In re Interest of Jorge A. ( 2023 )

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www.nebraska.gov/apps-courts-epub/
05/09/2023 09:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896In re Interest of Jorge A., a child
under 18 years of age.
State of Nebraska, appellee,
v. Jorge A., appellant.
___ N.W.2d ___
Filed May 9, 2023. No. A-22-870.
1. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appel-
late court reviews a juvenile court’s decision to transfer a juvenile
offender’s case to county court or district court de novo on the record
for an abuse of discretion.
2. Courts: Juvenile Courts: Jurisdiction: Proof. When the prosecution
seeks to transfer a juvenile offender’s case to criminal court, the juve-
nile court must retain the matter unless a preponderance of the evidence
shows that the proceeding should be transferred to the county court or
district court.
3. Courts: Juvenile Courts: Jurisdiction. In conducting a hearing on a
motion to transfer a pending juvenile offender’s case to criminal court,
the court should employ a balancing test by which public protection and
societal security are weighed against the practical and nonproblematical
rehabilitation of the juvenile.
Appeal from the County Court for Madison County:
Michael L. Long, Judge. Affirmed.
Timothy E. Sopinski, of Sopinski Law Office, for appellant.
Nathaniel T. Eckstrom, Deputy Madison County Attorney,
for appellee.
Moore, Riedmann, and Bishop, Judges.
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31 Nebraska Appellate Reports
IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896Riedmann, Judge.
I. INTRODUCTION
Jorge A. appeals the decision of the Madison County Court,
sitting as a juvenile court, granting the State’s motion to trans-
fer his case to adult court. Despite the court’s erroneous appli-
cation of a sound basis prerequisite to support the transfer, we
find no abuse of discretion in the court’s order granting the
motion to transfer.
II. BACKGROUND
Jorge, born in March 2005, was pulled over by a Nebraska
State Patrol trooper for a traffic violation on October 13,
2022. The vehicle’s registration tags were expired, and Jorge
did not have a driver’s license. During the course of the stop,
the trooper detected the odor of marijuana emitting from the
vehicle. Jorge admitted that there was marijuana in the door of
the vehicle and that he also had a “THC vape.”
The trooper conducted a probable cause search of the vehicle
and located psilocybin mushrooms, possible LSD blotter paper,
drug paraphernalia, marijuana “shake,” and an open bottle of
liquor. While Jorge was seated in the cruiser during the search
of the vehicle, he made several phone calls to friends and rela-
tives that were recorded on the recording device located in the
cruiser. In those conversations, Jorge made several admissions
that he had mushrooms, “fake” LSD, a scale, and money on
him, and that he was selling the drugs and had made $900 in 3
days. Jorge had $554 in his wallet.
Jorge was taken to a State Patrol office and was released
that evening to his parents. He was arrested the following day.
A juvenile petition was filed charging him with possession of
psilocybin with intent to deliver, a Class IIA felony. On the
same day, the State filed a motion to transfer the case to adult
court. An amended juvenile petition was filed, adding a count
for resisting arrest.
At the hearing on the motion to transfer, the trooper testi-
fied as to the events set forth above, as well as to the weight
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896of the mushrooms being 3.8 ounces. In addition, Jorge’s
probation officer, Michelle Sullivan, testified. Sullivan is a
specialized juvenile probation officer, and she was currently
Jorge’s probation officer and had also served in that capacity
about a year prior. Her first contact with him was when he
was 14 years old for truancy issues. Within the past year, she
observed videos of Jorge smoking marijuana and other videos
showing bags of marijuana. When she questioned Jorge about
that, he said it was for personal use, but Sullivan testified the
quantities were “[d]efinitely not personal use.” She confirmed
that over the past year, drug testing was part of his probation,
and that he had tested positive for THC and had also missed
some testing dates.
