This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1555

 

 

In the Matter of the Welfare of:  J. B. S.

 

 

Filed February 13, 2007

Affirmed

Halbrooks, Judge

 

 

Scott County District Court

File No. JV-05-00114

 

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant J. B. S.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent State of Minnesota)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

J.B.S. challenges the district court’s order certifying him for adult prosecution on the ground that he presented clear and convincing evidence to rebut the presumption of certification.  Because the district court did not abuse its discretion in granting certification, we affirm.

FACTS

For the purposes of this appeal, the following facts are presumed true.  See In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989) (stating that in certification hearings, the charges against the child are presumed true), review denied (Minn. Mar. 17, 1989).  In June 2004, a juvenile named K.A.R. called the Prior Lake police to report that he had been robbed during an attempt to buy marijuana from a juvenile named J.P.J. 

K.A.R. told police that J.P.J. drove him to a park in Scott County to make the sale.  J.P.J. knew that K.A.R. would have cash to buy marijuana.  After J.P.J. parked the car, a masked juvenile, later identified by police as appellant J.B.S., pulled K.A.R. out of the car, pointed a gun in his face, and told him to empty his pockets.  K.A.R. stated that another masked gunman joined appellant, and they took $200 in cash, a cell phone, and a debit card from K.A.R.  K.A.R. then ran into the woods and heard J.P.J.’s car drive away.

J.P.J. admitted full involvement in the robbery, but he gave a slightly different version of events.  J.P.J. stated that appellant was also involved in the robbery.  J.P.J. further stated that when he picked K.A.R. up, appellant was hiding in the backseat.  When J.P.J. stopped the car, appellant got out and approached K.A.R. with an aluminum baseball bat.  J.P.J. stated that he and appellant split the money that they took from K.A.R.  J.P.J. did not mention the use of a gun.

The police also obtained a brief statement from appellant, who admitted to participating in the robbery.  But according to appellant, the robbery was J.P.J.’s idea.  Appellant also stated that he only received $50 for his role in the robbery.

The delinquency petition charged appellant with first-degree aggravated robbery, a felony.  Appellant was 16 years old at the time of the robbery; the state moved for presumptive certification under Minn. Stat. § 260B.125, subd. 3 (2004).[1]  In preparation for the certification hearing, the district court ordered a certification study.  Roger Sweet, Ph.D., conducted a psychological evaluation, and Scott County court-services agent, Nicole Juba, conducted a certification study.  Dr. Sweet and Juba both testified at the hearing that appellant met all of the criteria for certification.  But because of appellant’s recently improved behavior, both experts recommended retaining appellant in the juvenile system under extended juvenile jurisdiction (EJJ). 

The district court considered the experts’ recommendations, but it also noted that “both evaluators acknowledge that the public safety factors clearly support adult certification in this matter.”  The district court stated that it was “not persuaded that [J.B.S.’s] ‘good’ conduct and progress in living independently during the two years following the alleged offense . . . [were] sufficient for a determination that he presents no public safety risk.”  After conducting a thorough analysis of the public-safety factors, the district court granted certification.  This appeal followed.

D E C I S I O N

Appellant argues that the district court abused its discretion by certifying him to stand trial in adult court.  Specifically, appellant argues that he presented clear and convincing evidence that was sufficient to rebut the presumption of certification.

A district court has considerable latitude in deciding whether to certify, and we will not upset its decision “unless its findings are clearly erroneous so as to constitute an abuse of discretion.”  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  For purposes of certification, the juvenile is presumed guilty of the alleged offenses.  In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996), overruled on other grounds by In re Welfare of D.M.D., 607 N.W.2d 432 (Minn. 2000). 

Certification is presumed for an offense committed by a juvenile 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. § 260B.125, subd. 3 (2004).  Thus, in presumptive certification proceedings, the state bears the burden of showing that (1) the juvenile was 16 or 17 years old and (2) the alleged offense carries a presumptive prison sentence.  Id.  Here, the state met its burden because appellant was 16 years old at the time of the robbery and a first-degree aggravated-robbery conviction carries a presumptive prison sentence of 48 months.

