Minnesota Cases March 08, 2021: In re H.B.

Case Description

Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota (for appellant State of Minnesota)

Mark D. Nyvold, Fridley, Minnesota (for respondent H.B.)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Slieter, Judge.

SLIETER, Judge

Following delinquency petitions charging the respondent H.B. with second-degree murder and aiding and abetting first-degree aggravated robbery, the appellant State of Minnesota appeals the district court's denial of its motion for adult certification and designation of the proceeding as an extended jurisdiction juvenile (EJJ) proceeding. The state argues the district court abused its discretion by failing to properly consider the public-safety factors of Minn. Stat. § 260B.125, subd. 4 (2018), and Minn. R. Juv. P. 18.06, subd. 3, in its decision denying adult certification. Because the district court made errors of law

[956 N.W.2d 10]

in its analysis of the public-safety factors, we conclude that the district court abused its discretion in determining that public safety was served by EJJ rather than adult certification. We therefore reverse the district court's designation of the proceeding as an EJJ prosecution and remand for adult certification.

FACTS

The appellant-state filed three juvenile delinquency petitions against the respondent-juvenile, H.B., in 2019, alleging criminal acts, all of which occurred approximately one month before his 16th birthday, after which he would be subject to presumptive adult certification. The third offense occurred nine days before his 16th birthday.

First Petition

The first petition alleges the following facts. H.B. and another juvenile approached a woman who was walking to her vehicle in Minneapolis. After one of the juveniles pointed a firearm at the woman and forced her to give them her keys and phone, the juveniles placed the woman's phone under one of the vehicle's tires, drove over the phone, and then fled in the vehicle. The victim later identified H.B. as one of the participants, and the state charged H.B. in Hennepin County juvenile court with aiding and abetting first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2018).

Second Petition

The second petition alleges the following facts. H.B. and another juvenile approached a man who was walking from his parked vehicle to his apartment building in Minneapolis. One of the juveniles pointed a firearm at the man's head and demanded he give them his vehicle's keys and phone and that he "empty his pockets" or else he would "shoot [the man] dead in the head." The man did as directed and the juvenile who was not holding the firearm took the items. Both juveniles then got into the man's vehicle and drove away. The state charged H.B. with aiding and abetting first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1.

Third Petition

The third petition alleges the following facts. H.B. and another juvenile, concealing their faces with bandanas, approached a person sitting inside of a parked vehicle in Minneapolis and began shooting at the vehicle before running away. The person in the vehicle eventually died of multiple gunshot wounds. The state charged H.B. with second-degree murder (with intent, not premeditated), in violation of Minn. Stat. § 609.19, subd. 1(1) (2018), and second-degree murder (without intent, while committing a felony), in violation of Minn. Stat. § 609.19, subd. 2(1) (2018).

The state moved for non-presumptive certification of the juvenile proceedings in each file. The following facts are derived from the certification hearing.

Drs. Danielle Therson, Ph.D. in psychology, and Bruce Renken, Ph.D. in psychology, jointly completed a psychological evaluation of H.B. which consisted of an interview with H.B., psychological and behavioral assessments of H.B., and a review of H.B.’s past juvenile delinquency charges as well as his programming history. Drs. Therson and Renken concluded that H.B. was a "high risk for future [v]iolence,

[956 N.W.2d 11]

including serious [v]iolence" but that he would be an "appropriate" candidate for a long-term residential treatment program. Their report offered no opinion as to whether adult certification would ultimately serve public safety.

Dr. Renken testified that, based on H.B.’s childhood experiences, including physical abuse, housing instability, substance abuse by his mother, and his father's incarceration for sexually abusing H.B.’s sister, H.B. suffered from post-traumatic stress disorder (PTSD) and would benefit from intensive treatment in a residential treatment facility. He acknowledged that H.B. had absconded from five placements and completed one 45-day program at a placement called Bar None. Dr. Renken said that public safety was not considered in making his programming recommendation.

