                          This opinion will be unpublished and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
                                     A14-2079

                        In the Matter of the Welfare of: J.C., Child.

                                    Filed June 8, 2015
                                        Affirmed
                                     Stauber, Judge

                              Ramsey County District Court
                                File No. 62-JV-14-2252

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant J.C.)

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

John J. Choi, Ramsey County Attorney, Kathryn Richtman, Assistant County Attorney,
Kayla McNabb, Certified Student Attorney, St. Paul, Minnesota (for respondent)

       Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges an order of the district court certifying him to stand trial as

an adult on felony charges of possession of a firearm and receiving stolen property.

Because the district court properly applied the statutory certification factors and

appropriately exercised its discretion in reaching its certification decision, and because

the district court did not abuse its discretion by appointing a guardian ad litem, we affirm.
                                          FACTS

       Police were called to a St. Paul fast-food restaurant on September 3, 2014, after

someone was seen carrying a gun. As they arrived, a group of 10 to 15 people dispersed,

including appellant J.C., born on April 3, 1997, and two other juveniles, one of whom is a

known gang member. When police directed them to stop, J.C. dug into his pants and

threw a loaded gun magazine on the ground. After being placed in a squad car, J.C. also

pulled something from his pants that fell to the floor. Police recovered a stolen handgun

that matched the magazine they had already taken from J.C. After being advised of his

rights, J.C. admitted that the gun was stolen, said that he was “holding the magazine for

somebody,” and when asked why he had the gun, he said, “for protection.”

       The state filed a juvenile delinquency petition charging J.C. with two felony

offenses: possession of a firearm by an ineligible person and receiving stolen property.

As J.C. had been adjudicated delinquent on a robbery charge in 2013, the state also

moved for J.C.’s presumptive certification to stand trial as an adult. J.C. waived his right

to have a parent present, and the district court appointed a guardian ad litem.

       At the certification hearing, the district court received testimony from psychologist

Patricia Orud, who had examined J.C. Her report establishes that J.C. was raised by a

single “inconsistent and uninvolved” parent and was a frequent runaway. J.C. was

involved in numerous juvenile offenses that escalated to the 2013 robbery offense and the

current charges. He functions at a low-average intellectual level and has been diagnosed

with severe conduct and cannabis-use disorders, and a moderate alcohol disorder.




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       Orud examined each of the statutory factors required for adult certification and

concluded that four favored J.C.’s certification and two favored extended jurisdiction

juvenile (EJJ) designation. While Orud concluded that the statutory factors favored

J.C.’s adult certification, she nevertheless recommended that J.C. remain on EJJ status

because of his “potential to redirect his functioning from his criminal lifestyle while

under the external authority of the Court” and because “[t]he conditions necessary for

change support[] a recommendation for processing this offense within the parameters of

Extended Jurisdiction Juvenile status.”

       A contrary view was taken by an investigator for the Ramsey County Probation

and Juvenile Office, who prepared a certification study that recommended J.C.’s

certification to stand trial as an adult. The investigator reviewed the programming and

services that were provided to J.C. and concluded that J.C. is dangerous and a risk to

public safety. The investigator stated that although she did not reject Minnesota

Correctional Facility-Red Wing (Red Wing) as a possible EJJ placement for J.C., she

concluded that J.C. should be certified as an adult because of “his history with weapons

and all the programming that had been done, as well as . . . his gang involvement.”

       J.C.’s probation officer for the 2013 robbery offense also testified, identifying the

many services that had been offered to J.C. The probation officer placed J.C. at a high

risk to reoffend, given his extensive and escalating delinquency history, and his history of

failing to internalize offered services. The probation officer conceded that J.C.’s only

felony-level adjudication involved the 2013 robbery, in which there were three

accomplices, one of whom used a BB gun to commit the offense.


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       At the hearing, two dispositional placement alternatives were identified,

depending on whether J.C. was certified as an adult or was assigned EJJ status. An

intake coordinator for Red Wing testified that Red Wing offered programming options

for youthful offenders, including mental-health and medical services, academics, a

substance-abuse program, and cognitive restructuring. According to the intake

coordinator, Red Wing is designed for Minnesota’s most violent juvenile offenders, and

EJJ inmates can remain there until age 21. Juveniles can refuse treatment at Red Wing,

but they will not be released without completing treatment unless they are released due to

age.

       The program director at the Minnesota Department of Corrections also described a

comparable program for youthful offenders under age 21 in prison that includes

mandatory education, recreation, cognitive therapy three days per week, mental health

therapy two days per week, and other services, such as chemical-dependency care. The

program director stated that the program is voluntary after a prisoner reaches age 18 and

that, at age 19, prisoners are no longer eligible to participate in the program.

