State v. Aldana Cardenas , 314 Neb. 544 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/16/2023 09:05 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALDANA CARDENAS
Cite as 314 Neb. 544State of Nebraska, appellee, v. Rodny
Aldana Cardenas, appellant.
___ N.W.2d ___
Filed June 16, 2023. No. S-23-096.
1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, an appellate court reviews mootness determinations under
the same standard of review as other jurisdictional questions.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the
lower court.
4. 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.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
6. Juvenile Courts: Jurisdiction. Whether the juvenile court has jurisdic-
tion over a person is determined not by the person’s age at the time
of the offense, but, rather, by the person’s age at the time he or she is
charged for the offense.
7. ____: ____. The determination of whether an individual is a “juvenile”
within the provisions of Neb. Rev. Stat. § 43-247 (Reissue 2016) should
be based on the individual’s age on the date when that individual was
charged with an offense. If an individual is a “juvenile” on the date
he or she is charged with an offense, the juvenile court may exercise
jurisdiction over that individual under the relevant subsection and
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Cite as 314 Neb. 544may continue to exercise jurisdiction under § 43-247(12) until the indi-
vidual reaches the age of majority.
8. Courts: Juvenile Courts: Jurisdiction. If otherwise appropriate, a case
involving an individual who was a juvenile when charged in county
court or district court may be transferred to the juvenile court until that
individual reaches the age of majority.
9. ____: ____: ____. Under Neb. Rev. Stat. § 29-1816(3)(a) (Cum. Supp.
2022), in the absence of a sound basis for retention in county court or
district court, transfer to juvenile court is the general rule.
10. Courts: Juvenile Courts: Jurisdiction: Proof. In a motion to transfer
to juvenile court, the burden of proving a sound basis for retaining juris-
diction in county court or district court lies with the State.
11. Courts: Juvenile Courts: Judgments. When ruling on a motion to
transfer to juvenile court under Neb. Rev. Stat. § 29-1816(3) (Cum.
Supp. 2022), the court is required to set forth findings supporting
its decision.
12. Courts: Juvenile Courts: Jurisdiction. In order to retain proceed-
ings in criminal court, the court need not resolve every statutory 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.
It is a balancing test by which public protection and societal security
are weighed against the practical and nonproblematical rehabilitation of
the juvenile.
13. Courts: Juvenile Courts: Evidence. Under Neb. Rev. Stat. § 29-1816(3)
(Cum. Supp. 2022), after the court considers the evidence in light of the
Neb. Rev. Stat. § 43-276 (Cum. Supp. 2022) factors, the case shall be
transferred to juvenile court unless a sound basis exists for retaining the
case in county court or district court.
14. 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.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
Mark Porto, of Wolf, McDermott, Depue, Sabott, Butz &
Porto, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Matthew Lewis
for appellee.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALDANA CARDENAS
Cite as 314 Neb. 544Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Rodny Aldana Cardenas (Aldana) appeals the order of the
district court for Hall County that overruled his motion to
transfer his case to juvenile court. Aldana claims the district
court abused its discretion when it denied transfer. The State
argues, in part, that when Aldana turned 18 years old during
the pendency of this appeal, the issue of transferring the case
to juvenile court became moot. We determine that the issue
did not become moot, and we conclude that the district court
did not abuse its discretion when it denied the transfer. We
therefore affirm the order of the district court.
STATEMENT OF FACTS
On December 5, 2022, the State filed an information in
the district court charging Aldana, who was born in March
2005, with first degree sexual assault, a Class II felony under
Neb. Rev. Stat. § 28-319 (Reissue 2016). The court accepted
Aldana’s plea of not guilty.
On January 3, 2023, Aldana filed a motion pursuant to
Neb. Rev. Stat. § 29-1816(3) (Cum. Supp. 2022) in which he
requested that the district court transfer this case to juvenile
court. Aldana asserted that he was under the age of 18 on
the date of the alleged offense—September 14, 2022—and
that there was no sound basis to retain the matter in the dis-
trict court.
