                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-2048


                       In the Matter of the Welfare of: K. M. W.


                                 Filed May 11, 2015
                                      Affirmed
                                     Kirk, Judge

                           Hennepin County District Court
                              File No. 27-JV-14-5973


Mary F. Moriarty, Hennepin County Chief Public Defender, Peter W. Gorman, Assistant
Public Defender, Minneapolis, Minnesota (for appellant K.M.W.)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent state)


      Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KIRK, Judge

       Appellant, a juvenile, argues that the district court erred by denying his motion to

dismiss the motion for adult certification because it was untimely. We affirm.

                                          FACTS

       On July 2, 2014, respondent State of Minnesota filed a delinquency petition

charging appellant K.M.W. with one count of first-degree criminal sexual conduct. The

petition alleged that appellant, who was 16 years old at the time, engaged in sexual

penetration with a 15-year-old girl. Appellant was taken into custody based on the

petition. The state dismissed the petition on September 11.

       On September 12, the state filed a second petition against appellant containing the

same language as the July 2 petition, again charging him with one count of first-degree

criminal sexual conduct. On the same day, the state moved for adult certification.

       At a detention hearing a few days later, appellant’s counsel moved to dismiss the

adult-certification motion, arguing that appellant should be released on electronic home

monitoring because he had been detained since June 30. The district court scheduled a

hearing to address appellant’s motion.

       At a hearing on September 18, appellant’s counsel requested that the district court

dismiss the adult-certification motion, arguing that the state violated Minn. R. Juv.

Delinq. P. 18.02, subd. 1, which provides that a certification motion “may be made at the

first appearance of the child . . . or within ten (10) days of the first appearance or before

jeopardy attaches . . . .” Appellant’s counsel argued that the state violated the spirit of


                                             2
rule 18.02 when it dismissed the original delinquency petition and then immediately filed

a delinquency petition with the same language, but included a motion for adult

certification.   Appellant’s counsel argued that the state could have filed an adult-

certification motion within 10 days of filing the petition, but it chose not to do so. He

argued that the state had engaged in “legal shenanigans” by dismissing the first petition

and then filing an identical petition and a certification motion the next day. Appellant’s

counsel pointed out that appellant had been in custody for a total of 78 days.

       The prosecutor responded that the spirit of the rule had not been violated because

the state had not acted with bad intent. She explained that the original prosecutor who

had been assigned to the case mistakenly failed to file a motion for adult certification at

the time she filed the first petition, as required by office policy. When the current

prosecutor realized that a motion for adult certification had not been filed, she dismissed

the case and refiled it. The prosecutor stated: “[It was] communicated to the defense

attorney at the time that that should have happened and made [an] offer to continue in a

straight juvenile matter and to resolve the case, was not able to do that, and so the [s]tate

proceeded in the manner that it has.” The prosecutor admitted that the purpose of

dismissing the first petition was to refile the petition with an adult-certification motion.

But she asserted that the state could be ready for trial on the originally scheduled date;

therefore, appellant had not suffered a prejudicial delay in the proceedings.            The

prosecutor also pointed out that the Minnesota Rules of Juvenile Delinquency Procedure

do not prohibit the state from dismissing a petition and then later refiling it.




                                               3
       The district court denied appellant’s motion to dismiss, concluding that the state

has wide discretion to dismiss and refile the same charges and to commence a criminal

proceeding after the initial proceeding is dismissed. Because the district court concluded

that the adult-certification motion was filed within 10 days of the filing of the second

petition, the district court found that the motion was timely.

       In October, the district court held an adult-certification hearing. Following the

hearing, the district court granted the state’s motion and certified the proceedings for

adult court because it concluded that appellant failed to rebut the presumption of

certification by clear and convincing evidence. This appeal follows.

                                      DECISION

       Appellant argues that the district court erred by denying his motion to dismiss

because the adult-certification motion was untimely under Minn. R. Juv. Delinq. P.

18.02, subd. 1. The construction of a juvenile rule presents a question of law, which this

court reviews de novo. In re Welfare of J.D.O., 504 N.W.2d 281, 283 (Minn. App.

1993), review denied (Minn. Sept. 30, 1993). There are no relevant published Minnesota

appellate cases that deliberate the timeliness of an adult-certification motion filed under

rule 18.02, subd. 1.1

       Appellant essentially argues that the prosecutor’s dismissal of the first delinquency

petition and then immediate filing of the exact same petition with an adult-certification

motion was unfair to him. He contends that the prosecutor’s dismissal and refiling of the

1
 In their briefs, the parties discuss several unpublished opinions by this court. But we do
not address them in this opinion because unpublished cases from this court are not
precedential. See Minn. Stat. § 480A.08, subd. 3 (2014).

                                              4
juvenile petition in order to correct the oversight in filing the adult-certification motion

contravenes the law. In support of his argument, appellant cites 12 Robert Scott & John

O. Sonsteng, Minnesota Practice rule 18.02 cmt. (4th ed. 2013). In particular, appellant

cites the following section of that treatise:

                     The purpose of the short time requirement to file a
              motion to certify is to avoid disruption of the determination of
              the charges on their merits after parties have begun
              preparation for an evidentiary hearing or trial and to remove
              from the prosecutor the threat of the motion to force a plea.
              However, certain problems can result for even the well
              intentioned prosecutor. After the time period to file the
              motion has lapsed, additional background material may
              surface about the juvenile or new facts about the case may
              become known. For example, the juvenile may have lived in
              several states and had a juvenile record in some or all of those
              states. This information may not be readily known. Also,
              new facts about the child’s involvement in the offense may
              become known or the condition of the victim in an assault
              case may deteriorate. In such cases, the prosecutor could
              dismiss the petition and refile with a motion to certify.