The district court also heard testimony from Dr. Anne Gearity, a faculty member at the University of Minnesota in the psychiatry and social work departments. Dr. Gearity, who examined H.B.’s records but neither personally interviewed nor examined H.B., testified that the "extensive and profound traumas" of H.B.’s childhood resulted in H.B. having PTSD and an inability to make sound decisions. She concluded that "[g]iven his age and some evidence that he is amenable to treatment, it seems in his best interest and the best interest of the larger community to provide [H.B.] with treatment." Dr. Gearity did not consider the ultimate interests of public safety in reaching her opinion.

A probation officer completed a certification study which analyzed the six statutory public-safety factors of Minn. Stat. § 260B.125, subd. 4, and recommended that adult certification served public-safety interests. She also testified at the hearing consistent with the recommendations explained in the certification study.

The district court denied the state's motion for adult certification of the juvenile proceedings and designated the case as an EJJ prosecution. Weighing the public-safety factors of Minn. Stat. § 260B.125, subd. 4, the district court concluded that the seriousness of the alleged offenses and H.B.’s prior record of delinquency favored adult certification, but ultimately denied certification because (1) scientific and academic research presented at the certification hearing shows H.B.’s culpability in the offenses was mitigated, (2) H.B.’s programming history indicates a willingness to participate meaningfully in future programming, and (3) adequate programming and dispositional options are available to H.B. in the juvenile system and constitute adequate punishment for his offenses. The state appeals.

ISSUE

I. Did the district court commit clear error so as to be an abuse of discretion when it determined that public safety was not served by adult certification?

ANALYSIS

We review a district court's adult-certification decision for an abuse of discretion. See In re Welfare of D.T.H. , 572 N.W.2d 742, 744 (Minn. App. 1997) ("A district court has considerable latitude in deciding whether to certify a case for adult prosecution. Its decision will not be reversed unless [the court's] findings are clearly erroneous so as to constitute an abuse of discretion." (citation and quotations omitted)), review denied (Minn. Feb. 19, 1998). A district court's "finding is clearly erroneous only if there is no reasonable evidence to support the finding or when an appellate court is left with the definite and firm conviction that a mistake occurred."

[956 N.W.2d 12]

In re Welfare of J.H. , 844 N.W.2d 28, 35 (Minn. 2014) (quotation omitted).

"When a child is alleged to have committed, after becoming 14 years of age, an offense that would be a felony if committed by an adult, the juvenile court may enter an order certifying the proceeding for action under the laws and court procedures controlling adult criminal violations." Minn. Stat. § 260B.125, subd. 1 (2018) ; see also Minn. R. Juv. P. 18.01, subd. 1. "For purposes of certification, the juvenile is presumed guilty of the alleged offenses." In re Welfare of U.S. , 612 N.W.2d 192, 195 (Minn. App. 2000). To certify a child who is under age 16 at the time of the offense as an adult, a non-presumptive case, the state has the burden to establish "by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety." Minn. Stat. § 260B.125, subd. 2(6)(ii) (2018) ; see also Minn. R. Juv. P. 18.06, subd. 2.

In determining if adult certification serves public safety, the district court is required to consider each of the following six 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; see also Minn. R. Juv. P. 18.06, subd. 3. Though each factor must be considered, the district court is to give "greater weight" to the first and third factors. See id. ("[T]he 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."); see also St. Louis County v. S.D.S. , 610 N.W.2d 644, 650 (Minn. App. 2000) ("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.").

We now review the district court's findings and conclusions for each factor. In doing so, we are not reweighing the public-safety factors. Instead, we determine whether the district court made findings of fact that lack support in the record and made errors of law.

A. Seriousness of Offenses

The first factor the district court considered is "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). As noted, "greater weight" is given to this factor as well as factor three.

The district court determined that the "danger to public safety was grave in each case." In concluding that this factor favored certification, the district court pointed to the fact that each offense was carefully

[956 N.W.2d 13]

planned and involved a firearm, and that one offense resulted in gunshots in a busy public area and the death of the victim. We agree with the district court that this factor favored adult certification.

