                          This opinion will be unpublished and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
                                     A14-1100

                           Nicholas Robert Schimmel, petitioner,
                                       Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                    Filed May 4, 2015
                                        Affirmed
                                     Peterson, Judge

                               Brown County District Court
                                 File No. 08-CR-13-936

Mark Edward Betters, Betters Weinandt, Mankato, Minnesota (for appellant)

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

Charles W. Hanson, Brown County Attorney, New Ulm, Minnesota (for respondent)

         Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from an order that denies his petition for postconviction relief,

appellant argues that the district court did not have subject-matter jurisdiction to impose
an adult sanction following the termination of his extended jurisdiction juvenile status.

We affirm.

                                         FACTS

      In September 2007, a delinquency petition was filed against appellant Nicholas

Robert Schimmel in Brown County. Because appellant allegedly used a firearm to

commit a felony, the proceeding was designated as an extended jurisdiction juvenile

(EJJ) prosecution. See Minn. Stat. § 260B.130, subd. 1(2) (2014) (proceeding involving

child is an EJJ prosecution if child is alleged to have committed felony using a firearm

and prosecutor designates proceeding an EJJ prosecution). Appellant pleaded guilty to

first-degree burglary, and the district court imposed an adult sentence but stayed

execution and placed appellant on supervised probation. Venue was transferred to Blue

Earth County, which was appellant’s county of residence.1

      In 2009, the Blue Earth County District Court revoked appellant’s EJJ probation

and ordered him to appear for sentencing. On appeal, this court reversed the revocation

and remanded. State v. N.R.S., No. A09-2044 (Minn. App. Aug. 10, 2010). On remand,

the district court again revoked appellant’s EJJ probation and ordered him to appear for

sentencing. Appellant filed a second appeal. In March 2011, the district court ordered

the revocation proceeding stayed pending the appeal. See Minn. R. Juv. Delinq. P. 21.03,

subd. 3(A) (stating that a stay may be granted by juvenile court pending an appeal).


1
 Venue for a delinquency proceeding is in the county where the alleged delinquency
occurred. Minn. Stat. § 260B.105, subd. 1 (2014). Venue for other juvenile court
proceedings is in the county where the child is found or in the county of the child’s
residence. Id.

                                            2
      In July 2011, while the second appeal was pending, a probation-violation report

seeking revocation of appellant’s EJJ probation was filed in Blue Earth County after new

adult criminal charges were brought against appellant in three separate files. Appellant

turned 21 on October 10, 2011. In December 2011, this court reversed the second

revocation of appellant’s EJJ probation. State v. N.R.S., No. A11-0523 (Minn. App. Dec.

20, 2011). Judgment was entered in this court on February 6, 2012, and on February 27,

2012, the file was returned to Blue Earth County.

      At a hearing on March 14, 2012, the parties reached a global settlement agreement

regarding the July 2011 probation violation and the charges in the three new adult

criminal files, under which appellant agreed not to contest revocation of his EJJ probation

in exchange for the state’s recommendation that no additional jail time be imposed in the

three adult files. By order filed in May 2012, the Blue Earth County District Court

revoked appellant’s EJJ probation and referred the matter back to Brown County for

imposition of an adult sentence.2

      In May 2013, appellant filed a motion to dismiss in Brown County District Court,

arguing that the court’s EJJ jurisdiction had expired because appellant had reached age 21

and his EJJ status was revoked. By order filed July 9, 2013, the district court denied

appellant’s motion.

      A sentencing hearing was held on September 23, 2013. At the hearing, the district

court orally imposed a 48-month sentence but stayed execution and placed appellant on


2
 Venue for a criminal trial is in the county where the offense was committed. Minn. Stat.
§ 627.01 (2014); Minn. R. Crim P. 24.

                                            3
probation for 20 years. A written adult sentencing order was filed in appellant’s original

Brown County juvenile court file on October 15, 2013, and a notice of filing of order was

filed in that file on October 24, 2013. A register of actions dated March 3, 2014,

indicates that the sentencing order was filed in a Brown County adult court file on

October 15, 2013.3

       On February 25, 2014, appellant called his attorney and stated that he had not yet

been contacted by his probation officer. Defense counsel investigated and discovered

that the sentencing order was filed on October 15, 2013. Defense counsel had not

received the notice of filing of order, and he contacted the prosecutor, who reported that

the notice of filing of order was not in her file and that there was no indication that it had

been received by her office.

       On March 14, 2014, appellant filed a motion to dismiss for lack of subject-matter

jurisdiction and to vacate all orders filed in the original Brown County juvenile court file

since the revocation of his EJJ status. At the hearing on the motion to dismiss, appellant

also argued that the time to appeal the sentence had not expired because no judgment had

been entered in the adult court file. By order filed May 7, 2014, the district court denied

appellant’s motion to dismiss and his request for a declaration that the appeal period did

not begin running until the entry of judgment in the adult file.


