State v. Bravo

STATE OF NEBRASKA, APPELLEE, v. DANGELO BRAVO, APPELLANT.

No. A-20-066.

NEBRASKA COURT OF APPEALS

July 28, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Sarpy County: NATHAN B. COX, Judge. Affirmed.

John P. Hascall and Dennis P. Marks, Deputy Sarpy County Public Defenders, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

PIRTLE, RIEDMANN, and BISHOP, Judges.

PIRTLE, Judge.

INTRODUCTION

Dangelo Bravo, a juvenile, was charged in the district court for Sarpy County with two felonies. He filed a motion to transfer the case to juvenile court, which was denied. Bravo now appeals the denial of the motion to transfer. Based on the reasons that follow, we affirm.

BACKGROUND

On October 31, 2019, the State filed an information charging Bravo with robbery, a Class II felony, and use of a firearm to commit a felony, a Class IC felony. The charges arose from a robbery of a Kum & Go gas station in Sarpy County on September 30. Bravo was 16 years 10 months old at the time the alleged offenses were committed.

The affidavit of probable cause included in the police reports show that one of the three suspects involved told police that he was picked up by Bravo and another individual, and that Bravo and the other individual wanted to rob a gas station to get money. Bravo had two guns, black semiautomatic pistols. Bravo gave one of the guns to the reporting suspect, who did not want to go through with it, but Bravo convinced him to do it. The clerk at the gas station reported two males came into the gas station pointing semiautomatic handguns directly at him and demanded money and property. The clerk opened the registers, removed the money drawers, and set them on the counter. The two suspects emptied the drawers and then demanded a bottle of alcohol and some cigars. The clerk complied, and then the suspects both came behind the register and grabbed a large amount of cigars. Bravo fled with his two accomplices in a vehicle and when police attempted to stop the vehicle, the suspects tried to avoid being apprehended.

Bravo filed a motion to transfer the case to the separate juvenile court for Sarpy County and a hearing was held on the motion on December 11, 2019. The State entered four exhibits into evidence: a copy of Bravo's pending case in the separate juvenile court of Douglas County, police reports associated with the current case, a report with Bravo's criminal history and record, and a printout showing a current case pending against Bravo in Douglas County District Court. The State presented the testimony of two juvenile probation officers, Maddelyn Bal from Douglas County and Heather Moran from Sarpy County. Bravo presented testimony from his mother.

The evidence showed that Bravo had been adjudicated on an attempted robbery charge in the separate juvenile court of Douglas County. The case was at the predisposition phase at the time of the hearing. The record from the juvenile court case showed that the matter was originally filed in the district court but was transferred to juvenile court. The original charges were attempted robbery and use of a deadly weapon to commit a felony. Bravo admitted to the charge of attempted robbery and the other charge was dismissed.

Bal, a Douglas County juvenile probation officer, testified that she had been Bravo's probation supervisor since June 19, 2019. When she first met Bravo, he was placed at a Boys Town shelter, a short-term placement for youth and an alternative to detention. Bal testified that it was her understanding that Bravo had been placed at the shelter after asking to be moved there from detention. Bravo ran away from the shelter in July 2019 and his whereabouts were unknown for a month.

After Bravo was found, he was placed at home with his mother and ordered to wear a global positioning system tracker device on his ankle. He failed to charge the device, which was necessary for it to work properly. He also violated other conditions of his release, including leaving home without permission and failing to attend school consistently. He was placed back in detention after the present charges were filed against him.

Bal indicated that a psychological and substance abuse evaluation had been completed in Bravo's case in the separate juvenile court of Douglas County, but that Bravo had not been able to follow any of the recommendations because he had been detained. The substance abuse evaluation recommended that Bravo complete intensive outpatient treatment and Bal testified that such treatment can take at least 12 weeks. The psychological evaluation recommended multisystemic therapy, which involves a therapist working with Bravo's family, school, and other extracurricular activities he is involved in. She stated that such therapy lasts about 4 months. Bal also discussed other programs that are available through the separate juvenile court of Douglas County. She statedthere was no guarantee that Bravo would be able to complete the requirements ordered by the juvenile court by his 19th birthday.

Moran, a juvenile probation officer in Sarpy County, testified about the progression of a juvenile case in Sarpy County. She testified that a case starts with a filing, and then about 4 to 6 weeks later, the juvenile has a first appearance in court. The court can order services at the time of the juvenile's first appearance, such as a tracker, electronic monitoring, and in-home services like family support, intensive family preservation, and multisystemic therapy. The court can also order evaluations. The next stage is a pretrial hearing, which is followed by adjudication, where the juvenile may admit to the allegations against him or her. In a case where a juvenile admits, a disposition hearing is set and the court orders a predisposition interview. The matter would be back in court after about 4 to 6 weeks. At that point, the case would be at the disposition phase and the juvenile would be placed on probation and have services ordered or could be sentenced to a youth rehabilitation and treatment center, where the average length of stay is about 9 months, although the length of stay is individualized.

At the time of the hearing on the motion to transfer, Bravo also had pending charges against him in Douglas County for robbery and use of a firearm to commit a felony. One of the exhibits presented by the State showed that an information was filed against Bravo in Douglas County District Court on November 6, 2019. The crimes were alleged to have occurred on September 29, the day before the alleged crimes in the present case.

Following the hearing, the district court denied the motion to transfer the matter to juvenile court. In its order, the district court considered the statutory factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016) and concluded that a sound basis existed for it to retain jurisdiction over the case.

ASSIGNMENT OF ERROR

Bravo assigns that the district court erred in denying his motion to transfer the case to juvenile court.

STANDARD OF REVIEW

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 unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

Bravo assigns that the district court erred in denying his motion to transfer the case to juvenile court. Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants concurrent 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, both of the allegations against Bravo put him within this category of juvenile offenders.

When an alleged offense is one over which both the juvenile court and the criminal court can exercise jurisdiction, a party can move to transfer the matter. For matters initiated in criminal court, a party can move to transfer it to juvenile court pursuant to Neb. Rev. Stat. § 29-1816(3) (Cum. Supp. 2018).

In the instant case, when Bravo moved to transfer his case to juvenile court, the district court conducted a hearing pursuant to § 29-1816(3)(a), which subsection requires consideration of the following factors set forth in § 43-276:

(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 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 agrees to participate in mediation; (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

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