                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2352

                    In the Matter of the Welfare of: A. R. M., Child

                                Filed July 14, 2014
                 Affirmed in part, reversed in part, and remanded
                                Rodenberg, Judge

                           Hennepin County District Court
                              File No. 27-JV-13-8045

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent state)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant A.R.M.)

      Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      In this juvenile delinquency appeal, appellant A.R.M. challenges the district

court’s decision to place him at MCF-Red Wing and argues that the district court

erroneously adjudicated him delinquent on two misdemeanor charges. We conclude that

the district court did not err in placing A.R.M. at MCF-Red Wing but erred in

adjudicating A.R.M. delinquent on the two misdemeanor charges that were to be
dismissed pursuant to a plea agreement. We therefore affirm in part, reverse in part, and

remand for the district court to enter a dismissal of the two misdemeanor charges.

                                         FACTS

      This is an appeal from a disposition by the Hennepin County district court of

delinquency offenses committed by A.R.M. in October 2013. Previously, in June 2012,

A.R.M. was adjudicated delinquent in Hennepin County on charges of felony possession

of a pistol by a disqualified person and misdemeanor theft. He was ordered to complete

an out-of-home placement at Mesabi Academy but in March 2013 was unsuccessfully

discharged. His discharge summary describes prior unsuccessful placements, attempts at

electronic home monitoring, and behavioral problems. Following a probation violation

hearing, A.R.M. was placed in MCF-Red Wing’s short-term program.                  He was

unsuccessfully discharged.

      In October 2013, A.R.M. was charged in Ramsey County with (1) aiding and

abetting gross misdemeanor theft in violation of Minn. Stat. § 609.52, subds. 2(a)(1), 3(4)

(2012); (2) misdemeanor false information to police in violation of Minn. Stat. § 609.506,

subd. 1 (2012); and (3) misdemeanor fleeing a peace officer in violation of Minn. Stat.

§ 609.487, subd. 6 (2012) after a shoplifting incident on October 19. By agreement,

A.R.M. pleaded guilty to gross misdemeanor theft, and the state agreed to dismiss the two

misdemeanor charges. The district court withheld adjudication and transferred the case

to Hennepin County, where A.R.M. resides, for disposition.

      Hennepin County’s out-of-home-placement screening committee recommended

that A.R.M. be placed at MCF-Red Wing “based on his offense and risk levels.” The


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committee considered Bar None Residential Treatment Center as an alternative

placement but could not recommend it because, the committee determined, A.R.M. “is

likely to abscond from that level of restriction to avoid programming. Also, there are no

current openings at that program.” The committee also determined that A.R.M.’s “level

of resistance to programming indicates that [he is] not amenable to community-based

services, or a placement with lower levels of restriction and security.”

       The state agreed with the recommendation that A.R.M. be sent to MCF-Red

Wing’s long-term program at the disposition hearing held on November 19.             The

prosecutor explained:

              We have tried less restrictive alternatives. [A.R.M.] was at
              Mesabi, and was discharged. He was at the STOP program at
              Red Wing and did not complete the programming, but he
              timed out of the short-term program. He went home. He was
              going to the Return to Success program, missed those. Did
              not get signed up for school. Continued to use. Went on run.
              Committed this new offense. And so we are here today
              recommending the long-term Red Wing program.

A.R.M.’s attorney opposed placement at MCF-Red Wing because A.R.M. “didn’t do

well” during the short-term program there and “got nothing out of it.” The district court

asked A.R.M.’s attorney to suggest an alternative placement, and she proposed 45 days of

electronic home monitoring, chemical dependency treatment, and medication. A.R.M.’s

attorney admitted that she did not “have an alternative as far as placement goes” and did

not “know of a treatment facility that’s available to him.” The prosecutor then discussed

alternative placements:

              PROSECUTOR: We looked at other facilities other than Red
              Wing—Bar None, Woodland Hills—but those aren’t secure


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             placements and there were some other issues too, with his
             functioning as far as Woodland Hills goes, and also the
             County Home School. Neither program would take him
             because of his IQ. So a lot of those issues have been
             considered by probation when making this recommendation
             for Red Wing, to keep him safe, himself, and also to keep him
             from violating the law so public safety is also served by this
             placement to Red Wing.
             THE COURT: And then, to your knowledge, did [the
             probation officer] talk about any other secure alternatives in
             terms of placement, or have those been exhausted as well?
             PROSECUTOR: I think Mesabi was the only other secure
             placement I know of, and he was already there and didn’t do
             that well. So I think that’s why—I’m not sure Mesabi would
             even take him, but I know he was in that program.

The district court concluded:

             [T]ypically, the Red Wing program is not something that I
             like to order because of the fact that I believe it is for mostly
             serious offenders and that it technically in juvenile court is
             seen as a last resort for most of our offenders. The problem
             that I have with your case is that there aren’t a lot of options
             for you. . . . And, given your resistance to [electronic home
             monitoring in the past], my only alternative at this point is to
             order the long-term program at Red Wing.