3
 Appellant argues that the adult court file was “retroactively” created in February 2014.
Although it is not clear from the record when the adult court file was created, it is clear
that a written adult sentencing order was filed in the juvenile court file on October 15,
2013. The apparent administrative errors that led to the sentencing being treated as a
juvenile court matter have created confusion, but appellant has not cited any authority
that indicates that these errors affected the adult court’s jurisdiction.

                                              4
       This appeal followed. The state moved to dismiss on the ground that appellant

relied on the postconviction act as the jurisdictional basis for review but had not

captioned his motion as a petition for postconviction relief. This court construed the

order being appealed as an order denying postconviction relief and denied the state’s

motion.4

                                     DECISION

       “When a court does not have the authority to hear and determine a particular class

of actions and the particular questions that the court assumes to decide, the court lacks

subject-matter jurisdiction.” Vang v. State, 788 N.W.2d. 111, 117 (Minn. 2010).        “[A]

court cannot acquire subject-matter jurisdiction either by waiver or consent.” In re

Welfare of M.J.M., 766 N.W.2d 360, 364 (Minn. App. 2009) (quotation omitted), review

denied (Minn. Aug. 26, 2009). “[L]ack of subject-matter jurisdiction may be raised at any

time by the parties or sua sponte by the court, and cannot be waived by the parties.” Id.

“When a statute provides the basis for the juvenile court’s jurisdiction over the juvenile,

the issue of jurisdiction is a question of law subject to de novo review.” State v. J.E.S.,

763 N.W.2d 64, 67 (Minn. App. 2009).

       “An EJJ prosecution is a blending of juvenile and adult criminal dispositions that

extends jurisdiction over a young person to age twenty-one and permits the court to

4
 The state argues that this appeal is untimely. “[A]n appeal by the defendant from an
order denying a petition for postconviction relief must be filed within 60 days after entry
of the order.” Minn. R. Crim. P. 28.02, subd. 4(3)(c). The order that this court construed
as an order denying postconvicition relief is followed in the Brown County juvenile court
file by a notice of filing of order that states that an order was filed on May 7, 2014. This
appeal was filed within 60 days after May 7, 2014.


                                             5
impose both a juvenile disposition and a criminal sentence.” In re Welfare of B.N.S., 647

N.W.2d 40, 42 (Minn. App. 2002). In an EJJ prosecution, if the juvenile pleads guilty or

is found guilty, the district court “shall (1) impose one or more juvenile dispositions

under section 260B.198; and (2) impose an adult criminal sentence, the execution of

which shall be stayed on the condition that the offender not violate the provisions of the

disposition and not commit a new offense.” Minn. Stat. § 260B.130, subd. 4(a) (2014).

“The jurisdiction of the court over an [EJJ], with respect to the offense for which the

individual was convicted as an [EJJ], extends until the offender becomes 21 years of age,

unless the court terminates jurisdiction before that date.” Minn. Stat. § 260B.193, subd.

5(b) (2014).

       The statute governing revocation of an offender’s stay of execution and EJJ

probation states:

                      (a) When it appears that a person convicted as an [EJJ]
               has violated the conditions of the stayed sentence, or is
               alleged to have committed a new offense, the court may,
               without notice, revoke the stay and probation and direct that
               the offender be taken into immediate custody. The court shall
               notify the offender in writing of the reasons alleged to exist
               for revocation of the stay of execution of the adult sentence.
               If the offender challenges the reasons, the court shall hold a
               summary hearing on the issue at which the offender is entitled
               to be heard and represented by counsel.

                      ....

                       (c) After the hearing, if the court finds that reasons
               exist to revoke the stay of execution of sentence, the court
               shall treat the offender as an adult and order any of the adult
               sanctions authorized by section 609.14, subdivision 3[.] . . .




                                             6
                    (d) Upon revocation, the offender’s [EJJ] status is
             terminated and juvenile court jurisdiction is terminated. The
             ongoing jurisdiction for any adult sanction, other than
             commitment to the commissioner of corrections, is with the
             adult court.

Minn. Stat. § 260B.130, subd. 5 (2014); see also Minn. Stat. § 609.14, subd. 3(2) (2014)

(providing for continuation of stay of execution or execution of previously stayed

sentence).

      This court has held that “[a] juvenile court retains jurisdiction over an individual

who has turned 21 where extended jurisdiction juvenile probation revocation proceedings

were commenced before the individual’s 21st birthday and any delay was not the result of

an improper state purpose.” In re Welfare of V.D.M., 623 N.W.2d 277, 277 (Minn. App.

