In the Matter of the Welfare of:  A.W.S., a Minor Child.

In the Matter of the Welfare of:  A.W.S., a Minor Child. A05-1215, Court of Appeals Unpublished, June 6, 2006.

This opinion will be unpublished and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

A05-1215

 

In the Matter of the Welfare of:  A.W.S., a Minor Child.

 

Filed June 6, 2006

Affirmed

Wright, Judge

 

Itasca County District Court

File Nos. JX-03-50877, J8-04-50211, J7-03-51016

 

 

John P. Dimich, Dimich, Swanson & Sterle, 102 Northeast Third Street, Suite 120, Grand Rapids, MN  55744 (for appellant A.W.S.)

 

John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN  55744 (for respondent State)

 

Gayle M. Lovejoy, 611 Roosevelt Avenue, P.O. Box 757, Coleraine, MN  55722 (for respondent G.S.)

 

 

            Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this juvenile-delinquency proceeding, appellant challenges the district court's revocation of a stay of adjudication as a consequence of a probation violation, arguing that (1) the record does not include clear and convincing evidence that he violated probation; (2) any such violation was unintentional or excusable; and (3) the district court failed to consider mitigating circumstances before revoking the stay.  We affirm.

FACTS

 

At the time of his probation violation, appellant A.W.S. was adjudicated delinquent for two separate 2003 incidents.  In the first juvenile-delinquency petition, dated October 23, 2003, A.W.S. was charged with dropping an object on a vehicle and third-degree criminal damage to property, in violation of Minn. Stat. §§ 169.42, subd. 4, 609.595, subd. 2(a) (2002).  In the second juvenile-delinquency petition, dated December 18, 2003, A.W.S. was charged with receiving stolen property, in violation of Minn. Stat. § 609.53, subd. 1 (2002).  On January 21, 2004, A.W.S. pleaded guilty to one offense from each petition and was adjudicated delinquent on the charges of dropping an object on a vehicle and receiving stolen property; the remaining charge was dismissed.  The district court placed A.W.S. on probation and ordered an out-of-home placement at the Thistledew program.  The district court stayed the out-of-home placement on the condition that A.W.S. successfully complete the terms of his probation, which included remaining law-abiding.

On April 23, 2004, A.W.S. was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1 (2002), for engaging in sexual intercourse with a 12-year-old girl on two occasions.  A.W.S. was 16 years old at the time.

After A.W.S. pleaded guilty to first-degree criminal sexual conduct, the district court dismissed a separate probation-violation charge, ordered a psychological evaluation of A.W.S., and scheduled a disposition hearing.  At the disposition hearing, the parties agreed to recommend a stay of adjudication until A.W.S. reached the age of 18, on the condition that A.W.S. comply with the terms of his probation.  The district court stayed adjudication and again placed A.W.S. on probation.  The stayed disposition included an out-of-home placement at the Arrowhead Juvenile Center (Arrowhead).

One of the terms of A.W.S.'s probation in the criminal sexual conduct offense required him to enroll in and successfully complete the Sexual Health and Relapse Prevention Program (SHaRPP).  On February 25, 2005, the SHaRPP coordinator notified A.W.S.'s probation officer that A.W.S. was being suspended from SHaRPP after eight months for failing to make adequate progress.  The coordinator advised that A.W.S. might not be amenable to treatment and recommended terminating A.W.S. from SHaRPP.  Shortly thereafter, A.W.S. was suspended for four weeks from the Grand Rapids Area Learning Center for failing to complete all but one of his class assignments. 

During this period, several new delinquency petitions were filed against A.W.S.  On April 6 and April 19, 2005, respectively, the district court adjudicated A.W.S. delinquent after he admitted (1) furnishing cigarettes to a minor, and (2) three additional charges of driving a vehicle on a snowmobile trail, careless driving, and driving with unsafe tires.

At the probation-revocation hearing, the district court heard testimony from A.W.S., his father, a probation officer, the SHaRPP coordinator, and three character witnesses.  In its order dated May 24, 2005, the district court found that A.W.S. had violated the conditions of his probation, revoked the stay, adjudicated A.W.S. delinquent of first-degree criminal sexual conduct, and ordered A.W.S. placed in inpatient treatment at Arrowhead.  This appeal followed.

D E C I S I O N

I.

A.W.S. contends that the district court abused its discretion by revoking the stay of adjudication on the criminal sexual conduct charge and ordering an out-of-home placement at Arrowhead.  A.W.S. first challenges the sufficiency of the evidence, arguing that the probation violation was not proved by clear and convincing evidence.  Minn. R. Juv. Delinq. P. 15.07, subd. 4(C).  "The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).  The district court has broad discretion to order any disposition authorized by statute.  In re Welfare of J.B.A., 581 N.W.2d 37, 38 (Minn. App. 1998), review denied (Minn. Aug. 31, 1998).  Absent a clear abuse of that discretion, we will not disturb the disposition.  Id.

The district court concluded that there was clear and convincing evidence that A.W.S. violated his probation.  The record demonstrates that A.W.S. violated at least three probation conditions, including mandates to "successfully complete" SHaRPP, attend school, and maintain "appropriate attitudes" and "level of ability at school, and remain law-abiding.  In regard to SHaRPP, the evidence is unrefuted that A.W.S. failed to successfully complete the program.  The SHaRPP coordinator testified that A.W.S. was terminated from the program for failing to complete assignments and failing to take responsibility for his behavior.  During his eight months in SHaRPP, A.W.S. completed only one of the eight required assignments.      

