Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed June 2, 1998
File No. J19750179
Steven J. Meshbesher, Sherri D. Hawley, Meshbesher & Associates, P.A., 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant R.P.P.)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Jeffrey R. Edblad, Isanti County Attorney, Stoney L. Hiljus, Assistant County Attorney, 555 18th Avenue S.W., Cambridge, MN 55008 (for respondent)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
Appellant challenges the district court's order designating the proceedings as an extended jurisdiction juvenile (EJJ) prosecution. We reverse.
Upon learning of the situation, R.P.P. took a 12-gauge pump shotgun from the closet of his parents' bedroom and loaded it with six birdshot shells. A.F. took a black pistol-shaped B.B. gun. As the juveniles began to return to their vehicles, R.P.P. and A.F. exited the house carrying the guns. After a verbal exchange between R.P.P. and some of the juveniles, R.P.P. fired the shotgun at one of the vehicles. The shot hit the driver's-side door and window and struck one of the occupants, J.W., in the head, injuring him.
R.P.P. fired a shot at the driver's-side rear tire of another vehicle and damaged the tire. He then placed the shotgun in the driver's-side window, pointed it at the arm of one of the occupants and then at another occupant's head, while making comments the occupants described as "gang[-]type talk." When one of the occupants told R.P.P. that they did not want to fight, R.P.P. told them to leave. The juveniles left R.P.P.'s residence and drove to a convenience store, where they called 911. J.W. was treated for soft tissue swelling and released from the hospital the next day. He did not suffer permanent injury.
The state filed a delinquency petition, alleging one count of felony assault in the first degree, three counts of felony assault in the second degree, and one count of felony reckless discharge of a firearm. The state also filed a motion to certify the proceedings to adult court and filed a statement of intent to prosecute the case as an adult matter if the court certified the proceedings. The court ordered a certification evaluation to be performed by Dr. Rodger Kollmorgen. The defense retained Dr. Kenneth A. Perkins to do an additional evaluation.
After receiving the doctors' reports, the district court issued an order on October 17, 1997, denying the state's motion for adult certification but designating the proceeding as an extended jurisdiction juvenile (EJJ) prosecution. The court found that an EJJ designation would serve public safety interests because (1) it would allow additional time for R.P.P. to complete necessary programming and additional time for extended consequences; (2) R.P.P. would be subject to supervision of the juvenile probation department for two additional years, which would "ensure that his conduct and behavior would be supervised and monitored by a probation agent for an extended period of time"; and (3) a stayed adult sentence would encourage R.P.P.'s continued good behavior for an extended period and would provide a "longer and tougher punishment for [his] conduct here if [R.P.P.] were adjudicated herein and if he eventually violated the conditions of his probation." This appeal followed.
Where there is no presumption of certification for adult prosecution and the district court determines that it will not so certify a case, it may designate the proceedings an EJJ prosecution. Minn. Stat. § 260.125, subd 5 (1996). In determining whether an EJJ designation serves public safety interests, the court shall consider the following 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 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); see Minn. Stat. § 260.126, subd. 2 (1996) (adopting factors from section 260.125, subdivision 2b). The juvenile court must also consider "non-offense related evidence of dangerousness." S.W.N., 541 N.W.2d at 17. Furthermore,
[i]n considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors listed in this subdivision.
Minn. Stat. § 260.125, subd. 2(b). An EJJ designation is not permissible solely because of the charged offense. S.W.N., 541 N.W.2d at 17.
The district court weighed all the relevant factors as required by section 260.126, subdivision 2. But the order contains no findings regarding non-offense-related evidence of R.P.P.'s dangerousness as required by S.W.N. In fact, the order contains no indication that the court even considered such evidence. It appears that the district court improperly relied solely on the seriousness of the alleged offense in making the EJJ designation. We therefore conclude that the district court abused its discretion, and we remand for findings on non-offense-related evidence of R.P.P.'s dangerousness and for further proceedings consistent with the court's finding.
Reversed and remanded.
[ ]1 Both parties questioned at oral argument the applicability of our recent decision in In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997) (questioning whether adult certification statute requires state to provide separate evidence of non-offense-related dangerousness), review denied (Minn. Feb. 19, 1998). D.T.H. is inapposite because it concerns adult certification and not an EJJ designation. But we note that our decision here is not inconsistent with our holding in D.T.H.