This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).

In the Matter of the Welfare of: C.S.G.

Minnesota Court of Appeals #C5-95-2167
Ramsey County District Court #J993551166

May 7, 1996

Hubert H. Humphrey III, Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101, Susan E. Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent).

John M. Stuart, State Public Defender, Charlann E. Winking, Dwayne A. Bryan, Assistant State Public Defenders, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant).

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Stone, Judge.*

U N P U B L I S H E D    O P I N I O N

LANSING, Judge

The district court certified C.S.G., a juvenile, for prosecution as an adult for four counts of second degree assault, Minn. Stat. § 609.222, subd. 1 (1994), two counts of motor vehicle theft, Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (1994), and one count of second degree burglary, Minn. Stat. § 609.582, subd. 2(a) (1994). We conclude that the findings meet the statutory requirements for nonpresumptive certification orders and the record adequately supports the certification. Affirmed.

FACTS

The certification order is based on the following facts that, for purposes of certification, are presumed true. In June 1995 fifteen-year-old C.S.G. took part in a burglary of a dwelling that included the theft of various firearms and ammunition. The owner was not present at the time of the burglary.

Within a few days of the burglary, C.S.G. stole an unoccupied, parked vehicle and used it to drive around with friends. This excursion turned into two drive-by shootings. The first occurred in front of a house and involved two people and a parked truck. C.S.G. shot two to six times in the direction of the two people and their parked truck. C.S.G. reloaded the weapon and, as the group drove by a second house, one of C.S.G.'s friends stepped out of the vehicle and twice fired the gun in the direction of two people who were emerging from the open garage. No one was injured by either shooting. The following day C.S.G. and his companions abandoned the stolen vehicle. C.S.G. then stole a second vehicle which he also later abandoned.

Ramsey County filed a delinquency petition on C.S.G. and moved for his certification as an adult. The court conducted a certification hearing at which four witnesses testified. The witnesses expressed an overall preference for C.S.G.'s designation as an extended jurisdiction juvenile (EJJ) rather than as an adult. Following the hearing the juvenile court issued a certification order, from which C.S.G. now appeals.

D E C I S I O N

A presumption of certification applies when a sixteen or seventeen-year-old uses a firearm to commit specified offenses. See Minn. Stat. § 260.125, subd. 2a (Supp. 1995) (presuming certification when offense is a felony using a gun or an offense with a guidelines-presumptive prison sentence). It is undisputed that C.S.G. was only fifteen years old at the time of the July 1995 offenses and that, therefore, no presumption of certification applies.

In a nonpresumptive case, the juvenile court may order certification if the state demonstrates "by clear and convincing evidence that retaining the proceeding[s] in the juvenile court does not serve public safety." Id., subd. 2(6)(ii) (Supp. 1995). C.S.G. asserts that the record fails to support an order for nonpresumptive certification in two respects: first, the certification order does not comply with the statutory requirements and, second, the record lacks clear and convincing evidence that public safety would not be served by retaining the proceedings in the juvenile system.

I

If a juvenile court decides not to order certification in a presumptive case, the court's written decision must explain why retention of the proceedings in juvenile court would serve public safety, making "specific reference to the factors" listed in subdivision 2b (offense severity, child's culpability, prior record, programming history, programming or punishment adequacy, and dispositional options). Id., subd. 5 (Supp. 1995).

The statutory provisions governing the writing requirements for nonpresumptive cases differ from the presumptive provision by not expressly requiring "specific reference to the factors." Id. The certification order in a nonpresumptive case must "contain in writing, findings of fact and conclusions of law as to why public safety is not served by retaining the proceeding in the juvenile court." Id. Similar requirements apply if the court does not order certification in a nonpresumptive case. Id. (requiring written findings and conclusions on why certification not ordered).

Because of the distinction in the statute between the writing requirements for presumptive and nonpresumptive cases, we conclude that an order for certification in a nonpresumptive case may comply with Minn. Stat. § 260.125, subd. 5, even without making specific written references to the factors of Minn. Stat. § 260.125, subd. 2b.

In the order certifying C.S.G. for adult prosecution, the juvenile court stated:

The State has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve the public safety. In making this finding, the Court has considered all of the factors outlined in Minn. Stat. § 260.125, Subd. 2b.

At the certification hearing, the juvenile court discussed the relevant statutory factors in greater detail. This discussion, together with the certification order, provided an adequate explanation of the certification decision.

II

The second issue is whether the juvenile court's decision is supported by clear and convincing evidence that public safety would not be served by retaining C.S.G. in the juvenile system. We will not reverse a certification determination unless the juvenile court's findings are so clearly erroneous as to constitute an abuse of discretion. In re Welfare of J.F.K., 316 N.W.2d 563, 564 (Minn. 1982); In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).

In determining whether certification will serve public safety, the juvenile court must consider: (1) the seriousness of the alleged offense, including the use of a firearm and the impact on any victim; (2) the culpability of the child in committing the alleged offense; (3) the child's prior record of delinquency; (4) the child's programming history; (5) the adequacy of punishment or programming available in the juvenile justice system; and (6) the dispositional options available for the child. Minn. Stat. § 260.125, subd. 2b (Supp. 1995). The juvenile court must give greater weight to the seriousness of the offense and the child's prior record of delinquency than to the other factors. Id.

The record establishes C.S.G. (1) allegedly committed seven offenses, four of which are crimes against people and entail the use of a firearm, (2) was the primary participant in at least four of the charged offenses, including the first drive-by shooting, (3) has a record of delinquency for charges including assault, possession of a dangerous weapon, theft, and burglary, (4) had been on probation for over two years before the current offenses, and has a pattern of reoffending while participating in juvenile programs, or soon after completing them, including his most recent offenses that occurred before he completed the aftercare portion of a chemical dependency program, (5) could benefit from an extended period of direct supervision by the justice system, but of the proposed programs one was inappropriate because it was not conducted in a secured facility and the other was in a secured facility that had not had "a lot of success with kids," and (6) remaining in the juvenile system raised public safety concerns because of the uncertainty of the adequacy of available juvenile programming.

Finally, the certification analysis requires consideration of whether the record contains evidence of dangerousness unrelated to the charged offense. See In re Welfare of M.E.P., 523 N.W.2d 913, 925 (Minn. App. 1994) (tracing history of rule), review denied (Minn. Mar. 22, 1995). The record demonstrates that C.S.G. suffers from depression and an aggressive-type conduct disorder that is aggravated by his chemical dependency problem. This condition presents adequate nonoffense-related evidence of C.S.G.'s dangerousness.

Based on our review of the record, we conclude that the juvenile court acted within its broad discretion in finding clear and convincing evidence that public safety would not be served by retaining C.S.G. in the juvenile system.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.