In Re the Marriage of: Verna J. Okland, petitioner, Respondent, vs. Erik J. Okland, Appellant.

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1996)

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C3-98-156

In the Matter of the Welfare of: N. W. H.

  Filed August 18, 1998

 Affirmed

  Lansing, Judge

Ramsey County District Court

File No. J795556094

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Kathryn A. Santelmann, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.*

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

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The district court ordered adult certification of a 16-year-old juvenile, and the juvenile appeals. Because the record does not demonstrate that the juvenile rebutted the presumption of certification by clear and convincing evidence, we affirm.

 FACTS

The order for adult certification stems from a single incident that resulted in charges of first degree criminal sexual conduct, kidnapping, aggravated robbery, and motor vehicle theft. For purposes of certification, the following alleged facts are presumed to be true. N.W.H., age 16, asked two other juveniles for a ride to St. Paul on the pretext of a family emergency. Once inside the car, N.W.H. told them he had a gun and would shoot them if they did not give him their money. When they told N.W.H. they did not have any money, he forced them to withdraw money from a cash machine. He then drove them to a secluded location where he raped one of the juveniles and forced her to perform oral sex on him. At about midnight, N.W.H. drove the juveniles to a parking lot in Richfield and demanded the title to the car. When the juveniles could not find the title, he told them he would have his "homies" find and kill them if they reported the crime. N.W.H. forced them out of the car and drove off.

A few hours later, St. Paul Police stopped N.W.H. for a traffic violation and discovered the car was stolen. N.W.H. was arrested and taken into custody where he confessed to the offenses. When the charges were filed, Ramsey County also filed a motion for adult certification and a notice of intent to prosecute.

On November 3, 1997, Ramsey County amended the kidnapping counts to allege release in an unsafe place. The county later filed an amended motion to certify, alleging a presumption of certification based on N.W.H.'s age and the charged offenses. The county also filed an unrelated motor vehicle theft charge and a third degree criminal sexual conduct charge stemming from allegations that N.W.H. sexually abused his younger sister. The court ultimately dismissed the third degree criminal sexual conduct charge for lack of jurisdiction, but continued the motor vehicle theft with the certification case after N.W.H. pleaded not guilty.

At a contested certification hearing, the court heard testimony from two psychologists, a probation officer, a dispositional advisor, the principal of N.W.H.'s most recent school, N.W.H.'s foster parent, and a representative from a treatment program for juvenile sex offenders. The court granted the county's motion to certify N.W.H. to adult court, and N.W.H. appeals.

 D E C I S I O N

The juvenile court has considerable latitude in determining whether to certify a juvenile for adult prosecution. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989). This court will not reverse a certification decision unless the juvenile court's findings are "clearly erroneous so as to constitute an abuse of discretion." Id. (citing In re Welfare of I.Q.S., 309 Minn. 78, 86-87, 244 N.W.2d 30, 38 (1976)); see also In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995) (applying same standard of review in certification case involving application of 1994 extended juvenile jurisdiction provisions), review denied (Minn. Feb. 9, 1996). For purposes of certification hearings, the charges against the juvenile are presumed to be true. S.W.N., 541 N.W.2d at 16.

Under Minn. Stat. § 260.125, subd. 2a, it is presumed that a juvenile offense will be certified to adult court when (1) the child was 16 or 17 at the time of the offense; and (2) the offense would result in a presumptive prison sentence if committed by an adult, or the child committed any felony while using a firearm. Minn. Stat. § 260.125, subd. 2a (1996). Because certification is only presumed, a child may rebut the presumption by providing clear and convincing evidence "that retaining the proceeding in the juvenile court serves public safety." Id.

In determining whether public safety is served by certifying a presumptive offense, the court considers (1) the seriousness of the alleged offense; (2) the child's culpability; (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 available dispositional options. Minn. Stat. § 260.125, subd. 2b (1996). The court is required to give greater weight to the seriousness of the alleged offense and the child's prior record. Id.

