In re T.L.H.
| Decision Date | 01 April 2013 |
| Docket Number | A12-2048 |
| Parties | In the Matter of the Welfare of: T. L. H. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Hennepin County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, Minnesota (for appellant state)
William Ward, Fourth District Public Defender, Minneapolis, Minnesota; and
Charles F. Clippert, Special Assistant Public Defender, St. Paul, Minnesota (for respondent)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
In this appeal from an order denying certification of respondent for prosecution as an adult, appellant state argues that the juvenile court abused its discretion by failing to adequately consider respondent's prior offense history and the adequacy of available programming, given the outcome of previous interventions. Because we conclude thatthe juvenile court did not abuse its discretion by determining that respondent met his burden to rebut the presumption of certification by clear and convincing evidence, we affirm.
A few weeks before his 18th birthday, respondent T.L.H. was arrested and charged by petition as a prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subds. 1(2), 2(b) (2010). On July 31, 2012, police officers reported seeing three juvenile males walking in the street and apparently violating curfew. When the officers approached the individuals, one individual fled. One of the remaining individuals, T.L.H., attempted to place one of his hands in his pocket. T.L.H. was ordered onto the ground, and as the officer approached, T.L.H. stated, "Sir, I have a gun in my pocket." The officer reached into T.L.H.'s pocket and removed a .32 caliber revolver, which was not loaded. The state's petition, filed August 1, 2012, alleged that T.L.H. had been adjudicated delinquent on February 1, 2012 of third-degree assault, making it unlawful for T.L.H. to possess a firearm.
The state filed a motion for presumptive certification to adult court. See Minn. Stat. § 260B.125, subd. 3 (2012).1 A certification study was prepared by Tim Turrentine, a Hennepin County probation officer. Turrentine did not interview T.L.H. or his mother for the study due to a family emergency that arose. Rather, Turrentine's study relied heavily on a pre-plea investigation from February 2012. The study recommendedcertifying T.L.H. as an adult based on the severity of the instant crime, T.L.H.'s prior juvenile record, and the fact that further programming under extended jurisdiction juvenile (EJJ) would duplicate T.L.H.'s prior programming. The study indicated that T.L.H.'s record contains three petty theft adjudications; eight misdemeanor delinquency adjudications for offenses including providing false information to police, disorderly conduct, theft, receiving stolen property, and fleeing a police officer; and one prior felony adjudication for third-degree assault. The study also demonstrated that T.L.H. had significant success in residential placement programs but that this success did not translate into the community. T.L.H. was ordered to participate in the Hennepin County Home School STAMP program for violating his probation in April 2011. There, he achieved the "highest level of successful completion," and was discharged in July 2011. Following his adjudication for felony assault in February 2012, T.L.H. was required to complete the Rite of Passage Program in Nevada. He received positive reports from that program and was discharged in June 2012 after completing about four months in the program.2 However, T.L.H. failed to complete court-ordered Sentence to Serve, mentoring, outpatient chemical-dependency treatment, and had positive UAs while on probation. The instant offense occurred just one month after T.L.H. was released from residential treatment. And the felony assault offense occurred in December 2011, just a few months after T.L.H. was released from STAMP.
A psychological evaluation of T.L.H. was prepared by Dr. Patricia K. Orud, M.A., L.P. Dr. Orud interviewed T.L.H. for her report and administered psychological testing. Dr. Orud concluded that T.L.H. is at a "moderately high risk for same or similar violent or criminal behavior." Dr. Orud observed that T.L.H. "returned to conduct-disordered illegal behavior at release from residential treatment interventions," and that "he tended to blame others for his actions, deflected his responsibility onto others, and did not fully appreciate the need for substantial changes in his life functioning." Dr. Orud diagnosed T.L.H. with Conduct Disorder, Adolescent-Onset Type; Cannabis Abuse and Dependence; and Antisocial Personality Traits. The report stated that T.L.H. is an average student, and he completed his GED while in the STAMP program. At home, T.L.H. is used to structuring his own time. T.L.H.'s father had been incarcerated, and his mother suffered from chemical dependency but achieved sobriety two years ago. T.L.H.'s grandmother actively parented T.L.H., and her recent death created a significant loss of stability in the family. Dr. Orud concluded that T.L.H. would require a very structured environment and could receive services either in the juvenile or adult systems.
A certification hearing was held on October 23, 2012. The parties stipulated to the admission of Turrentine's study and Dr. Orud's report. The only witness was Turrentine, whose testimony was consistent with his study. In addition, Turrentine testified that if T.L.H. were under EJJ he would likely be accepted into several different long-term residential treatment programs, including Woodland Hills or Hennepin County Home School for between 6 to 12 months, and if ordered by the court, he would have to be accepted at Red Wing for a period of at least 9 months. Under EJJ, T.L.H. would have34 months, or just under 3 years, to rehabilitate and avoid an adult sentence. In the adult system T.L.H.'s presumptive sentence is 60 months in prison.
In a November 6, 2012 order, the district court denied the state's motion to certify T.L.H. as an adult. The district court considered the six statutory factors under Minn. Stat. § 260B.125, subd. 4. The district court concluded that the first two factors, the seriousness of the offense and the culpability of the child, weighed in favor of adult certification. However, the district court concluded that the remaining four factors weighed in favor of EJJ. Specifically, the district court concluded that T.L.H.'s juvenile delinquency history—a factor which, along with the severity of the offense, must be weighed more heavily than the others—tipped the scales in favor of EJJ. The district court concluded that the evidence was clear and convincing that retaining T.L.H. in the juvenile system would preserve public safety because his record contains mostly petty misdemeanors and status offenses. This appeal follows.
In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997) (quotations and citations omitted), review denied (Minn. Feb. 19, 1998). "For purposes of certification, the juvenile is presumed guilty of the alleged offenses." In re Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007), review denied (Minn. Oct. 24, 2007). Whether to certify a juvenile as an adult offender is controlled by statute. See Minn. Stat. § 260B.125 (2012). Certification is presumedwhen the juvenile was 16 or 17 years old at the time of the offense and when the offense would result in a presumptive commitment to prison under the sentencing guidelines or the offense involved a firearm. Id., subd. 3. "The state bears the burden of showing that the juvenile is over 16 years old and that the offense alleged in the petition carries an adult sentence." In re Welfare of D.W., 731 N.W.2d 828, 833 (Minn. App. 2007). Once the state has met this burden, the burden shifts to the respondent to rebut the presumption of certification by clear and convincing evidence showing "that retaining the proceeding in the juvenile court serves public safety." Minn. Stat. § 260B.125, subd. 3.
It is undisputed that a presumption of adult certification arose in this case because T.L.H. was 17 years old at the time he committed the offense, and the offense involved possession of a firearm, which results in a presumptive commitment to prison. The state argues that the district court abused its discretion when it concluded that T.L.H. met his burden to rebut the presumption by clear and convincing evidence. In making its determination of whether public safety is served by certification, the district court must consider six factors:
Minn. Stat. § 260B.125, subd. 4. The district court is required to give...
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