In Re the Welfare of S.J.G.

547 N.W.2d 456, 1996 Minn. App. LEXIS 561, 1996 WL 250467

Opinions

OPINION

EDWARD D. MULALLY, Judge

Footnotes

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Dakota County instituted a delinquency proceeding against appellant S.J.G., alleging that he had committed one count each of aiding and abetting attempted first-degree murder, aiding and abetting attempted second-degree murder, aiding and abetting aggravated robbery, aiding and abetting first-degree assault, and two counts of aiding and abetting second-degree assault. Appellant challenges the district court order certifying him for adult prosecution, claiming that he should be treated as an extended jurisdiction juvenile (EJJ). We affirm the certification.

FACTS

On January 17, 1995, at about 9:00 p.m., appellant and J.A.P., also a juvenile, entered the U.S. Discount Store in West St. Paul. One employee, Daniel Lexau, and his friend, Michael Zenzola, were in the store. Appellant, who was fifteen at the time, was carrying a sawed-off shotgun.

Appellant told Lexau and Zenzola that this was a “stick-up” and demanded money. Lexau and Zenzola laughed, thinking it was a joke. Appellant then fired a shot into a display rack. As Lexau ran towards the front door of the store, appellant fired a second shot that struck Lexau in the lower back. J.A.P. tried unsuccessfully to open the cash register, grabbed a carton of cigarettes, and left the store with appellant.

The gun used in the incident belonged to L.B.K., who said that he had previously robbed the store. L.B.K. told appellant and J.A.P. that an “Iraqi” owned the store and that they should shoot the “Iraqi” if there were any problems. L.B.K. helped plan the crime, went to the store with appellant and J.A.P., and waited outside while they committed the robbery.

Appellant admitted to participating in the robbery. He told investigators that he only remembered firing one shot after Lexau lunged at him. He confirmed that the gun belonged to L.B.K. and said that L.B.K. first showed him the gun outside the store. Appellant denied planning the crime until immediately before entering the store.

Appellant has one prior delinquency adjudication for an aggravated robbery offense that occurred in December 1994. Appellant admitted to the offense and was placed in a group home. After running away from the group home, he was placed at St. Croix Camp. These were his only juvenile court-ordered placements. Appellant also admitted to a felony theft of a motor vehicle and a misdemeanor theft. Adjudication was stayed on both of these offenses, and appellant was placed on probation.

Drs. Alsdurf and Nelsen testified at the certification hearing and recommended that appellant be treated as an EJJ, rather than certified as an adult. Dr. Alsdurf, the court-appointed psychologist, testified that appellant was a “rather limited young man” with a full scale I.Q. of 77, indicating borderline intellectual functioning. Dr. Alsdurf described appellant’s level of maturity as “four going on fourteen.” Because of appellant’s low I.Q., his capacity for learning is delayed and poor, and he has some limits in problem solving, social judgment, and complex reasoning. Dr. Alsdurf diagnosed appellant as having dysthymia (mild depression) and possessing schizoid and dependent personality traits. Dr. Alsdurf testified that these diagnoses would not cause someone to engage in violent behavior.

Dr. Alsdurf opined that the public safety would best be served by treating appellant as an EJJ, rather than certifying him as an adult. He testified that a significant time in the adult system could cause appellant to become a “much more combustible, unpredictable person.” After considering the factors set out in Minn.Stat. § 260.125, subd. 2b (1994), Dr. Alsdurf acknowledged that the offense was serious and that appellant was culpable as the shooter. Dr. Alsdurf felt, however, that appellant’s minimal delinquent history and low intellectual functioning mitigated against certification. Dr. Alsdurf testified that appellant’s needs had never been addressed by the juvenile system in any complete fashion.

Dr. Nelsen, appellant’s expert psychologist, also recommended treating appellant as an EJJ. Dr. Nelsen described appellant as having borderline intellectual functioning with a particular weakness in analytical reasoning. He also described appellant as exhibiting depressive symptoms, with “incredibly low self-esteem.” Dr. Nelsen agreed with Dr. Asdurf that if appellant were sent to prison and not provided with treatment, he would pose a greater risk to the public safety in the future.

The state presented the testimony of Dakota County Probation Officer Ronald Cunningham, who prepared the reference study. Ater reviewing the statutory factors, Cunningham recommended that appellant be certified as an adult. Cunningham viewed the offense as very serious, with particular cruelty to the victim. He found no mitigating factors regarding appellant’s culpability and noted that appellant had three prior offenses.

