State v. Burris , 30 Neb. Ct. App. 109 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/17/2021 08:09 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BURRIS
Cite as 30 Neb. App. 109State of Nebraska, appellee,
v. Montrell T. Burris,
appellant.
___ N.W.2d ___
Filed August 17, 2021. No. A-21-218.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. A trial court’s denial of a motion to transfer a pending criminal
proceeding to the juvenile court is reviewed for an abuse of discretion.
2. Courts: Juvenile Courts: Jurisdiction: Evidence. When a district
court’s basis for retaining jurisdiction over a juvenile is supported by
appropriate evidence, it cannot be said that the court abused its discre-
tion in refusing to transfer the case to juvenile court.
3. Criminal Law: Courts: Juvenile Courts: Jurisdiction. A juvenile
court has concurrent jurisdiction over a person charged in the district
court who is 17 years of age when the allegedly committed acts consti-
tute Class II and IIA felonies and who has not yet reached the age of
majority during the course of the proceedings requesting transfer from
the district court to the juvenile court.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Affirmed.
Brandon J. Dugan, Deputy Buffalo County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Moore, Riedmann, and Bishop, Judges.
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STATE v. BURRIS
Cite as 30 Neb. App. 109Riedmann, Judge.
INTRODUCTION
Montrell T. Burris appeals the order of the district court for
Buffalo County that denied his motion to transfer his case to
the juvenile court. We affirm.
BACKGROUND
Burris was born in November 2002. On July 3, 2020, while
residing at the Youth Rehabilitation Treatment Center (YRTC)
in Kearney, Nebraska, Burris attacked staff members on two
different occasions. In one of the attacks, he used a “shiv” that
he had whittled from a toothbrush handle. On both occasions,
he punched and kicked staff members. He was charged with use
of a deadly weapon to commit a felony, a Class II felony, and
second degree assault, a Class IIA felony. He was bound over
to district court, and after being arraigned, he filed a motion to
transfer the case to juvenile court on January 12, 2021.
At the hearing on the motion to transfer, three witnesses
testified on behalf of the State. Brent Janzen is a juvenile pro-
bation officer in Douglas County who was assigned Burris’
case in May 2018. The charges against Burris at that time were
terroristic threats and disorderly conduct arising out of two
separate incidents. The terroristic threats charge arose out of an
incident with Burris’ mother in which he threatened to cause
damage to the home or kill her. Janzen was unable to recall
the details of the disorderly conduct claim. As a result of these
incidents, Burris was placed on probation and was monitored
with “GPS and tracking services.” He had in-home multiple
systemic therapy with daily reporting. He was also provided
psychological evaluations, outpatient counseling, medication
management, and “gang intervention.”
The services were unsuccessful, and due to curfew and
drug violations, Burris’ probation was revoked. He was ini-
tially placed at a youth shelter in November 2018. He was
removed from there on December 21 and placed at a youth
detention center. From there, he was placed at an out-of-state
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STATE v. BURRIS
Cite as 30 Neb. App. 109group home on February 22, 2019. He remained at the group
home until June, at which time he absconded. He was returned
to the youth detention center for several months and then
was released home to his mother in October. Following his
return home, he continued to violate the terms of his proba-
tion, including possession of BB guns and continued substance
abuse. Consequently, he was placed at the YRTC in Kearney
on March 9, 2020.
After Burris was placed at the YRTC, he had multiple
instances of physical aggression toward staff. Janzen testified
that he was concerned about medication management, because
he had witnessed instances of compliance with medication and
noncompliance without it. Oftentimes, Burris would refuse
his medication, so in July 2020, after the current offenses, his
method of medication was changed from oral administration
to monthly injections. On October 15, following successful
completion of the YRTC program, Burris was returned home.
Janzen continued to be his probation officer and worked with
Burris on a reentry plan that included primarily medication
management, along with individual outpatient therapy, fam-
ily support, and electronic monitoring. Although Janzen had
concerns following Burris’ release from the YRTC, he testified
none of them came to fruition. Burris successfully completed
probation on January 20, 2021.
Janzen admitted at the time of the transfer hearing that
Burris was over the age of 18. He testified that there would still
be some services available to him such as electronic monitor-
ing, “GPS tracking,” and individual therapy services. The only
new service would be victim offender mediation.