At a hearing on the motion to transfer, the State pre-
sented evidence to support its position that the case should
be retained in the district court. The State’s evidence included
investigative reports related to the charged offense, as well
as testimony by a law enforcement officer who investigated
the incident and testimony by a juvenile probation supervi-
sor. Aldana presented evidence to counter the State’s position
and to support transfer to juvenile court. Aldana’s evidence
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Cite as 314 Neb. 544included testimony by his mother, as well as an email from
a licensed psychologist regarding treatment of juvenile sex
offenders and a study regarding recidivism rates of juvenile
sex offenders and the effect of treatment on such juveniles.
Evidence presented at the hearing indicated that Aldana
had been living with his grandmother in Cuba and that he
had immigrated to Nebraska in August 2022 to live with his
parents, who had been living in the United States for sev-
eral years. Aldana began high school soon after he arrived in
Nebraska. The incident that gave rise to the charge against
Aldana occurred in September 2022, just over a month after
he had arrived. The investigation by law enforcement indicated
that Aldana and several other students had gone to a lake over
their lunch period. The complaining witness alleged that she
and Aldana had gone to a vehicle to “make out” and that at
some point during the encounter, she decided that she did not
want to proceed any further. She alleged that she informed
Aldana of her desire for him to stop, but the encounter contin-
ued and included penetration.
The parties also presented evidence regarding potential treat-
ment that could be offered in a juvenile case. Such evidence
was mostly couched in terms of generalities in the absence
of an assessment to determine specific treatment tailored to
Aldana. Aldana offered into evidence an email from a repre-
sentative of a juvenile treatment program, who described alter-
native services “for juveniles who have sexually offended.”
The representative stated, with the proviso that “we would
need to assess whether there would be sufficient time to com-
plete the goals” for a specific individual, that “[i]n general . . .
we think one year would be a realistic time frame” and that
the program does “attempt to individualize a youth’s plan of
care to accommodate his needs and other external factors, e.g.,
aging out of the system.”
The juvenile probation supervisor called by the State tes-
tified, inter alia, that “[a] typical term of probation that is
recommended for a felony offense is around 18 months to
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Cite as 314 Neb. 544ensure there’s enough time for probation to work with a youth
on treatment recommendations and any other skill building
to rehabilitate them.” The supervisor testified that a juvenile
offender may be recommended to complete a “residential treat-
ment facility program [that] can be anywhere from 6 to 12
months,” but the supervisor further testified that once the juve-
nile has completed such a treatment program, “[t]here’s typi-
cally on-going aftercare recommendations that would include
outpatient therapy when going from inpatient to the commu-
nity, and there would also be supervision within probation.”
The supervisor acknowledged that juvenile probation is “no
longer able to supervise [individuals] past their 19th birthday”
and further testified that “[t]he biggest barrier working with
18 year olds coming into the system at that age is the small
window of time working with them” and that “sometimes treat-
ment recommendations can be lengthy.”
After the hearing, on February 2, 2023, the district court
filed an order in which it found that the State had met its
burden to show that a sound basis existed for retaining juris-
diction of this matter in the district court. The court therefore
overruled Aldana’s motion to transfer the case to the juvenile
court. The court’s findings and reasoning are set forth in more
detail in our analysis below.
Aldana appeals the district court’s order that overruled his
motion to transfer to juvenile court.
ASSIGNMENT OF ERROR
Aldana claims that the district court abused its discretion
when it overruled his motion to transfer his case to the juve-
nile court.
STANDARDS OF REVIEW
[1,2] Because mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction, we
review mootness determinations under the same standard of
review as other jurisdictional questions. State v. Roberts, 304
Neb. 395, 934 N.W.2d 845 (2019). A jurisdictional question
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Cite as 314 Neb. 544that does not involve a factual dispute is determined by an
appellate court as a matter of law, which requires the appellate
court to reach a conclusion independent of the lower court’s
decision. Id.[3] Statutory interpretation presents a question of law which
an appellate court reviews independently of the lower court.
State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
[4,5] 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. Hunt, 299 Neb. 573, 909 N.W.2d
363 (2018). 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
Issue of Transfer to Juvenile Court Did Not Become
Moot When Aldana Turned 18 Years Old
During the Pendency of This Appeal.
