In re J.H.
| Decision Date | 29 May 2013 |
| Docket Number | No. A12–1405.,A12–1405. |
| Citation | 829 N.W.2d 607 |
| Parties | In the Matter of the WELFARE OF J.H., Child. |
| Court | Minnesota Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
When ruling in a presumptive certification matter, a district court abuses its discretion when it does not give greater weight to both the seriousness of the alleged offense and the child's prior record of delinquency as mandated by Minn.Stat. § 260B.125, subd. 4 (2010).Lori Swanson, Attorney General, St. Paul, MN; and John Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, MN, for respondent.
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, MN, for appellant child.
Considered and decided by CLEARY, Presiding Judge; HOOTEN, Judge; and COLLINS, Judge.*
Appellant challenges the district court's order certifying him as an adult, arguing that the court abused its discretion by determining that appellant did not establish by clear and convincing evidence that retaining the proceeding in juvenile court is in the best interests of public safety, and further arguing that certifying appellant as an adult is unconstitutional. Because we conclude that the court failed to comply with Minn.Stat. § 260B.125, subd. 4, by not expressly giving greater weight to both the seriousness of the offense and the lack of a prior record of delinquency, and because we conclude that the court abused its discretion by determining that appellant's programming history, the adequacy of the punishment or programming available, and the dispositional options available favor adult certification, we reverse.
On November 17, 2011 M.Y. picked up G.K. and a friend from school and took them to a party at a house in St. Paul, where they drank alcohol. M.Y., G.K., G.K.'s friend, and others left the party and went to another house, also in St. Paul, and everyone continued to drink. G.K. and her friend told M.Y. that they wanted to leave the house and got into M.Y.'s car, which was parked outside the house. G.K.'s friend was mad at M.Y. because he did not want to leave. The friend took M.Y.'s cell phone and walked down the street to look for street signs so she could tell someone where to pick them up. S.L. and Jo.H. came to the car looking for G.K.; they grabbed her under the arms and carried her back into the house. G.K. tried to resist, grabbing at everything, including door frames, to prevent S.L. and Jo.H. from carrying her into the house.
Once inside, G.K. was taken into a bedroom and slammed onto a mattress. At least two people in the room held G.K. down while she was digitally penetrated, and at least one male raped her. One individual told everyone in the room that the police were coming, and everyone except G.K. ran out of the room. G.K.'s friend and M.Y. were looking for G.K. and found her coming out of the bedroom, crying and pulling up her pants.
Appellant, who had turned 17 three days earlier, was present in the bedroom when the assault took place. He did not assault G.K. or hold her down, but he told officers that she was yelling for help and that someone was covering her mouth. Appellant and all of the other males present are members of or associated with a street gang called the True Blood 22 Gang, or TB22. TB22 is a documented criminal street gang operating in the Twin Cities. M.Y. stated that it was the gang's intent to get G.K. and her friend drunk and rape them on the night of November 17.
In March 2012, appellant was charged with first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(f)(i) (2010), conspiracy to commit first-degree criminal sexual conduct in violation of Minn.Stat. § 609.175, subd. 2(3) (2010), kidnapping in violation of Minn.Stat. § 609.25, subd. 1(2) (2010), and committing a crime for the benefit of a gang in violation of Minn.Stat. § 609.229, subd. 2 (2010). The state filed a motion asking the district court to certify appellant to stand trial as an adult pursuant to Minn.Stat. § 260B.125, subd. 3 (2010).
The district court held a certification hearing over three days in May and June 2012. At the certification hearing, the district court received into evidence a report from a juvenile probation and parole certification study (certification study) prepared by Kao Dua Chi Moua and a report from a psychological evaluation prepared by Dr. Gary Hertog, a clinical psychologist. Both reports recommended designating appellant an extended jurisdiction juvenile (EJJ). Both Moua and Dr. Hertog testified extensively at the certification hearing.
In July 2012, the district court issued an order certifying appellant to stand trial as an adult. The court noted that it considered six factors when determining whether to certify appellant for adult prosecution pursuant to Minn.Stat. § 260B.125, subd. 3–4. The court also noted that greater weight is given to the seriousness of the alleged offense and the child's prior record of delinquency than to the other four factors, but did not expressly weigh appellant's prior record of delinquency in a manner distinguishable from the weighing of the other four factors. The court discussed each of the six factors, determined that appellant did not establish “by clear and convincing evidence that retaining this proceeding in the juvenile court is [ ] in the best interest of public safety,” and ruled that the case would proceed as an adult certification. This appeal follows.
I. Did the district court abuse its discretion by determining that appellant's programming history, the adequacy of the punishment or programming available, and the dispositional options available favor adult certification?
II. Did the district court abuse its discretion by giving greater weight to the seriousness of the offense but not to appellant's prior record of delinquency?
In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn.App.1997) (alteration in original) (quotations and citation omitted), review denied (Minn. Feb. 19, 1998).
Minnesota law provides a presumption of certification to adult court when
(1) the child was 16 or 17 at the time of the offense; and
(2) the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison ...
If the court determines that probable cause exists to believe the child committed the alleged offense, the burden is on the child to rebut this presumption by demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety. If the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court shall certify the proceeding.
Minn.Stat. § 260B.125, subd. 3.
There is no dispute that a presumption of certification existed in this case and that appellant bore the burden of demonstrating by clear and convincing evidence that retaining the proceeding in juvenile court serves public safety.
In determining whether certification would serve public safety, the court considers the following statutory 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.
Id., subd. 4. The court must give greater weight to factors one and three than to the other factors. Id. “We cannot emphasize too strongly that the district court must place greater weight on the severity of the alleged crime and the prior delinquency record of the juvenile in deciding whether to certify.” In re Welfare of P.C.T., 823 N.W.2d 676, 684 (Minn.App.2012) (quoting St. Louis Cnty. v. S.D.S., 610 N.W.2d 644, 650 (Minn.App.2000)), review denied (Minn. Feb. 19, 2013). Here, the district court concluded that only factor three, which is to receive greater weight than four of the factors and equal weight to the seriousness-of-the-offense factor, favors EJJ designation and that appellant failed to overcome the presumption of certification on all of the remaining factors.1
When determining whether public safety is served by certifying the matter, the court shall consider “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.” Minn.Stat. § 260B.125, subd. 4(1).
The district court found that “the acts alleged in the Petition which this Court must accept as true, constitute vulturine behavior which should not and cannot be tolerated in this community.” Appellant does not appear to dispute that this factor favors adult certification. The record supports the district court's determinationthat this factor weighs in favor of adult certification.
When determining whether public...
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