that that is not a good idea, myself." 4 No. 10ap784.awb any difference,3 the majority somehow concludes that, as a result of these distinctions, waiver investigation reports are held to a lower standard of objectivity. ¶56 See majority op., ¶37. Even though the majority asserts that PSIs and waiver investigation reports are significantly different, its analysis on the case law dealing with PSIs. it focuses It barely pauses to mention S.N. v. State, a case that is specific to waiver investigation reports. ¶57 The use of waiver investigation reports was first discussed in S.N. v. State, 139 Wis. 2d 270, 407 N.W.2d 562 (Ct. App. 1987) (hereinafter, In re S.N.). That case contemplates that the preparer of a waiver investigation report is not an ally of the prosecution or the defense, but rather, an independent agent of the court. ¶58 The facts of In re S.N. are straightforward. The State filed a petition to waive a juvenile into adult court, and a social worker at the Department of Social Services prepared a waiver investigation report for the court. 3 Id. at 272-73. At Majority op., ¶¶38-40. Incidentally, I do not believe that the differences between waiver investigation reports and PSIs are as pointed as the majority suggests. For example, the majority contends that "a waiver investigation report may not be complete unless the DHHS continues to communicate with the juvenile and the State," and "permitting [this communication] for purposes of preparing a waiver investigation report effectuates the express objectives of Wis. Stat. ch. 938." Id., ¶¶39, 40. In this respect, I see no difference between a waiver investigation report and a PSI. A PSI also serves an information-gathering function, and its author is required to attempt to interview the criminal defendant, Wis. Admin. Code DOC § 328.29(4), and to obtain information about the crime and the defendant's criminal history from the State, id., § 328.27(3). 5 No. 10ap784.awb the time, there was no statutory authority for the court to request a waiver investigation report. Over the juvenile's objection, the court admitted the social worker's report into evidence. ¶59 In determining that the juvenile court did not err by admitting the report, the court of appeals stressed the independent nature of a waiver investigation report and the fact that the report was prepared for the benefit of the court. It emphasized the "juvenile court's duty to independently determine whether waiver state's or is the appropriate, juvenile's rather request than for deferring waiver or party's acquiescence in the other party's request." (emphasis added). It explained that the to to the either Id. at 275 statutes do not prohibit the juvenile court "from using independent information relevant to waiver, such as the county department of social services' waiver investigation report admitted in the present case." ¶60 Id. (emphasis added). The legislative history of Wis. Stat. § 938.18(2m) reveals that this statute was specifically created to codify the procedure set forth by In re S.N.4 Accordingly, the apparent 4 The text of sub. (2m) was proposed in a 1996 letter by Randall Schneider, an ADA for Racine County. Among other recommendations, Attorney Schneider's letter suggested that the In re S.N. procedure be codified: Add a sub-section after sec. 938.18(2r) to read: "The court may designate an agency as defined in sec. 938.38(1)(a) to prepare and submit a report analyzing the waiver criteria as defined in sub. (5) as applied to the juvenile. The report shall be given to all parties at least 3 days prior to the waiver hearing. The court, in its discretion, may rely on facts 6 No. purpose of sub. (2m) is to provide a procedure 10ap784.awb for court appointment of an independent agent of the court charged with gathering the fullest possible information. ¶61 founding Because case of the In majority ignores re it S.N., the principles erroneously of concludes waiver reports are held to a lower standard of objectivity. the contrary, distinctions my review between of PSIs In and re S.N. waiver suggests that investigation the that To the reports identified by the majority are without a difference, and that both types of reports must be prepared by an independent agent of the court. ¶62 means The waiver investigation report is supposed to be a of gathering information, advocacy to the juvenile court. not a means of funneling The presence of advocates at the Department's meeting "could cause a serious degradation in the reliability and impartiality of the [] court's information base" and could transforming) gathering the transform (or, at the meeting "from an unbiased, proceeding into an adversarial very least, risk information- proceeding." See majority op., ¶28 (discussing State v. Perez, 170 Wis. 2d 130, contained within the waiver study in making its finding under sub. (5)." This codifies In the interest of S.N., 139 Wis. 2d 270, 407 N.W.2d 562 (Ct. App. 1987). Letter from Randall Schneider to the Juvenile Justice Study Committee (Feb. 13, 1996) (on file with the Legislative Reference Bureau, Madison, Wisconsin) (emphasis added). This proposed language was modified slightly and was then incorporated, as modified, as an amendment to 1995 SB 624. Ultimately, it was passed and signed into law. 1995 Wis. Act 352. 7 No. 487 N.W.2d 630 (Ct. App. 1992)). 10ap784.awb In this case, the risk to the court's information base was compounded because only one side was invited to advocate for its desired result. I conclude that the Department's procedure was in error. II ¶63 with the Although the Department's juvenile court procedure, unnecessary to order a new report. it recognized concluded the that problem it was In making its decision on waiver, the court attempted to isolate the effect of the tainted report. It explained: "I'm satisfied with the thorough input from both parties as to the situation, and I believe I've made my decision which is ultimately the Court's responsibility and not the Department's." It assured the parties that its waiver decision was made based upon its "own feelings," and not the Department's. ¶64 I appreciate the juvenile court's attempts to separate its waiver decision from the tainted report. Nevertheless, I cannot conclude that Tyler suffered no prejudice as a result of the improper procedure before the Department. ¶65 Although the court took great pains to disentangle the information in the report from its own conclusion, facts from the tainted report crept into the court's analysis of the waiver criteria.5 The report's influence 5 on the juvenile court is For example, when discussing the criteria, the juvenile court observed that Tyler came "from a family where there [were] multiple relationships and family members [involved with] drugs and alcohol," and that in school, there were periods where "there was a total lapse of doing his homework and getting poor grades." These facts come directly from the Department's report. 8 No. 10ap784.awb evinced by the court's reliance on the facts it adduced from the report. ¶66 the It is impossible to know what would have happened if prosecuting attorney Department's meeting. had not been present at the There were many mitigating facts that could support a decision to retain Tyler in juvenile court, and there was Department. significant sentiment against waiver in the In fact, the assigned case worker volunteered, "I certainly felt there were reasons and information provided that a recommendation could be made to to retain [Tyler] in juvenile court." Who knows what the recommendation would have been if the ex parte advocacy of the prosecuting attorney had not been infused into the discussion? ¶67 If the report had ultimately recommended against waiver, no one can know the impact that such a recommendation would have had on the juvenile court's determination. Judges often give great value to the on-the-ground determinations and recommendations of the Department. ¶68 The problem here is that we just don't know. We cannot unring the bell. ¶69 Accordingly, because I cannot conclude that Tyler suffered no prejudice, I respectfully dissent. ¶70 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 9 No. 10 10ap784.awb No. 1 10ap784.awb