The State contends that the issue of transferring this case
to juvenile court became moot when Aldana turned 18 years
old during the pendency of this appeal. The notice of appeal
in this case was filed on February 7, 2023, and Aldana
turned 18 years old in March. He will turn 19 years old in
March 2024. The State contends that the juvenile court cannot
acquire jurisdiction of Aldana’s case because he is no longer
a juvenile and that therefore, his case can no longer be trans-
ferred to the juvenile court. As explained below, we reject the
State’s contention.
The State cites our decision in State v. Pauly, 311 Neb.
418, 972 N.W.2d 907 (2022), which the State characterizes
as holding that whether the juvenile court has jurisdiction
over a particular person is determined not by the person’s
age at the time of the offense, but, rather, by his or her age
at the time the juvenile court is expected to acquire jurisdic-
tion. We do not agree with this characterization. The State
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Cite as 314 Neb. 544argues that now that Aldana is 18 years old, he has “aged out
of the period when the juvenile court could acquire jurisdic-
tion over him” and that because the juvenile court could no
longer acquire jurisdiction over Aldana, any question regard-
ing transfer of his case to the juvenile court is now moot.
Brief for appellee at 15.
The State cites Neb. Rev. Stat. § 43-247 (Reissue 2016),
which sets forth juvenile court jurisdiction, and § 43-247(2)
in particular, which provides that the juvenile court has juris-
diction of “[a]ny juvenile who has committed an act which
would constitute a felony under the laws of this state and
who, beginning July 1, 2017, was eleven years of age or
older at the time the act was committed.” The State also cites
Neb. Rev. Stat. § 43-245 (Cum. Supp. 2022), which provides
definitions for purposes of the Nebraska Juvenile Code, and
in particular § 43-245(11), which defines “juvenile” as “any
person under the age of eighteen.” The State argues that read-
ing §§ 43-247(2) and 43-245(11) together, the juvenile court
can only acquire jurisdiction of a person under § 43-247(2)
when the person is a “juvenile,” that is, only at a time when
the person is under the age of 18. The State asserts that once
the person turns 18 years of age, the juvenile court can no
longer acquire jurisdiction of that person and a case brought
against that person in another court cannot be transferred to
juvenile court.
[6] Contrary to the State’s characterization of our holding
in State v. Pauly, in that case we stated that “whether the
juvenile court has jurisdiction over a person is determined
not by the person’s age at the time of the offense, but, rather,
by the person’s age at the time he or she is charged for the
offense.” 311 Neb. at 430, 972 N.W.2d at 918 (emphasis
supplied). This language indicates that the relevant date for
determining a person’s age, and therefore whether that person
is a “juvenile” for purposes of juvenile court jurisdiction, is
when the person is originally charged for an offense, whether
that person is charged by complaint in the county court, by
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Cite as 314 Neb. 544information in the district court, or by petition in the juve-
nile court.
Key to our decision in State v. Pauly was § 43-247(12),
which provides in relevant part that the juvenile court has
jurisdiction of “any individual adjudged to be within the pro-
visions of this section until the individual reaches the age of
majority or the court otherwise discharges the individual from
its jurisdiction.” Section 43-245(2) defines “[a]ge of major-
ity” as “nineteen years of age” for purposes of the Nebraska
Juvenile Code. Therefore, the juvenile court has jurisdiction
of “any individual adjudged to be within the provisions” of
§ 43-247 until that person turns 19 years of age. The defendant
in State v. Pauly was under 18 years old when the charged
offenses were alleged to have been committed, but he was 21
years old on the date he was charged. Therefore, by the time
he was charged, he had reached the age of majority and the
juvenile court could no longer exercise jurisdiction over him
under § 43-247(12). In State v. Pauly, we relied in part on State
v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011), in which the
defendant was 24 years old at the time he was charged with
offenses that were alleged to have occurred when he was 14
or 15 years old. In State v. Parks, we held that because under
the juvenile code a juvenile is discharged from juvenile court
jurisdiction when the juvenile reaches majority at “nineteen
years of age,” the juvenile court’s jurisdiction ended when the
juvenile reached the age of majority, and the district court was
not required to consider a motion to transfer the case to juve-
nile court.
