In the Matter of the Welfare of: W. S. A., 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This opinion is nonprecedential except as provided by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
A22-1159

In the Matter of the Welfare of: W. S. A., Child.

Filed March 13, 2023
Reversed and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-JV-20-3253

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant W.S.A.)

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

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent county)

Considered and decided by Connolly, Presiding Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges his extended jurisdiction juvenile (EJJ) disposition order,
arguing that the district court erred by imposing a stayed adult sentence when appellant
was convicted only of an offense that did not carry a presumptive prison sentence. We
reverse the stayed adult sentence imposed on appellant and remand for the district court to
impose a delinquency disposition with appropriate terms and conditions.

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FACTS
Between September and November 2019, appellant W.S.A., then sixteen, abused
his six-year-old sister. A delinquency petition was filed, charging appellant with one count
of first-degree criminal sexual conduct and one count of second- degree criminal sexual
conduct. Respondent Hennepin County filed a presumptive certification motion to have
appellant certified as an adult. In August 2021, the district court denied the motion and
designated the matter as an EJJ prosecution.
In January 2022, the petition was amended to add another count of first- degree
criminal sexual conduct. Following a court trial, appellant was found guilty of one count
of second- degree criminal sexual conduct and not guilty of two counts of first-degree
criminal sexual conduct. He was sentenced as an EJJ juvenile to an adult sentence of a
stayed 36- month prison term and a juvenile disposition. He raised no objection to the
sentence.
On appeal, he argues that the district court erred by imposing a stayed adult sentence
on an EJJ defendant convicted only of an offense that did not have a presumptive prison
commitment.
DECISION
As a threshold matter, respondent argues that appellant waived this issue by not
addressing it to the district court. An issue is not properly before an appellate court when
it is raised for the first time in a brief to that court, and “[g]enerally, when an issue has not
been raised before the district court, we consider the issue forfeited.” Steward v. State, 950
N.W.2d 750, 756 (Minn. 2020). But a defendant cannot forfeit or waive by silence the
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right to review of an illegal sentence. See, e.g., State v. Maurstad, 733 N.W.2d 141, 146-
47 (Minn. 2007); State v. Pugh, 753 N.W.2d 308, 311 (Minn. App. 2008). A juvenile
should not be deprived of this protection. Moreover, a juvenile has no conviction, and
therefore no possibility of a postconviction challenge to his sentence. We therefore address
appellant’s issue.
Whether a stayed adult sentence may be imposed on an EJJ defendant who has not
been convicted of an offense with a presumptive prison commitment is an issue of statutory
construction and is therefore reviewed de novo. See State v. Defatte, 928 N.W.2d 338, 340
(Minn. 2019).
Any juvenile between 14 and 17 who is alleged to have committed any felony-level
offense can be placed on EJJ. Minn. Stat. § 260B.130, subd. 1(2018). This may occur if
the juvenile is between 14 and 17, a certification hearing is held, and the district court
denies certification and designates the prosecution as EJJ. Id., subd. 1(1). Appellant met
these criteria, and his prosecution was designated EJJ by the district court. The statute also
provides two other means of EJJ designation: first, the juvenile is 16 or 17, the offense is
a presumptive prison offense or involved the use of a firearm, and the prosecutor designates
the prosecution as EJJ in the delinquency petition; and second, the juvenile is between 14
and 17, the prosecutor requests EJJ designation, a hearing is held, and the court designates
the prosecution as EJJ. Id., subd. 1(2), (3).
Appellant was convicted of violating Minn. Stat. § 609.343, subd. 1a (2018)
(providing that anyone who engages in sexual contact with another person is guilty of
criminal sexual conduct in the second degree if the complainant is under 13 and the actor
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is more than 36 months older). The presumptive sentence for this crime was 36 months in
prison, stayed. See Minn. Sent’g Guidelines 4.B (Supp. 2019). Thus, it was not a
presumptive prison offense.
EJJ disposition of cases is set out in Minn. Stat. § 260B.130, subd. 4(a) (2018): when
there is a finding of guilt or a guilty plea, the district court shall impose both (1) one or
more juvenile dispositions and (2) “an adult criminal sentence, the execution of which shall
be stayed on the condition that offender not violate the provisions of the disposition order
and not commit a new offense.” H owever, there is an exception to the dual -sentence
provision of subdivision 4(a):
If a child . . . is convicted of an offense after trial that is not an
offense described in subdivision 1, clause (2), [i.e., a
presumptive prison offense,] the court shall adjudicate the
child delinquent and order a disposition under Minn. Stat.
§ 260B.198 [providing only dispositions for children
adjudicated delinquent].

Minn. Stat. § 260B.130, subd. 4(b) (2018). The omitted language is the phrase “prosecuted
as [EJJ] after designation by the prosecutor in the delinquency petition,” and is a reference
to id., subd. 1(2) (providing for EJJ designation by the prosecutor). This court declared
that language unconstitutional in In re Welfare of T.C.J., 689 N.W.2d 787, 796 (Minn. App.
2004) (“modify[ing] the disposition [of an EJJ defendant’s case] to vacate the stayed adult
sentence”).
We read this language [“prosecuted as [EJJ] after designation
by the prosecutor in the delinquency petition”] to require a
disparately more severe sentence for every EJJ conviction that
results from the juvenile court’s rejection of adult certification.

. . . .
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. . . There is no evident connecti on between: (1)
juveniles who were originally subjected to the adult
certification process but who are not convicted of the
presumptive [prison] offense and (2) a sentencing provision
that subjects them to harsher punishment than others not
convicted of a presumptive [prison] offense simply because the
first group arrived in an EJJ court through the adult-
certification route.

T.C.J., 689 N.W.2d at 795-96. Appellant was not convicted of a presumptive prison
offense. Under T.C.J., regardless of how appellant’s EJJ designation occurred, the district
court should have ordered only juvenile delinquency disposition of his case under Minn.
Stat. § 260B.198 (2018).
We reverse his sentence and remand this case to the district court to impose a
delinquency disposition with appropriate terms and conditions.
Reversed and remanded.