may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of: G.L.D.
Filed November 4, 1997
Hennepin County District Court
File No. 165785/J6-96-067790
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Mary M. Lynch, Staff Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.[*]
The juvenile court ordered appellant's case designated an extended juvenile jurisdiction matter. Appellant challenges that designation. We affirm.
The prosecution filed a motion for extended juvenile jurisdiction (EJJ). Following a hearing on this motion, the juvenile court ordered G.L.D.'s case designated an EJJ matter.
At the request of the prosecutor, a hearing may be held to determine whether a proceeding involving a 14 to 17-year-old child, alleged to have committed a felony, should be designated an EJJ matter. Minn. Stat. § 260.126, subd. 1(3) (1996). In EJJ hearings, the juvenile court must presume the charges brought against the juvenile are true. S.W.N., 541 N.W.2d at 16. If the matter is designated an EJJ and the child is found guilty of the offense or pleads guilty, the court must impose both a juvenile disposition and a stayed adult criminal sentence. Minn. Stat. § 260.126, subd. 4 (1996). If the adult sentence stay is not revoked, the child will remain under the juvenile court's jurisdiction until age 21, unless the court exercises its option to terminate jurisdiction prior to that date. Minn. R. Juv. P. 19.08, subd. 2.
The prosecution in EJJ hearings must demonstrate "by clear and convincing evidence that designating the proceeding an extended jurisdiction juvenile prosecution serves public safety." Minn. Stat. § 260.126, subd. 2 (1996). The prosecution must also produce evidence of the juvenile's dangerousness that is unrelated to the charged offense. S.W.N., 541 N.W.2d at 17. To determine whether designating the proceeding an EJJ would serve public safety, the juvenile court must consider the same factors the court is required to consider in juvenile certification hearings. Minn. Stat. § 260.126, subd. 2. These factors include
(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 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. § 260.125, subd. 2b (1996). The court must give added weight to the seriousness of the alleged offense and to the child's record of prior delinquency. Id.
Here, the juvenile court made findings on each statutory factor. In making its decision, the court concluded that three statutory factors favored EJJ and three weighed against EJJ. The seriousness of the offense, G.L.D.'s culpability, and his prior delinquency record all weighed in favor of EJJ. G.L.D.'s programming history, the adequacy of available punishment or programming, and the available dispositional options all weighed against EJJ. Because the court was required to give greater weight to the seriousness of the offense and G.L.D's prior delinquency record, factors that both weighed in favor of EJJ, the court concluded that public safety would be best served by designating this an EJJ proceeding.
Seriousness of the Offense
G.L.D. is accused of first degree aggravated robbery. G.L.D. argues that although the victim's age made the crime serious, it was merely a purse theft and not a sophisticated crime. In terms of aggravating factors, as identified by the Minnesota Sentencing Guidelines II.D.2.b., no weapons were used or threatened and the crime was committed by two juveniles, rather than a group of three or more. The victim here, however, was particularly vulnerable and treated particularly cruelly. See Minnesota Sentencing Guidelines II.D.2.b.(1)-(2). The 82-year-old woman, who was approximately 5 feet 3 inches tall and 80 pounds, was pull backwards onto the ground. She received bruises and cuts and still suffers psychological problems.
Culpability of the Child
Although G.L.D. denies he was involved in this incident, the juvenile court is required to assume the charges are true when assessing a matter for EJJ. See S.W.N., 541 N.W.2d at 16. According to the court, conflicting testimony was introduced regarding whether G.L.D.'s actions were planned or impulsive.
G.L.D. argues that there is no evidence here of sophisticated planning, but rather this was merely an "opportunistic act." G.L.D. points to the sentencing guidelines which state that a mitigating factor is whether the offender "because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Minnesota Sentencing Guidelines II.D.2.a.(3). He argues that his judgment was restricted by his age and poor impulse control and that the court erred by not considering his age and lack of maturity in measuring his culpability.
A mental condition cannot be used as a mitigating factor in making adult sentencing decisions unless the defendant suffers from an "extreme mental impairment." State v. Wilson, 539 N.W.2d 241, 247 (Minn. 1995). Because the juvenile court is required to consider the mitigating factors enumerated in the adult sentencing guidelines when determining whether a juvenile proceeding should be designated an EJJ, the mitigating factors may be interpreted in a similar manner in both adult sentencing and EJJ hearings.
