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STATE v. BURRIS

Cite as 30 Neb. App. 109

State of Nebraska, appellee, 

v. Montrell T. Burris, 

appellant.

___ N.W.2d ___

Filed August 17, 2021. No. A-21-218.

1. 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.

2. 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 discretion in refusing to transfer the case to juvenile court.

3. Criminal Law: Courts: Juvenile Courts: Jurisdiction. A juvenile 

court has concurrent jurisdiction over a person charged in the district 

court who is 17 years of age when the allegedly committed acts constitute Class II and IIA felonies and who has not yet reached the age of 

majority during the course of the proceedings requesting transfer from 

the district court to the juvenile court.

Appeal from the District Court for Buffalo County: Ryan C. 

Carson, Judge. Affirmed.

Brandon J. Dugan, Deputy Buffalo County Public Defender, 

for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Moore, Riedmann, and Bishop, Judges.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/17/2021 08:09 AM CDT
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STATE v. BURRIS

Cite as 30 Neb. App. 109

Riedmann, Judge.

INTRODUCTION

Montrell T. Burris appeals the order of the district court for 

Buffalo County that denied his motion to transfer his case to 

the juvenile court. We affirm.

BACKGROUND

Burris was born in November 2002. On July 3, 2020, while 

residing at the Youth Rehabilitation Treatment Center (YRTC) 

in Kearney, Nebraska, Burris attacked staff members on two 

different occasions. In one of the attacks, he used a “shiv” that 

he had whittled from a toothbrush handle. On both occasions, 

he punched and kicked staff members. He was charged with use 

of a deadly weapon to commit a felony, a Class II felony, and 

second degree assault, a Class IIA felony. He was bound over 

to district court, and after being arraigned, he filed a motion to 

transfer the case to juvenile court on January 12, 2021.

At the hearing on the motion to transfer, three witnesses 

testified on behalf of the State. Brent Janzen is a juvenile probation officer in Douglas County who was assigned Burris’ 

case in May 2018. The charges against Burris at that time were 

terroristic threats and disorderly conduct arising out of two 

separate incidents. The terroristic threats charge arose out of an 

incident with Burris’ mother in which he threatened to cause 

damage to the home or kill her. Janzen was unable to recall 

the details of the disorderly conduct claim. As a result of these 

incidents, Burris was placed on probation and was monitored 

with “GPS and tracking services.” He had in-home multiple 

systemic therapy with daily reporting. He was also provided 

psychological evaluations, outpatient counseling, medication 

management, and “gang intervention.”

The services were unsuccessful, and due to curfew and 

drug violations, Burris’ probation was revoked. He was initially placed at a youth shelter in November 2018. He was 

removed from there on December 21 and placed at a youth 

detention center. From there, he was placed at an out-of-state 
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STATE v. BURRIS

Cite as 30 Neb. App. 109

group home on February 22, 2019. He remained at the group 

home until June, at which time he absconded. He was returned 

to the youth detention center for several months and then 

was released home to his mother in October. Following his 

return home, he continued to violate the terms of his probation, including possession of BB guns and continued substance 

abuse. Consequently, he was placed at the YRTC in Kearney 

on March 9, 2020.

After Burris was placed at the YRTC, he had multiple 

instances of physical aggression toward staff. Janzen testified 

that he was concerned about medication management, because 

he had witnessed instances of compliance with medication and 

noncompliance without it. Oftentimes, Burris would refuse 

his medication, so in July 2020, after the current offenses, his 

method of medication was changed from oral administration 

to monthly injections. On October 15, following successful 

completion of the YRTC program, Burris was returned home. 

Janzen continued to be his probation officer and worked with 

Burris on a reentry plan that included primarily medication 

management, along with individual outpatient therapy, family support, and electronic monitoring. Although Janzen had 

concerns following Burris’ release from the YRTC, he testified 

none of them came to fruition. Burris successfully completed 

probation on January 20, 2021.