Sullivan testified that through services Jorge is set to gradu-
ate at the end of the current school year. He has had “multi-
systemic therapy” (MST) to address his substance usage, and
he was making progress with that. He agreed to a substance
abuse evaluation in September 2021; the results recommended
intensive outpatient treatment, but he did not receive that
treatment because he was engaged in MST instead. Sullivan
reported that probation has exhausted in-home level of care
through MST and that before she could state further recom-
mendations, she would want an updated substance use evalua-
tion. At this stage, Jorge had not exhausted all levels of treat-
ment, and in fact, he had not yet even been placed out of home.
She opined that “there’s still things that juvenile [court] can do
since he was 17.”
Also offered into evidence were certified copies of three
prior juvenile court proceedings in Madison County involving
Jorge, JV 19-8 (curfew violation), JV 21-67 (uncontrollable
juvenile), and JV 21-143 (possession of drug paraphernalia).
In closing arguments, the State requested that the case be
transferred to adult court due to Jorge’s being on probation
multiple times, his continued issues with substance abuse, and
now his escalation to distribution. The State emphasized that
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896Jorge would be 19 years old in less than 1½ years, and that
adult court would be able to place him on probation past that
age. In response, Jorge’s attorney argued that Jorge had not
even been out of home, and “there’s a lot that can be done for
him at this stage in the game.”
The court reviewed each of the relevant statutory factors
set forth in Neb. Rev. Stat. § 43-276(1) (Cum. Supp. 2022) on
the record. It found that as to the first factor, the type of treat-
ment the juvenile is most likely amenable to, Jorge had been
on probation in three prior cases and was on probation when
he engaged in distribution. Because probation had not deterred
Jorge, the court determined that he needed more; therefore, this
factor weighed in favor of transfer. Other factors weighing in
favor of transfer were the motivation for the offense (which
the court stated was profit, a “purely adult” motivation); age;
previous history; the juvenile’s best interests (because account-
ability and supervision within the adult system would be best
for Jorge in the long run); public safety; appreciation for the
nature and seriousness of his conduct; and best interests of
the juvenile and security of the public (which the court stated
would require detention or supervision for a period extending
beyond his 19th birthday).
The court found that the only factors in favor of retaining
the case in the juvenile court were the absence of a convic-
tion or acknowledgment of possession of a firearm and the
absence of gang affiliation. Neutral factors included whether
the offense involved violence, availability of restorative justice,
and availability of a juvenile pretrial diversion program (due to
absence of evidence).
After reviewing each of the relevant statutory factors on the
record, the court stated that after “balancing out those factors,
I’ve just went through them, I’m going to find there’s a sound
basis for transfer that exists. So I’m going to transfer this mat-
ter to the Madison County Court for further proceedings in the
adult system.” Jorge appeals.
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896III. ASSIGNMENTS OF ERROR
Jorge assigns that the juvenile court (1) erred in utilizing the
wrong legal standard in deciding whether to transfer the case to
adult court and (2) abused its discretion in finding that transfer
to adult court was warranted.
IV. STANDARD OF REVIEW
[1] An appellate court reviews a juvenile court’s decision to
transfer a juvenile offender’s case to county court or district
court de novo on the record for an abuse of discretion. In re
Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).
When the evidence is in conflict, an appellate court may give
weight to the fact that the lower court observed the witnesses
and accepted one version of the facts over the other. Id.V. ANALYSIS
1. Prerequisite for Transfer
[2] When the prosecution seeks to transfer a juvenile offend-
er’s case to criminal court, the juvenile court must retain the
matter unless a preponderance of the evidence shows that the
proceeding should be transferred to the county court or district
court. Id. See Neb. Rev. Stat. § 43-274(5) (Cum. Supp. 2022).
However, when a juvenile seeks to transfer a case from crimi-
nal court to the juvenile court, a court shall transfer “unless
a sound basis exists for retaining the case.” Neb. Rev. Stat.
§ 29-1816(3) (Cum. Supp. 2022). In In re Interest of Steven S.,
supra, the Nebraska Supreme Court recognized that a differ-
ence exists between the two prerequisites, but did not define
the difference between a preponderance of the evidence and a
sound basis.
