In the Matter of the Welfare of: A.L.C.

This opinion will be unpublished and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

A04-431

 

In the Matter of the Welfare of:

A.L.C.

 

 

Filed December 21, 2004

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. J8-03-071067

    Leonardo Castro, Hennepin County Public Defender, Melissa Anne Haley, Assistant Hennepin County 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 55101-2134; and

 

Amy Kloubachar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487  (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

             Appellant A.L.C. challenges the district court's decision to designate him for an extended jurisdiction juvenile (EJJ) prosecution.  Because the district court did not abuse its discretion in designating an EJJ prosecution, we affirm.

D E C I S I O N

A court shall designate a proceeding an extended jurisdiction juvenile (EJJ) prosecution if the state proves by clear and convincing evidence that the designation will serve public safety.  Minn. Stat. § 260B.130, subd. 2 (2002); Minn. R. Juv. P. 18.06, subd. 1(B).  In an EJJ prosecution, if the juvenile is found guilty of or pleads guilty to the alleged felony offense, he is given both an adult-criminal sentence and a juvenile disposition.  In re Welfare of D.M.D., 607 N.W.2d 432, 434 (Minn. 2000).  "The adult sentence is stayed on the condition that the juvenile does not violate the terms of the disposition or commit a new offense."  Id.  An EJJ designation extends the juvenile court's jurisdiction until the juvenile reaches age 21.  Id.  The court considers the following six factors when determining whether an EJJ prosecution would serve public safety: 

(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the Minnesota Sentencing Guidelines, the use of a firearm, and the impact on the 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 Minnesota 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 (2002); Minn. R. Juv. Delinq. P. 19.05.

I.

            A.L.C. argues that the district court's EJJ designation is defective because the court did not expressly weigh the six factors listed above separately, and the court did not make an express finding that the state met its burden because the court did not use the phrase "state proved by clear and convincing."  A.L.C. relies primarily on In re Welfare of B.N.S., 647 N.W.2d 40, 43 (Minn. App. 2003), in which this court reversed an EJJ designation because the record did not support the designation.  A.L.C. argues that his case is similar to B.N.S., but it is distinguishable and A.L.C.'s reliance is misplaced.  B.N.S. involved a juvenile who committed a nonviolent property crime and stands for the proposition that the record must provide clear and convincing evidence that an EJJ designation serves public safety.  Id.  Neither B.N.S. nor the rules require the court to make specific findings on specific issues.  See generally Minn. R. Juv. Delinq. P. 19.06, subd. 2 (B)(1) (requiring finding that EJJ prosecution serves public safety).  All that is required is that the court take the six statutory factors into account in making an EJJ designation and the record contains clear and convincing evidence that an EJJ prosecution serves public safety.

II.

A.L.C also argues that the district court erred in its EJJ designation because the state did not prove by clear and convincing evidence that EJJ would serve public safety.  When analyzing whether an EJJ designation serves public safety the statutory factors "are intended to assess whether a juvenile presents a risk to public safety and thus aim to predict whether a juvenile is likely to offend in the future."  In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000). 

Seriousness of Offense and Juvenile's Culpability

The seriousness of the offense is given more weight than most of the other factors. Minn. Stat. § 260B.125, subd. 4(1); Minn. R. Juv. Delinq. P. 19.05.  A.L.C.'s offense was extremely serious because he used a loaded firearm in an attempt to rob a pizza delivery driver.  Similarly, A.L.C.'s culpability weighs in favor of EJJ designation because A.L.C. brandished the gun during the attempted robbery.  Thus, the record supports the court's determinations that the crime was serious and A.L.C. was culpable.

Prior Delinquency Record and Programming History When examining the prior delinquency record, the inquiry is whether the behavior is engrained and appears to be escalating.  H.S.H., 609 N.W.2d at 263; In re Welfare of D.T.H., 572 N.W.2d 742, 754 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  A.L.C. does not have any prior delinquencies, but the probation agent's report states that the robbery represents a "serious escalation" in delinquent behavior because A.L.C. has a history of defying authority and is not taking the pending allegation seriously. 

Because A.L.C.'s prior history involves a relatively minor series of petty and status offenses, he lacks an extensive programming history.  In the absence of an extensive programming history, a juvenile court may consider the juvenile's participation in other rehabilitative programs to evaluate this factor.  In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996).  A.L.C. was terminated from the Bolder Options Program because he did not return his mentor's telephone calls and lacked commitment; he failed to complete sentence-to-service (STS); and he was blatantly defiant and uncooperative in the Rainbow Bridge Program, in which he missed 22 sessions.  These facts support the district court's finding that A.L.C. has been defiant toward prior interventions and weighs in favor of EJJ designation.

Adequacy of Punishment/Programming Available and Dispositional Options in the Juvenile Justice System

 

The district court found that there are residential treatments and programming available in the juvenile justice system, and that A.L.C. would receive three years and three months of programming in straight juvenile prosecution and five years and three months of programming with an EJJ designation.  The reports of both the probation agent and psychologist recommended long-term residential treatment which A.L.C. can complete before the straight juvenile jurisdiction ends at age 19. 

Finally, the district court based the EJJ designation in part on its acceptance of the psychologist's evaluation as opposed to the probation agent's recommendations. Psychological data plays a central role in assessing whether a juvenile is a threat to public safety.  See, e.g., D.M.D., 607 N.W.2d at 438; H.S.H., 609 N.W.2d at 263.  Here, the psychologist concluded that A.L.C.'s impulsive behavior, attention deficit hyperactivity disorder (ADHD), and his passive-aggressive resistance to intervention will slow his rate of progress and limit the extent of treatment gains.  Based on these observations, the psychologist recommended EJJ because a "longer and more intense period of probation supervision will be required" and "a stayed sentence is an important and essential motivating factor."  The district court did not abuse its discretion in assigning more weight to the psychologist's report, which recommended EJJ prosecution.

In conclusion, the district court did not clearly err when it evaluated the six public-safety factors and determined that the state proved by clear and convincing evidence that public safety would be served by designating A.L.C.'s case for EJJ prosecution. 

Affirmed.

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