In the Matter of the Welfare of: B.A.D., Child.

In the Matter of the Welfare of: B.A.D., Child. A06-1776, Court of Appeals Unpublished, February 27, 2007.

This opinion will be unpublished and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

A06-1776

 

 

In the Matter of the Welfare of:

B.A.D.,

Child.

 

 

Filed February 27, 2007

Reversed and remanded

Lansing, Judge

 

Steele County District Court

File No. J4-06-50172

 

Lance R. Heisler, Lampe, Swanson, Morisette & Heisler, L.L.P., 105 East Fifth Street, P.O. Box 240, Northfield, MN 55057 (for appellant B.A.D.)

 

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

 

Douglas Ruth, Steele County Attorney, Christine A. Long, Assistant County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent State)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court found probable cause to believe that seventeen-year-old B.A.D. had aided and abetted a first-degree burglary and further found that he had failed to meet his evidentiary burden to rebut the presumptive certification to adult court.  In this appeal from certification, B.A.D. argues that the district court erred in its findings and abused its discretion by granting the motion to certify.  Because the district court's findings and conclusions rely on a misconstruction of the statutory public-safety factors that provide the framework for rebutting a presumptive certification, we reverse and remand for redetermination.

F A C T S

            For purposes of a certification hearing, a judicial determination of probable cause results in a presumption that the charges against the juvenile are true.  In re Welfare of W.J.R., 264 N.W.2d 391, 393 (Minn. 1978).  Therefore, we accept the following facts as a basis for our review. 

A group of juveniles and young adults committed a series of daytime residential burglaries in and around Steele County, between January and April 2006.  In late April, Steele County Sheriff's deputies pursued the group's car, which had been reported stolen, and eventually detained the group following a high-speed chase.  B.A.D., then seventeen years of age, was arrested for his role in the burglaries and charged with nine counts of second-degree burglary and one count each of possession of stolen property, conspiracy to commit second-degree burglary, and aiding and abetting first-degree burglary. 

In May 2006 the state moved to certify B.A.D. for trial as an adult under Minn. Stat. § 260B.125, subd. 3 (2006).  As part of the certification proceedings B.A.D. met with a court-services officer and a psychologist.  Both the psychologist and the court-services officer prepared certification studies. 

            The report from the court-services officer contained several victim-impact statements and examined each of the six statutory factors for certification outlined in Minn. Stat. § 260B.125, subd. 4 (2006).  As part of the study, the court-services officer  described how B.A.D. and his friends systematically planned and conducted the burglaries.  According to the report, the group would drive around and identify remotely located homes that appeared to have affluent owners.  The group would then return when the homes were very likely to be unoccupied, knock on the door to see if anyone was home, and, after verifying the owners' absence, they would break in and remove items of value, including safes.  The group had tools dedicated to these activities, including "work shoes" and a police scanner, and they stored these tools at B.A.D.'s residence. 

One burglary was planned and successfully executed for the purpose of obtaining a gun for use in future burglaries.  The other burglaries netted tens of thousands of dollars in cash and property.  The court-services officer recommended adult certification because the charged offenses were serious and involved the use of weapons, and because she believed that, if not certified as an adult, the three years B.A.D. would spend in the juvenile system would be insufficient to deter future criminal conduct.  

            The psychologist's report used the six statutory-certification factors as reference points, but focused primarily on B.A.D.'s personality.  The psychologist diagnosed B.A.D. with oppositional defiant disorder, which describes individuals who cooperate with persons in positions of authority only when it is in the individuals' perceived interests.  The psychologist also noted that B.A.D. likely has severe dyslexia and reads at a third-grade level and that he has a physiological brain abnormality, which has not been medically evaluated.  Throughout the report, the psychologist expressed frustration with B.A.D.'s superficial level of cooperation and his refusal to provide even the most basic relevant information.  B.A.D.'s lack of response caused the psychologist to question whether a person with oppositional defiant disorder could succeed in remedial programming in the juvenile system.  Because B.A.D. did not express an affirmative interest in using the services he could access as an Extended Jurisdiction Juvenile (EJJ), the psychologist recommended certification.

            The district court held a certification hearing in August 2006, at which the psychologist and the court-services officer testified.  The court-services officer testified that if B.A.D. was retained in the juvenile system as an EJJ, state facilities at Lino Lakes and Red Wing had programs to address B.A.D.'s behavioral issues.  The psychologist  testified that EJJ would be "vital" if B.A.D. expressed a willingness to participate and make amends. 

