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STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-2016
In the Matter of the Welfare of:
S.J.D., Child.
Filed October 10, 2000
Affirmed
Shumaker, Judge
Ramsey County District Court
File No. J799552899
John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829
University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 500
Kellogg Blvd West, Suite 600, St. Paul, MN 55102 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Foley, Judge.*
S Y L L A B U S
1. A motion to withdraw a waiver of a certification hearing is not expressly authorized by the
Minnesota Rules of Juvenile Procedure, and this court lacks authority to create such a rule.
2. The juvenile court did not err in concluding that the child's waiver of his right to a certification
hearing was knowing, voluntary, and intelligent. Evidence of the child's borderline mental deficiency
alone does not mandate a finding of incompetence to waive. The record demonstrates that the child
was informed of his right to a hearing, discussed his decision with his attorney and his parents, and
was examined by the juvenile court about his understanding of the consequences of his waiver.
O P I N I O N
SHUMAKER, Judge
Appellant S.J.D. challenges a district court order denying his motion to withdraw his waiver of a
certification hearing. Because we find that his waiver was knowing, voluntary, and intelligent, we
affirm.
FACTS
The state filed a delinquency petition in juvenile court charging 17-year-old S.J.D. with first-degree
and third-degree assaults. The petition alleged that, on June 5, 1999, S.J.D. and others were
"raging," that is, drinking alcohol, acting crazy, and beating up anyone who walked by them. In that
condition, S.J.D. and the others beat two men, stripped their clothes off, and left the men lying
unconscious in the dirt. The state also filed a motion to certify S.J.D. for adult prosecution.
S.J.D. appeared in juvenile court with his attorney on June 18, 1999, and requested a hearing on
the certification motion. The court ordered a psychological examination and a certification study and
set the matter for hearing.
On the certification hearing date, S.J.D. appeared with his attorney who stated that S.J.D. "would
like to waive the certification hearing and have his matter transferred to adult court." The court
inquired of S.J.D. as to his understanding of his rights and the consequences of a waiver of
certification. S.J.D.'s attorney reviewed with him on the record his written waiver of a certification
hearing. The attorney noted that, on the previous day, she had reviewed the waiver with S.J.D. and
his mother, father, and grandfather. The attorney then asked and S. J.D. answered:
Q. And so you are pretty satisfied that you have looked at this just about every way
there is to look at it and this is a decision that you want to make; right?
A. Yes.
The court accepted S.J.D.'s waiver, ordered his certification, and transferred the matter to district
court.
When the case reached the district court, S.J.D. appeared with a new attorney and moved to
withdraw his waiver of certification. The district court sent the matter back to the juvenile court for a
hearing on the motion. At that hearing S.J.D. acknowledged his prior waiver, admitted meeting with
his previous attorney several times, and admitted knowing that both his probation officer and a
court-appointed psychologist who examined him recommended that S. J.D. be certified to be tried
as an adult.
S.J.D.'s attorney argued that the waiver had not been knowing, intelligent, voluntary, and informed.
He noted that S.J.D. has an IQ of 77, which makes him "borderline retarded," and that this mental
deficiency, coupled with the threat that the state would add new charges, prevented the waiver from
being knowing, intelligent, voluntary, and informed. The attorney also made an offer of proof that a
family practice physician who examined S.J.D. would testify that S.J.D. has organic brain damage
from fetal alcohol syndrome, is very vulnerable, and should not be certified to be tried as an adult.
The juvenile court denied S.J.D.'s motion to withdraw his waiver of certification and S.J.D. appeals
that ruling.
ISSUE
Did the district court abuse its discretion in denying appellant's motion to withdraw his waiver of a
certification hearing?
ANALYSIS
The rules of juvenile procedure govern the procedure for all delinquency matters in the juvenile
courts. Minn. R. Juv. P. 1.01. The rules do not provide for a motion to withdraw a waiver of a
certification hearing. A juvenile may appeal a certification order, but must do so within 30 days from
the date of certification. Minn. R. Juv. P. 21.03, subds. 1(A)(1), 2(A). Once a certification order is
issued, the jurisdiction of the juvenile court is terminated. Minn. R. Juv. P. 18.07, subd. 1.
S.J.D. concedes that he did not bring his motion to withdraw his waiver within the time for
appealing a certification order. He also concedes that the juvenile rules are silent as to motions to
withdraw a waiver of a certification hearing, but argues that such a right should exist. S.J.D. asks
this court to create a new juvenile court procedure, which we cannot do. The task of extending
existing law falls to the supreme court or the legislature. Tereault v. Palmer, 413 N.W.2d 283,
286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987); see also Minn. Stat. § 480.0595
(1998) (stating that “[t]he supreme court shall promulgate rules to regulate the pleadings, practice,
procedure and the forms thereof in juvenile proceedings in all juvenile courts of the state * * * .”).
