COURT OF APPEALS

DECISION

DATED AND FILED

June 23, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

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. 

Appeal No. 2021AP351 Cir. Ct. No. 2020JV288

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE INTEREST OF T.G., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

T. G.,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County: 

JODI L. MEIER, Judge. Affirmed. 
No. 2021AP351

2

¶1 NEUBAUER, C.J.1 T.G. appeals from a juvenile court order 

waiving him into adult court.2 Whether to waive jurisdiction, once prosecutive 

merit is found, is within the discretion of the juvenile court. Because the court did 

not err in finding prosecutive merit or erroneously exercise its discretion in 

waiving jurisdiction, we affirm.

BACKGROUND

¶2 In late 2020, the State filed a delinquency petition against T.G.

following a serious car accident involving a stolen car that T.G., who was ten days 

shy of his sixteenth birthday at the time of the accident, admitted he had been 

driving when it crashed. T.G. and at least two passengers in the vehicle were 

seriously injured in the accident. The delinquency petition alleged that T.G.

committed one count of “Drive or Operate a Vehicle Without Owner’s Consent,”

contrary to WIS. STAT. § 943.23(3), and two counts of “Knowingly Operate Motor 

Vehicle Without a Valid License-Cause Great Bodily Harm,” contrary to WIS.

STAT. § 343.05(3)(a) and (5)(b)4. Each of the charged counts is a Class I Felony, 

punishable by imprisonment of not more than three years and six months 

confinement and a fine of not more than $10,000 if committed by an adult.

¶3 At the same time it filed the delinquency petition, the State filed a 

petition for waiver of jurisdiction, asking that T.G. be waived into adult court 

based on his alleged offenses. In support of waiver, the State cited T.G.’s age, the 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2

 This court granted leave to appeal from this nonfinal order. See WIS. STAT.

RULE 809.50(3). 
No. 2021AP351

3

limited time left for disposition of the charges and adequate treatment in the 

juvenile court system, and the seriousness of the offenses.

¶4 The juvenile court held a hearing on the waiver petition. The court 

first heard arguments from the parties regarding whether there was prosecutive 

merit as to the count charging T.G. with operating without the owner’s consent. 

Pointing out the “low threshold for prosecutive merit,” the court found that T.G.’s 

own statement that he had been driving when the accident happened and the fact 

that the car was stolen supported the finding of prosecutive merit.

¶5 After hearing testimony and arguments and reviewing the 

delinquency petition, waiver petition, T.G.’s school records, and the waiver report

prepared by a county social worker, the juvenile court addressed the statutory 

factors delineated in WIS. STAT. § 938.18(5).3 Specifically, the court considered 

 

3

 WISCONSIN STAT. § 938.18(5) provides that a court is to consider the following factors 

in determining whether waiver of jurisdiction is appropriate:

(a) The personality of the juvenile, including whether the 

juvenile has a mental illness or developmental disability, the 

juvenile’s physical and mental maturity, and the juvenile’s 

pattern of living, prior treatment history, and apparent potential 

for responding to future treatment.

(am) The prior record of the juvenile, including whether the 

court has previously waived its jurisdiction over the juvenile, 

whether the juvenile has been previously convicted following a 

waiver of the court’s jurisdiction or has been previously found 

delinquent, whether such conviction or delinquency involved the 

infliction of serious bodily injury, the juvenile’s motives and 

attitudes, and the juvenile’s prior offenses.

(b) The type and seriousness of the offense, including whether it 

was against persons or property and the extent to which it was 

committed in a violent, aggressive, premeditated or willful 

manner. 

(continued)
No. 2021AP351

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“the personality of [T.G.],” “whether [T.G.] has a mental illness or developmental 

disability,” his “physical and mental maturity,” his “pattern of living,” “his prior 

treatment history” and “apparent potential for responding to future treatment,” his 

“prior record,” “jurisdiction that’s been previously waived,” including whether 

T.G. has “been convicted following a waiver ... been previously found 

delinquent,” and “whether any conviction or delinquency involved the infliction of 

serious bodily injury.”

¶6 The juvenile court also considered T.G.’s “motives and attitudes,”

“the type and seriousness of these [charged] offenses,” and whether the “offenses 

were committed in a violent, aggressive, premeditated[,] or willful manner.” 