Paul Gordon is the facility administrator at the YRTC. He
verified that in Burris’ initial assessment, Burris admitted to
being a member of a specific gang. Gordon testified that he
has to “sign off” on every major violation that occurs at the
YRTC; therefore, he was familiar with Burris’ assaults on staff.
Burris’ first major violation was on March 17, 2020, and was
a staff assault. There was another one the next day, and several
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STATE v. BURRIS
Cite as 30 Neb. App. 109others in the following months. On July 3, Burris assaulted
a staff member with a shiv. Due to the manner in which the
assaults were escalating, the staff decided Burris needed sta-
bilization on medication. Once that was accomplished in July,
Gordon saw a consistent change in Burris, who had only one
subsequent staff assault.
Gordon confirmed that the maximum age at the YRTC is
a person’s “19th birthday.” He further stated that Burris did
not seem like the same person when he was released from
the YRTC; he seemed more “positive” and able to deal with
his anger.
A state trooper testified that the YRTC notified him on July
3, 2020, that Burris committed an assault on a staff member
at about 8 a.m. and another assault just after noon. The state
trooper was also provided two shivs that had been used in the
assaults. He interviewed the first staff member, who told him
that just after 8 a.m., he and another staff member went to
deliver toilet paper to Burris, who then forced open his door,
made a stabbing motion at the first staff member, and punched
him in the face. The first staff member had some minor injuries
on his face, a 4-inch red mark on the right side of his chest,
and two small scrapes on his left pectoral muscle.
Burris’ mother testified on his behalf. She explained that
she initially made contact with the juvenile system for the
terroristic threats Burris made because she was trying to get
help for her family. She “knew he had mental conditions and
[she] knew [they] needed help as a family.” She explained
that Burris was originally placed on medication for attention
deficit hyeractivity disorder at age 15. Once the court got
involved, a doctor prescribed a different medication; then,
after Burris went to the YRTC, he was prescribed a third
medication.
According to Burris’ mother, Burris is completely different
when taking the third medication. He continues to ­communicate
with his counselor, although the services were terminated once
probation was ended. She testified the counselor expressed
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Cite as 30 Neb. App. 109that he is available if Burris needs him, but that there is cur-
rently no need for his services. Burris continues to attend
school and has an individualized education plan. Through that
plan, he receives anger management therapy; however, with the
medication, Burris’ mother does not see anger issues any more.
She denied Burris was involved in a gang and said it was a
“surprise” to her that it was indicated on his assessment.
Following a hearing, the district court entered a written
order in which it analyzed each of the factors set forth in Neb.
Rev. Stat. § 43-276(1) (Cum. Supp. 2020) and overruled the
motion to transfer. It found, rephrased, as follows:
(1) The type of treatment the juvenile would most likely be
amenable to: A number of services available in juvenile proba-
tion have already been provided to Burris, including home ther-
apy, psychological and mental health services, electronic moni-
toring, educational services, community-based services, and
group home care. Burris struggled to comply with court orders,
abide by curfews, and provide negative drug tests. He was
ultimately placed at the YRTC, where his behaviors continued.
This factor weighed in favor of retaining jurisdiction.
(2) Whether there is evidence that the alleged offense
included violence: Burris carved two toothbrush handles into
shivs, which he attempted to use during assaults on staff mem-
bers on two separate occasions on July 3, 2020. During both
assaults, he punched and kicked the staff members. This factor
weighed in favor of retention.
(3) Motivation for the commission of the offense: Burris’
motivation for the commission of the offenses is unknown, but
he previously engaged in similar assaultive behavior and was
initially placed on juvenile probation as a result of terroristic
threats against his mother and disorderly conduct in March
2018. The court recognized, however, that Burris suffers from
mental health issues and has been diagnosed with disruptive
mood dysregulation disorder, attention deficit hyperactivity
disorder, and conduct disorder, which may have driven his
actions. Burris refused to take medication for these diagnoses
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Cite as 30 Neb. App. 109until after this incident and is now doing monthly injections.
This factor favors retention.
(4) Age of defendant: At the time of the assaults, Burris was
17 years old, but at the time of the transfer hearing, he was
18 years old. Because Burris would reach the age of majority
shortly, this factor weighed in favor of retention.
(5) Previous history: Burris has prior terroristic threats
and disorderly conduct charges in juvenile court and prior
assaults on staff members at the YRTC. This weighed in favor
of retention.