Unlike the present case, in State v. Pauly, it was not neces-
sary to determine whether a person who was charged with an
offense at age 17 could be transferred to the juvenile court
after the person turned 18 years old but had not yet reached
age 19. In the present case, under § 43-247(12), if Aldana is
“adjudged to be within the provisions” of § 43-247, the juve-
nile court would have jurisdiction over Aldana until he turns
19 years old in March 2024. Under the facts of Aldana’s
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Cite as 314 Neb. 544case, the relevant provision of § 43-247 is subsection (2),
which requires that the individual is a “juvenile” in order to
be under juvenile court jurisdiction. Therefore, the relevant
question of statutory interpretation in this case is the date at
which, under § 43-247(12), an individual is to be “adjudged
to be within the provisions of this section.”
This court does not appear to have addressed circumstances
where a defendant is charged when under the age of 18 and
later turns 18 years old but has not yet reached the age of
majority—age 19—by the time a transfer to juvenile court
is requested or completed. The Nebraska Court of Appeals
addressed similar circumstances in State v. Burris, 30 Neb.
App. 109, 965 N.W.2d 828 (2021), but the State argues that
the holding in that case is inconsistent with our holding in
State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022). In State
v. Burris, the defendant was charged with an offense that was
alleged to have occurred when he was 17 years old. The Court
of Appeals rejected the State’s argument to the effect that the
defendant’s case could not be transferred to the juvenile court
because he had turned 18 years old before he moved for trans-
fer. The Court of Appeals reasoned that under § 43-247(12),
the juvenile court had continuing jurisdiction until the defend­
ant turned 19 years old and that the relevant date for the
juvenile court to acquire jurisdiction was the date the alleged
offense was committed. The Court of Appeals relied in part
on § 29-1816(2), which provides that when a defendant is
arraigned in county court or district court, the court “shall
advise the accused, if the accused was younger than eighteen
years of age at the time the alleged offense was committed, that
the accused may move the . . . court . . . to waive jurisdiction
in such case to the juvenile court for further proceedings.”
(Emphasis supplied.)
The State argues that the statement in State v. Burris to
the effect that juvenile court jurisdiction depends on the
date of the offense conflicts with State v. Pauly, in which
we specifically stated that whether the juvenile court has
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Cite as 314 Neb. 544jurisdiction over a person is not determined by the person’s
age at the time of the offense. We agree with the State that
State v. Burris is inconsistent with State v. Pauly, in which
we held that “whether the juvenile court has jurisdiction over
a person is determined not by the person’s age at the time of
the offense, but, rather, by the person’s age at the time he or
she is charged for the offense.” 311 Neb. at 430, 972 N.W.2d
at 918. Therefore, we disapprove State v. Burris to the extent
it determined that under § 43-247(12) an individual is to be
adjudged to be within the provisions of § 43-247 based on
the date on which the offense is alleged to have occurred
rather than the date on which the individual is charged with
the offense.
[7,8] The determinative fact in State v. Pauly was that the
defendant had turned 19 years old before he was charged
and that therefore, the juvenile court no longer had jurisdic-
tion under § 43-247(12). Notwithstanding different facts, we
determine that our statement in State v. Pauly to the effect
that whether the juvenile court has jurisdiction over a per-
son is determined by the person’s age at the time the person
is charged for an offense applies to the circumstances of
this case, and the determination of when an individual is
“adjudged to be within the provisions of” § 43-247—and
therefore within the scope of jurisdiction of juvenile court—is
determined on the date the person is charged with the offense.
In summary, under the relevant statutes, we understand the
determination of whether the individual is a “juvenile” within
the provisions of subsection (2) and other relevant subsec-
tions of § 43-247 should be based on the individual’s age on
the date when that individual was charged with an offense. If
an individual is a “juvenile” on the date he or she is charged
with an offense, the juvenile court may exercise jurisdiction
over that individual under the relevant subsection and may
continue to exercise jurisdiction under § 43-247(12) until the
individual reaches the age of majority. Furthermore, if other-
wise appropriate, a case involving an individual who was a
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Cite as 314 Neb. 544juvenile when charged in county court or district court may be
transferred to the juvenile court until that individual reaches
the age of majority.