Scott & Sonsteng, supra, at rule 18.02 cmt. Because this section does not list prosecutor

error as a circumstance where a prosecutor can dismiss and refile a delinquency petition,

appellant argues that the authors did not contemplate it as a circumstance where a

prosecutor could do so.

       We are sympathetic to appellant’s concern that the prosecutor evaded the statutory

10-day filing requirement by dismissing the delinquency petition and then refiling the

exact same petition with the addition of a motion for adult certification. We also agree

with the approach described by Scott and Sonsteng in Minnesota Practice. See id. But

appellant has not identified any rule or caselaw that prohibits a prosecutor from



                                                5
proceeding in the way that she did in this case. In reaching its decision, the district court

relied on the prosecution’s broad discretion to decide when and against whom to bring

charges. The district court’s reliance on broad prosecutorial discretion is supported by

caselaw. The Minnesota Supreme Court has reaffirmed numerous times that “[a]s a

general rule, the prosecutor’s decision whom to prosecute and what charge to file is a

discretionary matter which is not subject to judicial review absent proof by defendant of

deliberate discrimination based on some unjustifiable standard such as race, sex, or

religion.” State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980); see State v. Streiff, 673

N.W.2d 831, 837 (Minn. 2004); State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996); In re

Welfare of K.A.A., 410 N.W.2d 836, 841 (Minn. 1987).

       There is no evidence in this case that the prosecutor discriminated against

appellant based on race, sex, or religion. Instead, the prosecutor acknowledged that the

first petition was dismissed and the second petition was filed to correct a mistake. Given

the broad discretion that prosecutors have to bring charges and the lack of any caselaw

prohibiting the prosecutor from dismissing the charges and bringing new charges, the

district court did not err by concluding that the adult-certification motion was timely filed

and denying appellant’s motion to dismiss the adult-certification motion.

       Appellant next argues that he was prejudiced by the 10-week delay caused by the

prosecutor’s dismissal of the first petition and filing of the second petition.           In

determining whether a defendant’s right to a speedy trial was violated, courts consider

four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the

individual asserted his or her right; and (4) the prejudice to the accused. In re Welfare of


                                             6
J.G.B., 443 N.W.2d 867, 870 (Minn. App. 1989) (citing Barker v. Wingo, 407 U.S. 514,

530-32, 92 S. Ct. 2182, 2191-92 (1972)).

       Here, the first petition was filed on July 2, 2014, and appellant has been in custody

since that time. There is nothing in the record to suggest that appellant demanded a

speedy trial at any time after the first petition was filed, and appellant does not argue that

he did so. Thus, the 30-day speedy trial requirement does not appear to have been

triggered. See Minn. R. Juv. Delinq. P. 13.02, subd. 1 (“A trial shall be commenced

within thirty (30) days from the date of a demand for a speedy trial unless good cause is

shown why the trial should not be commenced within that time.”).

       Moreover, because the second petition was properly filed and jeopardy had not

attached to the first petition, the delay must be measured from the date that the second

petition was filed on September 12, 2014, and not the date when the first petition was

filed on July 2, 2014. See Breed v. Jones, 421 U.S. 519, 531, 95 S. Ct. 1779, 1787 (1975)

(stating that jeopardy attaches in a juvenile matter when the court begins to hear

evidence). Appellant never requested a speedy trial on the second petition, and shortly

after the state filed the second petition, the prosecutor specifically told the district court

that she would be ready to proceed on the trial date that was set during the proceedings

addressing the first petition. The district court proceeded with the adult-certification

hearing on October 30, which was approximately 48 days after the state filed the second

petition. Thus, the delay was not significantly long.

       Finally, it does not appear that appellant has suffered great prejudice by the delay.

“Prejudice may occur when witnesses die, become unavailable or lose their memory due


                                              7
to delay; when the defendant loses an opportunity to make a crucial decision regarding

his confinement or treatment; or when some other factor seriously affects the strength of

appellant’s case.” In re Welfare of G.D., 473 N.W.2d 878, 883 (Minn. App. 1991)

(citations omitted). Appellant has not demonstrated any such prejudice. Instead, he

argues only that his ability to participate in juvenile programming was adversely

impacted by the delay. See J.G.B., 443 N.W.2d at 871 (concluding J.G.B.’s argument

that she was prejudiced because she would have admitted the delinquency petitions at the

arraignment in order to obtain treatment in the juvenile system was persuasive because it

would have been in J.G.B.’s interest to immediately enter a treatment program than

continue to be detained). But appellant never argued that he would have admitted the

delinquency petition in order to obtain treatment in the juvenile system more quickly.

And, as discussed above, the delay was not significant. Therefore, appellant’s speedy

trial rights were not violated.

       Affirmed.




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