In the Matter of the Welfare of: M.A.B.

This opinion will be unpublished and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

A03-1651

 

In the Matter of the Welfare of:

M.A.B.

 

Filed September 7, 2004

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. J6-03-03059595/J0-03-060354

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

After filing two delinquency petitions against appellant alleging second-degree murder, first- and second-degree assault, and drive-by shooting, the state moved to certify appellant for adult prosecution.  The district court granted the state's motion.  In this challenge, appellant argues that the district court's certification decision is not supported by clear and convincing evidence.  We affirm.

FACTS

 

            At the time of the events leading to his certification for adult prosecution, appellant M.A.B. was 15 years old.

The first delinquency action arises out of an incident on May 5, 2003.  According to the delinquency petition, while M.A.B. was riding in a car, he fired several shots at a bicyclist.  One shot struck the bicyclist, who required abdominal surgery as a result.  Based on these facts, the petition alleges drive-by shooting and first- and second-degree assault.

The second delinquency action arises out of an incident on May 16, 2003.  The delinquency petition describes a gang dispute during which M.A.B. and another person fired several shots at a fleeing car.  One shot struck and killed the driver.  The petition from this incident alleges two counts of second-degree murder.

During the certification hearing, the district court received in evidence two reports:  a 12-page psychological evaluation and a 21-page juvenile probation report.  Together the reports offer a lengthy narrative about M.A.B., describing his life circumstances, school records, delinquency records, psychological profile, and treatment history.  From these reports, the district court concluded that there is clear and convincing evidence to certify M.A.B. for adult prosecution.  This appeal followed.

D E C I S I O N

 

            In a challenge to the sufficiency of the evidence to support certification for adult prosecution, reversal is warranted if the district court made findings that are "clearly erroneous so as to constitute an abuse of discretion."  In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  On review, we presume that the allegations in the delinquency petitions are true.  In re Welfare of U.S., 612 N.W.2d 192, 194 (Minn. App. 2000).

            Certification of a juvenile for adult prosecution is governed by Minn. Stat. § 260B.125 (2002).  If a juvenile more than 14 years old is alleged to have committed an offense that would be a felony if committed by an adult, then a juvenile court may consider certifying the juvenile for adult prosecution.  Id., subd. 1.  Certification is presumptive if (1) the juvenile is 16 or 17 years old at the time of the offense and (2) the presumptive guideline sentence for the felony requires commitment to prison.  Id., subd. 3.  If, as here, certification is not presumptive, the state must demonstrate by clear and convincing evidence that retaining juvenile jurisdiction does not serve public safety.  Id., subd. 2(6).

            When determining whether public safety is served by adult certification, the district court shall consider the following 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.

 

Id., subd. 4.  The first and third factors are given greater weight than the other factors.  Id.  This weighting reflects public policy that favors public safety over rehabilitation in juvenile cases involving serious, violent offenders.  See State v. Chambers, 589 N.W.2d 466, 480 (Minn. 1999).

            Regarding the first factor, the petitions here allege assault and murder with the use of a firearm.  There are few more serious offenses.  See In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997) (finding "no more serious" offense than murders involving use of a firearm), review denied (Minn. Feb. 19, 1998).  M.A.B. concedes that this factor favors certification.

            The second factor is the culpability of the juvenile in the offense.  According to the delinquency petitions, M.A.B. initiated the drive-by shooting without any apparent provocation.  An accomplice initiated the shooting resulting in the murder, and M.A.B. joined in.  The psychological evaluation concluded that, although neither incident was carefully planned, both were gang-related incidents in which M.A.B. intended to intimidate the victims and others.

            Culpability is ordinarily assessed according to the juvenile's level of planning and participation in the offense.  The highest level of culpability occurs when a juvenile plans and executes the entire offense.  Id.  A high level of culpability also exists when a juvenile is a "primary participant" in the offense by, for example, brandishing a weapon in the course of a robbery.  St. Louis County v. S.D.S., 610 N.W.2d 644, 648 (Minn. App. 2000).  Because M.A.B. used a firearm in both offenses, he is a primary participant with a high level of culpability.  Accordingly, this factor supports certification.

            The third factor is the juvenile's prior record of delinquency.  M.A.B. was adjudicated delinquent on three prior occasions:  for petty theft in July 2000; for a curfew violation in August 2001; and for disorderly conduct in June 2002.  At the time of certification, there also were three pending delinquency petitions:  two for curfew violations in September 2001 and 2002 and one for gross-misdemeanor false information to police in January 2003.  In addition to this delinquency record, the district court considered M.A.B.'s school history, which included several allegations of violent threats and behavior.