Once the state has met its burden, the juvenile must rebut the presumption of certification by “clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.”  Minn. Stat. § 260B.125, subd. 3.  If the juvenile rebuts the presumption, the proceedings are retained in the juvenile court system under EJJ.  Minn. Stat. § 260B.125, subd. 8 (2004).  But if the juvenile fails to provide sufficient evidence to rebut the presumption, the matter must be certified.  Minn. Stat. § 260B.125, subd. 3. 

When assessing whether public safety would be served by retaining proceedings in the juvenile system, courts must consider six statutory factors.  The factors are:  (1) the seriousness of the offense; (2) the culpability of the child in committing the 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 system; and (6) the dispositional options available for the child.  Minn. Stat. § 260B.125, subd. 4 (2004).  The greatest weight must be placed on factor (1), the seriousness of the offense, and factor (3), the prior record of delinquency.  Id.  The district court determined that this was “a clear case” for certification based on the public-safety factors and that appellant had not rebutted the presumption by clear and convincing evidence.  We conclude that the record supports the district court’s determination.

First, although both certification experts recommended keeping appellant in the juvenile court system, they both testified that appellant met all of the criteria for certification.  For example, during direct-examination, Dr. Sweet testified as follows:

Q.         Let’s look at the factors.  [Appellant] meets the seriousness of the offense criteria?

 

A.         Yes.

 

Q.         He meets the culpability factor?

 

A.         Correct.

 

Q.         He meets the prior record of delinquency factor?

 

A.         Correct.

 

Q.         He meets the programming and history factor?

 

A.         Correct.

 

Q.         And he meets the adequacy of punishment programming factor?

 

A.         Correct.

 

Q.         So as you indicated, this is a slam dunk certification?

 

A.         Yeah.  If you want to look at those factors and not take a look—kind of really study what’s going on, it’s a—it’s pretty open and shut.

 

In its certification order, the district court analyzed the public-safety factors in great detail.  A brief review of those factors demonstrates that the district court did not abuse its discretion in certifying appellant to adult court.

Seriousness of the offense

Courts must consider “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.”  Minn. Stat. § 260B.125, subd. 4(1).  Offenses involving firearms are very serious in nature.  See, e.g., In re Welfare of K.M., 544 N.W.2d 781, 784-85 (Minn. App. 1996) (holding that because a juvenile’s alleged use of a loaded firearm in a drive-by shooting could have resulted in death or serious injury, the juvenile court did not abuse its discretion by giving greater weight to the seriousness factor).  

Appellant contends that this factor should be given less weight because although his offense “allegedly involve[d] a weapon . . . he did not recklessly discharge it or injure anyone.”  He further argues that, regardless of the seriousness of the alleged offense, this factor cannot be the sole basis for certification.  The district court determined that the alleged offense was serious

in terms of community safety due to the fact that the aggravated robbery involved what the victim believed was two semi-automatic guns which were pointed at him, the use of unknown masked assailants in a dark park with no one around, and the coordination of a number of other juveniles in the planning and execution of the offense.

 

The factual allegations contained in the delinquency petition support this determination.  Further, although the district court is entitled to give this factor more weight in making its certification decision, it did not rely solely on this factor in certifying appellant.  Therefore, the district court did not abuse its discretion in determining that this factor weighs in favor of certification.

Culpability

Courts must also consider a juvenile’s culpability in committing an alleged offense.  Minn. Stat. § 260B.125, subd. 4(2).  Appellant argues that this factor does not favor certification because even though appellant threatened K.A.R., appellant did not take a leadership role in the alleged offense.  Appellant also argues that the district court did not properly consider the existence of mitigating factors as required by Minn. Stat. § 260B.125, subd. 4(2).  Appellant has been diagnosed with attention deficit hyperactivity disorder, conduct disorder, and attachment disorder.

Although the district court did not specifically reference the presence of mitigating factors in its discussion of appellant’s culpability, the court did discuss the presence of mitigating factors at great length throughout the rest of its order when the district court considered appellant’s family history and his physical and mental-health history.  It also looked at appellant’s recent behavioral patterns and the likelihood that appellant would commit another offense.  Ultimately, the district court determined that appellant was one of the primary planners and perpetrators of the crime.