Although the statutes are not explicit on this point, our
understanding is consistent with relevant statutes. See State
v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023) (components
of series or collection of statutes pertaining to certain subject
matter may be conjunctively considered and construed to
determine intent of Legislature so that different provisions of
act are consistent, harmonious, and sensible).
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) provides
that the juvenile court has concurrent original jurisdiction
with the county court or district court as to “[a]ny juvenile
described in subdivision (1)(a)(ii) of section 29-1816.” Section
29-1816(1)(a)(ii) describes an “accused [who] was younger
than eighteen years of age and was fourteen years of age or
older when an alleged offense punishable as a Class I, IA,
IB, IC, ID, II, or IIA felony was committed.” Neb. Rev. Stat.
§ 43-276(1) (Cum. Supp. 2022) sets forth factors that a county
attorney or city attorney must consider when “making the
determination whether to file a criminal charge” in county
court or district court or to “file a juvenile court petition.” As
will be discussed further in our analysis of the district court’s
transfer decision in this case, the county court or district court
must consider the same factors when ruling on a motion under
§ 29-1816(3) to transfer a case.
We further note that under § 29-1816(3)(b), when a case
is transferred from the county court or district court to the
juvenile court, “the complete file in the county court or dis-
trict court shall be transferred to the juvenile court and the
complaint, indictment, or information may be used in place
of a petition therein.” The provisions of § 29-1816 regard-
ing transfer to juvenile court contemplate a court’s review-
ing the prosecutor’s decision whether to file the charges in a
county court or district court or to file a petition in juvenile
court, and therefore, the date the prosecutor charges the
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Cite as 314 Neb. 544individual is relevant to that determination. Because under
§ 43-246.01(3), the juvenile court has “[c]oncurrent original
jurisdiction” with a county court or district court in these cir-
cumstances, and because the complaint or information filed in
the county court or district court is used as the petition when
a case is transferred to the juvenile court, we find it sensible
that the relevant date to determine whether an individual is
subject to juvenile court jurisdiction when that individual’s
case is transferred to the juvenile court is the date that the
individual was charged with an offense by complaint or by
information and the jurisdiction of the county court or district
court was invoked. The court deciding a transfer motion is
effectively reviewing the prosecutor’s decision, and therefore,
such review should be based on circumstances as they existed
when the prosecutor filed the charge.
We further note that § 29-1816 anticipates the possibility
that a person charged when a juvenile could turn 18 years old
while a transfer decision is being made and that the juvenile
court could lose jurisdiction within a year thereafter when
the individual reaches the age of majority. Section 29-1816
provides strict deadlines designed to expedite consideration
and completion of any transfer from county court or district
court to juvenile court: under § 29-1816(2), the accused must
move for transfer to juvenile court “not later than thirty days
after arraignment”; under § 29-1816(3)(a), the county court or
district court must schedule a hearing on the transfer motion
within 15 days; under § 29-1816(3)(b), the county court or
district court must make its decision on the motion within
30 days after the hearing; under § 29-1816(3)(c), a party
may appeal the decision within 10 days and review must be
advanced on the appellate court docket; and § 29-1816(3)(c)
further requires the appellate court to “conduct its review in
an expedited manner and . . . render the judgment and opin-
ion, if any, as speedily as possible.” Section 29-1816 requires
an expedited decision and appeal to facilitate transfer while
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Cite as 314 Neb. 544the individual is still under the age of majority and remains
within juvenile court jurisdiction.
We conclude that the relevant date for determining whether
Aldana was a “juvenile” subject to juvenile court jurisdiction
is the date he was charged—December 5, 2022. At that time,
Aldana was under age 18 and therefore a “juvenile” over
whom the juvenile court could exercise jurisdiction under
§ 43-247(2). Under § 43-247(12), Aldana remains eligible for
transfer to juvenile court until he reaches the age of majority
when he turns 19 years old. We therefore reject the State’s
argument that this case is moot, and we turn to review-
ing the district court’s order that overruled Aldana’s motion
to transfer.
District Court Did Not Abuse Its Discretion When
It Overruled Aldana’s Motion to Transfer
His Case to Juvenile Court.