Finally, the court “look[ed] to the adequacy and suitability of facilities, services[,] 

and procedures available for treatment of [T.G.] as well as the protection of the 

public within the juvenile justice system.”

¶7 After applying the facts presented at the hearing to the statutory 

factors, the juvenile court ultimately granted the waiver petition. The court found 

that T.G. needs intensive intervention and “there needs to be some serious 

 

(c) The adequacy and suitability of facilities, services and 

procedures available for treatment of the juvenile and protection 

of the public within the juvenile justice system, and, where 

applicable, the mental health system and the suitability of the 

juvenile for placement in the serious juvenile offender program 

under [WIS. STAT. §] 938.538 or the adult intensive sanctions 

program under [WIS. STAT. §] 301.048.

(d) The desirability of trial and disposition of the entire offense 

in one court if the juvenile was allegedly associated in the 

offense with persons who will be charged with a crime in the 

court of criminal jurisdiction.
No. 2021AP351

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protection of the public and I lean on the protection of the public the most.” T.G.

appeals.

DISCUSSION

Standards of Review and Applicable Legal Standards

¶8 The waiver process first requires the juvenile court to determine if 

the delinquency petition has prosecutive merit. WIS. STAT. § 938.18(4)(a). If

prosecutive merit is found, the court must review the facts of the case in light of 

the factors set forth in § 938.18(5). See D.H. v. State, 76 Wis. 2d 286, 305, 251 

N.W.2d 196 (1977) (addressing WIS. STAT. § 48.18 (1975-76)).4 The court does 

not, however, need to determine that every statutory criterion supports waiver. 

See B.B. v. State, 166 Wis. 2d 202, 209, 479 N.W.2d 205 (Ct. App. 1991).

¶9 The parties disagree over the proper standard of our review of a 

juvenile court’s prosecutive merit determination—T.G. argues that it is de novo 

and the State argues for an erroneous exercise of discretion standard. Our supreme 

court has explained that it is “functionally similar to the determination of probable 

cause in the preliminary examination.” T.R.B. v. State, 109 Wis. 2d 179, 190, 325 

N.W.2d 329 (1982). Accordingly, the court explained that in order to find 

prosecutive merit, a juvenile court must satisfy itself to “the degree of probable 

cause required to bind over an adult for criminal trial.” Id. at 192. “When 

reviewing a circuit court’s bindover decision, ‘we will examine the factual record 

ab initio and decide, as a matter of law, whether the evidence constitutes probable 

 

4

 When the Legislature passed the Juvenile Justice Code in 1996, WIS. STAT. § 48.18 of 

the Children’s Code became WIS. STAT. § 938.18(5) of the Juvenile Justice Code. 1995 Wis. Act 

77.
No. 2021AP351

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cause.’” State v. Anderson, 2005 WI 54, ¶26, 280 Wis. 2d 104, 695 N.W.2d 731 

(citation omitted). Following this logic, our review of the juvenile court’s 

prosecutive merit decision is de novo, as it is when reviewing bindover 

determinations. See id. 

¶10 Whether to waive a juvenile into adult court, however, is a 

discretionary determination made by the juvenile court. State v. Tyler T., 2012 

WI 52, ¶24, 341 Wis. 2d 1, 814 N.W.2d 192. Reviewing courts will reverse 

waiver decisions only if we conclude that the juvenile court erroneously exercised 

discretion. Id. “A juvenile court erroneously exercises its 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.” Id. “In 

reviewing the juvenile court’s discretionary decision to waive jurisdiction, we look 

for reasons to sustain the court’s decision.” See id.

The Juvenile Court Did Not Err in Concluding That There is Prosecutive Merit to 

Count One of the Delinquency Petition

¶11 T.G. first argues that the juvenile court erred in determining that 

there is prosecutive merit to count one of the delinquency petition, which alleged 

that he operated a motor vehicle without the owner’s consent, causing great bodily 

harm in the process. He argues that despite the fact that the petition alleges that he 

was driving the vehicle at the time of the accident, there are no allegations that 

support the inference that T.G. knew that he did not have consent to drive it.

