In the Matter of the Welfare of:  A. G.

This opinion will be unpublished and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

A03-1732

 

In the Matter of the Welfare of:  A. G.

 

Filed August 31, 2004 Affirmed Kalitowski, Judge

 

Hennepin County District Court

File Nos. 224925, J4-02-069435, J6-02-069436

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant A.G.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Michael K. Walz, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Randall, 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 challenges the modification of his juvenile disposition, contending that he did not knowingly and voluntarily agree to the modification and that the district court failed to follow the proper procedures.  We affirm.

D E C I S I O N

I.

            Appellant argues that he did not knowingly and voluntarily agree to the disposition modification.  We disagree.  Rule 15.08 of the Rules of Juvenile Delinquency Procedure governs juvenile disposition modifications when any party, including the court, seeks a modification.   Minn. R. Juv. Delinq. P. 15.08, subd. 1.  The rules provide two separate methods for modifying a disposition:  (1) the parties can agree to a modification; or (2) the district court can determine that a modification is warranted upon a party's request and following a contested hearing.  Minn. R. Juv. Delinq. P. 15.08, subds. 2, 3.  If the parties agree to a modification, the district court "may order the parties to appear at a hearing to examine the merits of the modification and verify the voluntariness of the agreement on the record."   Minn. R. Juv. Delinq. P. 15.08, subd. 2.   

            Here, the record indicates that appellant knowingly and voluntarily waived his right to a contested evidentiary hearing and agreed to the disposition modification.  Generally, a defendant, including a juvenile, may waive a known right or privilege if the waiver is knowing, intelligent, and voluntary.  State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997); State v. Williams, 664 N.W.2d 432, 434 (Minn. App. 2003) (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1884 (1981)).  The determination of whether a juvenile's waiver is knowing, intelligent, and voluntary is a fact question dependent upon the totality of the circumstances.  Jones, 566 N.W.2d at 324.

            The record indicates that appellant's social worker asked the court to review appellant's case and impress upon appellant the consequences of his continued bad behavior and poor performance at the county home school.  The social worker attached appellant's most recent monthly status report, which noted that appellant was extremely gang-entrenched and detailed his continued gang-related activity.  Specifically, the report noted that appellant (1) held court during lunch periods whereby other residents approached him and gave him "street updates," including recent gang-related arrests and sentences; (2) intimidated others with his presence and reputation and merely shrugged this observation off with a smirk, stating that he could not help that others were aware of the power he wielded on the streets; and (3) refused to cease this behavior despite admonitions to do so.  The report concluded that appellant's prognosis was "very poor as he continues to associate with gang mentality and is encouraged to do so by his family members."  And earlier reports had noted that appellant identified himself as a gang member, primarily associated with other gang members, and sought out and hoarded newspaper articles on gang-related events in the community.

            The district court subsequently scheduled a hearing.  At the hearing, the district court stated that it appeared that appellant's placement at the juvenile facility was not working, that appellant needed a more restrictive setting, and that a modification was necessary.  Stating that it wanted to make sure the record was complete, the district court detailed the status report's findings.  The district court informed appellant that it was treating the hearing as a disposition-modification proceeding and that appellant had a right to demand a contested evidentiary hearing.  The district court explained that appellant needed to talk to his attorney to decide whether he wanted an evidentiary hearing and that the hearing "would tell [the court] the nature of [appellant's] violations and what [he had] been doing or not doing at the county home school."  The district court further explained that at the end of the evidentiary hearing, the district court would "have the option to find that a change in placement or a modification was justified, or that revocation was justified, depending on what [it heard] at that hearing."  The district court also informed appellant that it intended to place him at a more restrictive juvenile facility in Red Wing; it did not intend to revoke appellant's probation and send him to prison.  To give appellant and his lawyer more time to decide whether they wanted an evidentiary hearing, the district court continued the hearing. 

            At the continued hearing, the district court granted appellant's request for access to his entire county-home-school file.  The district court also granted appellant's request for another continuance so that appellant could have more time to determine whether he wanted an evidentiary hearing.  At the beginning of the next hearing, appellant waived his right to an evidentiary hearing and informed the court that he was not contesting the disposition modification.  The district court and the parties then discussed other possible placements. Toward the end of the proceeding, appellant was given the opportunity to speak.  Appellant contended that he had changed his behavior while he was at the county home school, it was unfair that he was taken out of the facility, and he should not be in custody.  The district court subsequently issued its order modifying appellant's disposition, finding that appellant had knowingly and voluntarily waived his right to a contested evidentiary hearing and agreed to the disposition modification.

            Because the social worker's request to the court essentially initiated these modification proceedings, the procedures followed in this case were somewhat unusual.  But ultimately, we agree with the district court that appellant voluntarily and knowingly waived his right to an evidentiary hearing and agreed to a disposition modification.  Contrary to appellant's claims, the record clearly shows that the district court gave appellant numerous opportunities to request an evidentiary hearing and challenge any proposed modification of his disposition.  But appellant rejected these opportunities and waited until now to challenge the modification.

            Appellant argues that he did not voluntarily and knowingly agree to the disposition modification because (1) he did not want to have his disposition modified; (2) the district court gave him incorrect information about the possible outcomes of a contested hearing; (3) the district court never provided him with the information necessary for him to make an informed decision; and (4) the district court did not ensure that the waiver of his rights was knowing and voluntary.  

