This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2096

 

In the Matter of the Welfare of:

 

D.J.J.

 

Filed ­­­December 5, 2006

Affirmed; motion granted

Dietzen, Judge

 

Hennepin County District Court

File No. JV-05-565

 

Leonardo Castro, 4th District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant D.J.J.)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the juvenile court order certifying him to stand trial as an adult on three felony charges related to possession of a firearm, arguing that the juvenile court erred in: (1) finding probable cause related to count one, i.e., possession of a firearm for the benefit of a gang; (2) concluding that the charges against him warranted presumptive certification; and (3) concluding that the record supported certification.  Because we conclude that the juvenile court properly applied the law and did not abuse its discretion by granting certification, we affirm.

FACTS

In 2005, the state filed a juvenile delinquency petition against appellant D.J.J. alleging that he committed three felony offenses involving possession of a firearm.  According to the petition, in mid June 2005, appellant and another juvenile, A.D.M., were walking through a residential Minneapolis neighborhood when a “suspect” came out of an alley and shot at them.  A.D.M. was hit in the knee, but he and appellant were able to retreat to a nearby property.  When police arrived at the scene, appellant and A.D.M. were largely uncooperative, but other witnesses stated that they heard “popping noises” and saw appellant drop a gun in some nearby bushes.  Police officers searched the bushes and found a loaded .45 caliber handgun with a serial number that had been “obliterated.”

The petition stated that appellant and A.D.M. “have been known to affiliate with a criminal gang called ‘Tre Tre Crips.’”  In a post-Miranda statement to the police, appellant revealed that the shooter was an individual believed to be a member of the “19 Dipset” gang.  The 19 Dipset gang is a rival of the Tre Tre Crips gang. 

Appellant was charged with one count of felony prohibited person in possession of a firearm for the benefit of a gang (count 1), one count of felony prohibited person in possession of a firearm (count 2), and one count of felony removal of a firearm serial number (count 3).  Because appellant was 16 years old at the time of the alleged offenses, the state also moved to certify him to stand trial as an adult under Minn. Stat. § 260B.125, subd. 3 (2004), the presumptive-certification statute.

At the initial hearing, appellant waived probable cause “solely for the purposes of a certification study and a psychological evaluation.”  Probation Officer Charles Upham conducted the certification study, and Dr. Rebecca Reed conducted the psychological evaluation.  Based on the serious nature of the charges, his prior delinquency record, his juvenile programming and detention record, and his school record, both experts concluded that appellant’s delinquent behavior was escalating and recommended certification to adult court. 

At the certification hearing, the juvenile court received several documents into evidence, including the certification reports, and heard testimony from Officer Upham and Dr. Reed.  Following the hearing, the juvenile court ordered certification to adult court, concluding that appellant “has not rebutted the presumption of adult certification,” and “[t]he facts of this case provide clear and convincing evidence that [appellant’s] prior treatment has not returned him to law abiding behavior and that public safety is not sufficiently served by retaining the proceeding in the juvenile court.” 

This appeal followed.  On appeal, respondent moved to strike the Minneapolis police reports found in appellant’s brief and other appellate materials.

D E C I S I O N

I.

Appellant argues that the juvenile court erred in finding probable cause regarding count one of the delinquency petition.  In a certification proceeding, “the juvenile court is vested with broad discretion in deciding whether probable cause exists, and its findings will not be disturbed on appeal unless clearly erroneous.”  In re Welfare of E.Y.W., 496 N.W.2d 847, 850 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993) (citation omitted).      

The juvenile court may order certification of a delinquency matter only after it finds probable cause.  Minn. Stat. § 260B.125, subd. 2(5) (2004).  The district court concluded, “[t]here is clear and convincing evidence on the face of the Petition, which includes a probable cause statement, to show that Respondent Child committed the alleged offenses in violation of Minnesota Statutes.”  Appellant argues that the juvenile court erred in reaching this conclusion without conducting a probable cause hearing.  Respondent contends that appellant failed to raise the issue at the juvenile court and, therefore, waived the issue.  

Here, the juvenile court scheduled the required hearing, i.e., an arraignment and detention hearing, to determine the issue of probable cause.  But at that hearing, appellant waived his right to a determination of probable cause within fourteen days “solely for the purposes of a certification study and a psychological evaluation.”  Thus, the probable cause hearing was continued at the specific request of appellant.  But appellant failed to request a probable cause hearing at a later date and did not object to the lack of such a hearing in the juvenile court.  This court generally considers only those issues argued and considered by the district courts.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant failed to raise probable cause after waiving it at the juvenile court, we conclude that he waived the issue for the purposes of this appeal.