       The district court also heard testimony regarding J.C.’s mandatory and voluntary

residential placements in the year before the current charges, one of which was termed

“successful” and one from which he was discharged.

       Finally, the district court heard testimony from the court-appointed guardian ad

litem (GAL), who interviewed J.C. twice and reviewed his past history. The GAL

recommended EJJ designation rather than commitment to prison because the GAL

viewed programming options as better for J.C. outside of the prison system. On cross-


                                              4
examination, the GAL admitted that this recommendation was treatment-based and did

not include consideration of J.C.’s criminal record or punishment issues. He also

identified particular instances where J.C.’s behavior made others unsafe, referencing two

uncharged assaults.

       In an order that comprehensively applies each of the six statutory factors, the

district court concluded that three factors favored adult certification, including the

seriousness of the offense, culpability of the child, and child’s prior record of

delinquency. The district court concluded that the three remaining factors favored EJJ

designation, including programming history, adequate punishment and programming in

the juvenile system, and dispositional options. The court specifically found that the

availability and adequacy of punishment or programming in the juvenile justice system

only “slightly” favored EJJ designation. The court concluded that the factors favoring

adult certification outweighed the factors favoring EJJ designation, noting that two of the

certification factors are required by statute to be given greater weight, and that J.C. did

not meet his burden to demonstrate by clear and convincing evidence that he had

overcome the presumption of adult certification. The district court ordered that J.C. be

certified for prosecution as an adult, and this appeal followed.

                                      DECISION

       On review of a district court’s decision to certify a juvenile to adult court, an

appellate court will affirm unless the district court abused its discretion, applying a

clearly erroneous standard to the review of factual findings and a de novo standard to

questions of law. In re Welfare of J.H., 844 N.W.2d 28, 34-35 (Minn. 2014); see In re


                                              5
Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007) (“A district court has

considerable latitude in deciding whether to certify, and this court will not upset its

decision unless its findings are clearly erroneous so as to constitute an abuse of

discretion.” (quotations omitted)), review denied (Minn. Oct. 24, 2007). This court will

not “disturb a finding about whether public safety would be served by retaining the

proceeding in juvenile court unless it is clearly erroneous.” J.H., 844 N.W.2d at 35.

       Under Minn. Stat. § 260B.125, subd. 3 (2014), a presumption applies that

appellant should be certified to the district court for adult proceedings because he was 17

at the time of the offense, the offense involved the use of a firearm, and probable cause

existed to believe appellant committed the offense. Appellant can overcome this

presumption if “by clear and convincing evidence” the retention of “the proceeding in the

juvenile court [would] serve[] public safety.” Id.

       A district court must consider the following six factors in deciding whether public

safety would be served by certification:

                     (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;




                                              6
                     (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.

Minn. Stat. § 260B.125, subd. 4 (2014). The district court must “give greater weight to

the seriousness of the alleged offense and the child’s prior record of delinquency than to

the other factors listed.” Id.

       Statutory Certification Factors. Appellant argues that the district court

“misinterpreted and misapplied” the certification statute by improperly focusing on

appellant’s past behavior in determining whether he is now a threat to public safety. He

argues that “the operative standard is not a juvenile’s risk to re-offend before treatment

but whether EJJ programming and the safeguard of executing an adult sentence would

insure public safety.” This reading of the statute is inaccurate.

       When the statutory certification presumption applies, the district court is directed

to apply the public-safety factors in the consideration of “whether the public safety is

served by certifying the matter.” Minn. Stat. § 260B.125, subd. 4. The public safety

factors “are intended to assess whether a juvenile presents a risk to public safety and thus

aim to predict whether a juvenile is likely to offend in the future.” In re Welfare of

R.D.M., III, 825 N.W.2d 394, 399 (Minn. App. 2013), review denied (Minn. Apr. 16,

2013). Each of the six factors is predicated upon the juvenile’s past or current conduct,

not predicted future conduct after programming, as urged by appellant. See id.



                                              7
(recognizing that public-safety factors “examine the juvenile’s past behavior and

programming failures,” while “others must be read to allow consideration of the

juvenile’s current conduct”). Embedded in the language of all of the public-safety factors

is the notion that past conduct predicts future behavior. See id. (“In the end, the [public-

safety] factors must show that a risk to public safety exists because the juvenile’s

behaviors are likely to continue.” (quotations omitted)). Thus, appellant’s argument that

the district court “wrongly applied the statutory criteria to look backward instead of

forward” lacks merit. Cf. In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn. 2000)

(rejecting concept that district court’s weighing of public-safety factors must be made

according to specific mathematical weights).

