In the Matter of the Welfare of: K. A. H., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1083

In the Matter of the Welfare of: K. A. H., Child.

Filed April 18, 2022
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-JV-20-3337

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant K.A.H.)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Bryan, Presiding Judge; Wh eelock, Judge; and Smith,
John, Judge.
*
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from the district court’s order certifying him to stand trial as an adult,
appellant requests remand for a new certifica tion hearing, arguing that his attorney’s
conduct was so deficient that it entirely failed to subject the prosecution to adversarial

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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testing. Because appellant’s a ttorney did not entirely fail to subject the state’s case to
adversarial testing, we affirm.
FACTS
On September 14, 2020, a surveillance camera captured video footage of two males
firing multiple gunshots at a group of people. One victim died and another was injured.
Respondent State of Minnesota charged appella nt K.A.H. with one count of aiding and
abetting second-degree inten tional murder and one count of attempted second-degree
intentional murder. On Marc h 25, 2021, the state moved to certify the case for adult
prosecution because K.A.H. was 17 years old at the time of the offense and because the
charged offenses carried a presumptive executed prison sentence.
At hearings on May 21 and June 23, 2021, the district court admitted testimony from
a clinical forensic psychologist and a probation officer, as well as documentary evidence,
including the certification study, psychological evaluations, and the forensic psychologist’s
curriculum vitae. K.A.H.’s attorney did not offer any ev idence or witnesses at the
certification hearing, but brie fly conducted cross-examinatio n of the two witnesses.
Although the parties did not ma ke closing arguments at the certification hearing, each
attorney submitted a post-hearing memorandum.
K.A.H.’s attorney incorporated statements from the psychological evaluation in the
written submission and specifically discu ssed how K.A.H. had not been given
opportunities in the past to a ddress mental health, had not ex perienced stable education,
and did not receive adequate services during his prior involvement in a diversion program:
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[K.A.H.] has never done any therapy or counseling. He
has never been psychiatrically hospitalized or taken any
psychiatric medication. He ha s never been diagnosed with a
learning disability however lacked a stable learning
environment due to his mother removing him from schools she
did not like, other schools he had attended closing down, and
has a four-year gap of an u nknown school placement in his
school records. [K.A.H.] reported being placed in a Diversion
program for his prior domestic charges where he was supposed
to do six months of a program. When he attended the program,
the man he met with didn’t see the purpose of him being there
stating “there were no issues.” [K.A.H.] worked for one hour
doing community service around the building. He then signed
some papers and was considered finished with the program.

K.A.H.’s counsel also emphasized the recommendations for programming from the
psychological evaluation. In this way, K.A. H.’s counsel used the documentary evidence
and testimony to oppose the motion: “Based on all of the evidence presented by the State
and the above arguments, the Defense respectfully requests the court not to certify him as
an adult or in the alternative that this Court certified as Extended Juvenile Jurisdiction.”
On July 29, 2021, the district court determined that all six statutory factors favored
certification and granted the state’s motion for certification. K.A.H. appeals.
DECISION
K.A.H. argues that a structural error oc curred when his counse l entirely failed to
subject the prosecution’s motion for certific ation to meaningful adversarial testing.
1 We

1 In his written brief to this court, K.A.H. does not ra ise a claim that counsel’s
representation fell below an objective standard of reasonableness and affected the outcome
of the certification hearing pursuant to Strickland v. Washington , 466 U.S. 668 (1984).
K.A.H. also does not argue that he need only satisfy the first Strickland prong to obtain
relief. Instead, K.A.H. acknowle dges that our structural error analysis is substantively
different from the comparison required under the first Strickland prong. Given the
argument as presented, we decline to determine what an objective standard of
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are not persuaded and conclude that counsel did not entirely fail to contest the state’s
motion because counsel elicited testimony and submitted written arguments in opposition
to the motion.
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI; see also Minn. Const.
art. I, § 6. Counsel’s conduct can constitute st ructural error: “if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then there has been a
denial of Sixth Amendment rights that make s the adversary process itself presumptively
unreliable.” United States v. Cronic, 466 U.S. 648, 659 (1984). Under this structural error
analysis, the case “must involve a complete failure by counsel.” State v. Dalbec , 800
N.W.2d 624, 628 (Minn. 2011) (quotation omitted). The defendant has the burden to show
structural error due to counsel’s conduct. Id.
The Minnesota Supreme Court has previously concluded that failures of counsel to
submit evidence, cross-examine witnesses, and make closing arguments did not amount to
structural error. Dereje v. State, 837 N.W.2d 714, 719, 723 (Minn. 2013) (concluding that
counsel’s decision to stipulate to the admi ssion of the complaint and police reports, and
agreement not to present witnesses, present evidence, cross-examine witnesses, or provide
closing argument did not result in structural error); Dalbec, 800 N.W.2d at 628 (concluding

reasonableness would entail in this context, whether K.A.H.’s counsel met this standard,
and whether the outcome woul d have been different. See State v. Butcher , 563 N.W.2d
776, 780 (Minn. App. 1997) (noting that is sues not briefed are not properly before an
appellate court), rev. denied (Minn. Aug. 5, 1997); see also McKenzie v. State, 583 N.W.2d
744, 746 n.1 (Minn. 1998) (concluding that appellant’s arguments were not properly raised
because the appellant “fail[ed] to address [the issue] in the argument portion of his brief”).
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that counsel’s failure to submit a closing argument did not result in structural error); State
v. Cram , 718 N.W.2d 898, 906-08 (Minn. 2006) (c oncluding that counsel’s failure to
submit evidence or argument regarding restit ution did not result in structural error); see
also Cooper v. State , 565 N.W.2d 27, 31 (Minn. App. 1997) (concluding that counsel’s
failure to have a sign language interpreter present during some of their communications
did not constitute structural error), rev. denied (Minn. Aug. 5, 1997). Structural error
requires an entire failure of counsel.
K.A.H.’s counsel did not entirely fail to contest the state’s certification motion. We
first observe that the nature of a certification hearing differs from a contested trial. Unlike
at a trial, in a certification hearing, factual disputes regarding the commission of the offense
are not directly pertinent to the applicati on of the public safety factors set forth in
Minnesota Statutes section 260B.125, subdivision 4 (2020). Th e parties at a certification
hearing need not dispute evidence regarding the offense, the child’s previous programming
history, the child’s prior record of delinquency, available programming, and dispositional
options, among other subjects. We also ac knowledge that the offense at issue was
presumptively certifiable and the burden was on K.A.H. to rebut this presumption. Minn.
Stat. § 260B.125, subd. 3 (2020). We consider the conduct of counsel in this context.
Here, counsel cross-examined the witnesses presented by the state regarding their
recommendations. In addition, counsel su bmitted a written argument that K.A.H. should
be given treatment and programming based on the psychological evaluation admitted into
evidence, the direct testimon y of the witnesses, and the statements made during cross-
examination. K.A.H.’s atto rney also incorporated stat ements from the psychological
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evaluation to show that K.A.H. had not be en given these opport unities in the past.
Counsel’s conduct in th is case went beyond the limited efforts deemed satisfactory in
Dereje, Dalbec, Cram, and Cooper. Therefore, we conclude that counsel did not entirely
fail to contest the state’s motion and that counsel’s conduct in this case did not amount to
structural error.
Affirmed.