In a detailed, written order, the district court found that five of the six statutory factors weighed in favor of certification and granted the state's motion.  B.A.D now appeals the certification order, arguing that he proved by clear and convincing evidence that retaining his case in the juvenile system serves public safety.

D E C I S I O N

            In adult-certification proceedings, the district court has wide discretion to determine whether the statutory prerequisites to certification are satisfied.  In re Welfare of Hartung, 304 N.W.2d 621, 624 (Minn. 1981).  When the district court is considering statutory criteria in light of determined facts, the court's ultimate decision includes the resolution of both legal and factual questions.  Rubey v. Vannett, 714 N.W.2d 417, 423 (Minn. 2006).  In this context, appellate courts retain their obligation to "correct erroneous applications of the law."  Id. (quotation omitted).  And we review under a clear-error standard, the district court's fact findings.  In re Welfare of D.M.D., 607 N.W.2d 432, 437 (Minn. 2000).  In our review of legal questions, we also take into account whether a finding of fact is "controlled or influenced by error of law."  Webb Bus. Promotions, Inc. v. Am. Elecs. & Entm't Corp., 617 N.W.2d 67, 73 (Minn. 2000) (quotation omitted). 

            B.A.D.'s certification was presumptive because the first-degree-burglary charge carries a presumptive prison commitment under the Minnesota Sentencing Guidelines, and B.A.D. was seventeen years of age when the underlying conduct occurred.  Minn. Stat. § 260B.125, subd. 3(1)-(2) (2006).  In light of the presumption, the charge is certified as an adult proceeding unless B.A.D. rebuts the presumption by "clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety."  Id., subd. 3 (2006). 

            In determining whether certification serves public safety, the district court must consider six statutory factors:  (1) the seriousness of the alleged offense, including victim impact, use of a firearm, and the presence of aggravating factors recognized by the sentencing guidelines; (2) the culpability of the juvenile in committing the alleged offense, including planning, carrying-out, and the presence of sentencing-guidelines-recognized mitigating factors; (3) the juvenile's prior delinquency record; (4) the juvenile's programming history; (5) the adequacy of programming or punishment in the juvenile justice system; and (6) the available dispositional options.  Id., subd. 4 (2006).  The seriousness of the offense and the juvenile's record of prior delinquency are key factors that must be given greater weight.  Id. 

            On the key factor of B.A.D.'s record of prior delinquency, the district court found that B.A.D. had only two prior curfew violations.  Because of this "relatively benign" history, the district court found that this factor weighed in favor of designating the offense as an EJJ proceeding and against certification to adult court.  This finding is not disputed.

            On the second key factor, the seriousness of the offense, the district court found that the facts weighed in favor of adult certification and against an EJJ designation.  In reaching this conclusion, the district court reasoned that B.A.D. engaged in a course of conduct that had a substantial effect on community protection because it involved a large number of burglaries, demonstrated concerted activity by three or more persons, and significantly impacted numerous victims.  Similarly, on the culpability factor, the district court noted that B.A.D. was not a minor or passive participant in the offenses, but was a "helper," and served as the driver in the burglary that produced a firearm.  These findings are supported by the record, but the focus on the entire series of charges against B.A.D. rather than the single offense which qualifies him for certification, extends the reach of the statutory factors.

            The statute requires the court to consider the seriousness of the alleged offense and the culpability of the child in committing the alleged offense.  Id., subd. 4(1)-(2).  The purpose of considering the seriousness and the culpability in this context is to determine whether the presumption should stand in light of the public-safety factors.  Id., subd. 3.  B.A.D.'s presumptive certification is based solely on the first-degree burglary charge.  By considering the entire course of conduct that included all of the burglaries, B.A.D. was required to overcome the presumed seriousness and culpability of not only the triggering offense, but also the seriousness and culpability of separate offenses to which the presumption of certification would not otherwise apply.  The focus becomes distorted as it relates to B.A.D.'s conduct because the aggregated offenses took place not in one single behavioral incident but over a period of months. 