Ater weighing all the testimony, the district court concluded that the state had proved by clear and convincing evidence that the public safety would not be served by treating appellant as an EJJ. The court found that (1) “the alleged offense was extremely serious, involving the use of a firearm,” (2) appellant had acted with “particular cruelty,” (3) appellant “played a major role in carrying out the alleged offenses,” and (4) appellant had “shown himself to be unamena-ble to probation during the short time he had been with the juvenile system.” Athough the court recognized that appellant did not have an extensive record of delinquency, the court stated that

his escalating behavior in a short period of time with increasing violence toward persons and culminating in the pending charges suggests the child poses a substantial risk to public safety.

The court found that the punishment and programming available under a juvenile delinquency disposition were inadequate because of the threat that appellant poses to the public safety and his need for long-term treatment in a secure setting. With regard to EJJ, the court stated:

The Court has also considered whether designating [appellant] an [EJJ] would serve the public safety. Given the limited treatment options available in the juvenile system, one last chance at juvenile programming would not serve public safety. The juvenile is unlikely to succeed in the treatment options that are available given the juvenile’s multiplicity of psychological problems, inability to gain insight due to his intellectual disabilities, and his poor performance in a behavior modification program that was already tried.

ISSUE

Did the state show by clear and convincing evidence that the public safety would not be served by retaining appellant in the juvenile system as an extended jurisdiction juvenile?

ANALYSIS

A district court’s decision to certify a juvenile for adult prosecution will not be reversed “‘unless [the court’s] findings are clearly erroneous so as to constitute an abuse of discretion.’ ” In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn.App.1995) (quoting In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn.App.1989), review denied (Minn. Mar. 17, 1989)), review denied (Minn. Feb. 9, 1996).

The EJJ classification found in Minn.Stat. § 260.126 (1994) was explained in S.W.N. as follows:

Under an EJJ prosecution, the child will be given both a juvenile disposition and an adult criminal sentence upon a finding of delinquency; the criminal sentence will be stayed, however, on the condition that the child not violate the terms of the juvenile disposition or commit a new offense. In addition, the juvenile system’s jurisdiction over the child extends past the child’s nineteenth birthday * * * until the child turns 21.

S.W.N., 541 N.W.2d at 15 (citations omitted).

A juvenile court may order certification if the court finds that the presumption of certification does not apply¹ and that the prosecutor has shown “by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.” Minn.Stat. § 260.125, subd. 2(6)(ii) (1994). In determining whether the public safety is served, the district court considers 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.

In 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.

MinmStat. § 260.125, subd. 2b.

Appellant challenges the district court order certifying him for adult prosecution, arguing that Cunningham’s opinion should be given very little weight because he did not consider EJJ as an alternative when he prepared the reference study and because he had only prepared six prior certification studies, all under the pre-1995 reference law. Appellant also contends the evidence does not support the district court’s conclusion that he is “unlikely to succeed in treatment.”

The record shows that the district court made detailed findings on each of the six statutory factors. Although Cunningham did not address EJJ as an alternative in the reference study, he did address each of the six statutory factors and separately testified that EJJ designation was not appropriate. While both Drs. Alsdurf and Nelsen recommended EJJ status, they both expressed reservations regarding the chances of appellant’s successful treatment. Dr. Alsdurf testified that he had “serious concerns” about whether appellant would be successful in treatment. Dr. Nelsen’s evaluation stated that “[a]t times * * * [appellant’s] primary motive may be more to ingratiate himself to treatment staff then to progress in treatment.” Dr. Nelsen testified that appellant clearly posed a threat to the public safety. In addition, the record indicates that appellant ran away from a court-ordered placement in a group home and allegedly committed several offenses during the time he was on his own.

Given the district court’s considerable latitude in determining whether to certify a juvenile for adult prosecution, we conclude the district court did not abuse its discretion in certifying appellant for adult prosecution.

DECISION

The district court did not err in concluding that the state met its burden of showing by clear and convincing evidence that an EJJ designation would not serve the public safety. Accordingly, we affirm the district court order certifying appellant for adult prosecution.

Affirmed.

RANDALL, J., dissenting.

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

1

. A proceeding is presumptively certified if (1) the child was 16 or 17 at the time of the offense and (2) either the offense is one that would result in a presumptive commitment under the sentencing guidelines or the child used a firearm in committing the offense. Minn.Stat. § 260.125, subd. 2a (1994). This presumption does not apply here.