John C. Wiherski, Respondent, vs. Richard J. Kliber, et al., Appellants.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-97-2273

In the Matter of the Welfare of: A. W. S.

Filed August 4, 1998
Affirmed
Kalitowski, Judge

St. Louis County District Court
File No. J99765133

John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 320 West Second Street, Duluth, MN 55802 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant A.W.S., who is charged with second-degree murder, challenges his presumptive certification as an adult claiming he proved by clear and convincing evidence that retaining him in the juvenile system would serve public safety. We affirm.

D E C I S I O N

For the purposes of the certification hearing, the charges are presumed to be true. In Re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989). Juvenile courts have considerable discretion in determining whether a juvenile should be certified as an adult for prosecution in district court. In re Welfare of K.M., 544 N.W.2d 781, 784 (Minn. App. 1996). This court will not reverse a juvenile certification order unless the court's findings are so clearly erroneous as to constitute an abuse of that discretion. In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

The statutes provide for the presumptive certification of a juvenile for prosecution in the adult criminal system:

It is presumed that a proceeding involving an offense committed by a child will be certified if:
(1) the child was 16 or 17 years old at the time of the offense; and
(2) the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes, or that the child committed any felony offense while using, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm.

Minn. Stat. § 260.125, subd. 2a (1996). Under the presumptive certification statute, the state meets its burden by proving the juvenile's age and the seriousness of the offense. In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996). Here, both parties agree that appellant was 17 when the alleged acts were committed, and that the second-degree murder charge requires a mandatory prison sentence under the sentencing guidelines.

In order to rebut the presumption of certification, the juvenile must demonstrate "by clear and convincing evidence that retaining the proceeding in juvenile court serves public safety." Minn. Stat. § 260.125, subd. 2a. To evaluate whether the public safety is served by certifying the matter, the court must consider six 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.

Minn. Stat. § 260.125, subd. 2b (1996). The supreme court recently reiterated this statutory mandate regarding the weight to be given the factors:

While the adequacy of available juvenile dispositions is still a factor in the decision under the amended statute, the main emphasis shifted from treatment options to public safety, with the court giving greater weight to the seriousness of the offense and the prior record of delinquency.

State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998). Appellant argues the district court abused its discretion in concluding appellant failed to rebut the presumption in favor of adult certification. We disagree.

Here, the district court found that first-degree assault and second-degree murder are obviously serious offenses in terms of community safety. Although appellant claims mitigating factors because he was defending his brother, the district court determined the alleged crimes were committed with particular cruelty and brutality. Thus, we conclude evidence regarding the offense supports the conclusion that public safety is served by certification.

Significantly, under the other primary factor, the district court found that appellant has a "substantial record of delinquency," and noted particularly his adjudication for criminal sexual conduct that involved threats and the sexual assault of a young child. Since 1989 appellant has also been adjudicated for two misdemeanor thefts and for violating probation. Although appellant argues these adjudications of delinquency were remote in time from the current charge, we cannot say the district court abused its discretion in determining appellant's prior record indicated appellant poses a threat to public safety.

Dr. Percy, who conducted the court-required psychological test and recommended certification, said:

I was thinking about history and the old adage about past performance is the best predictor of future performance, and we have in the history of documentation of 18 months in treatment with three months good time on discharge and then renewed problems, and so you would think that 18 months might not be long enough, (A). (B), * * * behavior gets worse with age, the likelihood of using treatment is harder.

A probation officer who supervised appellant from 1993 to 1996 testified that he would initially perform well during and after treatment, apparently internalizing the lessons, but then would resume inappropriate behaviors. The evidence concerning appellant's programming history does not help to rebut the presumption of certification.

Regarding the adequacy of punishment and dispositional options in the juvenile system, the presumptive sentence for an adult offender convicted of second-degree murder is 299-313 months. At the time of the certification hearing, only 36 months remained before appellant would turn 21 and EJJ (Extended Jurisdiction Juvenile) jurisdiction would end. The district court concluded that the time remaining under EJJ did

not appear to be a suitable consequence for a crime of this severity, even in light of the fact that [appellant] may have been acting to rescue his brother.

The court cited the disparity between the amount of time remaining under EJJ and even the lowest presumptive adult sentence for the offenses appellant is charged with committing. The district court acknowledged that appellant would be accepted into three different programs, but also noted that any programming would be unlikely to extend beyond two years.

The probation officer who did the certification study for the court recommended certification, finding the disparity in length of time between the adult sentence and the sentence under EJJ to be too great and that 36 months would not adequately protect the public safety. He also indicated there were no appropriate facilities for A.W.S. in the juvenile system.

Dr. Percy said that appellant's prognosis was "[a]t the very best guarded. At the worst rather poor." He also testified that public safety would not be served by retaining appellant in the juvenile system under EJJ. He further stated that he was unaware of any juvenile programming that would be appropriate for appellant.

Appellant's probation officer from 1993-96 similarly testified that she did not believe there was adequate punishment or programming for appellant in the juvenile court system under EJJ. She concluded that he should be certified, and that a secure setting was necessary. She added that she did not believe the public safety would be served by retaining appellant in the juvenile system.

In K.A.P., a case factually similar to the present one, this court concluded that the district court did not abuse its discretion in finding that the juvenile did not rebut the presumption of certification even when there was evidence that the victim was the aggressor and that there was little, if any, planning by the juvenile. K.A.P., 550 N.W.2d at 12. The district court in K.A.P. had noted its concern with the lack of time for punishment or adequate supervision and in its discretion weighed the evaluation indicating the juvenile was capable of changing his behavior. Id. The court upheld the district court's conclusion that the 3½ years remaining in the juvenile system were inadequate compared to the 306-month presumptive adult sentence. Id.

Here we conclude the district court properly considered the necessary statutory factors and did not abuse its discretion in determining that public safety would be served by certifying appellant as an adult.

Affirmed.