State v. B. M. ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 14, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP501-FT Cir. Ct. No. 2020JV28
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE INTEREST OF B. M., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
B. M.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Langlade County:
JOHN B. RHODE, Judge. Reversed and cause remanded with directions.
No. 2021AP501-FT
¶1 GILL, J.1 Brandon2 appeals a dispositional order adjudicating him
delinquent on one count of disorderly conduct. Brandon argues the circuit court
erred by entering a dispositional order that delegated authority to the juvenile
justice worker to order electronic monitoring. We conclude the dispositional order
conflicts with the court’s oral pronouncement, and as such, we vacate the portion
of the order which incorporates electronic monitoring and remand for entry of a
corrected order consistent with the oral pronouncement.
BACKGROUND
¶2 On August 30, 2020, Officer Barske with the Antigo Police
Department was advised of a property damage complaint at a local laundromat.
Upon arrival, Barske was notified that a toilet tank cover was smashed and a toilet
paper dispenser was ripped off the wall. The estimated cost of the damage was
between $150 and $400.
¶3 Barske reviewed a surveillance video and observed a juvenile whom
he recognized to be Brandon walking into the restroom and leaving a short time
thereafter. After Brandon left the restroom, the surveillance video showed that the
broken items were visible on the restroom floor. Barske subsequently went to
Brandon’s home, where Brandon explained he went into the laundromat to use the
bathroom. Brandon further explained that the toilet paper dispenser was not
1
This is an expedited appeal under WIS. STAT. RULE 809.17 (2019-20). All references
to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted. This appeal is
decided by one judge pursuant to WIS. STAT. § 752.31(2). Pursuant to this court’s order on
April 21, 2021, and a presubmission conference, the parties have submitted memorandum briefs.
See RULE 809.17(1).
2
For ease of reading and to protect confidentiality, we use a pseudonym when referring
to the juvenile in this case.
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No. 2021AP501-FT
working, so he punched it. He also stated that the toilet was not flushing properly,
so he removed the tank lid, and it slipped.
¶4 Brandon was subsequently charged with one count each of
disorderly conduct and criminal damage to property. He entered an admission to
disorderly conduct, and the criminal damage to property offense was dismissed.
Both parties jointly recommended formal supervision.
¶5 During the dispositional hearing, the circuit court notified Brandon
of its authority to order supervision rules that may include, among other
things: home detention with certain conditions; out-of-home placement; secure
detention for up to thirty days at a time; and electronic monitoring. Brandon
stated that he understood. In addition, Brandon inquired when he could have his
electronic monitoring ankle bracelet removed, which had been previously ordered
at a temporary physical custody hearing. In response, Craig Hotchkiss, Brandon’s
juvenile justice worker, stated that Brandon needed to exhibit good behavior
before the electronic monitoring bracelet could be removed. Specifically,
Hotchkiss stated Brandon needed to attend school, stay out of trouble, and then his
treatment team would decide when to remove his electronic monitoring.
Hotchkiss further opined that he thought it was important for Brandon to remain
on electronic monitoring for accountability purposes.
¶6 Brandon’s counsel requested removal of Brandon’s ankle bracelet as
the continuation of its use was not seen in the dispositional report. He did,
however, acknowledge that if there was a violation, the bracelet could be
reinstated. Thereafter, Brandon entered an admission, and the circuit court
proceeded to disposition.
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No. 2021AP501-FT
¶7 During argument, the State noted significant concerns about
Brandon, including several hospitalizations for self-harming activities. The State
further argued that Brandon was able to transition back to his home while being
accountable to his supervision with Hotchkiss through the use of electronic
monitoring. With respect to the electronic monitoring, the State noted that it was
not a punishment but, rather, a case management tool. In addition, Brandon’s
mother explained that she still had some concerns about Brandon. In particular,
she explained that Brandon put himself in this situation by not listening and that
she worries about “his danger because of the stuff he goes digging in.” Hotchkiss
also added that Brandon did not come home right after school as his mother had
instructed the prior week, and that he left home without permission on another
occasion. Hotchkiss stated that Brandon was not confined by the electronic
monitoring because he was able to go to school, appointments, and places with his
mother. Hotchkiss considered electronic monitoring a great management tool.
¶8 Conversely, Brandon’s counsel argued that electronic monitoring
was not a case management tool but instead a “sanction to be given by the Court.”
Brandon also asked the circuit court for removal of the electronic monitoring
bracelet.
¶9 The circuit court placed Brandon on juvenile supervision for one
year. The court then stated the following as to electronic monitoring:
All I will say to both sides if the [S]tate wants me to order
it they can schedule further proceedings and we’ll take that
up. If the defense wants me to order that it stop they can
schedule further proceedings and order that it stop or if they
think it’s being used inappropriately.
Thereafter, a formal written order was entered by the court, which specifically
adopted the Langlade County Department of Youth Justice’s “Rules of
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Supervision,” including Rule 22. That rule states: “The youth shall participate in
the electronic monitoring program as deemed appropriate by the assigned juvenile
worker for any violation of supervision.”
¶10 Brandon filed a notice of appeal. After the parties’ briefing,
however, we requested that the parties supplement their arguments in light of the
circuit court’s oral pronouncement conflicting with the written dispositional order.
DISCUSSION
¶11 Brandon first argues that the circuit court cannot delegate authority
for the imposition of electronic monitoring to the juvenile justice worker.
Brandon further argues that electronic monitoring is not an appropriate sanction as
it is not enumerated in WIS. STAT. § 938.355(6). We need not address these issues
because we conclude that the court’s written order was inconsistent with its oral
pronouncement. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d
628, 673 N.W.2d 716 (court need not address all issues raised by the parties if one
issue is dispositive).
¶12 The circuit court, in its oral ruling, stated that it was not ordering
anything on electronic monitoring. Thereafter, without explanation, a formal
order was entered by the court adopting the Langlade County Department of
Youth Justice’s “Rules of Supervision,” including Rule 22, which states that the
youth participate in electronic monitoring as deemed appropriate by the assigned
juvenile worker for any violation of supervision.
¶13 In State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), our
supreme court addressed the issue of conflict in the circuit court’s oral
pronouncement with its written order. In Perry, the original oral pronouncement
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No. 2021AP501-FT
required that sentences for burglary and robbery be concurrent with each other and
concurrent to the sentence imposed for injury by conduct regardless of life. Id. at
112. The written judgment, however, ordered that the sentence for the injury by
conduct regardless of life count be consecutive to the other sentences. Id. Our
supreme court concluded that the oral pronouncement was unambiguous. Id. at
114. The court concluded that the oral pronouncement controlled over the written
judgment. Id..
¶14 After our review of the record on appeal, it is evident that there is a
conflict between the circuit court’s oral pronouncement and its written
dispositional order. Because the court’s oral pronouncement controls, we reverse
the original dispositional order. On remand, we direct that the order be amended
to reflect the court’s oral pronouncement.
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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