In regard to school, the evidence establishes that A.W.S. was suspended from the Alternative Learning Center for failing to complete his assignments and had been suspended from Grand Rapids High School for the same reason.  Further, A.W.S. also failed to remain law-abiding.  While on probation for the instant offense, A.W.S. was adjudicated delinquent for four additional offenses: (1) furnishing tobacco to a minor; (2) driving a vehicle on a snowmobile trail; (3) careless driving; and (4) driving with unsafe tires.  In addition, A.W.S. failed to complete 100 hours of community service, also a condition of his probation.

Because the record amply supports the district court's conclusion that A.W.S. violated the terms and conditions of his probation, the district court did not abuse its discretion by revoking A.W.S.'s stay of adjudication. 

II.

            A.W.S. next contends that the district court erred in revoking probation without first finding that the probation violation was intentional or inexcusable, especially where he may have an undiagnosed learning disability that prevents him from performing well at school.  The Minnesota Supreme Court has adopted a three-step analysis that a district court must conduct before revoking probation in adult cases, Austin, 295 N.W.2d at 250, and extended juvenile jurisdiction (EJJ) cases, State v. B.Y., 659 N.W.2d 763, 768-69 (Minn. 2003).  The district court must "1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that the need for confinement outweighs the policies favoring probation."  Austin, 295 N.W.2d at 250.  A.W.S. advances this argument without the guidance of our opinion in In re Welfare of R.V., which was released after A.W.S. submitted his appellate brief.  702 N.W.2d 294 (Minn. 2005).  In R.V., we declined to apply Austin to non-EJJ cases, stating that

the wholesale adoption of Austin in juvenile revocation proceedings is unnecessary because the rules of juvenile-delinquency procedure encompass the procedural safeguards that Austin guarantees in adult and [EJJ] proceedings.  Indeed, the extension of Austin to juvenile proceedings would not be prudent because the juvenile rules afford non-EJJ juvenile probationers better protection against the reflexive execution of a stayed disposition requiring confinement in a secure facility than Austin would afford.

Id. at 302-03.  In declining to apply the second Austin factor to non-EJJ cases, we reasoned that, "[b]ecause the presumptive consequence of a probation violation in the juvenile setting is not the execution of an adult sentence, the juvenile rules appropriately do not require a specific finding that the probation violation was intentional or inexcusable."  Id. at 303.  In light of the rehabilitative goals of juvenile-delinquency proceedings, "requiring the district court to revoke probation only upon a finding that a violation was inexcusable would unreasonably limit the district court's ability to intervene."  Id. Thus, the district court was not required to specifically find that A.W.S.'s violation was intentional or inexcusable in accordance with Austin.

            The Minnesota Rules of Juvenile Delinquency Procedure, however, afford a juvenile the same protections as the second Austin factor by giving the juvenile the right to present mitigating circumstances or other reasons why a probation violation, if proved, should not result in revocation.  Minn. R. Juv. Delinq. P. 15.07, subd. 4(A); R.V., 702 N.W.2d at 303.  Thus, we consider whether the district court considered the mitigating factors presented by A.W.S.  

            Because his poor school performance was consistent with his earlier educational performance in which he had trouble concentrating and failed to complete academic assignments, A.W.S. raises the possibility that he has undiagnosed Attention Deficit Hyperactivity Disorder or Attention Deficit Disorder.  The district court permitted A.W.S. and his father to testify regarding these mitigating factors.  The district court considered this evidence in the context of other testimony regarding A.W.S.'s termination from SHaRPP and suspension from school, but the district court did not deem this evidence sufficient to preclude finding A.W.S. in violation of his probation.  The district court's exercise of discretion was sound.

III.

            Finally, A.W.S. argues that there were additional mitigating factors that the district court failed to consider in revoking the stay of adjudication.[1] Here, A.W.S. maintains that the district court did not properly consider factors such as (1) A.W.S.'s relationship with his father; (2) witness testimony that A.W.S. had good manners and treated people well; and (3) testimony by a character witness describing an incident of A.W.S.'s chivalrous behavior. 

As to this mitigating evidence, the district court found that, "[b]ecause of the short period of time that the witnesses have known [A.W.S.] and the limited amount of contact they have had with him, the Court is not giving a lot of weight to their testimony.  Furthermore, their testimony does not provide any substantial evidence about [A.W.S.'s] character."  Because the district court has the opportunity to observe witnesses as they present their testimony, determining the weight to be afforded testimonial evidence is exclusively the function of the district court in a juvenile proceeding.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  Therefore, we will not disturb the district court's decision to give greater weight to other evidence bearing on the nature of the violation and the appropriate disposition.

Following a contested evidentiary hearing, the district court determined that A.W.S. violated the terms and conditions of his probation and that any mitigating circumstances do not warrant a disposition other than revocation of the stay of adjudication.  The record includes clear and convincing evidence in support of the district court's determination.  Accordingly, the district court soundly exercised its discretion.

Affirmed.

[1] In support of this argument, A.W.S. incorrectly cites rules and statutes governing EJJ proceedings, which do not apply in this case because A.W.S. was not prosecuted as an extended jurisdiction juvenile.