            For this factor, one consideration is whether the record discloses escalating criminal behavior.  See H.S.H., 609 N.W.2d 259, 262-63 (Minn. App. 2000); D.T.H., 572 N.W.2d at 745.  Here, the district court observed a trend toward more serious criminal behavior.  But in light of M.A.B.'s relatively limited history of delinquency, this factor does not weigh as heavily toward certification.

            M.A.B. contends that the district court erred in considering his school disciplinary records when examining this factor.  In In re Welfare of K.M., we concluded that it was not an abuse of discretion to consider the juvenile's prior school suspensions for gang-related fighting and gang graffiti in conjunction with his juvenile delinquency record in deciding to grant a certification motion.  544 N.W.2d 781, 783, 785 (Minn. App. 1996); see also In re Welfare of T.L.C., 435 N.W.2d 581, 582 (Minn. App. 1989) (considering school discipline records in certification under now-defunct common-law standard).  Moreover, public policy favors juvenile courts receiving liberal access to a juvenile's records.  See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (allowing district court to consider pending delinquency actions because it otherwise "would unduly limit the court's ability to accurately assess the risk to public safety"), review denied (Minn. Aug. 20, 1996).  Thus, we conclude that it was not improper for the district court to consider M.A.B.'s school disciplinary records here.

            Under the fourth factor, a district court considers the juvenile's programming history.  Because M.A.B.'s prior delinquencies involve a relatively minor series of misdemeanors and status offenses, he lacks an extensive programming history.  But the juvenile probation report noted that, when ordered to complete sanctions or programming, M.A.B. rarely complied.  These requirements, which included behavioral assessments, home monitoring, and community service, did not involve any intensive supervision and are not necessarily a reliable indicator of his success in future programming.  Thus, we agree with M.A.B. that this factor does not weigh in favor of certification.  Cf. K.M., 544 N.W.2d at 785.

            The fifth and sixth factors, regarding the adequacy of juvenile programs and the dispositional options for the juvenile, are frequently considered together.  See, e.g., D.T.H., 572 N.W.2d at 744.  One important consideration is whether the juvenile is eligible for extended jurisdiction juvenile (EJJ) prosecution.  Dispositional placement through EJJ prosecution allows juvenile programming to extend beyond age 18, but the juvenile court's jurisdiction terminates when the offender turns 21.  Minn. Stat. § 260B.193, subd. 5(b), (c) (2002).

            Here, both the psychological evaluation and the probation report considered the possibility of EJJ prosecution.  Both reports noted M.A.B.'s lack of remorse and ongoing resistance to treatment.  The probation report added that, for a typical EJJ disposition, M.A.B. would receive eight to 18 months of residential treatment but then would be released on intensive probation.  Both reports concluded that, because M.A.B. was unlikely to be rehabilitated through EJJ, public safety was best served by adult certification.

            Because the psychological evaluation suggests intensive residential treatment in the juvenile justice system as an alternative, M.A.B. argues that this factor weighs against certification.  The availability of juvenile programming, however, does not necessarily favor maintaining juvenile jurisdiction.  S.D.S., 610 N.W.2d at 649.  If juvenile programming is unlikely to rehabilitate the juvenile, or if the outcome of such programming is equivocal, then this factor supports certification.  See U.S., 612 N.W.2d at 197; D.T.H., 572 N.W.2d at 474.  Indeed, a history of violent, gang-related offenses may limit access to juvenile programming.  K.M., 544 N.W.2d at 786.  Given the severity of the offenses and M.A.B.'s resistance to programming, these factors also weigh in favor of certification.

            In comparable cases, we have upheld certification of 15-year-old offenders for serious, violent offenses.  D.T.H., 572 N.W.2d at 742 (first- and second-degree murder, first-degree burglary); S.J.G., 547 N.W.2d at 459 (complicity in attempted first- and second-degree murder, aggravated robbery, first- and second-degree assault).  Here, the majority of public safety factors favor certification for adult prosecution.  In addition, particular weight must be given to the extremely serious nature of the charged offenses.  We, therefore, conclude that the district court did not abuse its discretion by certifying M.A.B. for adult prosecution.

            In the alternative, M.A.B. raises several constitutional challenges to his certification. We ordinarily decline to consider issues that are not presented to or decided by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Even constitutional claims are waived unless the interests of justice compel review.  State v. Barnes, 618 N.W.2d 805, 811-12 (Minn. App. 2000).  M.A.B.'s argument regarding cruel and unusual punishment, based on a speculative assessment of his likely sentence, is particularly premature.  Because these matters were raised for the first time on appeal, we decline to consider them.

            Affirmed.

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