Although we agree that it would be helpful to have a rule that sets standards for withdrawal of a
waiver of a certification hearing in appropriate cases, this court, as an error-correcting court, is
without authority to create such a rule. Lake George Park, L.L.C. v. IBM Mid-America Fed.
Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998), review denied (Minn. June 17, 1998).
Despite the fact that a motion to withdraw a certification waiver is not expressly authorized by the
juvenile procedure rules, in the interests of justice we have considered S.J.D.'s argument that his
waiver was not knowing, voluntary, intelligent, or informed.
A juvenile court's decision to certify a child for adult prosecution will not be reversed unless the
court's findings are so erroneous as to constitute an abuse of discretion. In re Welfare of S.J.G.,
547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996) (quotation
omitted).
It is presumed that a proceeding involving an offense committed by a child will be
certified if:
(1) the child was 16 or 17 years old at the time of the offense; and
(2) the delinquency petition alleges that the child committed an offense that would
result in a presumptive commitment to prison under the sentencing guidelines and
applicable statutes * * * .
If the court determines that probable cause exists to believe the child committed the
alleged offense, the burden is on the child to rebut this presumption by
demonstrating by clear and convincing evidence that retaining the proceeding in
juvenile court serves public safety.
Minn. Stat. § 260.125, subd. 2a (1998).
S.J.D. was charged with first-degree assault in violation of Minn. Stat. §§ 609.221, subd. 1;
609.05 (1998), and third-degree assault in violation of Minn. Stat. §§ 609.223; 609.05 (1998),
both of which would result in a presumptive prison sentence. He was 17 years old at the time of the
offenses. Therefore, the presumption of certification applied, and the burden of proving that public
safety would be served by retaining the proceeding in juvenile court was on him.
However, a juvenile may waive his right to a certification hearing and his right to present evidence to
rebut a presumption of certification. Minn. R. Juv. P. 18.04, subd. 1(C). Such a waiver must be
knowingly, voluntarily, and intelligently made on the record after the child is informed of his right to a
certification hearing by counsel. Id.; Minn. Stat. § 260.155, subd. 8(a) (1998). The validity of a
waiver depends on the particular facts and circumstances surrounding the case, including the
defendant's background, experience, and conduct. State v. Richards, 456 N.W.2d 260, 264
(Minn. 1990). In determining whether a child has knowingly, voluntarily, and intelligently waived his
right to a certification hearing, the court looks at the totality of the circumstances, including the
presence of the child's parents, the child's age, maturity, intelligence, education, experience, and the
ability of the child to comprehend the proceedings and consequences. Minn. R. Juv. P. 18.04,
subd. 1(C).
S.J.D. argues that his waiver was not voluntary because the state offered an alleged plea bargain
which was, in fact, illusory. The state agreed that if S.J.D. waived certification the state would allow
him to plead guilty to the two assault counts, with a double departure from the guidelines sentence
for the first-degree assault conviction. The state said that if he refused to waive certification, the
complaint would be amended to add charges of kidnapping and attempted murder. Such a plea
bargain does not make S.J.D.'s waiver involuntary. See, e.g., State v. Ecker, 524 N.W.2d 712,
719 (Minn. 1994) (holding that threat to prosecute fully a defendant if he does not plead guilty is
constitutional); Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1988) (finding nothing
improper about statement by state that it will fully prosecute if there is no plea agreement because
state is merely pointing out its legal authority to prosecute defendants who plead not guilty and go to
trial), review denied (Minn. July 16, 1998), cert. denied, 525 U.S. 1055 (1998).
S.J.D. also argues that because of his limited intellectual functioning, as evidenced by the
psychological report of Dr. Roger Carten, his waiver was not intelligently made. However, Dr.
Carten concluded that: (1) psychological tests administered to S.J.D. suggest that while he has
limited cognitive abilities, he is not so mentally deficient as to exclude him from the court process;
(2) while his mental deficiencies may impair his ability to participate in his own defense, he has the
capacity to do so; and (3) S.J.D. understands the charges against him and the possible
consequences.
In addition, evidence in the record shows that S.J.D.'s attorney discussed his rights and the waiver
with him, his parents, and his grandfather. S.J.D. initialed each statement in the waiver form
explaining his rights. At the hearing, S.J.D. was thoroughly questioned by the court and his attorney
about his understanding of his rights and the effect of waiving them. Although he had a new attorney
in district court, he made no allegations that he received ineffective assistance of counsel in juvenile
court. He makes no such allegations on appeal. We conclude that S.J.D.'s waiver was knowing,
voluntary, and intelligent.
D E C I S I O N
The district court did not abuse its discretion in concluding that S.J.D.'s waiver of his right to a
certification hearing was knowing, voluntary, and intelligent.
Affirmed.
Footnotes
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.
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