Aldana claims that the district court abused its discretion
when it overruled his motion to transfer his case to juvenile
court. We reject this claim.
When a motion is filed to transfer a case from the district
court to juvenile court, § 29-1816(3)(a) requires the district
court to consider the criteria set forth in § 43-276, and “[a]fter
considering all the evidence and reasons presented by both
parties, the case shall be transferred to juvenile court unless a
sound basis exists for retaining the case in . . . district court.”
Under § 43-276, the “district court in making the determina-
tion whether to transfer a case” is required to consider:
(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;
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Cite as 314 Neb. 544(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 and
the security of the public may require that the juvenile
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.
[9,10] Because § 29-1816(3)(a) provides that “the case shall
be transferred to juvenile court unless a sound basis exists
for retaining the case,” we have stated that in the absence of
a sound basis for retention, transfer to juvenile court is the
general rule. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260(2018). We have also stated that the burden of proving a sound
basis for retention lies with the State. State v. Hunt, 299 Neb.
573, 909 N.W.2d 363 (2018).
[11] We have further stated that the court is required to set
forth findings supporting its decision on the motion to trans-
fer. Id. The district court in this case set forth its findings in
the order in which it overruled Aldana’s motion to transfer to
juvenile court. The district court reviewed each of the factors
set forth in § 43-276 and stated how each factor did or did not
influence its decision.
The district court stated that no evidence had been pre-
sented by either party regarding factors (j) (restorative jus-
tice), (k) (juvenile pretrial diversion program), or (l) (use
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Cite as 314 Neb. 544or possession of firearm), and the court therefore found that
these factors were not applicable to its determination. The
court found with regard to factor (e) (previous history) that the
only credible evidence was that Aldana had no prior history of
probation in Nebraska, but it noted that the lack of a history
in Nebraska was easily explained by the fact that Aldana had
arrived in Nebraska from Cuba only about a month prior to the
alleged offense; the court therefore determined that this factor
was neutral to the question of transfer. The court reviewed
evidence regarding the remaining factors and classified each
factor as either weighing in favor of retaining jurisdiction in
the district court or weighing in favor of transferring to the
juvenile court.
The court found that factors (a), (b), (c), (d), (h), and (i)
weighed in favor of retaining jurisdiction in the district court.
Regarding factor (a), the court found that while Aldana pre-
sented evidence regarding the general effectiveness of juve-
nile treatment programs, there had been no specific identifi-
cation of what treatment would be necessary for Aldana and
it was impossible to ascertain Aldana’s specific amenability
to treatment. The court noted that the parties agreed to the
potential that long-term treatment would be necessary, and it
therefore determined that factor (a) weighed in favor of retain-
ing jurisdiction in the district court. Regarding factor (b), the
court found that evidence of the investigation into the alleged
offense supported an inference that violence was involved in
the commission of the offense and that therefore, this factor
weighed in favor of retaining jurisdiction. Regarding fac-
tor (c), the court found that no evidence had been presented
to explain the motivation for the offense and that therefore,
it could only infer the motivation was sexual gratification;
the court determined this factor weighed in favor of retain-
ing jurisdiction. Regarding factor (d), the court stated that
at the time of its ruling, Aldana would turn 18 years old in
about a month and 19 years old a year later, and it found that
this timeframe would allow only a minimal time period for
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Cite as 314 Neb. 544Aldana to complete a rehabilitative program on juvenile
probation before juvenile court jurisdiction ended when he
turned 19 years old; the court determined that because this
timeline left no margin for error and because successful
completion of a program within that timeframe was specula-
tive, this factor weighed in favor of retaining jurisdiction.
Regarding factor (h), the court found that evidence regarding
the investigation showed that Aldana was or should have been
able to appreciate the nature and seriousness of his alleged
conduct; the court therefore determined this factor weighed
in favor of retaining jurisdiction. Finally, regarding factor (i),
the court found that because Aldana had, at most, just over
a year left under juvenile court jurisdiction and because of
evidence regarding the duration of sex offender treatment, it
was likely that it would be necessary for Aldana to remain on
supervision beyond his reaching the age of majority and that
therefore, this factor weighed in favor of retaining jurisdic-
tion in the district court.