B. Culpability

The district court next considered the second factor, "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." Minn. Stat. § 260B.125, subd. 4(2). The district court found that H.B. "was fully culpable and participated in the planning and carrying out" of the offenses and that "no mitigating factors recognized by the Minnesota Sentencing Guidelines" existed. (Emphasis added.)

The district court's factual finding, which the record supports, fully resolved this factor in favor of adult certification. But, the district court stated that it "[found] itself struggling to assign full culpability to [H.B.], however, based upon other facts introduced during the certification hearing" and that "[s]cientific and academic research described through expert testimony also weighs against assigning full culpability to [H.B.]." We now review those facts identified by the district court to determine whether, despite its initial culpability finding consistent with the plain language of the certification statute, it clearly erred by ultimately finding H.B. lacked culpability.

The district court described that "H.B. has had a life marked by near constant instability, abuse, and neglect" and that Drs. Renken and Gearity determined that H.B. suffered from PTSD, impaired decision-making and impulse control, and an inability to contemplate the consequences of his actions. Neither expert testified that H.B.’s brain development was impaired in a manner that mitigated his culpability. See State v. Wilson , 539 N.W.2d 241, 247 (Minn. 1995) (stating only extreme mental impairment justifies mitigation of sentence pursuant to sentencing guidelines). The district court also found, based upon United States Supreme Court precedent discussing scientific research on juvenile brain development in the context of punishment, that H.B.’s status as a juvenile limited his culpability in committing the offenses such that the culpability factor did not weigh in favor of adult certification.

Notably missing from these facts identified by the district court is evidence specific to H.B.’s participation in these three crimes that would negate its previous finding that H.B. was fully culpable and that no sentencing guidelines mitigating factor was present. Specifically, there is no evidence that H.B.’s diagnoses reduced H.B.’s culpability in committing these crimes or satisfied a mitigating factor of the sentencing guidelines, such as mental impairment . See Minn. Sent. Guidelines 2.D.3.a.(3) (2018).

We acknowledge the record reveals significant trauma that H.B. has experienced at the hands of others and especially by those from whom he should most expect to receive love and protection. We also acknowledge the district court struggled to balance this traumatic history of H.B. with the culpability factor specifically and the certification issue generally. However, it is the plain language of the statutory culpability factor that directs how a court is to apply it to the facts. See

[956 N.W.2d 14]

Minn. Stat. § 645.16 (2018) (stating courts interpret statutes "to ascertain and effectuate the intention of the legislature"); see also State v. Struzyk , 869 N.W.2d 280, 284 (Minn. 2015).

In summary, the district court improperly considered facts unrelated to the statutory culpability factor and made inconsistent findings in reaching its decision that this factor did not favor certification. This was clear error. Instead, as the district court's initial findings properly determined, the record reflects that H.B. participated in multiple carefully-planned and violent offenses, that no mitigating factor recognized by the sentencing guidelines was present and that, therefore, H.B. was fully culpable in carrying out the offenses. This factor favors adult certification.

C. History of Delinquency

The district court next considered factor three, "the child's prior record of delinquency." Minn. Stat. § 260B.125, subd. 4(3). Again, this is one of two factors to be given "greater weight."

The district court recognized that H.B. had been charged with, and adjudicated delinquent of, several offenses in the past, including burglary, damage to property, and theft, and that H.B.’s "prior record of delinquency demonstrates escalation over time, presenting a clear risk to public safety." The district court noted Dr. Renken's testimony that H.B.’s history of delinquency suggests that H.B. is a "high risk for serious violent re-offense." The record supports the court's findings as to this factor and that it favors adult certification.

D. Programming History

The district court also considered factor four, "the child's programming history, including the child's past willingness to participate meaningfully in available programming." Minn. Stat. § 260B.125, subd. 4(4).

The district court considered detailed records of H.B.’s placement history from 2015 to the present and recognized that, other than a recent 45-day placement at Bar None, H.B. has a long history of unwillingness to engage in programming. The district court noted H.B.’s "instinct is to run away [from placement or programming] if he can." The record supports the court's findings as to H.B.’s unsuccessful programming history. Despite these findings, the district court indicated that this factor did not support adult certification. The record does not support this finding.

