State v. Nagel

STATE OF NEBRASKA, APPELLANT, v. DAKOTA NAGEL, APPELLEE.

No. A-20-164.

NEBRASKA COURT OF APPEALS

August 18, 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 Douglas County: MARLON A. POLK, Judge. Reversed and remanded for further proceedings.

Faith M. Kjelstrup and Amy G. Jacobsen, Deputy Douglas County Attorneys, for appellant.

Thomas C. Riley, Douglas County Public Defender, and Lauren J. Micek for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

The State of Nebraska appeals the order of the Douglas County District Court granting Dakota Nagel's motion to transfer his criminal case to the Douglas County Separate Juvenile Court. Because there was substantial evidence supporting the retention of the case in the district court for the sake of public safety and societal security and there was a lack of evidence demonstrating that any further rehabilitation through the juvenile system would be practical and nonproblematical in the limited time left under the juvenile court's jurisdiction, we conclude the district court abused its discretion in granting the transfer of Nagel's case to juvenile court, and we remand the cause for further proceedings in the district court.

II. BACKGROUND

1. INCIDENT LEADING TO CRIMINAL CHARGES

On November 12, 2019, officers in an undercover vehicle were following a car when the front passenger began firing shots at the officers' vehicle. The officer driving the vehicle took evasive action by swerving left "so he and his partner did not get shot." The pursuit ended after officers deployed stop sticks causing one of the tires on the suspects' car to deflate. The driver and the passenger, Nagel, were taken into custody. Nagel, who was wearing a global positioning system monitor because he was on juvenile probation, asked the officers "Was the Gang Unit chasing us?" Nagel also commented about the number of officers on the scene, then stated "you all can't handle this one on one?" Officers determined that the firearm used by Nagel during the pursuit had been thrown from the suspects' vehicle. Officers later recovered the unregistered firearm along the path of the pursuit.

Nagel, born in February 2002, was charged in Douglas County District Court with six felonies: discharging a firearm while in, or in the proximity of, a motor vehicle at any person, dwelling, building, structure, or occupied motor vehicle, a Class IC felony; two counts of attempted assault on an officer, Class IIA felonies; and three counts of use of a firearm to commit a felony, Class IC felonies. In January 2020, Nagel filed a motion to transfer his case to juvenile court.

2. HEARING ON MOTION TO TRANSFER

A hearing on the motion to transfer was held on February 10, 2020. The juvenile court received into evidence the following exhibits offered by the State: police reports related to the current case and Nagel's juvenile probation file. Nagel's juvenile probation file established that in June 2019, a petition was filed in Douglas County Separate Juvenile Court alleging that Nagel was a child within the meaning of Neb. Rev. Stat. § 43-247 (Reissue 2016) because he had committed theft by receiving $5,000 or more, a Class IIA felony; obstructing a peace officer, a Class I misdemeanor; and disorderly conduct, a violation of an Omaha city ordinance. Nagel admitted to the misdemeanor and violation of the city ordinance and was adjudicated in August 2019. Nagel's statement of offense stated: "I supposly (sic) brought a stolen car to Nebraska from Iowa. And I was calling the officers name[s] but not the ones they got on [the] police report. And I was being a pain in the ass." Nagel was ordered to write letters of apology but "struggled" and "became agitated" with the task.

The juvenile court also received into evidence the following exhibits offered by Nagel: Nagel's juvenile file as a neglected minor which ultimately led to the termination of his mother's parental rights, a January 2020 juvenile court order directing a psychiatric evaluation and co-occurring evaluations for Nagel, Nagel's Individualized Education Plan through the Omaha Public Schools recognizing attention deficit/hyperactivity disorder as his primary disability, Nagel's chemical dependency evaluation completed in February 2020 requesting that an Intensive Outpatient Program be ordered and completion of an IQ assessment, a copy of Nagel's Initial Diagnostic Interview (IDI) completed in October 2019, a presentence investigation report completed for the juvenile court in January 2020, a transcript of Dr. Colleen Conoley's depositiontestimony regarding the mental development of youth, and a U.S. Department of Justice Juvenile Justice Bulletin regarding effective intervention for serious juvenile offenders.

