This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1592
State of Minnesota,
Respondent,
vs.
J.A.H.,
Appellant.
Filed April 13, 2015
Affirmed
Hudson, Judge
Dissenting, Reyes, Judge
Hennepin County District Court
File Nos. 27-CR-14-22063, 27-JV-12-413
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellant argues that the district court abused its discretion when, following his
first probation violation, it declined to follow the recommendation of his probation agent
and revoked his extended-juvenile-jurisdiction (EJJ) status, executing his 120-month
sentence. Because the district court appropriately weighed the factors in State v. Austin,
295 N.W.2d 246, 249–50 (Minn. 1980), including that the need for appellant’s
confinement outweighed the policies favoring probation, we affirm.
FACTS
In 2012, appellant J.A.H., then 16 years old, was identified as a person who shot
and seriously injured two people in an incident involving Native Mob gang members.
The state charged appellant by petition with attempted second-degree felony murder,
first-degree assault, and first-degree burglary, all committed for the benefit of a gang—
the Native Mob. The district court denied the state’s motion for presumptive adult
certification and ordered appellant designated as EJJ pursuant to Minn. Stat. § 260B.130
(2010).
In August 2012, appellant pleaded guilty to two amended counts of second-degree
assault and one count of first-degree burglary. The district court sentenced appellant to
120 months, stayed on the condition that he successfully comply with EJJ probation,
which included standard conditions of probation, completing the Woodland Hills
Residential Treatment Program, and having no contact with the victims.
Appellant completed the program at Woodland Hills in Duluth and transitioned to
a semi-independent living program. But he returned to the Twin Cities in December
2013, and in February 2014, his probation agent filed an arrest-and-detain report after
2
appellant failed to maintain contact with his probation agent.1 Appellant waived his right
to a contested Morrissey hearing and admitted that he had remained out of contact with
his probation agent for approximately six weeks, tested positive for illegal drugs, had
ongoing contact with documented Native Mob gang members, and failed to attend school
or make a good-faith effort to obtain employment. The district court accepted evidence
of a disposition review from appellant’s probation officer, who recommended
commitment for appellant at Minnesota Correctional Facility-Red Wing (MCF-Red
Wing).
The district court issued an order revoking EJJ probation and ordering execution
of appellant’s 120-month adult sentence. The district court found that appellant had
violated the terms of his probation, that the violations were intentional and inexcusable,
and that the need for his confinement outweighed the policies favoring continued
probation. The district court found that, although appellant had spent more than 15
months in treatment in Duluth, within weeks after his return to the Twin Cities, he had
failed to attend school; failed to maintain contact with his probation agent; used illegal
drugs, including marijuana and methamphetamine; and actively affiliated with gangs by
taking pictures with known gang members and posting those pictures on social-media
sites. The district court found that, based on this immediate departure from his probation
terms, treatment at MCF-Red Wing would be inadequate. The district court also found
that appellant had extremely serious original offenses, which implicated public-safety
1
Appellant’s probation officer contacted appellant prior to issuing an apprehension-and-
detention order, directing appellant to report to the probation office immediately.
Appellant did not do so.
3
concerns and were influenced by gang relations; that his re-association with gang
members demonstrated he was a public-safety risk; and that his use of illegal drugs and
failure to remain in contact with probation further established that he was unamenable to
services in the juvenile system. Appellant moved for reconsideration, which the district
court denied, finding that his actions were a choice; that psychological evidence in the
EJJ proceeding had identified his association with gang peers as his greatest risk to
reoffend; that confinement was necessary to protect the public from further criminal
activity; and that it would unduly depreciate the seriousness of the violation if probation
were not revoked. This appeal follows.
DECISION
A district court has broad discretion in determining whether to revoke probation,
and this court will not reverse that decision absent a clear abuse of discretion. State v.
Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). Before revoking probation, however, the
district court must perform a three-step analysis: designating the specific probationary
conditions that were violated, finding that the violation was intentional or inexcusable,
and finding “that [the] need for confinement outweighs the policies favoring probation.”
Id. at 250; see also State v. B.Y., 659 N.W.2d 763, 768–69 (Minn. 2003) (holding that the
Austin factors apply to EJJ revocation proceedings). The decision to revoke cannot be a
reflexive reaction to an accumulation of technical violations, but requires a showing that
the offender’s behavior demonstrates that he or she cannot be counted on to avoid
antisocial activity. Austin, 295 N.W.2d at 251. The district court’s findings on the Austin
factors must conform to procedural requirements and convey the substantive reasons for
4
revoking probation and the evidence supporting that decision. State v. Modtland, 695
N.W.2d 602, 608 (Minn. 2005). “The required Austin findings ensure that the district
court has fully considered any claims by the defendant that revocation is not warranted
because his probation violation was either unintentional or excusable, or because
revocation would be inconsistent with the public policies favoring probation.” State v.