¶12 As with a preliminary hearing in an adult case, for a juvenile court to 

conclude that there is prosecutive merit, it “must satisfy itself that the record 

establishes to a reasonable probability that the violation of the criminal law alleged 

has been committed and that the juvenile has probably committed it.” T.R.B., 109 
No. 2021AP351

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Wis. 2d at 192. Like a preliminary hearing, a waiver hearing “is not a proper 

forum to choose between conflicting facts or inferences, or to weigh the state’s 

evidence against evidence favorable to the defendant.” See Anderson, 280 

Wis. 2d 104, ¶24 (citation omitted). As the juvenile court here noted, this is a 

fairly low threshold, requiring only that the delinquency petition sets forth “a 

believable or plausible account of the [juvenile]’s commission of a felony.” See

id., ¶25 (citations omitted). 

¶13 Based on our independent review of the hearing testimony, the 

allegations in the delinquency petition, and other record documents, we conclude 

that the juvenile court did not err in determining that there is prosecutive merit to 

the count alleging that T.G. operated the vehicle without the owner’s consent. The 

petition sets forth a “believable or plausible account” of T.G.’s commission of this 

offense. See id. Specifically, one of the passengers told officers at the scene that 

T.G. had been driving at the time of the accident; T.G. himself told officers that he 

had been driving at that time; the vehicle that T.G. was driving had a Texas 

registration and been reported stolen; and the vehicle’s owner told officers that he 

did not give T.G. or anyone else in the vehicle consent to drive it. 

¶14 It is a reasonable inference, based on these facts, that T.G.

committed the offense charged in count one of the petition. Thus, we are satisfied 

that there is prosecutive merit as to this count.
No. 2021AP351

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The Juvenile Court Did Not Erroneously Exercise its Discretion in Granting the 

Waiver Petition

¶15 As stated above, if a juvenile court finds prosecutive merit, then the 

court is to determine whether waiver is appropriate in light of the factors set forth 

in WIS. STAT. § 938.18(5). See D.H., 76 Wis. 2d at 305. T.G. argues that the 

court erroneously exercised its discretion in deciding that waiver was appropriate. 

He particularly takes issue with the court’s reliance on the seriousness of the 

offense and the need to protect the public as weighing in favor of its decision 

toward waiver.

¶16 The juvenile court found that T.G. had adult behavior and attitudes;

that the offenses before the court were serious; that there were serious injuries 

inflicted on the other persons in the vehicle; and that the offenses were 

premeditated, willful, and aggressive. The court also found that T.G. was not 

likely to get the services necessary and for the length of time that is appropriate.

Ultimately, the court afforded the most weight to the need to protect the public and 

granted the waiver petition.

¶17 T.G. asks us to conclude that the court erroneously exercised its 

discretion in weighing the facts and the factors. In essence, he is asking us to 

substitute our judgment for that of the juvenile court. However, we are to uphold 

the court’s decision if our review reveals that the court considered the appropriate 

facts and applied the appropriate law. See Hartung v. Hartung, 102 Wis. 2d 58, 

66, 306 N.W.2d 16 (1981). There is no doubt that the court here did both. 

¶18 As to the facts, the juvenile court considered the delinquency and 

waiver petitions, the testimony at the hearing, the waiver report filed by the social 

worker, and T.G.’s school records. “[T]he weight and credibility of the evidence 
No. 2021AP351

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[are] matters ... that are left to the discretion of the [juvenile] court.” Schorer v. 

Schorer, 177 Wis. 2d 387, 400, 501 N.W.2d 916 (Ct. App. 1993). Thus, we will 

not reweigh the evidence as T.G. requests.

¶19 As to the law, T.G. concedes that “[t]he [juvenile] court considered 

each of the statutory factors.” The court applied the facts in evidence to each of 

the factors and reached a rational determination supported by the record. 

Moreover, the court appropriately stated that it considered the best interest of T.G.

and the need to protect the public and determined that the evidence supported a 

finding that it needed to waive jurisdiction. See WIS. STAT. § 938.18(6). It did not 

erroneously exercise its discretion in so doing.

CONCLUSION

¶20 Based on our review of the record and the applicable legal standards, 

we conclude that the juvenile court did not err in finding prosecutive merit as to 

count one, nor did it erroneously exercise its discretion in concluding that waiver 

of its jurisdiction over T.G. is appropriate.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. 

RULE 809.23(1)(b)4.