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 June 15, 1999
Washington County District Court
File No. K59851735
James C. Snyder, Sr., Snyder Law Office P.A., 2580 White Bear Avenue, Suite 201, Maplewood, MN 55109 (for appellant)
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Doug Johnson, Washington County Attorney, Anthony J. Zdroik, Assistant County Attorney, 14949 - 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)
Considered and decided by Randall, Presiding Judge, Davies, Judge, and Schultz, Judge.
Appellant challenges the district court's order to certify him for adult prosecution. We affirm.
It is alleged on May 28, 1998, appellant G.A.V., a 17-year-old juvenile, and John Berguetski, age 19, and two other friends went out with the intent to break into cars to steal money so that they could purchase drugs. During this time, W.L. (the victim) pulled up and parked next to Berguetski's car, got out, and started to walk away. G.A.V. ran up behind the victim and hit him over the back of the head with a metal pipe. The victim was knocked unconscious and appellant and Berguetski took several items from the victim, including a wallet, a watch, a pager, and a twelve pack of beer. Berguestski stated that he saw appellant kick the victim a few times after he fell to the ground. While the victim remained unconscious, appellant and Berguetski jumped in the car and left the area. The victim sustained a skull fracture, a fracture of his right clavicle, abrasions and a laceration of his left ear. The victim's medical bills are in excess of $21,000 and he continues to have fear for his personal safety.
Appellant was charged by delinquency petition for the following offenses: two counts of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1996) and 609.05 (1996); two counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 2 (1996); one count of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (1996); and one count of theft from a person in violation of Minn. Stat. § 609.52, subd 2(1), subd. 3(3)(d)(i) (1996). The state also filed a motion for certification. There was a presumption for certification pursuant to Minn. Stat. § 260.125, subd. 2a (1996), based on the fact that appellant was 17-years-old at the time of the offenses and based on the severity level of the offenses.
At the certification hearing, testimony was taken and the parties stipulated to the admission of a report by Donna Johnson, the court appointed psychologist; a certification study report; and a letter from Terry Sullivan, a counselor from Thistledew camp. The reports both recommended Extended Juvenile Jurisdiction (EJJ).
After considering the testimony and reports, the district court issued its findings of fact, and concluded that appellant had failed to rebut the presumption of certification. The district court certified the proceeding to district court for prosecution of appellant as an adult on all six counts. This appeal followed.
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, * * *.
Minn. Stat. § 260.125, subd. 2a (1996). Because appellant was 17 years old at the time of the offenses and, because the offenses with which he is charged carry a presumptive sentence, his certification was presumptive. In order to rebut the presumption, appellant had the burden of establishing through clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety. Id.
In determining whether public safety is served, the district court must consider the following statutory 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). In considering these factors, greater weight must be given to the seriousness of the offense and the prior record of delinquency. State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998). For purposes of certification, the juvenile is presumed guilty of the alleged offenses. In re the Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).
Considering the seriousness of the alleged offenses, the district court found that: (1) all six felony charges were "extremely serious" offenses; (2) appellant acknowledges that he and the other offender were in the Forest Lake area solely to break into cars to steal property to sell for drugs and lodging; (3) the victim "was treated with particular cruelty and sustained significant injuries which are still healing"; (4) the victim's medical bills are in excess of $21,000, and he continues to have fear for his personal safety. Appellant does not dispute that there was no abuse of discretion in determining the seriousness of the alleged offenses.
Next, the district court considered appellant's culpability and found that: (1) appellant participated in preplanning theft and assault, but that the victim was selected solely on opportunity; (2) for purposes of certification, the allegation that appellant committed the assault raises his level of participation; and (3) the voluntary use of drugs is not a mitigating factor.
Appellant argues that the district court determined appellant to be culpable based solely on a probable cause determination, and that this was an abuse of discretion. We disagree.
Appellant admits that he and his friends "were out looking for money in order to buy drugs" and that he took the victim's possessions at the time of the assault. Finally, there are no mitigating factors. Based on these facts, there was no abuse of discretion in finding appellant culpable for alleged offenses.
The district court also recognized that appellant has a prior record of delinquency that includes juvenile court convictions for: (1) possession of drugs and drug paraphernalia; (2) disorderly conduct based on an altercation with the principal of his high school; (3) disorderly conduct for threatening the victim of a burglary; (4) felony theft of property; and (5) careless driving. The district court found this record, along with appellant's increasing and voluntary use of drugs, to be two of the relevant factors in concluding that EJJ is inadequate for either punitive or remedial purposes. The prior offenses of theft and repeated drug use are serious offenses to which the district court is required to give greater weight in its determination. Mitchell, 577 N.W.2d at 489.
The district court found that appellant "has been ordered to participate in a number of programs within the juvenile court system but has shown an unwillingness to participate in a meaningful way." The record supports this conclusion.
Finally, the district court recognized that the only alternative to certification is retention as an extended jurisdiction juvenile proceeding (EJJ). But the maximum length of time for these programs is twelve months.
After considering all of the necessary factors, the district court concluded that:
Based upon the seriousness of the offense, the juvenile's alleged level of participation, his past juvenile record, his increasing and voluntary use of drugs, and his lack of meaningful participation in prior juvenile programming, which included two major correctional placements, the dispositional options available in Juvenile Court under EJJ are inadequate for either punitive or remedial purposes.
We agree and, therefore, conclude that the district did not abuse its discretion by certifying appellant as an adult.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.