The court found that factors (f), (g), (m), and (n) weighed
in favor of transferring the matter to juvenile court. Regarding
factor (f), the court found no evidence regarding Aldana’s
best interests other than Aldana’s own assertions that transfer
was in his best interests, and therefore, the court determined
that this factor weighed in favor of transferring the case to
juvenile court. Regarding factor (g), the court found that no
evidence had been shown regarding a risk of public safety
beyond the allegations related to the charged offense, and
therefore, the court found that this factor weighed in favor of
transferring the case to juvenile court. Regarding factor (m),
the court found that no evidence had been presented regarding
an order pursuant to Neb. Rev. Stat. § 43-2,106.03 (Reissue
2016), which authorizes the juvenile court to enter an order
finding that a juvenile was not amenable to juvenile reha-
bilitative services, and the court therefore determined that this
factor weighed in favor of transferring the case to the juvenile
court. Finally, regarding factor (n), the court found that no
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Cite as 314 Neb. 544evidence had been offered by the State to show that Aldana
was a criminal street gang member, and the court therefore
determined that this factor weighed in favor of transferring
the case to the juvenile court.
Having considered all the factors, the court found that the
State had met its burden to show that a sound basis existed
for retaining jurisdiction of the matter in the district court. The
court therefore overruled Aldana’s motion to transfer his case
to the juvenile court.
Aldana generally claims that the district court abused its
discretion when it overruled his motion to transfer, and he
makes several arguments regarding specific aspects of the dis-
trict court’s reasoning. Certain arguments focus on the burden
of proof and the manner in which the district court considered
factors it classified as “neutral” or as weighing in favor of
transfer. Other arguments concern factors the district court
classified as weighing in favor of retaining jurisdiction.
Regarding the first group, Aldana argues that the district
court applied the wrong burden of proof, particularly when
it appeared to require him to show that the statutory factors
weighed in favor of transfer. In this regard, Aldana also argues
that the district court improperly classified some factors as
“neutral” rather than as weighing in favor of transfer. Aldana
agrees with the district court’s assessment that certain fac-
tors weighed in favor of transfer, but he argues that because
other factors were treated as neutral or not applicable, the
importance of these factors to the district court’s consideration
was diminished.
[12,13] We note first that in the order, the district court
found that the State had met its burden to show that a sound
basis existed for retaining jurisdiction of the matter in district
court, and therefore, it recognized that the burden of prov-
ing a sound basis for retention lies with the State. See State
v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018). With regard
to the district court’s classification of factors as “neutral” or
as weighing in favor of either transfer or retention, we note
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Cite as 314 Neb. 544that we have stated that the proper analysis should focus on
whether the State has shown a basis for retaining the case
rather than weighing factors that favor retention against fac-
tors that favor transfer. We have stated that in order to retain
the proceedings, the court need not resolve every statutory
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. It is a balancing test by which
public protection and societal security are weighed against
the practical and nonproblematical rehabilitation of the juve-
nile. Id. After the court considers the evidence in light of the
§ 43-276 factors, the case shall be transferred to juvenile court
unless a sound basis exists for retaining the case in county
court or district court. State v. Hunt, supra.
Under this procedure, the court does not mathematically
weigh factors that favor transfer against factors that favor
retention. The balancing we described above focuses on inter-
ests of public protection and societal security and rehabilita-
tion of the juvenile, and it requires a consideration of whether
in light of those interests and the statutory factors, the State
has shown that a sound basis exists for retaining jurisdic-
tion in the county court or district court. Therefore, the rel-
evant classification or characterization of statutory factors is
whether they support a showing of a sound basis for retention
or whether they do not. Viewed from that perspective, factors
that are considered “neutral” or “not applicable” are equiva-
lent to factors that favor transfer because § 43-276 starts
with the presumption that the case should be transferred; the
court’s determination thereafter is whether other factors pro-
vide a sound basis for retention. Although the district court’s
classification of certain factors as “neutral,” “not applica-
ble,” or “weigh[ing] in favor of transfer[]” would better be
described as factors that do not support a sound basis for
retention, the district court’s description of those factors does
not in itself lead us on appeal to find an abuse of discretion
by the district court. Instead, our review on appeal focuses
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Cite as 314 Neb. 544on whether the statutory factors that the court found to favor
retention established a sound basis for doing so.