It is clear that the juvenile court applied the wrong pre-
requisite when it found that there was a “sound basis” for
a transfer to criminal court; however, our review of the
court’s order is de novo on the record for an abuse of discre-
tion. As explained below, based upon that review, we find
that a preponderance of the evidence shows that the case
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896should be transferred to adult court; therefore, we find no
abuse of discretion in the juvenile court’s order granting the
State’s motion.
2. Transfer Was Not Abuse of Discretion
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants con-
current jurisdiction to the juvenile court and the county or
district courts over juvenile offenders who (1) are 11 years of
age or older and commit a traffic offense that is not a felony or
(2) are 14 years of age or older and commit a Class I, IA, IB,
IC, ID, II, or IIA felony. Actions against these juveniles may
be initiated either in juvenile court or in the county or district
court. In the present case, Jorge, age 17, was charged with a
Class IIA felony, thereby giving both the juvenile court and the
county court jurisdiction over him.
When an alleged offense is one over which both the juve-
nile court and the criminal court can exercise jurisdiction, a
party can move to transfer the matter. For matters initiated in
juvenile court, the county attorney or city attorney can move to
transfer it to adult court pursuant to § 43-274(5).
In the instant case, when the State moved to transfer Jorge’s
case to adult court, the juvenile court conducted a hearing pur-
suant to § 43-274(5) and considered the following factors set
forth in § 43-276(1):
(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
public safety; (h) consideration of the juvenile’s ability
to appreciate the nature and seriousness of his or her
conduct; (i) whether the best interests of the juvenile
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896and the security of the public may require that the juve-
nile continue in secure detention or under supervision
for a period extending beyond his or her minority and, if
so, the available alternatives best suited to this purpose;
(j) whether the victim or juvenile agree to participate in
restorative justice; (k) whether there is a juvenile pre-
trial 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.
[3] As the Supreme Court has explained, in conducting a
hearing on a motion to transfer a pending juvenile offender’s
case to criminal court, the court should employ “a balanc-
ing test by which public protection and societal security are
weighed against the practical and nonproblematical rehabilita-
tion of the juvenile.” In re Interest of Steven S., 299 Neb. 447,
457, 908 N.W.2d 391, 398 (2018). 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 prosecution “has
the burden by a preponderance of the evidence to show why
such proceeding should be transferred.” § 43-274(5).
3. Jorge Takes Issue With Certain
§ 43-276 Factors
Jorge takes issue with the juvenile court’s review of seven
of the factors set forth in § 43-276. We review each separately.
(a) § 43-276(1)(a)—Type of Treatment Juvenile
Would Most Likely Be Amenable To
The court found that Jorge had been on probation in
three prior cases and had completed the highest level of
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896community supervision available. Despite this, “the drug deal-
ing in this case went on, in this case, right under the nose
of the probation officer.” Consequently, the court found that
Jorge was not responding to treatment that did not involve a
level of deterrence or incapacitation, which weighed in favor
of transfer. Jorge argues that Sullivan’s testimony revealed
that he was amenable to services. Sullivan testified that Jorge
had not exhausted all of the levels juvenile probation has
available and that given his age, there were still things that
juvenile court could do. However, simply because services
are available does not mean the juvenile is amenable to them.
See State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018)
(in considering motion to transfer, it is important to consider
defendant’s individual amenability to treatment). Prior to this
occurrence, Jorge had been on probation three times that
included “GPS” monitoring, drug testing, and MST; however,
his activities escalated from truancy and possession of drug
paraphernalia to distribution of psilocybin mushrooms. We
agree that this factor weighed in favor of transfer.
(b) § 43-276(1)(b)—Whether There Is Evidence That
Alleged Offense Included Violence
The court acknowledged that the primary offense did not
involve violence, but that a charge of resisting arrest involves
some kind of violence. Because the record did not set out what
events transpired, the court determined that this factor “is at
best neutral.” Jorge argues that the absence of violence should
have resulted in this factor’s weighing in favor of retention.
But contrary to Jorge’s argument, the court did not determine
the charges did not involve violence; rather, it could not quan-
tify the amount of violence involved, therefore making this
factor neutral. We agree with that decision.
