This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed August 13, 2002
Reversed and remanded
Washington County District Court
File No. J-82-17568Y
Edward W. Simonet, III, 522 South Fourth Street, P. O. Box 16, Stillwater, MN 55082 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Doug Johnson, Washington County Attorney, Gregory J. Tavernier, Assistant County Attorney, 14949 - 62nd Street North, P. O. Box 6, Stillwater, MN 55082 (for respondent)
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
Appellant S.R.V. contends that the district court erred as a matter of law by certifying him for adult prosecution, rather than extended juvenile jurisdiction (EJJ). The sole issue before this court is whether appellant successfully rebutted the statutory presumption of certification. Because appellant has established by clear and convincing evidence that EJJ would serve public safety, we reverse and remand.
On October 7, 2001, police responded to a 911 call at the Marine General Store in Marine on St. Croix. The clerks at the store reported that a young male carrying a gun and wearing a mask had entered the store. The man proceeded behind the counter where he opened the cash drawer, removed money, and took a carton of cigarettes. The man then proceeded to the back of the store, encountering one of the female clerks. The man told the clerk not to try anything or that he would “kill you bitch.” The man then ran to a waiting car and left the scene.
On November 15, 2001, a confidential informant identified to officers appellant S.R.V. as one of the two people involved in the incident. Following questioning, appellant was arrested and charged in a delinquency petition. The state subsequently filed a motion for adult prosecution and notice of intent to prosecute. Appellant was placed in a secured detention setting pending the certification determination. The district court scheduled a certification hearing, a psychological evaluation, and certification study to be completed prior to the hearing.
Appellant's psychological evaluation found that appellant was an appropriate candidate for extended juvenile jurisdiction. The report recommended that, if adjudicated, appellant be incarcerated in a facility for six months and that his subsequent supervision extend for a minimum of two years.
A certification study was performed, consulting numerous sources including appellant's parents, the victims, the psychological report, as well as appellant himself. The study found that the most appropriate disposition for appellant would be EJJ certification with appellant incarcerated for six months in the Anoka County Juvenile Center.
Following a certification hearing, the district court found that appellant had not shown by clear and convincing evidence that retaining the proceedings in juvenile court would serve public safety. This appeal followed.
D E C I S I O N
This is an appeal from the district court's certification of appellant for adult prosecution. The issue is whether the district court abused its discretion when it ordered appellant certified for adult prosecution, rather than EJJ. Because clear and convincing evidence exists rebutting the statutory presumption of certification, we reverse.
It is presumed in a proceeding involving an offense committed by a child that the child will be certified for adult certification if:
(1) the child was 16 or 17 years old at the time of the offense; and
(2) the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes, or that the child committed any felony offense while using, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm.
Minn. Stat. § 260B.125, subd. 3 (2000). In a presumptive-certification case there are two available options: (1) ordering certification or (2) designating the proceeding as an extended jurisdiction juvenile proceeding. Id., subd. 8. Under EJJ, an adult criminal sentence is executed if the juvenile violates the terms of the juvenile disposition order or commits a new offense. Minn. Stat. § 260B.130, subd. 4(2) (2000).
In this case the parties do not dispute that appellant falls within the statutory presumption of certification. What is in dispute is whether appellant successfully rebutted the presumption of certification. To rebut the presumption of certification, an appellant must establish through clear and convincing evidence that retaining the proceeding in juvenile court serves public safety. Minn. Stat. § 260B.125, subd. 3. The district court found that appellant had not proven that retaining juvenile jurisdiction serves public safety. Appellant argues that the evidence in the record does not support the district court's conclusion and, thus, the district court abused its discretion. We agree.
In determining whether public safety is served, the district court must consider the following statutory factors:
(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on the victim;
(2) the culpability of the child in committing the alleged offense, including the level of the child's participation in planning and carrying out the offense and the existence of any mitigation factors recognized by the sentencing guidelines;
(3) the child's prior record of delinquency;
(4) the child's programming history, including the child's past willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment of programming available in the juvenile justice system; and
(6) the dispositional options available for the child.
Id., subd. 4. In considering these factors, the court must place greater weight on the "seriousness of the alleged offense and the juvenile's prior record of delinquency." Id.; State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998). With respect to the six statutory factors, this court has stated:
These factors, which address the nature of the offense and the circumstances of the child, are intended to assess whether a juvenile presents a risk to public safety and thus aim to predict whether a juvenile is likely to offend in the future. Although some of the factors examine the juvenile's past behavior and programming failures, others must be read to allow consideration of the juvenile's current conduct. In the end, the factors must show that a risk to public safety exists because the juvenile's behaviors are likely to continue.
In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000).