Aldana’s remaining arguments focus on the factors the dis-
trict court determined to weigh in favor of retention. These
arguments focus on factor (c) (motivation), as well as factors
(a) (type of treatment to which juvenile would be amenable),
(d) (age of juvenile), and (i) (whether necessary period of
detention or supervision may extend beyond age of majority).
Regarding factor (c), Aldana concedes the district court’s
finding that the only inference from the evidence was that
the motivation for the alleged offense was sexual gratifica-
tion. But he argues the court did not give reasons for why
this weighed in favor of retaining rather than transferring, and
he argues that treatment that may be provided under juvenile
court jurisdiction can address issues related to persons who are
motivated by sexual gratification. While § 43-276(3) does not
further elucidate how “motivation for the commission of the
offense” should factor into the transfer decision, in this case,
the district court appears to have considered motivation in the
sense of whether the individual’s actions were motivated by
arguably justifiable reasons or by reasons unique to juvenile
impulses. The district court appears to have considered sexual
gratification as a motivation of a more adult nature that con-
tributed to a sound basis for retaining jurisdiction in a crimi-
nal case rather than a juvenile setting. That said, we do not
consider this finding in itself to be an abuse of discretion, and
instead, as we discuss below, we consider it with other fac-
tors the district court found to favor retention in determining
whether those factors taken together and balanced provided a
sound basis for retention.
With regard to factors (a), (d), and (i), Aldana argues that
the district court made its decision based on a lack of evi-
dence regarding what treatment would be most appropriate
for him as an individual and that the court cynically assumed
he would not be amenable to less intensive or less lengthy
treatment options. He argues that there was evidence that
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Cite as 314 Neb. 544effective treatment could successfully be completed in the
period of just over a year after the transfer hearing during
which he would continue to be under juvenile court jurisdic-
tion pursuant to § 43-247(12).
Although there was evidence of programs that could be
completed in less than a year, there was also some evidence
that treatment could take longer based on various factors. In
this regard, the juvenile probation supervisor called by the
State testified that even when intensive or in-house treatment
programs were of a shorter duration, there was often the need
for supervision after the completion of the program. Evidence
also indicated that, because of the relatively short timeframe
remaining for juvenile court jurisdiction, complications existed
when an individual came into the juvenile system at or near
age 18. We think there was sufficient evidence to support the
district court’s emphasis on the short timeframe and its concern
that because of the timeframe, there would be no room for
error in any treatment that might be provided in a juvenile con-
text. There was appropriate evidence to support this concern,
and it was not an abuse of discretion to consider these factors
as supporting a sound basis to retain jurisdiction.
[14] Moreover, we note that regardless of the district
court’s findings with respect to the specific factors discussed
above, on appeal, we need to review the decision in light
of all the factors that the district court found relevant to its
decision. When a district court’s basis for retaining jurisdic-
tion 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. State v. Hunt, 299 Neb.
573, 909 N.W.2d 363 (2018). In this respect, we note that
Aldana concedes that factors (b) (whether alleged offense
included violence) and (h) (ability to appreciate nature and
seriousness of conduct), weigh, at least marginally, in favor
of retaining his case in the district court. We consider these
factors, along with the factors discussed above relating to
motivation, amenability to treatment, age of the individual,
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Cite as 314 Neb. 544and potential for necessity of detention or supervision beyond
the age of majority. We determine that each of these factors
was supported by evidence and that when considered together,
they support the district court’s finding that the State had
shown a sound basis for retaining jurisdiction in the district
court. We cannot say that the district court abused its discre-
tion when it overruled Aldana’s motion to transfer his case to
juvenile court.
CONCLUSION
We conclude that the appeal did not become moot when
Aldana turned 18 years old during the pendency of this appeal
in which Aldana challenged the order of the district court that
had overruled his motion to transfer the case to juvenile court.
However, we also conclude that the district court did not abuse
its discretion when it overruled his motion to transfer the case
to juvenile court. We therefore affirm the order of the dis-
trict court.
Affirmed.