Janzen admitted at the time of the transfer hearing that 

Burris was over the age of 18. He testified that there would still 

be some services available to him such as electronic monitoring, “GPS tracking,” and individual therapy services. The only 

new service would be victim offender mediation.

Paul Gordon is the facility administrator at the YRTC. He 

verified that in Burris’ initial assessment, Burris admitted to 

being a member of a specific gang. Gordon testified that he 

has to “sign off” on every major violation that occurs at the 

YRTC; therefore, he was familiar with Burris’ assaults on staff. 

Burris’ first major violation was on March 17, 2020, and was 

a staff assault. There was another one the next day, and several 
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STATE v. BURRIS

Cite as 30 Neb. App. 109

others in the following months. On July 3, Burris assaulted 

a staff member with a shiv. Due to the manner in which the 

assaults were escalating, the staff decided Burris needed stabilization on medication. Once that was accomplished in July, 

Gordon saw a consistent change in Burris, who had only one 

subsequent staff assault.

Gordon confirmed that the maximum age at the YRTC is 

a person’s “19th birthday.” He further stated that Burris did 

not seem like the same person when he was released from 

the YRTC; he seemed more “positive” and able to deal with 

his anger.

A state trooper testified that the YRTC notified him on July 

3, 2020, that Burris committed an assault on a staff member 

at about 8 a.m. and another assault just after noon. The state 

trooper was also provided two shivs that had been used in the 

assaults. He interviewed the first staff member, who told him 

that just after 8 a.m., he and another staff member went to 

deliver toilet paper to Burris, who then forced open his door, 

made a stabbing motion at the first staff member, and punched 

him in the face. The first staff member had some minor injuries 

on his face, a 4-inch red mark on the right side of his chest, 

and two small scrapes on his left pectoral muscle.

Burris’ mother testified on his behalf. She explained that 

she initially made contact with the juvenile system for the 

terroristic threats Burris made because she was trying to get 

help for her family. She “knew he had mental conditions and 

[she] knew [they] needed help as a family.” She explained 

that Burris was originally placed on medication for attention 

deficit hyeractivity disorder at age 15. Once the court got 

involved, a doctor prescribed a different medication; then, 

after Burris went to the YRTC, he was prescribed a third 

medication.

According to Burris’ mother, Burris is completely different 

when taking the third medication. He continues to communicate 

with his counselor, although the services were terminated once 

probation was ended. She testified the counselor expressed 
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STATE v. BURRIS

Cite as 30 Neb. App. 109

that he is available if Burris needs him, but that there is currently no need for his services. Burris continues to attend 

school and has an individualized education plan. Through that 

plan, he receives anger management therapy; however, with the 

medication, Burris’ mother does not see anger issues any more. 

She denied Burris was involved in a gang and said it was a 

“surprise” to her that it was indicated on his assessment.

Following a hearing, the district court entered a written 

order in which it analyzed each of the factors set forth in Neb. 

Rev. Stat. § 43-276(1) (Cum. Supp. 2020) and overruled the 

motion to transfer. It found, rephrased, as follows:

(1) The type of treatment the juvenile would most likely be 

amenable to: A number of services available in juvenile probation have already been provided to Burris, including home therapy, psychological and mental health services, electronic monitoring, educational services, community-based services, and 

group home care. Burris struggled to comply with court orders, 

abide by curfews, and provide negative drug tests. He was 

ultimately placed at the YRTC, where his behaviors continued. 

This factor weighed in favor of retaining jurisdiction.

(2) Whether there is evidence that the alleged offense 

included violence: Burris carved two toothbrush handles into 

shivs, which he attempted to use during assaults on staff members on two separate occasions on July 3, 2020. During both 

assaults, he punched and kicked the staff members. This factor 

weighed in favor of retention.