Even if this court were to address the issue, despite the waiver, appellant’s agreement is without merit.  The purpose of a probable cause hearing is to determine whether, given the facts disclosed by the entire record, it is fair and reasonable to require a defendant to stand trial.  State v. Florence, 306 Minn. 442, 456-57, 239 N.W.2d 892, 896 (1976).  The factual allegations contained in the delinquency petition are presumed to be true for certification purposes.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000); see also In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995) (indicating that the juvenile can be presumed guilty of the alleged offenses), review denied (Minn. Feb. 9, 1996), overruled on other grounds by In re Welfare of D.M.D., 607 N.W.2d 432 (Minn. 2002).  Because the factual allegations of the petition are presumed to be true, the finding of probable cause is reasonably supported by the record.  

II.

Appellant argues that the juvenile court erred in concluding that the charges against him warranted presumptive certification.  Whether a criminal statute or procedural rule has been properly construed is a question of law subject to de novo review.  Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005); State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  The statute provides that certification is presumed 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 (2004) (emphasis added). 

When a defendant is convicted of an offense with a mandatory minimum sentence of more than one year and one day, the presumptive disposition is commitment to the commissioner of corrections.   Minn. Sent. Guidelines II.E; Minn. Sent. Guidelines cmt. II.E.3.  The presumptive duration of the sentence is “the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.”  Minn. Sent. Guidelines II.E.

Here, the petition charges appellant with possession of a firearm under Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004).  A defendant convicted of violating section 624.713, subd 1(b), “shall be committed to the commissioner of corrections for not less than five years.”  Minn. Stat. § 609.11, subd. 5(b) (2004).  Appellant argues that possession of a firearm is a level VI offense on the Sentencing Guidelines Grid, so the presumptive sentence is only 21-months stayed.  Minn. Sent. Guidelines §§ IV and V.  But the executed, five-year-mandatory-minimum sentence proscribed in Minn. Stat. § 609.11 is longer than the sentence recommended on the sentencing grid.  Therefore, Minn. Stat. § 609.11 controls the duration of the presumptive sentence, and we conclude that presumptive certification was appropriate based on the charges contained in the petition and their statutory presumptive sentences.[1]

III.

            Appellant argues that the juvenile court erred in concluding that the record supported certification.  A juvenile court has considerable latitude in deciding whether to certify juvenile proceedings for adult trial, and we will not reverse such a decision unless it is “clearly erroneous so as to constitute an abuse of discretion.”  St. Louis County v. S.D.S., 610 N.W.2d 644, 647 (Minn. App. 2000); In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  Once the state has determined probable cause exists, the juvenile is required to rebut the presumption by “clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.”  Minn. Stat. § 260B.125, subd. 3(2) (2004); In re Welfare of K.A.P., 550 N.W.2d 9, 11 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).

When determining whether public safety would be served by retaining proceedings in the juvenile court, a court must consider: (1) the seriousness of the offense; (2) the culpability of the child in committing the offense; (3) the child’s prior record of delinquency; (4) the child’s programming history; (5) the adequacy of punishment and programming available in the juvenile system; and (6) the dispositional options available for the child.  Minn. Stat. § 260B.125, subd. 4 (2004).  These factors 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.”  In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000).  A juvenile court must give greater weight to the seriousness of the alleged offense and the child’s prior record of delinquency than to the other factors.  Minn. Stat. § 260B.125, subd. 4; S.D.S., 610 N.W.2d at 648. 

A.        The Serious Nature of the Offense

Appellant argues that the juvenile court mischaracterized the seriousness of the offenses in granting certification because they were victimless.  But in cases involving the use of a firearm, there is no question that the offenses are very serious in natureSee, e.g., In re Welfare of K.M., 544 N.W.2d 781, 784-85 (Minn. App. 1996) (holding that because a juvenile’s alleged use of a loaded firearm in a drive-by shooting could have resulted in death or serious injury, the juvenile court did not abuse its discretion by giving greater weight to the seriousness factor). 

Here, appellant, a 16 year old, was in possession of a firearm during a shooting incident with a rival gang member.  Officer Upham and Dr. Reed concluded that this conduct was indicative of appellant’s escalating pattern of delinquent behavior.  On this record, the juvenile court did not abuse its discretion in finding that the serious nature of the alleged offense favored certification

B.        Appellant’s Prior Record of Delinquency

Appellant argues that his prior record, particularly his gang involvement, is unreliable and insufficient to warrant certification.  If the delinquent behavior is ongoing and appears to be escalating, this factor favors certification.  See H.S.H., 609 N.W.2d 259 at 262-63 (declining to certify where juvenile’s behavior did not show “deeply ingrained, escalating criminal behavior.”). 