Appellant argues that the fact that the weapon was not loaded illustrates his mere desire for money and property and not to physically harm the victims, thus, minimizing the seriousness of the offense. The district court properly concluded that appellant was involved in a serious crime where he pointed a weapon at a store clerk and threatened to kill her if she did not cooperate. The fact that the weapon was not loaded "does not exaggerate the seriousness," but does not minimize the offense.
The district court correctly found that appellant had a high level of culpability for the offense. Specifically the district court looked to the certification report in which appellant admitted that he had planned the robbery for about six weeks and had "cased" the store, choosing the time of the crime to coincide with a time when young female clerks were working so as to face little physical threat.
On appeal, appellant argues that the district court erred in not considering that appellant was forthcoming in reporting the facts surrounding the incident and that appellant was found in the psychological report to be a "submissive youth" and therefore not the leader of the offense. The culpability portion of Minn. Stat. § 260B.125, subd. 4, states that this court shall consider "the culpability of the child in committing the alleged offense, including the level of the child's participation in planning and carrying out the offense and the existence of any mitigation factors recognized in the sentencing guidelines. Minn. Stat. § 260B.125, subd. 4(2). Neither of appellant's arguments is among the mitigating factors of the sentencing guidelines. Minn. Sent. Guidelines II.D.2.a. The district court was correct in not using appellant's cooperation and submissiveness to negate this factor.
It is undisputed that there is no record of prior delinquency in this case. Appellant argues that the district court improperly included past unproven conduct when examining this factor. We agree.
The district court, in its findings of fact and conclusions of law stated:
The juvenile's prior record is non-existent on paper; however, the juvenile has previously stolen from this same store while employed there. Charges were not pressed by the store's owners on the condition that the juvenile pay restitution of the approximately $600 that he stole.
This analysis improperly includes an uncharged, unproven, uninvestigated and undocumented private matter between appellant and an employer. Even the court-ordered Certification Study Report stated in pertinent part, "[appellant] has no prior record, and has not been in legal trouble prior to this offense." The district court erred in considering this evidence as proof on the important factor of appellant's delinquency record.
Appellant argues that his lack of prior programming history and his success in programming following the offense do not support the district court's certification decision. We agree. While the district court found, and the record reflects, that appellant has no programming or placement history, in its finding of fact and conclusions of law the district court failed to address whether this factor supports or opposes certification.
This court has previously found that the programming factor does not support certification in a case where it is undisputed that the juvenile has not participated in prior programming. In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997) (emphasis added), review denied (Minn. Feb. 19, 1998). This factor looks only to the juvenile's programming failures. See H.S.H., 609 N.W.2d at 262. Appellant's lack of prior programming does not support the district court's conclusion that certification is appropriate.
Further, appellant has demonstrated success in programming following the offense. During the time appellant had been held in secure detention he has progressed through two of the three behavioral levels. While the district court points to appellant's "horseplay behind the scenes," appellant has progressed more than satisfactorily. On this issue, the court-ordered Certification Study Report stated:
Other than anger management class when he was in 7th grade, the subject has not been exposed to any professional intervention. He has been cooperative while in detention at the ECRJC, and verbalizes his willingness to commit to any programming assigned by the Court.
Appellant has shown by clear and convincing evidence that this factor does not support certification. Appellant's lack of programming prior to this offense and his programming success following this offense indicate that appellant will participate successfully in future programming and, thus, be less likely to reoffend; the purpose of this factor. H.S.H., 609 N.W.2d at 262.
Appellant argues that the district court erred in its finding that limited available programming existed in the juvenile justice system and that the available programming would not be adequate for appellant. We agree.
In its order, the district court states that the certification report recommends placement of appellant in the Woodland Hills Treatment Center. This is factually incorrect. Appellant's certification report states that Woodland Hills is not appropriate, because appellant does not have a mental health diagnosis. Rather, the certification report recommends a six-month term at the Anoka County Juvenile Center, under the auspices of EJJ, as the most appropriate placement option for appellant.
Finally, the district court held that "for numerous reasons the Court has difficulty accepting that programming in the juvenile justice system would be adequate for the juvenile." To support this conclusion the district court again improperly relied on appellant's unproven and unsubstantiated theft. The district court also relied on the fact that "neither professional could remotely state that the juvenile would not reoffend." This factual conclusion appears to be in error. Appellant's psychological report indicates that he has a low likelihood to offend. Appellant's certification report places him in the moderate category of likelihood to reoffend. The record is far different from the emphasis placed by the district court when it stated, "neither professional evaluation could remotely state that the juvenile would not reoffend."
We conclude that appellant has proven by clear and convincing evidence that adequate programming exists in the juvenile justice system. Accordingly, the district court erred in finding that this factor supports appellant's certification for adult prosecution.
The final factor regarding certification is the dispositional options available to the juvenile. Here, the district court recognized that EJJ as well as certification were options available to the court.
Weighing the Factors
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.