            Appellant accurately indicates that he personally told the court that he did not want to have his disposition modified and that he wanted to stay at the county home school.  But appellant also stated that he did not think that he should be placed anywhere, including the county home school or the Red Wing facility, contending that he had done his time and should be free.  And, of course, no juvenile delinquent wants to be placed in a restrictive juvenile setting, just as no criminal defendant wants to be incarcerated.  But often a juvenile delinquent agrees to a restrictive setting or a criminal defendant agrees to a period of incarceration after weighing the options and the possible consequences of pursuing further proceedings.  Ultimately, the voluntariness of a waiver or agreement is not negated merely because the juvenile wishes to remain free and to not be placed in a juvenile facility.  Thus, even if appellant stated that he wanted to stay at the county home school or be released, the record shows that he voluntarily and knowingly waived his right to an evidentiary hearing and agreed to the modification. 

            Appellant also argues that he did not voluntarily and knowingly agree to the modification because the district court misinformed him that one possible outcome of an evidentiary hearing was execution of his 48-month adult sentence.  At oral argument, appellant essentially argued that he was coerced into agreeing to the modification because the district court improperly threatened imposition of the adult sentence.

            But the record indicates that the district court informed appellant that following an evidentiary hearing, it would have the option of finding that modification of appellant's placement or revocation of appellant's probation was justified, "depending on what [it heard] at that hearing." Appellant claims that his alleged poor performance would not have warranted a revocation of his probation, contending that "he was brought back to court because he was not consistently doing well at the County Home School."  But the record shows that while appellant's social workers and the district court were concerned with appellant's poor performance at the county home school, they were most concerned with his continued gang-related activities.  And if the evidentiary hearing revealed violations of appellant's probation, such as gang-related criminal activity, the district court could have executed appellant's sentence so long as it considered the necessary probation-revocation factors.  Therefore, we cannot say that the district court misinformed appellant or coerced him into agreeing to the modification.

            Appellant also argues that the district court did not provide him with the information necessary for him to make an informed decision.  We disagree.  The record indicates that (1) appellant signed his most recent monthly status report; (2) appellant's attorney received a copy of the report; (3) the district court stated that it appeared that a modification was necessary based on the report and reiterated several of the report's findings on the record; (4) the district court ordered the county home school to give appellant his entire file; and (5) the district court continued the modification proceedings several times so that appellant could make an informed decision about whether he wanted an evidentiary hearing.   And the record indicates that appellant repeatedly engaged in gang-related activities even after the county home school instructed him to cease these activities.  Therefore, we conclude that appellant understood the facts that were being alleged that supported the modification.

            Finally, appellant argues that the district court failed to ensure that his waiver of the contested hearing was knowing and voluntary.  We disagree.  At three different hearings, the district court informed appellant that he was entitled to an evidentiary hearing, described the purpose and nature of an evidentiary hearing, and explained the consequences of the hearing.  And appellant's attorney only asked for a "brief record" that appellant was waiving his right to contest the modification and agreeing to the modification, which the district court granted. 

            Further, Minn. R. Juv. Delinq. P. 15 does not require an appellant to make a detailed waiver on the record.  Instead, rule 15.08, subdivision 2, provides that if the parties agree to a modification, the district court "may order the parties to appear at a hearing to examine the merits of the modification and verify the voluntariness of the agreement on the record."   Minn. R. Juv. Delinq. P. 15.08, subd. 2.    And the comment to rule 15 provides that a district court is "not required to hold a hearing to examine a modification agreement on the record in every case" although "agreements to make upward modifications to a disposition will normally require a court appearance and approval on the record in order to ensure that the proposed modification complies with the law, and that the child appreciates the significance of the modification and voluntarily consents to the modification." 

            Here, the district court satisfied the requirements of rule 15.08 by giving appellant numerous opportunities to request an evidentiary hearing, examining the merits of the modification, and verifying appellant's waiver on the record.  Therefore, we conclude that appellant voluntarily and knowingly waived his right to a contested evidentiary hearing and agreed to modification of his disposition.

II.

            Appellant also argues that this court must reverse modification of his disposition because the district court failed to follow the proper procedures.  We disagree.  Appellant first argues that the district court violated his due-process rights by failing to notify him of what circumstances would result in a disposition modification.  While we find it unlikely that appellant did not know that engaging in gang-related activities could result in a disposition modification, ultimately appellant agreed to the modification and thereby waived this argument. 

            Appellant also argues that the district court erred by (1) failing to notify him of the facts and circumstances supporting the modification; (2) modifying the disposition without first finding that there was "good cause" to believe that a modification was warranted; and (3) failing to make written findings that supported the modification.  We disagree. 

            We have already concluded that appellant agreed to the modification, and the plain language of rule 15.08 indicates that many of its procedural requirements do not apply when the parties agree to the modification.  For example, only when one party moves for or requests a modification must the motion "state the proposed modification and the facts and circumstances supporting such a modification."  Minn. R. Juv. Delinq. P. 15.08, subd. 3.  Likewise, the district court need only determine that there is "good cause" to believe that a modification is warranted if one party files a motion or request for modification.  Minn. R. Juv. Delinq. P. 15.08, subd. 5.  Moreover, the district court need only make a "good cause" finding in order to determine whether to hold a contested hearing; if the parties agree to a modification, there is no need to hold a contested hearing.  Id. 

            Finally, a district court is not required to make written findings when the parties agree to a modification.  Minn. R. Juv. Delinq. P. 15.08, subd. 8, provides that the court may order modification of the disposition "after a hearing upon a showing that there has been a substantial change of circumstances such that the original disposition" is no longer appropriate.  And if the court orders a modification, it must make written findings.  Thus, the written-findings requirement only applies when the district court orders a modification following a contested evidentiary hearing.  Because appellant agreed to the modification, we conclude that appellant's claims of procedural deficiencies are without merit.

Affirmed.