The district court further explained: “Based on what I’ve seen, we’ve tried Mesabi, we’ve

tried STOP, we’ve tried Return to Success, and every time we’ve tried something else in

the community, you don’t comply with the order, you don’t comply with the rules, and

you end up back in court.”

      The district court adjudicated A.R.M. delinquent on all three counts (despite the

earlier agreement that the two misdemeanor counts would be dismissed) and placed him

in MCF-Red Wing’s long-term program. On November 20, the district court filed an

order for placement, stating that it had considered five alternatives to MCF-Red Wing,



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including Mesabi Academy. On November 27, the district court filed an additional order,

explaining that the placement at MCF-Red Wing was “both in [A.R.M.’s] best interests

and in the interest of public safety.” The district court noted that “[p]robation has

attempted numerous alternatives including electronic home monitoring, Mesabi

Academy, the Red Wing STOP Program, and Return to Success,” but A.R.M. “failed to

successfully complete these programs, and he continues to use illegal substances.” As a

result, the district court determined that “[A.R.M.] is resistant to programming and that

he is unlikely to succeed in a less restrictive setting than the Red Wing long-term

program.”   And the district court concluded: “The parties have searched for secure

alternatives to the Red Wing long-term program, but there are none. [A.R.M.] has

exhausted all alternatives likely to return him to law-abiding behavior. As a result, the

court has no choice but to place [A.R.M.] in the Red Wing long-term program.” This

appeal followed.1

                                    DECISION

      “The district court has broad discretion to order dispositions authorized by statute,

and the disposition will not be disturbed absent an abuse of discretion.” In re Welfare of

J.S.H.-G., 645 N.W.2d 500, 504 (Minn. App. 2002), review denied (Minn. Aug. 20,


1
 A.R.M. appealed from the district court’s November 19 order placing him at MCF-Red
Wing. The district court then filed a handwritten order for placement on November 20
discussing the alternatives it had considered. It then filed a more detailed order
discussing A.R.M.’s placement on November 27. We have determined that the parties
were unaware of the district court’s November 27 order. As a result, we ordered the
parties to prepare supplemental briefing to address the effect of this order. We have
considered the briefing and construe the appeal as being from the November 19, 20, and
27 orders.

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2002). We “will affirm the disposition as long as it is not arbitrary” and will accept the

district court’s findings of fact unless they are clearly erroneous. In re Welfare of J.A.J.,

545 N.W.2d 412, 414 (Minn. App. 1996).

       A.R.M. argues that, in placing him at MCF-Red Wing, the district court violated

Minn. Stat. § 260B.199, subd. 1 (2012). Before placing a juvenile at MCF-Red Wing,

“the county of referral must have considered all appropriate local or regional placements

and have exhausted potential in-state placements in the geographic region. The [district]

court must state on the record that this effort was made and placements rejected . . . .”

Minn. Stat. § 260B.199, subd. 1.

       A.R.M. argues that Hennepin County and the district court failed to seriously

consider a placement at Mesabi Academy. But the district court did consider Mesabi

Academy.     When the district court asked whether probation had considered any

alternative secure placements, the prosecutor responded that Mesabi Academy was the

only secure alternative about which she knew, that A.R.M. “was already there and didn’t

do that well,” and that she did not think Mesabi Academy “would even take him.” The

district court noted that A.R.M. had previously failed to successfully complete the

program at Mesabi Academy, as well as several other programs, and had ended up back

in court.   In its written orders, the district court mentioned that it had considered

placement at Mesabi Academy, and it discussed A.R.M.’s previous placement at Mesabi

Academy. Given the references to Mesabi Academy at the hearing and in the district

court orders, both the county and the district court rejected it as an alternative placement

on the record as required. See id.


                                             6
       A.R.M. argues for placement at Mesabi Academy for the first time on appeal. See

Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (explaining that an appellate court does

not generally consider matters not argued to and considered by the district court).

A.R.M. did not advocate for a placement at Mesabi Academy in district court. A.R.M.’s

attorney proposed electronic home monitoring and the district court had neither the

occasion nor any reason to more fully discuss this alternative placement, having received

no information suggesting that a second placement at Mesabi Academy was either

possible or likely to succeed.

       Both Hennepin County and the district court considered alternative placements

and the district court explained on the record why all alternative placements were

rejected. See Minn. Stat. § 260B.199, subd. 1. Therefore, the district court complied

with section 260B.199. And the district court did not abuse its discretion in placing

A.R.M. at MCF-Red Wing. See J.S.H.-G., 645 N.W.2d at 504.

       A.R.M. also argues, and the state concedes, that the district court erred in

adjudicating A.R.M. delinquent on the three charges stemming from the October 19

shoplifting incident because the state agreed to dismiss the two misdemeanor charges in

exchange for A.R.M.’s guilty plea to the gross-misdemeanor-theft charge. Accordingly,

we reverse the adjudication of delinquency on the two misdemeanor charges and remand

for the district court to enter a dismissal of these two charges.

       Affirmed in part, reversed in part, and remanded.




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