A child who rebuts the presumption of certification is subject to an extended jurisdiction juvenile (EJJ) prosecution. Minn. Stat. §§ 260.125, subd. 5, 260.126, subd. 1 (1996). Under an EJJ prosecution, the court retains jurisdiction until the child reaches age 21. Minn. Stat. § 260.181, subd. 4(b) (1996). During the period of jurisdiction, the child is subject to both a juvenile court disposition and the possibility of an adult criminal sentence, which is stayed so long as the juvenile does not violate the provisions of the order or commit a new offense. Minn. Stat. § 260.126, subd. 4(a)(2) (1996).

To rebut the presumption of certification, N.W.H. relied on testimony from Dr. Owen Nelsen, a clinical and forensic psychologist. Dr. Nelsen testified that four of the six factors supported EJJ prosecution, although he admitted that the seriousness of the crime and N.W.H.'s culpability supported certification. He also acknowledged that Minnesota law requires the court to give greater weight to the seriousness of the offense and the juvenile's prior record of delinquency. N.W.H. also presented evidence that he had been accepted into a two-year, secure program for juvenile sex offenders. This evidence included testimony from Heidi Chamberlin-George, a dispositional advisor from the Ramsey County Public Defender's Office, and Brian Stanley, program director at Woodward Academy.

For at least four reasons, our review of the record compels a conclusion that the district court did not abuse its discretion in finding that N.W.H. failed to rebut the presumption of certification by clear and convincing evidence. First, N.W.H. does not dispute the seriousness of the crime. See Minn. Stat. § 260.125, subd. 2b (court must give "greater weight" to the seriousness of the crime and the juvenile's prior record of delinquency).

Second, the court properly concluded that N.W.H.'s culpability supports certification because N.W.H. was solely responsible for the offenses. On appeal, N.W.H. argues that his youth and abjectly dysfunctional family background should be viewed as mitigating factors. See State v. Mitchell, 577 N.W.2d 481, 491 (Minn. 1998) (noting that juvenile's family background of physical and emotional abuse speaks to culpability). The certification statute, however, defines a mitigating factor as one that is recognized by Minnesota's Sentencing Guidelines. Minn. Stat. § 260.125, subd. 2b(2) (1996). And N.W.H.'s mitigation argument is substantially undercut by the Sentencing Guidelines provisions that specifically state that "social factors" such as educational attainment, living arrangements, length of residence, and marital status should not be used as mitigating factors. Minn. Sent. Guidelines II.D.1(d).

Third, although N.W.H.'s adjudicated juvenile offenses were petty, the court did not abuse its discretion in concluding the unadjudicated allegations of sexual abuse weigh in favor of certification. See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996) (court may consider unadjudicated claims in determining risk to public safety).

Fourth, the record supports the court's conclusion that N.W.H.'s programming history supports certification. During his brief programming history, N.W.H. established a pattern of running away from shelters and foster home placements. He twice refused offered therapy, and he engaged in aggressive, threatening, and disruptive behavior.

This evidence also supports the district court's conclusion that "there are no adequate programs in either length or intensity in the juvenile system," as well as its conclusion that two years in a treatment facility is not sufficient punishment to protect the public safety. Although there is some evidence that N.W.H. expressed remorse for his actions, there is no evidence that he can successfully complete a treatment program within two years. The fact that the charged offense quickly escalated from a ride to a robbery and kidnapping to a brutal rape suggests that N.W.H. poses a serious threat to public safety.

We also reject N.W.H.'s contention that the court simply decided the five years remaining in EJJ jurisdiction was not long enough compared to the presumptive sentence of 134 months. The court considered three evaluations of N.W.H. and concluded that available secure treatment programs for juvenile sex offenders--which typically last two years--would not provide adequate treatment or protect public safety.

Finally, the district court did not abuse its discretion in concluding that certification is the only disposition option that can protect the public. The court-appointed psychologist testified that N.W.H. posed a public safety danger that "can be summarized as being impulsive and violent." This testimony, coupled with testimony from the principal at his former school, his foster parent, and a county probation officer, supports certification on grounds of the community's public safety.

For these reasons, we conclude the district court did not abuse its discretion in determining that N.W.H. failed to rebut the presumption of certification.

Affirmed.