(3) Motivation for the commission of the offense: Burris’ 

motivation for the commission of the offenses is unknown, but 

he previously engaged in similar assaultive behavior and was 

initially placed on juvenile probation as a result of terroristic 

threats against his mother and disorderly conduct in March 

2018. The court recognized, however, that Burris suffers from 

mental health issues and has been diagnosed with disruptive 

mood dysregulation disorder, attention deficit hyperactivity 

disorder, and conduct disorder, which may have driven his 

actions. Burris refused to take medication for these diagnoses 
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STATE v. BURRIS

Cite as 30 Neb. App. 109

until after this incident and is now doing monthly injections. 

This factor favors retention.

(4) Age of defendant: At the time of the assaults, Burris was 

17 years old, but at the time of the transfer hearing, he was 

18 years old. Because Burris would reach the age of majority 

shortly, this factor weighed in favor of retention.

(5) Previous history: Burris has prior terroristic threats 

and disorderly conduct charges in juvenile court and prior 

assaults on staff members at the YRTC. This weighed in favor 

of retention.

(6) Best interests of juvenile: Burris successfully completed 

programming at the YRTC, was discharged from juvenile probation, and has maintained compliance with his medication. 

This weighed in favor of transfer, although a longer period 

of time to work with him and provide more services would 

be beneficial.

(7) Consideration of public safety: Due to the making of 

weapons and Burris’ prior violent behavior, the court found this 

weighed in favor of retention.

(8) Ability to appreciate the nature and seriousness of his 

conduct: Because Burris recognized and appreciated the nature 

and seriousness of his actions, the court found this weighed in 

favor of transfer.

(9) Best interests of juvenile and security of public requiring 

detention or supervision for period extending beyond minority: 

Because of the seriousness of the charges, Burris will likely 

require detention or services beyond the age of majority; therefore, this weighed in favor of retaining jurisdiction.

(10) Mediation: Burris would be willing to participate in 

mediation; therefore, this weighed in favor of transfer.

(11) Pretrial diversion program: No evidence was presented 

on this factor, but the court found it unlikely that Burris would 

qualify; therefore, this factor weighed in favor of retention.

(12) Firearm: Burris had no prior convictions for use of a 

firearm. This factor favored a transfer.
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STATE v. BURRIS

Cite as 30 Neb. App. 109

(13) Juvenile court order pursuant to Neb. Rev. Stat. 

§ 43-2,106.03 (Reissue 2016): No evidence was presented on 

this factor; therefore, it was neutral.

(14) Gang member: The evidence was unclear on this issue. 

There was testimony that he was and that he was not a gang 

member. Therefore this factor was neutral.

ASSIGNMENT OF ERROR

Burris assigns that the district court erred in denying his 

motion to transfer his case to the juvenile court.

STANDARD OF REVIEW

[1] 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. Bluett, 295 Neb. 369, 889 N.W.2d 

83 (2016). 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

Motions to transfer a pending criminal case to juvenile court 

are governed by Neb. Rev. Stat. § 29-1816 (Cum. Supp. 2020) 

and § 43-276(1). Generally speaking, § 29-1816(3) sets forth 

the procedure to be followed, and § 43-276(1) enumerates the 

factors a court must consider when ruling on a motion to transfer, which include:

(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 
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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 pretrial 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.

After considering all the evidence and reasons presented 

by both parties, a case shall be transferred to juvenile court 

unless a sound basis exists for retaining the case in district 

court. See § 29-1816(3)(a). As the Nebraska Supreme Court 

has explained, in conducting a hearing on a motion to transfer 

a pending criminal case to juvenile court, the court should 

employ “a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.” State v. Stevens, 290 Neb. 

460, 465, 860 N.W.2d 717, 725 (2015). “In order to retain the 

proceedings, the court need not resolve every 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. “The burden of proving a sound basis for retention 

lies with the State.” Id.

Burris was charged with use of a deadly weapon to commit a felony, a Class II felony, and second degree assault, a 

Class IIA felony, arising out of alleged incidents occurring 

at the YRTC on or around July 3, 2020. At the time of the 
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STATE v. BURRIS

Cite as 30 Neb. App. 109

assaults, he was 17 years old, and at the time of the transfer 

hearing, he was 18 years old. Burris argues that the district 

court did not have a sound reason for retaining jurisdiction, 

relying primarily upon the facts that he has completed the program at the YRTC and has been successfully discharged from 

probation. He claims these programs addressed his treatment 

needs and that the limited juvenile services still available to 

him would be sufficient.