            Ordinarily, delinquency petitions cover charges arising from a single behavioral incident.  See D.M.D., 607 N.W.2d at 433-34 (single sexual assault); In re Welfare of L.M., 719 N.W.2d 708, 709-10 (Minn. App. 2006) (single armed robbery); In re Welfare of U.S., 612 N.W.2d 192, 193-94 (Minn. App. 2000) (violent assault and robbery).  Thus, even if only one of the alleged offenses results in presumptive certification, the district court can generally consider the seriousness and culpability of the juvenile's entire course of conduct because the nonpresumptive charges either arise from the same conduct as lesser-included offenses or are closely linked in time and place.  See, e.g., In re Welfare of J.S.J., 550 N.W.2d 290, 291-92 (Minn. App. 1996) (reviewing presumptive-certification involving nine felony-level charges, only some of which carried presumptive executed sentences).  Because B.A.D.'s delinquency petition covers charges over a period of three months, many of the included offenses occurred in different months.  The first-degree burglary charge, which is the presumptive certification offense, for instance, took place in mid-March while the majority of the offenses occurred in early April.  Therefore, when the district court considered the seriousness and culpability of the nonpresumptive-certification offenses, it was assessing conduct that was distinct from the conduct forming the basis for the certification proceeding.

             The language and purpose of the statute as applied to these facts suggests that the district court should have considered the seriousness and culpability of the conduct underlying only the first-degree burglary and not the offenses that occurred at a separate time and did not trigger a presumptive certification. 

            We recognize that, although the statutory public-safety factors provide guidance and must be applied, they are not a "rigid mathematical equation."  D.M.D., 607 N.W.2d at 438.  The variance in the district court's application of the seriousness and culpability factors might not, standing alone, be sufficient to require a remand for redetermination.  But the findings and conclusions on two of the three remaining factors are also at variance with the applicable law.    

            The district court found that B.A.D.'s programming history and the availability of adequate programming or punishment in the juvenile system weighed in favor of certification and against designation as an EJJ.  In addressing the programming-history factor the court held that although B.A.D. had never participated in prior programming, he failed to prove by clear and convincing evidence that he would be amenable to treatment in the juvenile system.  And on the programming-adequacy factor, the district court found that B.A.D.'s prospects for success in available programming were low due to his failure to demonstrate a willingness to participate. 

            We have previously held that when a juvenile has not participated in prior programming the programming-history factor cannot support certification.  In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  Both the psychologist and the court-services officer indicated that B.A.D. has not participated in prior programming.  The district court instead relied on B.A.D.'s interviews with the psychologist and the court-services officer.  The record suggests that the negative responses in the interviews may relate, at least in part, to B.A.D.'s learning disability and his oppositional defiant disorder.  The interviewers were unable to assess what effect, if any, B.A.D.'s brain abnormality might have on his ability to interact because B.A.D. does not have the financial resources to obtain a diagnosis.  But whether or not these conditions influenced B.A.D.'s responses, the interviews are not "programming history."  This factor, therefore, does not support certification. 

            The programming-adequacy factor inquires into the "adequacy" of the available programming or punishment.  Minn. Stat. § 260B.125, subd. 4(5).  "Adequate" is defined as, "Able to satisfy a requirement."  American Heritage Dictionary of the English Language 15 (4th ed. 2000).  Thus the factor seeks to establish whether the programming or punishment available in the juvenile justice system is able to remediate the juvenile.  Both the psychologist and the court-services officer testified to the available programs.  The district court appears to have excluded this testimony on the theory that it was presented primarily by the state rather than by B.A.D.'s attorney.  But all of the evidence in the record must be considered irrespective of which party produced it.  See, e.g., Demmer v. Grunke, 230 Minn. 188, 193, 42 N.W.2d 1, 5 (1950) (holding that evidence aiding party's evidentiary burden can come from any quarter).  The court's findings acknowledge that the "record shows that two programs accept EJJ offenders, Red Wing and Lino Lakes," and that B.A.D. "showed evidence that the facilities could treat persons with [his disorder]."  The undisputed testimony demonstrates the adequacy of the available programming.  This factor thus weighs against rather than in favor of certification.

            On the final factor the district court found that the available dispositional options favored certification because B.A.D.'s age would result in his spending less than three years under the supervision of the EJJ program.  The court-services officer's report indicated that this would not provide sufficient time for rehabilitation, and the district court acted within its discretion in relying on the report and finding that this factor weighs in favor of certification.  U.S., 612 N.W.2d at 197. 

            The district court ordered certification after determining that five out of the six public-safety factors weighed in favor of certification.  Because four of those determinations were based on variances from the applicable law, we reverse and remand to the district court for further findings and, at the court's discretion, to supplement or reopen the record for redetermination of whether B.A.D. has rebutted the presumptive certification. 

            Reversed and remanded.