Here, the juvenile court found that this factor favored certification. The court relied upon: (1) appellant’s delinquency record, including several juvenile citations dating back to 2003;[2] (2) evidence from police officers and other people on appellant’s involvement with the Tre Tre Crips gang; and (3) the certification studies, both of which examined appellant’s prior delinquency record, his juvenile programming and detention record, and his school record.  On this record, the juvenile court did not abuse its discretion.

Appellant further argues that any gang-related testimony is hearsay and should be excluded under State v. DeShay, 669 N.W.2d 878, 884-85 (Minn. 2003) and State v. Lopez-Rios, 669 N.W.2d 603, 613 (Minn. 2003).  But those cases are factually distinguishable because they considered the prejudicial nature of gang-expert testimony at jury trials, and not at the certification stage.  In a certification proceeding, courts may receive any relevant information, “including reliable hearsay and opinions.”  Minn. R. Juv. Delinq. P. 18.05, subd. 4(B). 

C.        The Remaining Statutory Factors

A juvenile court must also consider a juvenile’s culpability in committing the offense, the juvenile’s programming history, the adequacy of punishment and programming available in the juvenile system, and the dispositional options available for the juvenile.  Minn. Stat. § 260B.125, subd. 4.  Appellant contends that these factors weigh in favor of retaining jurisdiction in the juvenile court.  We disagree.

Appellant argues that, in considering his culpability, the juvenile court ignored the mitigating factors.  The certification statute recognizes that certain mitigating factors exist, such as coercion, lack of capacity, or mental impairment.  Minn. Stat. § 260B.125, subd. 4(2); Minn. Sent. Guidelines II.D.2.  But in their certification studies, Dr. Reed and Officer Upham considered potential mitigating factors before concluding that appellant was culpable for his actions.  

Appellant next argues that he was not given a proper chance to participate in programming and that the juvenile court did not accurately weigh his programming history.  Juvenile courts must consider a juvenile’s programming history, including the juvenile’s past willingness to participate meaningfully in available programming.  Minn. Stat. § 260B.125, subd. 4(4).  Courts may consider a juvenile’s willingness to participate in treatment, and if the juvenile is unwilling to participate in treatment, public safety is served when that juvenile is certified to adult court.  U.S., 612 N.W.2d at 196; In re Welfare of I.Q.S., 309 Minn. 78, 91, 244 N.W.2d 30, 40 (1976).

Here, the juvenile court determined that appellant “has demonstrated that he is not amenable to juvenile probation and therefore this factor weighs in favor of certification.”  Both experts concluded that appellant has been resistant to programming efforts and unwilling to comply with them.  There is also evidence that appellant has continued to associate with the Tre Tre Crips, even while in detention for the present charges. 

Finally, appellant argues that the juvenile court did not properly consider punishment and disposition options available in the juvenile system.  Juvenile courts must consider “the adequacy of the punishment or programming available in the juvenile justice system” and “the dispositional options available for the child.”   Minn. Stat. § 260B.125, subd. 4(5), (6).  Here, the juvenile court indicated that some juvenile programming and punishment options existed for appellant.  But the court determined that the options that did exist were not adequate.  The experts reached the same conclusion given appellant’s pattern of escalating behavior and the serious nature of his alleged offenses. 

On this record, we conclude that the juvenile court did not abuse its discretion in finding that appellant’s culpability, programming history, adequacy of punishment and programming available, and dispositional options favored certification.

IV.

The state moved to strike the Minneapolis police reports contained in appellant’s brief and other appellate materials.  The state claims that the reports are not part of the record on appeal, but appellant argues that the reports were “in effect” part of the record because they were used in the certification studies. 

The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  An appellate court “may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence [in the district court].”  Thiele, 425 N.W.2d at 582-83.  Thus, we will strike and not consider references to extra-record material and the extra-record material itself.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001); Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). 

Here, the juvenile court did not admit any Minneapolis police reports as evidence or consider them in its determinations.  Therefore, they are not part of the record on appeal.  Any citations to Minneapolis police reports are hereby stricken from appellant’s brief and other appellate materials, and the reports have not been considered in deciding this appeal.

Affirmed; motion granted.



[1] Minn. Sent. Guidelines II.G adds twelve months for crimes committed for the benefit of a gang.

[2]Some of these citations were as recent as June 2005.