In the Matter of the Welfare of: A. J. S., Child.

In the Matter of the Welfare of: A. J. S., Child. A05-2185, Court of Appeals Unpublished, September 19, 2006.

This opinion will be unpublished and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

A05-2185

 

In the Matter of the Welfare of:
A. J. S., Child.

 

Filed September 19, 2006

Affirmed

Wright, Judge

 

Scott County District Court

File No. 2005-05093

 

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, 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, 200 Fourth Avenue West, Shakopee, MN  55379 (for respondent)

 

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from an adjudication of delinquency, appellant argues that the district court abused its discretion by refusing to enter a stay of adjudication because appellant allegedly failed to show remorse and exercised the right to a restitution hearing.  Appellant also argues that a stay of adjudication was in his best interests and consistent with public safety.  We affirm.

FACTS

On October 7, 2004, an officer from the Shakopee Police Department interviewed Terry and Marilyn Hennen, owners of a sporting goods store, regarding an employee-theft complaint.  The Hennens suspected a part-time employee, appellant A.J.S., of stealing from them.  The Hennens reported to the police that surveillance tapes showed A.J.S. taking cash from the register on three separate occasions.  The tapes also showed A.J.S. taking a rifle scope from the store.  The Hennens told the police that they believed that A.J.S. was responsible for other cash shortages and missing items.  

Shakopee police initiated an investigation of A.J.S.  In several interviews with police, A.J.S. admitted stealing cash and sporting equipment from the store.  A.J.S. told police that he had stolen money throughout the summer and had lost track of the total dollar amount.  A.J.S. returned to police the small number of stolen items that he still had in his possession. 

On March 18, 2005, the state filed a juvenile-delinquency petition charging A.J.S. with one count of felony theft of property with a value of more than $500, a violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (2004).  At a pretrial hearing on July 26, A.J.S. admitted the charge, and the district court ordered a predisposition report (PDR) and a restitution study. 

The PDR estimated that the value of stolen property might be as high as $6,000.  The report concluded that A.J.S. "does not show remorse for the current offense and has no empathy for the victim[s]."  The PDR recommended adjudicating A.J.S. delinquent and placing him on probation for 180 days.  The report also recommended eight conditions of probation, including payment of restitution in the amount of $4,959.70. 

At a disposition hearing on September 12, 2005, the state urged the district court to impose the disposition recommended in the PDR.  A.J.S. sought a stay of adjudication, arguing that this is his first offense.  After receiving testimony from Terry Hennen, the district court adjudicated A.J.S. delinquent.  The district court imposed the probation conditions recommended in the PDR, including payment of restitution.  This appeal followed. 

D E C I S I O N

 

A.J.S. contends that the district court abused its discretion by denying his motion for a stay of adjudication. "The district court has broad discretion to order dispositions authorized by statute, and the disposition will not be disturbed absent an abuse of discretion."  In re Welfare of J.S.H.-G., 645 N.W.2d 500, 504 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  "Imposing an adjudication within the limits prescribed by the legislature is not an abuse of discretion."  In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn. App. 1999).

Under the rules of juvenile-delinquency procedure, the district court shall either adjudicate the child delinquent or continue the case without adjudication.  Minn. R. Juv. Delinq. P. 15.05, subd. 1.  The district court may continue the case without adjudication when "it is in the best interests of the child and the protection of the public to do so."  Minn. R. Juv. Delinq. P. 15.05, subd. 4(A). 

            In determining that an adjudication of delinquency was appropriate, the district court considered the offense conduct, the findings and recommendations of the PDR, and the victim-impact statement delivered by Terry Hennen.  The PDR observed that A.J.S. "contributed minimally during the interview" and described A.J.S. as uncooperative.  The PDR concluded that A.J.S. "does not show remorse for the current offense and has no empathy for the victim[s] in this case."  The victim-impact statement detailed the adverse effect of the theft on the Hennens personally and on their business. 

             The record establishes that the district court considered the totality of the circumstances and concluded that adjudicating A.J.S. delinquent was in the best interests of A.J.S., the victims, and the public.  The district court explained its reasons for adjudicating A.J.S. delinquent as follows:  

            I understand, [A.J.S.], that you would prefer not to have this on your record, and I just need to tell you if you were here today showing some remorse and ready to pay restitution up front, that would be a compelling indication to me that you are taking this seriously and willing to make amends.  Unfortunately, that's not what I'm seeing.  That's not what is reflected in the [PDR].

 

            Instead, what I'm being presented with is a situation where you showed very little remorse for what has happened here.  Your conduct was very deliberate and intentional and repeated.  It did have a significant impact on the Hennens, and the PDR indicates that you're a moderate risk to public safety.  And this was a pretty serious crime with a lot of money involved.  I don't know the exact dollar amount but it's more than just a few hundred dollars, and [it has] had a very serious impact on the [Hennens'] business and on their personal lives as they have explained to me here today.  Obviously and understandably, they feel betrayed and outraged. 

 

            On the plus side, [A.J.S.], the PDR indicates that you have supportive family and friends.  Your mom is here with you today, and you appear to be a bright individual with a lot of potential.  I can't force you to respect or consider the impact your actions have on other people.  I can't sit here and make you do that.  All I can do is provide you with opportunities to gain some insight into that and hopefully make some changes in your life and rethink your plan for dealing with problems and issues in your life.  So the disposition I'm ordering is designed to do that, as well as to provide some measure of justice to the Hennens.

 

A.J.S. argues that the district court erred by using his lack of remorse for the crime as a relevant factor in adjudicating him delinquent.  Remorse is not a required finding to stay delinquency adjudication.  Minn. Stat. § 260B.198, subd. 7 (2004); Minn. R. Juv. Delinq. P. 15.05, subd. 4(A).  Rather, the district court may grant a stay of adjudication "when it is in the best interests of the child and the protection of the public to do so."  Minn. R. Juv. Delinq. P. 15.05, subd. 4.  But remorse or lack of remorse is a relevant factor for the district court to consider when imposing its disposition.  See State v. Bauerly, 520 N.W.2d 760, 762 (Minn. App. 1994) (noting that lack of remorse may be considered for sentencing departure in property offense), review denied (Minn. Oct. 27, 1994). 

Here, A.J.S. demonstrated his lack of remorse by his deliberate, intentional, and repeated breach of the Hennens' trust.  In the predisposition interview, A.J.S. stated that he stole from the Hennens because they failed to pay him for some work that he had performed and that the theft was justified because he was underpaid.  His attitude toward his offense and the victims is a relevant factor in the district court's determination of whether a stay of adjudication is proper.     

A.J.S. argues for the first time on appeal that a stay of adjudication would be in his best interests because it would allow him to pay the restitution sooner.  We decline to address arguments that were neither presented to nor decided by the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).   

            Finally, A.J.S. argues that the district court based its decision to adjudicate A.J.S. delinquent on his failure to pay restitution at the time of the disposition hearing.  This argument is not supported by the record.  The district court considered A.J.S.'s willingness to pay restitution as one of several relevant factors, not as a condition of imposing the stay of adjudication, as A.J.S. argues.  It was within the district court's discretion to consider this factor in assessing A.J.S.'s degree of acceptance of responsibility for the offense.  Moreover, based on A.J.S.'s repeated incidents of theft, abuse of the Hennens' trust, and lack of remorse, the district court did not abuse its discretion by concluding that a stay of adjudication would not protect public-safety interests. 

            Because the factors the district court used to determine that an adjudication of delinquency was appropriate were relevant and supported by the record, and because the adjudication was within the limits prescribed by law, the district court did not abuse its discretion by declining to stay the adjudication of delinquency.

            Affirmed.