Further, in their certification studies, both Juba and Dr. Sweet considered potential mitigating factors in great detail, including appellant’s psychological test results and his history of mental illness.  Even after considering these mitigating factors, both experts testified that this factor weighed in favor of certification.  Therefore, the district court did not abuse its discretion in determining that this factor weighs in favor of certification.

Prior record of delinquency

Courts must consider “the child’s prior record of delinquency.”  Minn. Stat. § 260B.125, subd. 4(3).  If the delinquent behavior is ongoing, or ingrained, and appears to be escalating, then this factor favors certification.  In re Welfare of H.S.H., 609 N.W.2d 259, 262-63 (Minn. App. 2000). 

Appellant argues that his prior delinquency record does not warrant certification because it is not egregious and because his behavior has been improving.  But the district court specifically cited ten juvenile adjudications, three adult convictions, and numerous disciplinary problems in school and treatment programs.  It also noted appellant’s use of alcohol and drugs.  On this record, the district court did not abuse its discretion by determining that appellant’s prior record of delinquency weighs in favor of certification.

Programming history

Courts must consider a juvenile’s programming history, including the juvenile’s past willingness to participate meaningfully in available programming.  Minn. Stat. § 260B.125, subd. 4(4).  Courts may consider a juvenile’s willingness to participate in treatment, and public safety is served when a juvenile is certified to adult court after rejecting treatment.  In re Welfare of U.S., 612 N.W.2d 192, 196 (Minn. App. 2000) (citing In re Welfare of I.Q.S., 309 Minn. 78, 91, 244 N.W.2d 30, 40 (1976)).

Appellant has been in a number of human-services placements and mental-health treatment programs.  He argues that because he has recently been able to live on his own, juvenile programming has had a positive effect.  But the district court determined that public safety would be better served by certification.  In making its determination, the court cited Dr. Sweet’s psychological evaluation, which indicated that, despite appellant’s programming history, he was likely to re-offend based on his Violence Risk Appraisal Guild (VRAG) score.  Appellant’s VRAG score “fell within 76% of the reference sample that re-offended in a violent manner within an average of 7 years after release and within 82% of the reference sample that re-offended in a violent manner within an average of 10 years after release.”  On this record, the district court did not abuse its discretion by determining that appellant’s programming history weighs in favor of certification.

Adequacy of punishment and programming available in the juvenile system

 

Courts must consider “the adequacy of the punishment or programming available in the juvenile justice system.”  Minn. Stat. § 260B.125, subd. 4(5).  Appellant argues that there are adequate placement options available to him and that there is still sufficient time for him to be rehabilitated under EJJ.  But both experts recognized that because appellant is 19 years old, there are very few placement options available to him, especially considering his lengthy programming history.  In fact, Dr. Sweet characterized any additional treatment or programming for appellant as a “waste of time or money.”  The district court examined appellant’s history of programming violations and disruptive behavior and concluded that past programming efforts have not been effective in rehabilitating appellant.  On this record, the district court did not abuse its discretion by determining that the juvenile punishment and programming options weigh in favor of certification.

Dispositional options available

 

Finally, courts must consider “the dispositional options available for the child.”  Minn. Stat. § 260B.125, subd. 4(6).  Appellant argues that EJJ is the best dispositional option available to him.  As Dr. Sweet noted, probationary options would “buy[] more time” for appellant to mature.  The district court agreed, but it also noted appellant’s strong likelihood of re-offending.  The district court further stated that if appellant is certified to adult court, the court will have the option of departing from appellant’s sentence, mandating a longer probationary period than that available under EJJ.  On this record, the district court did not abuse its discretion by determining that the dispositional options available to appellant weigh in favor of certification.

The district court properly applied the law, and the record supports its determination that public safety would be served by certification.  Therefore, we conclude that the district court did not abuse its discretion by certifying this matter for adult prosecution.

            Affirmed.