(c) § 43-276(1)(c)—Motivation for
Commission of Offense
The court found that Jorge’s motivation was making a
profit, a purely adult motivation. Jorge argues there was no
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896evidence that Jorge was motivated by profit and the “court
made a leap unjustified by the evidence.” Brief for appellant
at 17. However, Jorge ignores the phone conversations he had
while in the back of the cruiser in which he indicated he was
selling drugs and had made $900 in 3 days. We disagree with
Jorge’s argument that income of that amount in a short period
of time for someone who was 17 years old is insufficient for
the court to determine his motivation was profit. This factor
weighs in favor of transfer.
(d) § 43-276(1)(f)—Best Interests of Juvenile
The court opined that “there never will be any account-
ability” for Jorge unless the case was transferred because
that “just can’t be done in the juvenile system.” Therefore,
the court determined that transfer to the adult system was
in Jorge’s best interests. Jorge argues that the court’s state-
ments regarding the absence of accountability was incorrect
because he had restrictive conditions in the past by which he
was required to abide. However, the prior restrictions were
not a deterrent for Jorge, as evidenced by the increase in his
criminal activity. The court acknowledged that “going through
the adult system at a young age is not good,” but reasoned
that “the accountability and supervision that comes with [the]
adult system, I find is going to be in his best interest.” Given
Jorge’s unwillingness to conform to lawful behavior, we agree
that the alternate measures available through the adult sys-
tem may ultimately prove to be in Jorge’s best interests
if convicted.
(e) § 43-276(1)(g)—Consideration
of Public Safety
The court “guess[ed]” that Jorge was dealing to the younger
population, which “has a substantial risk of harm to the
community.” Jorge argues that “[g]uesswork” is improper
by a judge. Brief for appellant at 19. Regardless of the
age of Jorge’s customers, distribution of psilocybin carries a
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896substantial risk of harm to the community, which supports a
transfer to adult court.
(f) § 43-276(1)(h)—Consideration of Juvenile’s
Ability to Appreciate Nature and
Seriousness of Conduct
The court concluded that Jorge understood the nature and
consequences of his acts, which weighed in favor of transfer.
Jorge, however, argues that such an appreciation should favor
retention in the juvenile court. However, if a juvenile appreci-
ates the nature and seriousness of his conduct and pursues it
anyway, this weighs in favor of transfer to adult court. See
State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018)
(defendant’s subaverage maturity and low IQ weighed in favor
of transfer to juvenile court).
(g) § 43-276(1)(m)—Whether Juvenile
Court Order Issued for Juvenile
The court found that the absence of a juvenile court order
that was issued pursuant to Neb. Rev. Stat. § 43-2,106.03
(Reissue 2016) weighed in favor of transfer. Jorge argues that
is in error. Section 43-2,106.03 provides that after the dispo-
sition of a juvenile described in subsections (1), (2), (3)(b),
or (4) of Neb. Rev. Stat. § 43-247 (Reissue 2016), upon the
motion of any party or the court, a hearing may be held regard-
ing the amenability of the juvenile to the rehabilitative services
that can be provided under the juvenile code. If the court finds
the juvenile is not amenable to such services, it may enter an
order stating such. In the present case, there is no evidence that
such a hearing was conducted; therefore, the absence of such
an order does not weigh in favor of transfer. Rather, we deter-
mine this factor is inapplicable.
We have reviewed Jorge’s arguments and the evidence pre-
sented to the juvenile court. In balancing public protection and
societal security against the practical and nonproblematical
rehabilitation of Jorge, we find that a preponderance of the
evidence supports a transfer of Jorge’s case to the adult court.
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IN RE INTEREST OF JORGE A.
Cite as 31 Neb. App. 896IV. CONCLUSION
Upon our de novo review of the record, we find no abuse
of discretion in the juvenile court’s order transferring Jorge’s
case to the adult court. We therefore affirm the juvenile court’s
transfer order.
Affirmed.