In the Matter of the Welfare of W. J. N.

In the Matter of the Welfare of W. J. N. A04-697, Court of Appeals Unpublished, January 18, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-697

 

In the Matter of the Welfare of W. J. N.

 

Filed January 18, 2005

Affirmed

Kalitowski, Judge

 

St. Louis County District Court

File No. J4-03-651367

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant W.J.N.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant County Attorney, 320 West Second Street, Room 403, Duluth, MN 55802 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant W.J.N., a juvenile, challenges the district court's decision that he stand trial as an adult on a charge of first-degree assault.  Appellant argues that the district court abused its discretion by ruling that appellant did not overcome the presumption of certification because appellant failed to show by clear and convincing evidence that public safety would be served by retaining appellant in the juvenile system.  We affirm. 

D E C I S I O N

 

A district court has considerable latitude in certification proceedings, 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 (Mar. 17, 1989).  For purposes of a certification proceeding, the charges against a juvenile are presumed true.  Id.   

Minnesota statutory law creates a rebuttable presumption that a proceeding involving an offense committed by a child will be certified if the child was 16 or 17 years old at the time of the offense, and the petition alleges an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes.  Minn. Stat. § 260B.125, subd. 3 (2002).  Upon the district court's determination of probable cause that the child committed the alleged offense, "the burden is on the child to rebut this presumption by demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves the public safety."  Id.  The district court must consider six statutory factors in determining whether the public safety is served by certifying the matter.  Id. at subd. 4 (2002). 

Here, the state charged appellant with three felony offenses that carry presumptive prison sentences pursuant to the Minnesota Sentencing Guidelines, and the district court determined that probable cause existed to support the charges against appellant.  Following a certification hearing, the district court made detailed findings on each of the six statutory factors pursuant to Minn. Stat. § 260B.125, subd. 4, and concluded that appellant did not prove by clear and convincing evidence that it would serve the public safety to retain him in the juvenile system.  Appellant contends that he provided evidence that retaining him as an extended jurisdiction juvenile would serve public safety, and that a careful review of the statutory factors reveals that he presented sufficient evidence to rebut the presumption of certification.  We disagree.

            The first factor, the seriousness of the crime and its impact on the victim, is by law given greater weight.  Minn. Stat. § 260B.125, subd. 4.  This factor weighs heavily in favor of certification.  Appellant was charged with attempted second-degree murder, first-degree assault, and second-degree assault.  The district court found that appellant acted with particular cruelty in a vicious and unprovoked attack.  Appellant hit the victim in the head from behind with a metal pole and continued to beat the victim even after the victim fell to the ground and was unable to move.  The victim was left with a crushed skull, requiring three brain surgeries, and he now suffers from encephalomalacia, aphasia, and apraxia.  While appellant concedes that the alleged attack was serious, he contends that he is less of a threat to public safety because there is no evidence that the attack was random.  We agree with the district court that this argument is not persuasive. 

            The second factor involves a determination of the child's level of culpability.  Id. at subd. 4(2).  Appellant does not challenge the district court's finding that appellant was the sole planner and executor of the offense.  Instead, appellant argues that it was clearly erroneous for the district court to find that there were no mitigating factors because appellant has a low IQ and suffers from posttraumatic stress disorder, dysthemia, and conduct disorder.  See Minn. Sent. Guidelines II.D.2.9(3) (listing as a mitigating factor the lack of substantial capacity for judgment when the offense was committed).  But appellant advances no argument and provides no caselaw to support a claim that his IQ and other conditions contributed toward a lack of capacity.  Appellant also attempts to argue self-defense, in spite of the finding that appellant struck the victim from behind and continued his attack even after the victim was on the ground and unable to move.  Appellant's arguments against culpability are not persuasive.

The third factor, the child's prior delinquency record, is also given greater weight.  Minn. Stat. § 260B.125, subd. 4(3).  The district court found that appellant's prior adjudications include three fifth-degree assaults, two trespasses, terroristic threats, a curfew violation, and possession of fireworks.  The district court provided details of these offenses, which occurred over a period of seven years.  Appellant's offense history includes (1) macing an 8-year-old boy in the eyes and kicking him; (2) entering an apartment and causing damage on the roof; (3) punching a 12-year-old boy, knocking him off his bike and giving him a bloody nose; (4) pointing a replica semiautomatic pistol at someone and threatening to shoot; (5) punching a fellow detention resident in the jaw; and (6) punching a boy several times in retaliation for reporting a previous assault.  Appellant does not challenge the accuracy of his record, but instead asserts that his prior offenses are relatively minor.  We disagree and conclude that appellant's record suggests a pattern of "deeply engrained, escalating criminal behavior that presents a threat to public safety."  In re Welfare of H.S.H., 609 N.W.2d 259, 263 (Minn. App. 2000).   

The fourth factor involves a review of the child's programming history, including the child's past willingness to participate in programming.  Minn. Stat. § 260B.125, subd. 4(4).  The district court found:

[Appellant] has been placed on supervised probation a number of times.  He was ordered to enter and successfully complete intensive day treatment, out of home placements at Chisholm House, Thistledew Endeavors, and the AJC program, including eight stays in detention at AJC.  All of these things were done in an attempt to change his behavior.  He has been resistant to change.  He continued to re-offend following release from each and every program.

 

Appellant claims that his offense history is not substantial and that he has had little programming.  Appellant claims that he has succeeded in prior programming, and that he would be successful in a long-term program.   But appellant provides no examples of success in prior programming.  In light of appellant's lack of supporting evidence and the findings of the district court, we conclude that this factor also supports certification. 

            The fifth factor considers the adequacy of the punishment or programming available in the juvenile justice system.  Minn. Stat. § 260B.125, subd. 4(5).  The district court made detailed findings on available programming and stated that the programs favored by appellant were not long enough to meet his treatment needs.  The district court relied, in part, on the testimony of appellant's probation officer, who stated that although appellant has the ability to turn his life around, the time needed to accomplish this exceeds the jurisdictional time limit of the juvenile court.  The district court also relied on the testimony of the psychologist who evaluated appellant for certification and determined that appellant scored very high on many of the risk factors associated with a risk for future violence, and that appellant's treatment needs did not weigh in favor of retention in the juvenile system.  We conclude that the evidence in the record supports the district court's conclusion that the juvenile justice system cannot provide adequate programming to rehabilitate appellant.

            The sixth factor concerns the dispositional options available to the child.  Id. at subd. 4(6).  Appellant argues that there are dispositional options available in the juvenile system.  Appellant acknowledges that there are programming options in Minnesota prisons, but claims that there is a substantial likelihood that he would not receive any programming.  And appellant does not address the district court's finding that programming in the juvenile system would not be long enough to meet his treatment needs.  Further, any programming options in the juvenile system "are outweighed by the seriousness of [appellant's] alleged offenses and his prior delinquency record, which must be given greater weight and which, when considered in light of the factors, favor certification."  In re St. Louis Co. v. S.D.S., 610 N.W.2d 644, 650 (Minn. App. 2000); see also State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998) (stating that although the adequacy of juvenile dispositions is a factor, the main emphasis is on public safety with greater weight given to the seriousness of the offense and the child's prior record of delinquency).  

            The district court properly addressed the six statutory factors in determining that the public safety is served by certification.  Based on the detailed findings of the district court and the record before this court, we conclude that the district court did not abuse its discretion in determining that appellant failed to rebut the presumption in favor of adult certification. 

            Affirmed.