In the Matter of the Welfare of: A.J.F.

In the Matter of the Welfare of: A.J.F. A06-303, Court of Appeals Unpublished, January 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-303

 

In the Matter of the Welfare of: A.J.F.

 

Filed January 16, 2007

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 27-JV-05-6871/244613

 

Leonardo Castro, Hennepin County Public Defender, Rachelle Loewenson Stratton, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from an order certifying him to stand trial as an adult on counts of first-degree murder, first-degree aggravated robbery, second-degree assault, kidnapping, first-degree burglary, and first-degree criminal sexual conduct, 15-year-old A.J.F. argues that the district court (1) did not properly weigh his culpability in the alleged offenses; (2) gave too much weight to the seriousness of the offense and did not properly weigh his prior record of delinquency; and (3) abused its discretion by determining that the punishment in the juvenile system is insufficient and that no appropriate dispositional options are available in the juvenile system.  Because the district court did not abuse its discretion in weighing the statutory certification factors, we affirm.

D E C I S I O N

 

            In Minnesota, when a child who is more than 14 years of age is alleged to have committed an offense that would be a felony if committed by an adult, the juvenile court may enter an order certifying the juvenile for adult prosecution.  Minn. Stat. § 260B.125, subd. 1 (2006).  When, as in this case, the juvenile was under the age of 16 at the time of the offense, certification can occur only if "the prosecuting authority has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety."  Id., subd. 2(6)(ii) and subd. 3.

            "This court will not reverse a juvenile certification order unless the district court's findings are ‘clearly erroneous so as to constitute an abuse of discretion.'"  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000) (quoting In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996)).  For purposes of appeal from a certification order, the factual allegations in the delinquency petition and the charges against the juvenile are presumed to be true.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000); In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).

            In determining whether the public safety is served by certifying the matter, the court shall consider the following 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.

 

Minn. Stat. § 260B.125, subd. 4.  "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."  Id.

I.          Seriousness of the alleged offenses

            The delinquency petition alleged that A.J.F. is delinquent by reason of having committed second-degree murder, first-degree aggravated robbery, second-degree assault, kidnapping, first-degree burglary, and first-degree criminal sexual conduct.  A Grand Jury also returned an 18-count indictment against A.J.F., charging him with first-degree murder as well as all of the crimes listed in the juvenile petition.  A.J.F. does not challenge the court's finding that the seriousness of the alleged offenses weighs heavily in favor of certification.  A.J.F. argues, however, that the district court put "enormous weight on the seriousness of the offense, and failed to set forth any evidence aside from the alleged offenses that would justify certification."  We find no merit in this argument.

            The district court was not required to "set forth any evidence" but rather had to weigh the statutory factors involving certification based on the evidence presented.  The district court noted that "[t]he crimes and behavior alleged in this case are among a handful of the most extreme and egregious criminal allegations" that the district court had seen in 25 years of practice as a criminal law attorney and judge, and found that "[t]his factor in total weighs extremely strongly in favor of certification."  But there is no support in the record for a conclusion that the district court based the certification decision solely on the seriousness of the alleged offenses.  The district court found that three additional factors also weighed heavily in favor of certification.

II.        Culpability

            In determining culpability, the district court must look to "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."  Id., subd. 4(2).  Based on the petition and police reports, the district court found that A.J.F. "was the primary participant in all of the charged offenses and the most culpable."  A.J.F. does not dispute the district court's findings that he was the primary participant in the alleged crimes.  But A.J.F. argues that the district court failed to consider his age and diagnosis with attention-deficit-hyperactivity disorder (ADHD) and fetal alcohol affects/neurobehavioral disorder (FASD) as mitigating factors.  A.J.F. is also critical of the district court for failing to extend its evaluation of his culpability "beyond his level of participation in the alleged offenses and the factors set out in the sentencing guidelines."

            A.J.F. relies on Roper v. Simmons to argue that his age should impact a determination of his culpability in a certification hearing.  543 U.S. 551, 569, 125 S. Ct. 1183, 1195 (2005).  He cites Roper for the proposition that "juvenile offenders cannot with reliability be classified among the worst offenders," and for its discussion of how adolescent brain development impacts culpability.  Id.  But Roper concerned the narrow issue of whether execution of a 16 or 17-year-old offender who commits a capital crime violates the Eighth Amendment prohibition on cruel and unusual punishment.  Id. at 555-56, 125 S. Ct. at 1187.  Roper does not discuss the issue of certification or the appropriateness of adult sentences for minors, but it affirmed the Missouri Supreme Court's decision to "set aside [a teenager's] death sentence and resentence[] him to ‘life imprisonment without eligibility for probation, parole, or release except by act of the Governor.'"  Id. at 560, 125 S. Ct. at 1189-90 (quoting State ex rel. Simmons v. Roper, 112 S.W.3d 397, 413 (Mo. 2003)).  We do not find the Roper discussion relevant to the determination of culpability under the certification statute, in which the legislature gives specific guidance regarding how culpability is to be viewed for purposes of certification.

            As A.J.F. acknowledges, Tim Turrentine of the Hennepin County Juvenile Probation Investigations Unit and Dr. Rebecca Reed of Hennepin County Psychological Services each testified about the difference age can make in impulse control and response to peer pressure.  Dr. Reed testified that ADHD and FASD could also affect impulsivity in children.  Neither expert, however, concluded that age or the level of A.J.F.'s disabilities constituted a mitigating factor in assessing his culpability for the alleged offenses.  A.J.F. does not argue that the ADHD or FASD diagnoses constitute a mitigating factor under the guidelines or that there is evidence of any other mitigating factor recognized by the guidelines.  Rather, he argues that "the [c]ourt must expand its traditional definition" of culpability to include consideration of A.J.F.'s age and disabilities.  But the district court assessed culpability exactly as the legislature instructed, and we find no abuse of discretion in the district court's finding that this factor supports certification.