Here, there is no evidence that G.L.D. was physically or mentally impaired when the robbery took place. Hearing testimony indicated G.L.D. is of average intelligence, but has a conduct disorder. This is not an "extreme mental impairment." There is no evidence that G.L.D. was unable to control his actions. See State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992) (concluding that defendant's depression, anger, and impulsiveness did not constitute an extreme mental impairment preventing him from controlling his actions). Further, although G.L.D. was only 14 years old at the time of the alleged incident, the EJJ designation is specifically intended for children 14 to 17 years of age.
Between September 1993 and October 14, 1996, G.L.D. had 16 referrals to juvenile court, including this incident, and he has had 4 prior felony adjudications. According to his probation officer's testimony, G.L.D. has been adjudicated for burglary, robbery, terroristic threats, motor vehicle theft, and misdemeanor assault. The juvenile court found that the victims of several of his past crimes have been particularly vulnerable due to their age or physical condition. Additionally, a week prior to the robbery alleged in this case, G.L.D. had been released from electronic home monitoring, which he was placed on following an adjudication for terroristic threats.
G.L.D. does not deny his past behavior, but argues that the court should have considered the lack of treatment he has received under this factor, as well as considering it under the programming history factor. There is no foundation for this argument. The juvenile court considered his treatment history under the appropriate statutory factor. The statute does not require the court to give any added weight to his treatment history.
Between the ages of six and nine, G.L.D. participated in two residential treatment programs, and in the summer of 1996, he completed a 30-day evaluation at Bar None, a residential treatment program. He has also participated in some outpatient treatment, including in-home and school programs.
G.L.D. argues that the juvenile court erred by not placing more emphasis on his minimal treatment history. The state asserts that G.L.D.'s behavior has affected the amount of programming he has received. According to the state, G.L.D. has failed to appear at several hearings for his past offenses, resulting in less court-ordered services, and has demonstrated an inability to perform in the programs in which he has participated.
The juvenile court found this factor weighed in G.L.D.'s favor. Again, contrary to G.L.D.'s contentions, the statute does not require the court to weigh this factor more heavily than others do.
Adequacy of Punishment or Programming Available in the Juvenile System
The juvenile court concluded that this factor weighed against an EJJ designation. Adequate treatment programs are available in the juvenile system, but there is no punishment in the juvenile system comparable to an adult sentence for first degree aggravated robbery. The juvenile court noted that because of G.L.D.'s age, he could be
treated in the juvenile system for four years without an EJJ designation. The court further found that it would be able to gauge whether or not a treatment program was working before juvenile court jurisdiction terminated.
Available Disposition Options
The juvenile court found the final statutory factor also weighed against EJJ. At the EJJ hearing, the Bar None and Gerard Programs were described as residential treatment options available for treating G.L.D., whether or not his case was designated an EJJ. Bar None is a 9-18 month program, while a representative from the Gerard Program testified that G.L.D. would probably complete their program in 12-18 months. Hearing testimony indicated that Bar None would likely best suit G.L.D. due to its structured treatment program. Employees of an in-home service provider also testified that G.L.D. would likely benefit from in-home services and that the provider would be willing to work with G.L.D. after his release from a residential program. The juvenile court found that although the testifying experts agreed it was impossible to predict whether G.L.D. would benefit from residential treatment, all agreed that G.L.D. would be a public safety threat if he is not placed in residential treatment.
According to hearing testimony, G.L.D.'s IQ is fairly high, and he did well while living with relatives for approximately one year in Louisiana because they provided a more structured environment. G.L.D. has had little prior residential treatment, and he has a number of years left in the juvenile system. The testifying experts concurred, however, that based on G.L.D.'s conduct disorder and antisocial behavior, he might not succeed in residential treatment. Dr. Alsdurf, a clinical psychologist, testified that it will be clear within a year whether or not G.L.D. is responsive to treatment.
The juvenile court adequately considered each of the statutory factors, and the court's findings were not clearly erroneous. Although G.L.D. argues that the juvenile court did not place enough emphasis on his age and lack of programming history, the court considered each of the public safety factors and determined that three favored EJJ and three did not. The court also properly placed greater emphasis on the seriousness of the offense and the juvenile's prior record. We conclude the juvenile court did not err in determining that public safety would be best served by designating this an EJJ matter.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.