may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed February 23, 1999
Stearns County District Court
File No. J29850292
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent Stearns County)
Roger S. Van Heel, Stearns County Attorney, Samuel Wertheimer, II, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent Stearns County)
John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant S.J.S.)
Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant challenges an order certifying him to stand trial as an adult for aiding and abetting three felony-level offenses. We affirm.
On February 13, 1998, a passenger in a car driven by 17-year-old appellant S.J.S. fired a sawed-off shotgun at another car, shooting out the back window and injuring the car's occupants. Appellant was charged with two counts of aiding and abetting attempted murder in the second degree, three counts of aiding and abetting a drive-by shooting, and two counts of aiding and abetting assault in the second degree. The prosecutor filed a motion for adult certification. After a hearing, the district court ordered that appellant be certified for trial as an adult. This appeal followed.
A certification order to stand trial as an adult is appealable. In re Welfare of K.P.H., 289 N.W.2d 722, 723-24 (Minn. 1980). In certification proceedings, the district court has considerable discretion and its certification decision will not be reversed absent an abuse of that discretion. In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). The findings of the district court on the factors relevant to a certification will not be disturbed unless clearly erroneous. In re Welfare of I.Q.S., 309 Minn. 78, 86-87, 244 N.W.2d 30, 38 (Minn. 1976).
It is presumed that a proceeding involving an offense committed by a child will be certified 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. § 260.125, subd. 2a (1998). Appellant does not dispute that he falls within the certification presumption or that there is probable cause for the allegation that he committed the offense. See Minn. R. Juv. P. 18.05, subd. 1(c) (determination of probable cause is prerequisite to certification).
The child may rebut the presumption of certification by clear and convincing evidence establishing that retaining the proceeding in the juvenile court serves public safety. Minn. Stat. § 260.125, subd. 2a. In determining whether public safety is served, the district court must consider: (1) the seriousness of the alleged offense; (2) the culpability of the child in the alleged offense; (3) the child's history of delinquency; (4) the child's programming history, including the child's past cooperation; (5) the adequacy of punishment or programming available in the juvenile justice system; and (6) availability of other dispositional options. Minn. Stat. § 260.125, subd. 2b (1998). Greater weight is given to the seriousness of the alleged offense and the child's prior record of delinquency. Id. The charges against the child are presumed true for purposes of certification. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).
The district court found that appellant's alleged offense was serious. See In re Welfare of K.M., 544 N.W.2d 781, 784-85 (Minn. App. 1996) (offense serious when it could have resulted in death or serious injury). This finding is supported by the evidence and is not clearly erroneous.
The district court found probable cause that appellant had some culpability in the alleged offense. The state offered evidence that appellant told his passenger to pull the trigger. The district court's finding that appellant had "more than a passive role" in the alleged offense is supported by this evidence and is not clearly erroneous.
The district court also found that appellant had an extensive prior record of delinquency. Appellant has eight incidents in his juvenile record, including three assaults. One of these offenses was adjudicated only two months before this offense. The certification study noted that the prior offenses were violent and, in addition, frequently random. A history of misconduct indicates that juvenile programming may not be in the interest of public safety. In re Welfare of R.D.W., 407 N.W.2d 113, 117 (Minn. App. 1987), review denied (Minn. July 15, 1987). The evidence supports the district court's finding and this factor weighs in favor of certification.
Additionally, the district court found that appellant had a poor programming history. Appellant had a 90-day placement in early 1996 and some individual anger management in 1997, both yielding negative reports about appellant's progress. After only four sessions in his most recent counseling program, the current incident occurred. Appellant argues that his is not an extensive programming history. But rejection of prior treatment efforts indicates a juvenile's unwillingness to submit to programming in a meaningful way. I.Q.S., 309 Minn. at 91, 244 N.W.2d at 40. The district court's finding that appellant had a poor programming history is supported by evidence of appellant's negative response to previous placement and individual therapy. It is not clearly erroneous.
The district court found that the programming available in the juvenile system is inadequate to serve the public safety, although several dispositional options are available. Appellant offered evidence that there are opportunities in extended jurisdiction juvenile (EJJ) programs for him and that he is amenable to programming. There is contrary evidence, however, as to whether juvenile programming would effectively serve the public safety. We will not disturb the district court's finding on the conflicting evidence. K.M., 544 N.W.2d at 785. The probation officer who prepared the certification study testified that he had considered available programs in the juvenile system but felt that the length of supervision after the completion of any program would be insufficient to safeguard the community. Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when deciding whether to refer the juvenile to adult court. R.D.W., 407 N.W.2d at 117. The district court's finding that the available juvenile programming is not adequate to serve public safety is supported by the evidence and is not clearly erroneous.
We affirm the district court's conclusion that appellant failed to rebut by clear and convincing evidence the presumption of certification. Considering appellant's extensive record of delinquency and the seriousness of the alleged offense, we find that the district court did not abuse its discretion.