III.       Prior record of delinquency

            The certification statute provides that a district court shall give greater weight to a juvenile's prior record of delinquency, as well as the seriousness of the offense, than to the other factors listed in the statute.  Minn. Stat. § 260B.125, subd. 4.  We have held that a district court can consider nonadjudicated acts, including school disciplinary records in connection with this factor.  See In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996) (holding that a district court did not abuse its discretion by considering a juvenile's unadjudicated, gang-related behavior in school).  And the lack of a substantial juvenile record does not preclude certification.  See id. (affirming that prior gang-related activity in conjunction with a minimal juvenile record supports certification).

            A.J.F. has no prior record of delinquency, but the district court found that A.J.F. had five prior contacts with juvenile court which include: (1) a third-degree burglary charge that was reduced to trespassing; (2) a curfew violation; (3) possession of a knife in school; (4) a disorderly conduct charge; and (5) a property and curfew charge.  The district court found that A.J.F. had been suspended from school 15 times, but also found that 12 of those suspensions occurred before A.J.F. was 10-years-old and could therefore not be considered as delinquency matters.  Of the three suspensions that occurred after he was 10 years old, two were for fighting with other students and one was for vandalism.  The district court found that A.J.F. was expelled from school in 2004 for possession of a knife and possession of pornography on school property.  During his detention at the Hennepin County Juvenile Detention Center on the pending charges, A.J.F. has been the subject of 13 incident reports alleging major violations of the rules including gang writing, threats, gang activity, disruption, and repeated misconduct.  The district court concluded that this factor did not weigh in favor of certification or of retaining A.J.F. in juvenile court.

            While A.J.F. does not specifically contest the accuracy of any specific incidents in his record, he argues that the district court relied on school records that were "outdated and unreliable hearsay."  But A.J.F. did not object to the testimony or exhibits that referenced those events; therefore, he has waived appeal on this issue.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered in the district court).  We have stated that when examining the prior delinquency record, the inquiry is whether the behavior is ingrained and appears to be escalating.  H.S.H., 609 N.W.2d at 263.  Because the record discloses a history of behavioral problems that, given the current alleged offenses, have clearly escalated, we conclude that the district court did not abuse its discretion by finding this factor neutral, despite A.J.F.'s lack of prior delinquency adjudications.

IV.       Programming history, including the child's past willingness to participate      meaningfully in available programming

           

            The district court found that A.J.F. has "virtually no programming history" and there is little evidence in the record from which to make a determination about A.J.F.'s willingness to meaningfully participate in programming.  The district court concluded that this factor weighed somewhat in favor of retaining juvenile-court jurisdiction, and A.J.F. does not challenge the court's determination on this factor.

V.        Adequacy of punishment or programming available in the juvenile justice         system

 

            The district court found that under the Minnesota Sentencing Guidelines, an adult convicted of the crimes with which A.J.F. is charged could receive a presumptive sentence of "life with a consecutive 408 months."  Because the maximum juvenile-court jurisdiction over A.J.F. would be less than six years,[1] the district court concluded that this is "an insufficient amount of time under the facts of this case" and that "[t]his factor weighs very strongly in favor of certification."  There is scant evidence in the record about programming available for A.J.F. so we assume that implicit in the district court's minimal findings on this factor is a conclusion that the punishment in juvenile court for the crimes alleged is wholly inadequate as compared to the presumptive punishment in adult court for the crimes charged.  There is merit to A.J.F.'s arguments that (1) assessment of this factor should include more than a mathematical comparison of juvenile and adult sentences, and (2) the state failed to meet its burden to produce evidence regarding programming.  Nonetheless, the district court's finding that punishment in the juvenile system is so inadequate as to make this factor weigh in favor of certification is not clearly erroneous.

VI.       Dispositional options available for the child

            The district court found that the only juvenile or EJJ program that would accept A.J.F. is MCF-Red Wing, which provides treatment, education, and transition services for male juveniles who have committed serious offenses.  The average length of stay at MCF-Red Wing is 13 months, but youths committed for offenses involving the loss of life are reviewed individually by the Commissioner of Corrections for length-of-stay determinations. 

            Dr. Reed testified that in her opinion the offenses in this case "are so significant and [A.J.F.'s] culpability so high that the levels of probation supervision and aftercare available within the juvenile system would be inadequate to insure that [A.J.F.'s] behavior was adequately controlled to the extent that he would no longer present a risk to others."  Tim Turrentine opined that "there does not appear to be time or resources available in the Juvenile Justice System to hold [A.J.F.] accountable for his alarming actions nor to protect the community."  Based on this record, the district court concluded that MCF-Red Wing is not an appropriate disposition for A.J.F., given the need for significant punishment for the crimes alleged and the risk to public safety posed by A.J.F.          

            A.J.F. argues that Dr. Reed, Tim Turrentine, and the district court improperly weighed the factors of punishment and dispositional options "based primarily on the seriousness of the offense[s]."  Because the seriousness of the offenses is highly relevant to the consideration of the adequacy of punishment and dispositional options, we find no abuse of discretion in the court's consideration of the seriousness of the offenses to analyze the punishment and dispositional factors.  As the district court found, it is the seriousness of the offenses that makes both the punishment and the programming available in juvenile court inadequate to protect public safety.  The record supports the district court's findings, and the findings support certification.

            Affirmed.

[1] See Minn. Stat. § 260B.193, subd. 5(b) (2006) (stating that extended juvenile jurisdiction continues until the offender becomes 21).