       Appellant also argues that the district court incorrectly assessed the third public-

safety factor, his prior criminal history, by improperly considering his programming

history as part of his prior criminal history, and improperly considered evidence of his

gang involvement when the record did not support it. When the district court orders

certification, it “is not required to make specific findings on each factor” and is only

required to “fully investigate[] the matter and carefully consider[] its decision.” Vang v.

State, 788 N.W.2d 111, 116 (Minn. 2010).

       A prior record of delinquency is defined to include “records of petitions to

juvenile court and the adjudication of alleged violations of the law by minors.” In re

Welfare of N.J.S., 753 N.W.2d 704, 710 (Minn. 2008). The district court listed five

offenses for which appellant was adjudicated delinquent and five other offenses for which

delinquency petitions were filed but later dismissed. The district court also included


                                              8
findings regarding appellant’s lack of progress while on probation, his gang affiliation,

and the escalation in severity of his offenses. See In re Welfare of H.S.H., 609 N.W.2d

259, 262-63 (Minn. App. 2000) (commenting that prior record of delinquency does not

support adult certification when it “fails to show deeply ingrained, escalating criminal

behavior that presents a threat to public safety”).

       Evidence that was properly included in the prior-history factor independently

supports the district court’s determination on that factor, and the district court’s erroneous

inclusion of appellant’s lack of programming progress in the consideration of his prior

record does not merit reversal. See N.J.S., 753 N.W.2d at 710-11 (affirming certification

even though district court erred by including juvenile’s uncharged incidents from school

and institutional records in consideration of juvenile’s prior record of delinquency).

Appellant does not challenge the district court’s analysis on any other factor, and the

court’s overall consideration of the factors shows that it properly analyzed the factors in

reaching its decision. See Vang, 788 N.W.2d at 116.

       Further, it was not improper for the district court to rely on appellant’s gang

involvement in considering his prior record of delinquency. The petition for the current

offense notes that appellant was with a known gang member when he was apprehended

by police. This evidence, coupled with appellant’s comment that he possessed the gun

for protection and was holding the magazine for another person, support an inference that

appellant was involved in gang activity. In addition, even if the district court improperly

relied on evidence from sources that were not part of appellant’s delinquency record, this

error was of little import in light of appellant’s overall significant juvenile delinquency


                                              9
history and the court’s otherwise proper application of the statutory factors in reaching its

decision. See In re Welfare of P.C.T., 823 N.W.2d 676, 685-86 (Minn. App. 2012)

(reversing district court’s EJJ certification decision when juvenile’s prior gang-related

felony and current gang-related offense outweighed the other factors), review denied

(Minn. Feb. 19, 2013); St. Louis Cnty. v. S.D.S., 610 N.W.2d 644, 648 (Minn. App. 2000)

(reversing EJJ certification decision when juvenile was extensively involved in gang

activity). Appellant’s delinquency record is sufficiently significant to warrant adult

certification. See In re Welfare of U.S., 612 N.W.2d 192, 196 (Minn. App. 2000)

(including “significant” prior juvenile record of nine misdemeanors, two involving

firearms, and two felonies).

       While application of the statutory certification factors suggests that this may be a

close case, the burden was on appellant to overcome the presumption of adult

certification by a clear-and-convincing-evidence standard. He did not meet that burden,

and we cannot say that the district court abused its discretion by ruling that he should be

certified to stand trial as an adult.

       Appointment of GAL. Appellant next argues that the district court erred by

appointing a GAL and by admitting the GAL’s report into evidence at the certification

hearing. Under Minnesota Rule of Juvenile Delinquency Procedure 24.01(C), “[t]he

court may appoint a [GAL] on its own motion or on the motion of the child’s counsel or

the prosecuting attorney when the court determines that an appointment is in the best

interests of the child.” A GAL may be appointed “to act in place of a parent . . . to

protect the best interest of the child when it appears, at any stage of the proceedings, that


                                             10
the child is without a parent . . . .” Minn. R. Juv. Deliq. P. 24.01(A). A district court

“shall” appoint a GAL “[i]f the parent . . . is unavailable, incompetent, indifferent to,

hostile to, or has interests in conflict with the child’s best interests . . . .” Id.

       The district court did not err by appointing a GAL. Appellant’s mother only

intermittently attended appellant’s hearings and was living in another state at the time of

the certification hearing. Although appellant, a minor, was willing to waive both the

appointment of a GAL and his mother’s attendance at the certification hearing, the

district court was free to disregard those waivers when the circumstances demonstrated to

the district court that appointment of a GAL was in appellant’s best interests. The district

court’s minor oversight in citing an incorrect statute as authority for its GAL appointment

does not affect the validity of the GAL’s appointment.

       Affirmed.




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