2001), review denied (May 15, 2001). The third proceeding to revoke appellant’s stay of

execution and EJJ probation was commenced in July 2011. But because appellant had

appealed the second revocation of his probation and the second revocation proceeding

was stayed pending his appeal, the district court continued the third revocation

proceeding. Appellant turned 21 on October 10, 2011. This court issued its decision in

appellant’s second appeal in December 2011, judgment was entered in this court on

February 6, 2012, the case file was returned to Blue Earth County on February 27, 2012,

and the third revocation proceeding resumed. There was no improper purpose in the

delay caused by the stay and continuance.

      At a hearing on March 14, 2012, the parties reached a global settlement

agreement, under which appellant agreed not to contest revocation of his EJJ status in

exchange for the state’s recommendation that no additional jail time be imposed in the


                                            7
three new adult criminal files. By order filed in May 2012, the Blue Earth County

District Court revoked appellant’s EJJ probation. Under Minn. Stat. § 260B.130, subd.

5(d), appellant’s EJJ status and the juvenile court’s jurisdiction terminated upon

revocation, and “ongoing jurisdiction for any adult sanction, other than commitment to

the commissioner of corrections, [was] with the adult court.”

         Typically, the adult court with ongoing jurisdiction for any adult sanction would

be the adult court in the county where the revocation occurred, and the district court

judge who ordered the revocation would also impose any adult sanction. But because

appellant’s offense in 2007 was committed in Brown County and venue for a criminal

trial is in the county where the offense was committed, the Blue Earth County district

court did not impose an adult sanction and, instead, transferred the case back to Brown

County for imposition of an adult sentence.

         Appellant concedes that his EJJ probation was properly revoked even though the

revocation occurred more than six months after his 21st birthday. But he argues that

because his sentence was not executed and he was not placed on adult probation when his

EJJ probation was revoked, the district court lost jurisdiction when his EJJ status

terminated. As authority for this argument, appellant cites State v. Booth, No. A12-0037,

2012 WL 4052815 (Minn. App. Sept. 17, 2012), which is an unpublished opinion of this

court.

         “Unpublished opinions of the Court of Appeals are not precedential.” Minn. Stat.

§ 480A.08, subd. 3 (2014). Furthermore, although there are similarities between this case

and Booth, there is a significant difference between the procedural postures of the two


                                              8
cases. In Booth, a juvenile pleaded guilty to multiple charges in an EJJ prosecution, and

the court in one county imposed a 68-month stayed sentence, placed the juvenile on EJJ

probation until age 21, and transferred the matter to another county for disposition.

Booth, 2012 WL 4052815, at *2.

       The juvenile failed to complete treatment, and the juvenile court in the second

county revoked the juvenile’s EJJ probation, placed the juvenile on adult probation

without any conditions of probation, and ordered that a sentencing hearing be held within

14 days of the revocation order. Id. at *2-3.      Before sentencing occurred, the court

granted the juvenile’s motion to transfer venue back to the first county, where his

criminal acts were committed, for adult sentencing. Id. at *3.

       But no adult sentencing ever occurred. Id. Instead, the district court in the first

county ordered that the juvenile continue to be held in the county jail while placement in

a treatment program was sought for the juvenile. Id. During this time, the juvenile

turned 21 years old. Id. When a placement became available, the district court ordered

the now-adult offender to complete treatment as a “term of his probation.” Id.

       Almost three years later, the offender was terminated from his treatment

placement, and a probation-revocation hearing was ordered in the first county.         Id.

Before the hearing could be held, the offender filed a motion to dismiss on the basis that

the district court in the first county “lacked jurisdiction because EJJ probation was

revoked and no sentence or conditions of probation had been pronounced.” Id. The

district court denied the motion and executed the 68-month sentence that had been

imposed at the offender’s original plea hearing. Id.


                                            9
       On appeal to this court, the offender argued that the district court lacked

jurisdiction to impose the probationary condition requiring treatment and to revoke adult

probation and execute his sentence.         Id. at *2.   This court agreed and vacated the

revocation of the offender’s adult probation and the execution of the offender’s original

juvenile court sentence. Id. at *4. This court reasoned that because no adult sentence

was ever imposed, the probationary condition requiring treatment could not be a basis for

revoking adult probation and because EJJ probation ended when the offender turned 21,

the offender’s failure to complete treatment three years later could not be a basis for

revoking EJJ probation and executing the juvenile court sentence. Id.

       Unlike Booth, which involved jurisdiction to revoke probation and execute a

stayed EJJ sentence, the issue before us is whether the district court lost jurisdiction to

impose an adult sentence after appellant’s EJJ probation was revoked and his EJJ status

terminated but his juvenile court sentence was not executed and he was not placed on

adult probation. Booth does not address this issue.

       In a case such as this, where venue for imposing an adult sanction is transferred

from the county where EJJ probation was revoked to the county where the underlying

juvenile offense occurred, at least some delay between revocation and adult sentencing is

unavoidable. The lengthy delay in this case is unfortunate, but appellant has not cited

any authority that suggests that the sentencing delay deprived the adult court of

jurisdiction to impose an adult sanction.

       Affirmed.




                                               10
