In the Matter of the Welfare of:  D. L. P.

In the Matter of the Welfare of:  D. L. P. A05-630, Court of Appeals Unpublished, January 31, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-630

 

In the Matter of the Welfare of:  D. L. P.

 

Filed January 31, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 248714, J6-04-064466

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant D.L.P.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent state)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from an adult-certification order, D.L.P. challenges the district court order certifying him for adult prosecution, arguing that the district court (1) failed to meet the statutory requirements of finding probable cause and holding a timely hearing, and (2) committed reversible error by certifying him despite the experts' recommendations that he be designated an extended-jurisdiction juvenile (EJJ).  Because (1) appellant failed to raise the timeliness issue with the district court, (2) the district court found probable cause, and (3) the district court did not abuse its discretion by certifying appellant for adult prosecution, 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), review denied (Minn. Mar. 17, 1989) (stating that in a certification hearing the charges against the child are presumed true).  On September 24, 2004, three-year-old R.R.W. was treated for severe swelling and bruising in her genital area.  Appellant D.L.P., who was at the time 15 years old, had been babysitting the child while the child's mother was at work, and he was the only person watching R.R.W. when she sustained her injuries.  Appellant stated that his pubic hair might be found in the child's vaginal area because he had touched her vagina when helping a neighbor inspect the injuries.  An examination revealed that

the child had an obvious hematoma to the midfrontal region, some bruising over the left anterior chest wall, and extensive bruising over the right thigh region of the body.  Additionally, R.R.W. presented with bruising down the right side of her body.  [The doctor] observed that R.R.W.'s vaginal area was extremely swollen and noted there was dried blood overlaying the labia as well as the entire perineal area.  R.R.W. also sustained abrasions and contusions in her genital area . . . [which] were consistent with blunt penetrating trauma. . . . The vaginal injuries were not consistent with a fall, but rather with penetrating injury.

 

            Appellant was arrested and charged with two counts of first-degree criminal sexual conduct, one count of third-degree assault, and one count of felony malicious punishment of a child; the petition was accompanied by a motion for non-presumptive adult certification.  Appellant made his first court appearance on October 1, 2004, when the court detained him and ordered certification and psychological studies after his attorney stipulated to probable cause "for the purposes of getting the studies started."  The certification hearing was to begin on October 25, but was stricken and rescheduled to November 1. 

            On November 1, the court found good cause to enlarge the time period for the certification hearing, and appellant's attorney reported a conflict requiring new counsel to be appointed.  The parties were ordered to return to court for the certification trial on November 30. 

            On November 30, appellant requested and was granted a continuance because his counsel, who had been appointed less than a week earlier, was not prepared to proceed.  The court enlarged the timeline to January 14, 2005, and ordered the parties to appear for trial on January 7, 98 days after the certification motion was filed.  The court held a contested evidentiary hearing on the motion for certification on January 7, 11,[1] 14, and on February 4, 9, and 24.

            Extensive testimony was given during the course of the hearing.  Both prosecution experts ultimately recommended that appellant be designated as an extended-jurisdiction juvenile.  On March 7, the court entered an order certifying appellant as an adult.  The court outlined the evidence concerning the six factors that it must consider in determining whether failing to certify would serve public safety, concluding that the only factors weighing toward an EJJ designation are the dispositional options available in the juvenile system and appellant's lack of prior programming.  Noting that Minnesota law requires that greater weight be assigned to the prior record of delinquency and the seriousness of the alleged offenses, the court found that "the extreme seriousness of the offense, [appellant's] sole culpability in committing the offense, [and appellant's] recent record of escalating violence and delinquent behavior all weigh in favor of certification."  This appeal follows.         

D E C I S I O N

            Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  Interpretation of the rules of criminal procedure is also a question of law subject to de novo review.  Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).  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 the 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).

I.

Appellant contends that the certification order is improper because the district court failed to meet statutory prerequisites to the issuance of such an order.  Minnesota law does prescribe certain conditions for certification, requiring a probable-cause finding and a hearing within 90 days of the certification motion's filing.  Minn. Stat. § 260B.125, subd. 2(4), (5) (2004). 

First, appellant argues that the district court's failure to hold the certification trial within 90 days of the filing of the certification motion both strips the court of its authority to certify the case and mandates dismissal of the certification motion.  But appellant failed to challenge the timeliness of the certification hearing in the district court, raising no objection to the timeliness of the certification hearing when it was rescheduled for January 7 and failing to raise any objection at the six hearings that followed.  This court may decline to address an issue raised for the first time on appeal even if it is a constitutional issue of criminal procedure.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (refusing to address state constitutional claim because it was not adequately briefed or litigated).  Because appellant did not challenge the timeliness of the certification proceedings in the district court, we decline to address the issue on appeal. 

Second, appellant contends that certification is untenable because the court failed to find probable cause to support the charges.  Because appellant failed to raise the probable-cause issue with the district court, he is generally deemed to have forfeited his right to have it reviewed on appeal.  See, e.g., id.  We note, however, that appellant's argument lacks merit, because the certification order contains an implicit probable-cause determination:

[Appellant] appears to be solely and completely culpable in committing the alleged offense.  The victim's mother left her in the sole care and custody of [appellant].  [Appellant] had admitted that he was alone in the apartment with the little girl when she sustained her injuries.  [Appellant's] DNA profile matches the DNA evidence recovered from the victim. 