Nagel also called the sole witness at the transfer hearing: Brent Janzen, Nagel's juvenile probation officer. Janzen testified that as a juvenile probation officer, he supervised high-risk juveniles that had been placed on probation by the juvenile court by meeting with them in the community, in the office, and in school to make sure they were following through on court orders and participating in services that had been ordered by the juvenile court. Janzen also testified to the vast spectrum of evaluation methods available to the juvenile court including IDI evaluations, co-occurring evaluations, chemical dependency evaluations, psychiatric evaluations, psychological evaluations, and psychosexual evaluations. The purpose of evaluations was "[t]o determine treatment needs and how to best assist the juvenile." Once the juvenile court received the results of the evaluations, the court could order treatment services including individual therapy, cognitive-based therapy, family therapy, multisystemic therapy, and family preservation services. The juvenile court could also order out-of-home placements including foster care, group home, treatment group homes, psychiatric residential treatment facilities, the Youth Rehabilitation Treatment Center (YRTC) in Kearney, and out-of-state placements including Canyon State in Arizona. According to Janzen, the juvenile court might utilize an out-of-state placement if there were no in-state group homes available, if Nagel had been denied placement at in-state group homes, or if it had been determined that it was in Nagel's best interests to remove him from the area and place him out of state. Janzen noted that the juvenile court only retained jurisdiction over a juvenile until he or she turned 19 years old.

Janzen testified that Nagel had been adjudicated on an August 2019 disorderly conduct docket and also had an open neglect docket from 2010. In the disorderly conduct docket, the juvenile court ordered a chemical dependency evaluation and a psychiatric evaluation. The only other services that Nagel had received other than the IDI evaluation and the chemical dependency evaluation were monitoring and tracking. Janzen admitted that although he was aware of Nagel's gang affiliation, he had not been able to start gang intervention services. Further, Janzen admitted that Nagel had been involved in a fight while in the holding facility which resulted in Nagel being placed in lockdown. Janzen testified that he had intended to recommend out-of-home placement for Nagel at the next juvenile court hearing and that the typical length of treatment at a group home was a year or less.

According to Janzen, if the current district court charges were transferred to the juvenile court:

Then there would be a detention hearing, and a juvenile docket would be open[ed]. We would have a detention hearing. At that point, there would be, I believe, more than likely, a [presentence investigation for juvenile court] would be ordered and further evaluations. If I were to guess, I would assume probably in this case group home applications would be ordered, as well.

However, Janzen also acknowledged that the district court case involved Nagel being "picked up" after a pursuit by police officers while Nagel fired shots at them and that Nagel is a known member of the East Omaha Crips gang.

When asked if there was sufficient time for Nagel to be rehabilitated by the juvenile court if the case was transferred, Janzen responded: "It would be close, but yes, I mean, there is time. But, I mean . . . there's not a lot of time, but there is time." Janzen testified that it was "[m]ore than likely" that all Nebraska group homes would deny violent offenders with charges like Nagel's and admitted that "locally, in state, I would find that hard to believe that [Nagel] would get into a local group home" and the only place that would take a violent offender was likely Canyon State in Arizona and, if Nagel could not be placed at Canyon State, then YRTC was a "locked facility" and "the last option that Juvenile Courts have as far as out-of-home placement goes." However, Janzen also acknowledged that "[t]ypically, group homes won't accept a juvenile after their 18th birthday, and with [Nagel's] 18th birthday close -- I mean, I have had juveniles accepted at a group home and placed days before their 18th birthday, so it's not impossible, but it's difficult." He noted that, at the time of the hearing, which took place prior to Nagel's 18th birthday, Janzen did not know if Canyon State "would or [would] not" accept placement of Nagel. Further, Janzen stated that placement at Canyon State usually takes "a month, month and a half" between "the time the orders are made and application is sent and acceptance and clears the interstate compact." Janzen could not recall if he ever had a juvenile who had just been adjudicated in juvenile court, with only 1 year left remaining until the juvenile's 19th birthday, and was placed into a group home because, more...