This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Stearns County District Court
File No. J50250115
I. Chris Ritts, Bruce Rivers, Dunlap, Ritts & Rivers, P.A., Suite 725A, 100 North Sixth Street, Butler Square, Minneapolis, MN 55403 (for appellant C.K.B.)
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Roger S. Van Heel, Stearns County Attorney, Samuel Wertheimer, II, Assistant County Attorney, Suite 448, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent State)
Considered and decided by Stoneburner, Presiding Judge, Wright, Judge, and Forsberg, Judge.*
Appellant C.K.B. challenges his certification for adult prosecution, arguing that the state failed to prove by clear and convincing evidence that public safety would not be served by retaining appellant in the juvenile system under extended jurisdiction. We affirm.
On January 1, 2002, appellant C.K.B fired a .22 caliber pistol into a St. Cloud residence approximately six times, causing $2,000 in damages to the home. On January 2, 2002, he fired five shots into the bathroom window of another residence after seeing a person in the bathroom. Two of the bullets struck and injured 14-year-old B.E., who was appellant’s target.
For the January 1 offense, the Stearns County Attorney’s Office (state) filed a petition in juvenile court alleging appellant to be delinquent for committing two counts of criminal damage to property in the first degree, one count of reckless discharge of a firearm, and one count of ineligible person in possession of a firearm. For the January 2 offense, the state filed a petition alleging delinquency for committing first-degree attempted murder, second-degree attempted murder, first-degree assault, and two counts of second-degree assault. The state also filed a motion to certify appellant as an adult for prosecution. After a certification hearing, the district court granted the state’s motion for certification.
On appeal, appellant concedes that treating him in the juvenile-justice system alone would be inappropriate, but argues that he should be in the extended-jurisdiction-juvenile (EJJ) category rather than certified for prosecution as an adult because the state failed to prove by clear and convincing evidence that the public safety would not be served by EJJ designation.
Juvenile courts are given considerable latitude in determining if certification for adult prosecution is appropriate. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989). Such a determination will not be reversed unless the juvenile court’s findings are so erroneous as to constitute an abuse of discretion. In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).
Because appellant was 15 years old at the time of the offenses, there is no statutory presumption of certification for adult prosecution and the state, therefore, had the burden of demonstrating by clear and convincing evidence that retaining appellant in the juvenile system would not serve public safety. See Minn. Stat. § 256B.125, subd. 2(6)(ii) (2000).
To determine whether public safety is best served by certification as an adult for prosecution, the juvenile court is guided by the following six 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, * * * and the impact on any 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 mitigating 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 or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.
Minn. Stat. § 260B.125, subd. 4 (2000). Courts are to give greater weight to the seriousness of the offense and the child’s prior record of delinquency than to the other factors. Id. The factors provide guidance and must be applied, but are not a rigid, mathematical equation. In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn. 2000). To support certification, the final analysis of the statutory guidelines must indicate that a risk to public safety exists if the offender remains in the juvenile system because the behavior is likely to continue. In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000). When examining the prior history of the offender, the behavior must appear to be ingrained and escalating. Id. at 263.
Appellant, whose date of birth is April 26, 1986, has been involved in the juvenile-justice system since February 1999, when he was adjudicated a petty offender for theft of candy from a convenience store. Thereafter, he was adjudicated (1) a petty offender in May 1999, for a fight on the school bus (disorderly conduct); (2) a petty offender twice in November 1999, for theft and possession of stolen property; (3) delinquent and a petty offender in July 2000, for theft and a curfew violation; and (4) delinquent in August 2001, for fifth-degree assault. Appellant also had two petitions for theft and one for a curfew violation pending at the time of the certification hearing.
Appellant attended the St. Cloud Children’s Home Day Treatment Program during the 1998-99 school year. In 2000, after adjudication as delinquent for theft, he was ordered into a placement at Isanti Ranch where he completed the maximum 30-day placement in 29 days.
Numerous witnesses testified at the certification hearing. Two psychologists evaluated appellant, and appellant’s probation officer completed a certification study. All three determined that appellant has ingrained behavioral problems, is impulsive, and fails to fully consider the consequences of his actions. Psychologists Dr. R.P. Ascano and Dr. Mary Kenning testified that appellant demonstrates symptoms of anti-social personality disorder, but Dr. Kenning indicated that such a diagnosis is not made for individuals under the age of 18. Both psychologists testified that appellant should receive cognitive-behavioral therapy. Dr. Kenning recommended that appellant’s case be handled under EJJ. Dr. Ascano testified that he was 51% in favor of recommending EJJ and that with extensive psychological treatment, including intensive cognitive-behavioral therapy from three to four times per week over a five-year period, appellant could be successfully treated, provided that he was sufficiently motivated to change. The probation officer recommended certification as an adult.
Testimony was presented about available programming. The two juvenile programs available to appellant, Minnesota Correctional Facility at Red Wing and Mesabi Academy, provide cognitive-behavioral therapy, but the average stay in each program is between 12 and 18 months. The coordinator of the Youthful Offender Program at the adult prison in St. Cloud testified that there is no therapy involved in that program, but there are programs for youthful offenders in prison and cognitive-behavioral-type education classes. The presumptive sentence for an adult convicted of attempted murder in the first degree is commitment to the Commissioner of Corrections for a term of 180 months (15 years). With credit for “good time,” the sentence is ten years in custody.
Appellant was in secure detention at Prairie Lakes Detention Center at the time of the certification hearing. The coordinator of the center testified that, although appellant had not demonstrated threatening behavior, he had numerous disciplinary problems at the center. She testified that appellant has difficulty with authority and does not like being told what to do.
The district court made detailed findings on each of the statutory factors and concluded that the state had met its burden of proof by clear and convincing evidence that public safety is best served by certification. The district court determined that (1) the seriousness of the offenses “weighed heavily towards certification”; (2) appellant was the instigator of the offenses, and there are no mitigating factors that would address his culpability; (3) although appellant’s programming history is limited, his “cooperation in his programming history is seriously deficient”; (4) appellant has a record of delinquency adjudications; (5) there is no evidence that appellant is sufficiently motivated to change so that juvenile programming in the time allowed could effectively treat him, putting the public at greater risk if appellant remains in the juvenile system; and (6) that the adult option of imprisonment with programming, followed by supervised release, can best serve both the public safety and appellant’s rehabilitation. The district court concluded that:
[t]he child’s pattern and consistency of impulsivity and defiant conduct as evidenced by his prior juvenile adjudications and lack of cooperation in juvenile programs attended thus far, shift the balance in favor of certification.
Appellant argues that his record of delinquency is minimal; he has no prior programming failures; his psychological problems are treatable; dispositions in the juvenile system are appropriate for his treatment; and, under EJJ, the possibility of incarceration remains should he fail in the juvenile system. Essentially, appellant has asked this court to reweigh the evidence and to substitute our discretion for that of the district court. We decline to do so. The district court has fully analyzed the evidence under the appropriate guidelines, and its articulated conclusions are reasonable based on the record. The district court did not abuse its discretion by certifying appellant for prosecution as an adult.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.