(6) Best interests of juvenile: Burris successfully completed
programming at the YRTC, was discharged from juvenile pro-
bation, and has maintained compliance with his medication.
This weighed in favor of transfer, although a longer period
of time to work with him and provide more services would
be beneficial.
(7) Consideration of public safety: Due to the making of
weapons and Burris’ prior violent behavior, the court found this
weighed in favor of retention.
(8) Ability to appreciate the nature and seriousness of his
conduct: Because Burris recognized and appreciated the nature
and seriousness of his actions, the court found this weighed in
favor of transfer.
(9) Best interests of juvenile and security of public requiring
detention or supervision for period extending beyond minority:
Because of the seriousness of the charges, Burris will likely
require detention or services beyond the age of majority; there-
fore, this weighed in favor of retaining jurisdiction.
(10) Mediation: Burris would be willing to participate in
mediation; therefore, this weighed in favor of transfer.
(11) Pretrial diversion program: No evidence was presented
on this factor, but the court found it unlikely that Burris would
qualify; therefore, this factor weighed in favor of retention.
(12) Firearm: Burris had no prior convictions for use of a
firearm. This factor favored a transfer.
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STATE v. BURRIS
Cite as 30 Neb. App. 109(13) Juvenile court order pursuant to Neb. Rev. Stat.
§ 43-2,106.03 (Reissue 2016): No evidence was presented on
this factor; therefore, it was neutral.
(14) Gang member: The evidence was unclear on this issue.
There was testimony that he was and that he was not a gang
member. Therefore this factor was neutral.
ASSIGNMENT OF ERROR
Burris assigns that the district court erred in denying his
motion to transfer his case to the juvenile court.
STANDARD OF REVIEW
[1] A trial court’s denial of a motion to transfer a pending
criminal proceeding to the juvenile court is reviewed for an
abuse of discretion. State v. Bluett, 295 Neb. 369, 889 N.W.2d
83 (2016). An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.ANALYSIS
Motions to transfer a pending criminal case to juvenile court
are governed by Neb. Rev. Stat. § 29-1816 (Cum. Supp. 2020)
and § 43-276(1). Generally speaking, § 29-1816(3) sets forth
the procedure to be followed, and § 43-276(1) enumerates the
factors a court must consider when ruling on a motion to trans-
fer, which include:
(a) The type of treatment such juvenile would most likely
be amenable to; (b) whether there is evidence that the
alleged offense included violence; (c) the motivation for
the commission of the offense; (d) the age of the juvenile
and the ages and circumstances of any others involved
in the offense; (e) the previous history of the juvenile,
including whether he or she had been convicted of any
previous offenses or adjudicated in juvenile court; (f)
the best interests of the juvenile; (g) consideration of
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STATE v. BURRIS
Cite as 30 Neb. App. 109public safety; (h) consideration of the juvenile’s ability to
appreciate the nature and seriousness of his or her con-
duct; (i) whether the best interests of the juvenile and the
security of the public may require that the juvenile con-
tinue in secure detention or under supervision for a period
extending beyond his or her minority and, if so, the avail-
able alternatives best suited to this purpose; (j) whether
the victim or juvenile agree to participate in restorative
justice; (k) whether there is a juvenile pretrial diversion
program established pursuant to sections 43-260.02 to
43-260.07; (l) whether the juvenile has been convicted
of or has acknowledged unauthorized use or possession
of a firearm; (m) whether a juvenile court order has been
issued for the juvenile pursuant to section 43-2,106.03;
(n) whether the juvenile is a criminal street gang member;
and (o) such other matters as the parties deem relevant to
aid in the decision.
After considering all the evidence and reasons presented
by both parties, a case shall be transferred to juvenile court
unless a sound basis exists for retaining the case in district
court. See § 29-1816(3)(a). As the Nebraska Supreme Court
has explained, in conducting a hearing on a motion to transfer
a pending criminal case to juvenile court, the court should
employ “a balancing test by which public protection and soci-
etal security are weighed against the practical and nonproblem-
atical rehabilitation of the juvenile.” State v. Stevens, 290 Neb.