As we have previously held, "an occasional willingness to participate in juvenile programming" does not necessarily support a conclusion that continued attempts at placement in juvenile programming are appropriate. In re Welfare of P.C.T. , 823 N.W.2d 676, 683 (Minn. App. 2012), review denied (Minn. Feb. 19, 2013). In P.C.T. , the district court heard expert testimony that, although the juvenile was a high risk to engage in future violence, it was "reasonable" to expect that programming would significantly lower this risk and that the juvenile's recent success in placement showed that he was amenable to treatment in a structured setting. Id. at 681. The district court concluded that this evidence supported EJJ. Id. On appeal, our court reversed the district court's conclusion, stating "it was clear error to conclude that the few examples of [the juvenile's] participation in programming ... constituted clear and convincing evidence that public safety would be served by placing respondent in juvenile programming." Id. at 683-84.

The disputed issue with this factor is not whether H.B. might benefit from programming were he to actually take part and complete it. Rather, the disputed issue is

[956 N.W.2d 15]

whether programming as part of EJJ serves public-safety interests rather than adult certification. The record reflects that H.B. has a long history of unsuccessful programming, including absconding from programming, and there was no evidence presented that participation in this programming would serve the interests of public safety. Therefore, the district court's determination that participation by H.B. in future programming as part of EJJ rather than adult certification serves the interests of public safety is clearly erroneous. This factor favors adult certification.

E. Adequacy of Punishment

The district court next considered factor five, "the adequacy of the punishment or programming available in the juvenile justice system." Minn. Stat. § 260B.125, subd. 4(5).

The district court recognized that, if certified as an adult and found guilty, H.B. would be subject to a presumptive sentence of 306 months in prison for the second-degree murder charge and 48 months in prison for the first-degree burglary charges. The district court also found that H.B. would be subject to EJJ for "approximately 48 months" if adult certification was denied.

The district court found that 48 months is "woefully inadequate" punishment for second-degree murder but concluded that EJJ "offer[s] the best chance of protecting public safety" and that, therefore, this factor favored EJJ. It reasoned that EJJ would provide H.B. a "meaningful" opportunity for rehabilitation and that the "combination of trauma-informed treatment in a secure facility, transitional programming, intense probationary supervision, and the threat of a stayed adult sentence is more likely to protect the public in the long-term than long-term confinement in adult prison."

As noted, none of the experts who opined regarding programming considered public safety in their analysis. See P.C.T. , 823 N.W.2d at 684 (concluding that designating EJJ despite no expert testimony that doing so was in the interests of public safety was error). Dr. Renken admitted that H.B. was a high risk to reoffend and the district court specifically found that 48 months of EJJ is "woefully inadequate" punishment. Only the probation officer who completed the certification study considered public safety, and she testified that adult certification was in the interests of public safety. Because the record is devoid of evidence to demonstrate that punishment and programming in the juvenile system serves public safety, the district court's findings as to this factor are clearly erroneous. This factor favors adult certification.

F. Dispositional Options Available

Finally, the district court considered the final factor "the dispositional options available for the child." Minn. Stat. § 260B.125, subd. 4(6). The district court found that an EJJ designation, which would be in effect until H.B.’s 21st birthday, would provide sufficient time to complete the programming recommended by the experts. It found that certification would "include the youthful offenders program at Lino Lakes until he turns 19 and a lengthy term in an adult prison." The record supports the court's finding as to this factor.

In summary, the record reflects the state demonstrated by clear and convincing evidence that five of six factors favor adult certification and that retaining this matter as EJJ does not serve public safety interests. We agree with the district court that the two factors to be given "greater

[956 N.W.2d 16]

weight"—the seriousness of H.B.’s offenses and H.B.’s prior record of delinquency—favor adult certification. Additionally, as we described above, when factors two, four, and five are properly considered with the public-safety interests, they too favor adult certification.

DECISION

Because the district court abused its discretion by determining that adult certification was not in the interests of public safety, we reverse and remand for adult certification.

Reversed and remanded.