The record reveals that Burris was initially noncompliant 

with his medication, leading to the decision that it be changed 

and administered via monthly injection. Since that change, 

Burris’ behavior appears to have improved. Nonetheless, when 

weighing the factors of § 43-276(1), the district court concluded that a sound basis existed for retaining jurisdiction. 

We agree.

[2] It is undisputed that Burris’ attacks on the staff members 

involved violence and that given his age, he would be under 

the jurisdiction of the juvenile court for a very short period of 

time. At the time of the attacks, he had been provided virtually 

all of the offered juvenile court services, to no avail. Burris 

had a long history of violence, as evidenced by his initial 

commitment to the YRTC and his record of violations while 

there. Although we are mindful of the effect Burris’ medication 

change has had, 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 discretion in refusing to 

transfer the case to juvenile court. See State v. Hunt, 299 Neb. 

573, 909 N.W.2d 363 (2018).

The district court set forth a detailed analysis of each of 

the factors contained in § 43-276(1), and we find no abuse 

of discretion in denying Burris’ motion to transfer the case 

to juvenile court. Given Burris’ age, a transfer to the juvenile 

court at this point would provide little to no services being 

offered to Burris. And given the nature of the offenses and 

Burris’ long history of noncompliance, we cannot say that the 

minimal services available through the juvenile court would 
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be sufficient. Therefore, the district court had a sound basis for 

retaining jurisdiction.

Relying upon § 43-276(2) and the definition of the term 

“juvenile” contained in Neb. Rev. Stat. § 43-245(11) (Cum. 

Supp. 2020), the State argues in its brief that the district court 

did not err in denying the motion to transfer because at the 

time the motion was filed, the juvenile court would not have 

jurisdiction over Burris who had already turned 18 years old. 

The State did not present this argument to the district court; 

however, because it presents a question of jurisdiction that may 

be raised at any time, we address the State’s argument. See 

State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).

The essence of the State’s argument is that § 43-276(2) 

grants a juvenile court jurisdiction over any juvenile who commits a felony and who was at least 11 years old at the time 

the act was committed. Section 43-245(11) defines a juvenile 

as “any person under the age of eighteen.” Therefore, according to the State, the juvenile court’s jurisdiction is limited 

to persons who commit a felony and are 11 to 17 years old. 

We disagree.

Neb. Rev. Stat. § 43-247(2) (Reissue 2016) grants jurisdiction to the juvenile court over any juvenile who committed a 

felonious act and who was 11 years of age or older at the time 

the act was committed. Subsection (12) of § 43-247 also grants 

continuing jurisdiction to the juvenile court until that individual 

reaches the age of majority. Neb. Rev. Stat. § 43-246.01(3)(c) 

(Reissue 2016) grants concurrent jurisdiction to the district 

court and the juvenile court as to any juvenile described in 

§ 29-1816(1)(a)(ii), which section includes an “accused [who 

was] younger than eighteen years of age and [who 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.” 

Likewise, § 29-1816(2) requires that the trial court advise a 

defendant “if the accused was younger than eighteen years of 

age at the time the alleged offense was committed” that the 
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accused may move to have the case transferred to the juvenile 

court for further proceedings.

[3] When read together, these statutes support a determination that the juvenile court had concurrent jurisdiction over 

Burris at the time the motion to transfer was filed. Burris was 

17 years of age when he allegedly committed the acts which 

constitute Class II and IIA felonies. He had not yet reached 

the age of majority during the course of the proceedings. See 

§ 43-245(2). Therefore, we reject the State’s argument that the 

juvenile court was without jurisdiction to accept a transfer of 

Burris’ case.

CONCLUSION

Finding no abuse of discretion in the district court’s order 

denying the motion to transfer, we affirm.

Affirmed.