460, 465, 860 N.W.2d 717, 725 (2015). “In order to retain the
proceedings, the court need not resolve every factor against the
juvenile, and there are no weighted factors and no prescribed
method by which more or less weight is assigned to a specific
factor.” Id. “The burden of proving a sound basis for retention
lies with the State.” Id.Burris was charged with use of a deadly weapon to com-
mit a felony, a Class II felony, and second degree assault, a
Class IIA felony, arising out of alleged incidents occurring
at the YRTC on or around July 3, 2020. At the time of the
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Cite as 30 Neb. App. 109assaults, he was 17 years old, and at the time of the transfer
hearing, he was 18 years old. Burris argues that the district
court did not have a sound reason for retaining jurisdiction,
relying primarily upon the facts that he has completed the pro-
gram at the YRTC and has been successfully discharged from
probation. He claims these programs addressed his treatment
needs and that the limited juvenile services still available to
him would be sufficient.
The record reveals that Burris was initially noncompliant
with his medication, leading to the decision that it be changed
and administered via monthly injection. Since that change,
Burris’ behavior appears to have improved. Nonetheless, when
weighing the factors of § 43-276(1), the district court con-
cluded that a sound basis existed for retaining jurisdiction.
We agree.
[2] It is undisputed that Burris’ attacks on the staff members
involved violence and that given his age, he would be under
the jurisdiction of the juvenile court for a very short period of
time. At the time of the attacks, he had been provided virtually
all of the offered juvenile court services, to no avail. Burris
had a long history of violence, as evidenced by his initial
commitment to the YRTC and his record of violations while
there. Although we are mindful of the effect Burris’ medication
change has had, when a district court’s basis for retaining juris-
diction over a juvenile is supported by appropriate evidence, it
cannot be said that the court abused its discretion in refusing to
transfer the case to juvenile court. See State v. Hunt, 299 Neb.
573, 909 N.W.2d 363 (2018).
The district court set forth a detailed analysis of each of
the factors contained in § 43-276(1), and we find no abuse
of discretion in denying Burris’ motion to transfer the case
to juvenile court. Given Burris’ age, a transfer to the juvenile
court at this point would provide little to no services being
offered to Burris. And given the nature of the offenses and
Burris’ long history of noncompliance, we cannot say that the
minimal services available through the juvenile court would
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retaining jurisdiction.
Relying upon § 43-276(2) and the definition of the term
“juvenile” contained in Neb. Rev. Stat. § 43-245(11) (Cum.
Supp. 2020), the State argues in its brief that the district court
did not err in denying the motion to transfer because at the
time the motion was filed, the juvenile court would not have
jurisdiction over Burris who had already turned 18 years old.
The State did not present this argument to the district court;
however, because it presents a question of jurisdiction that may
be raised at any time, we address the State’s argument. See
State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).
The essence of the State’s argument is that § 43-276(2)
grants a juvenile court jurisdiction over any juvenile who com-
mits a felony and who was at least 11 years old at the time
the act was committed. Section 43-245(11) defines a juvenile
as “any person under the age of eighteen.” Therefore, accord-
ing to the State, the juvenile court’s jurisdiction is limited
to persons who commit a felony and are 11 to 17 years old.
We disagree.
Neb. Rev. Stat. § 43-247(2) (Reissue 2016) grants jurisdic-
tion to the juvenile court over any juvenile who committed a
felonious act and who was 11 years of age or older at the time
the act was committed. Subsection (12) of § 43-247 also grants
continuing jurisdiction to the juvenile court until that individual
reaches the age of majority. Neb. Rev. Stat. § 43-246.01(3)(c)
(Reissue 2016) grants concurrent jurisdiction to the district
court and the juvenile court as to any juvenile described in
§ 29-1816(1)(a)(ii), which section includes an “accused [who
was] younger than eighteen years of age and [who was] four-
teen years of age or older when an alleged offense punishable
as a Class I, IA, IB, IC, ID, II, or IIA felony was committed.”
Likewise, § 29-1816(2) requires that the trial court advise a
defendant “if the accused was younger than eighteen years of
age at the time the alleged offense was committed” that the
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court for further proceedings.
[3] When read together, these statutes support a determina-
tion that the juvenile court had concurrent jurisdiction over
Burris at the time the motion to transfer was filed. Burris was
17 years of age when he allegedly committed the acts which
constitute Class II and IIA felonies. He had not yet reached
the age of majority during the course of the proceedings. See
§ 43-245(2). Therefore, we reject the State’s argument that the
juvenile court was without jurisdiction to accept a transfer of
Burris’ case.
CONCLUSION
Finding no abuse of discretion in the district court’s order
denying the motion to transfer, we affirm.
Affirmed.