 

"The failure of the [district] court to make a specific finding of probable cause does not rise to the level of reversible error," where the certification "petition would have supported a finding of probable cause and appellant did not raise the issue of probable cause at the [district] court."  In re R.D.W., 407 N.W.2d 113, 116 (Minn. App. 1987), review denied (Minn. July 15, 1987).  We therefore conclude that the district court's implicit determination of probable cause is sufficient.

II.

            Appellant argues that the district court clearly erred in certifying appellant for adult prosecution, asserting specifically that the prosecution failed to prove that public safety would not be served by an EJJ designation and that the district court's findings of fact are not supported by the evidence in the record. 

            Minnesota law provides that the juvenile court may enter an order certifying a juvenile for adult prosecution when a child who is at least 14 years of age is alleged to have committed an offense that would be a felony if committed by an adult.  Minn. Stat. § 260B.125, subd. 1 (2004).  When, as here, the juvenile was under the age of 16 at the time of the offense, certification can only occur if the court finds that the prosecuting authority has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety.  Minn. Stat. § 260B.125, subd. 2(5), (6)(i)-(ii).

To determine whether public safety is served, Minnesota law directs the court to consider

(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. § 260B.125, subd. 4(1-6) (2004).  And "[i]n 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" enumerated.  Id., subd. 4(6).

Seriousness of the offense

            Appellant does not contest the district court's finding that the seriousness of the offense weighs strongly in favor of certification. 

Culpability

            Appellant argues that the court's finding that appellant "appears to be solely and completely culpable in committing the alleged offense" is unsupported by the testimony and fails to recognize appellant's right to silence.  But there is sufficient evidence in the record to support this finding, including appellant's admission that he was alone with the child when she was injured and the indication of appellant's culpability contained in both experts' reports.  And contrary to appellant's assertion, the finding is not dependent on his pretrial silence.  The district court's finding regarding culpability was not clearly erroneous.

Prior record of delinquency

            Appellant also takes issue with the district court's finding that appellant's prior record of delinquency supports certification, arguing that the district court's reliance on uncharged behavior was inappropriate.  Appellant cites In re Welfare of K.A.P. for the proposition that the court may only consider admitted or formally charged misconduct in weighing public safety.  550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).  But K.A.P. does not so hold; in that case, this court allowed the district court to consider pending charges, but did not expand its holding to exclude consideration of uncharged behaviors.  Id. K.A.P. stands for the proposition that public policy supports juvenile courts having liberal access to a minor's records.  Id.(failure to allow district court to consider pending delinquency actions "would unduly limit the court's ability to accurately assess the risk to public safety"). 

            Indeed, Minnesota law supports consideration of unadjudicated conduct in certification determinations.  This court has held that it is not an abuse of discretion to consider scholastic disciplinary records in conjunction with the juvenile-delinquency record.  In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996); see also In re Welfare of T.L.C., 435 N.W.2d 581, 582, 584 (Minn. App. 1989) (considering school discipline records under now-defunct common-law standard).  Finally, we have held that the entire delinquency record is also relevant to the consideration of programming history, adequacy of punishment or programming, and the available dispositional options.  K.M., 544 N.W.2d at 783.              

            Here, the district court considered a range of evidence from appellant's record, including appellant's 2004 felony gun adjudication, an unresolved assault charge from May 2004, evidence that appellant stole money from a probation officer's purse, appellant's escape from custody following the alleged theft, and reports of fighting and disruptive behavior while in the juvenile-detention facilityincluding threats made against the certifying prosecutor.  The court also considered appellant's school records, including his discipline for fighting, theft, disruptive and abusive behavior, and his expulsion from a local high school after his backpack was found with a ten-inch knife and more than 30 pornographic magazines inside.  Determining that the evidence revealed an escalation of delinquent behavior, the court concluded that this factor weighs in favor of certification, even though appellant does not have numerous adjudicated delinquencies.    

            Indeed, a consideration in analyzing this factor is whether the record reveals escalating criminal behavior.  See Welfare of H.S.H., 609 N.W.2d 259, 262-63 (Minn. App. 2000); D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  Because the district court properly considered appellant's entire record and the record supports the court's conclusion, the court did not abuse its discretion in determining that this factor weighs in favor of certification.

Programming history

            Appellant contends that the district court misstated the testimony concerning appellant's programming history but fails to advance any meaningful support for this contention.  And the district court concluded that this factor weighs in favor of designating appellant EJJ.  Again, the district court did not abuse its discretion in assessing this factor.   

Adequacy of punishment and programming available in the juvenile system and dispositional options available

 

            Appellant does not contest the district court's findings concerning these factors.

            Finally, appellant's overarching contention that the district court "ignore[d] the testimony of the experts" seems to be wholly without support.  The district court clearly considered the experts' reports and their testimony, making extensive findings about each expert in the certification order.  The governing statute directs the district court to consider and weigh the statutory factors; it does not require the court to make a wholesale adoption of the experts' conclusions.  Minn. Stat. § 260B.125, subd. 4(1-6).  The district court, not the expert, decides the application of the law.  And while the district court's conclusion differed from the experts' recommendations, the court based its conclusion on the evidence presented by the experts.  Accordingly, appellant's argument lacks merit.   

            Because the district court's findings and conclusions concerning public safety are based on the record and are not clearly erroneous, the court did not abuse its discretion by certifying appellant for adult prosecution.

            Affirmed.

[1] Although convened, the court did not hear evidence on January 11 because appellant's mother was not able to attend, and appellant did not waive her presence.