Cottew, 746 N.W.2d 632, 637 (Minn. 2008).
Appellant challenges the district court’s finding on the third Austin factor. When
finding that the need for confinement outweighs the policies favoring probation, the
district court must find the presence of at least one of three policy subfactors:
(1) “confinement is necessary to protect the public from further criminal activity by the
offender”; (2) “the offender is in need of correctional treatment which can most
effectively be provided if he is confined”; or (3) “it would unduly depreciate the
seriousness of the violation if probation were not revoked.” Modtland, 695 N.W.2d at
607 (quotations omitted). Appellant maintains that he does not need to be confined to
protect the public from additional criminal activity because his probation violations
displayed only immature behavior; that any need for his confinement to protect the public
can be best served by his commitment through the juvenile system, rather than adult
prison; and that if probation were not revoked, it would not unduly depreciate the
seriousness of his offense because he would still be under confinement at MCF-Red
Wing.
Here, the district court found that confinement was necessary to protect the public
from appellant’s further criminal activity, based on his immediate violation of several
5
substantive probation conditions after returning to the Twin Cities, including his
association with gang members, a previously identified risk factor. See Austin, 295
N.W.2d at 251 (noting that probation revocation “requires a showing that the offender’s
behavior demonstrates that he or she cannot be counted on to avoid antisocial activity”
(quotation omitted)). Unlike the minor curfew violations involved in B.Y., 659 N.W.2d at
770–71, cited by the dissent, appellant’s probation violations included the use of illegal
drugs and association with gang members. Thus, the district court also found that
appellant’s violations made him unamenable to additional treatment in the juvenile
system and that the seriousness of his violation would be depreciated if probation were
not revoked. See Austin, 295 N.W.2d. at 251 (noting that a failure to make a commitment
to rehabilitation supported a reasonable conclusion that treatment had failed).
Specifically, the district court noted that the MCF-Red Wing program recommended by
appellant’s probation officer was not a viable option as it was “another out of home
placement with similar treatment goals [and thus] would be unlikely to change
[appellant’s] conduct.” Appellant’s failure to heed his probation officer’s warning of
consequences for failing to maintain contact with probation also illustrates his disinterest
in rehabilitation. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding
that failure to heed warnings that a particular behavior violates probation and may trigger
consequences indicates that probation is not succeeding and a greater need for
confinement exists), review denied (Minn. July 20, 1995), abrogated in part on other
grounds by Modtland, 695 N.W.2d at 606.
6
The district court’s decision to revoke probation reveals it considered appellant’s
successful completion of his residential treatment program. Indeed, the district court
observed that appellant had “accomplished a great deal throughout the time at Woodland
Hills and has learned the tools to live a clean and health[y] lifestyle if he chooses.” But
the district court also considered appellant’s inability to commit to continued
rehabilitation, as shown by his swift violation of probation conditions within weeks after
re-entering the community. In particular, given the gravity of appellant’s initial crimes
and his continued association with Native Mob gang members, the district court
concluded that appellant was a risk to public safety. As evidenced by the district court’s
willingness to take additional argument on appellant’s motion for reconsideration, the
district court did not make a reflexive decision to revoke probation, but rather, carefully
reviewed appellant’s arguments. See, e.g., State v. Osborne, 732 N.W.2d 249, 255
(Minn. 2007) (upholding probation-revocation decision when the district court continued
a hearing to review the record and issued a thorough explanation for its decision). A
close examination of the record shows that it supports the district court’s findings on the
third Austin factor, and the district court did not abuse its discretion in revoking
probation.
Affirmed.
7
REYES, Judge (dissenting)
I respectfully dissent. The district court’s failure to address relevant mitigating
factors when they are present in an Extended Juvenile Jurisdiction (EJJ) probation
revocation is error under Minnesota Supreme Court precedent. Moreover, the district
court abused its discretion in determining that the need to execute a 10-year adult prison
sentence on J.A.H. after his first offense outweighs the policies favoring probation. I
would reverse.
Failure to Consider Mitigating Factors
In determining whether to revoke an EJJ probation and execute a sentence after
admitted violations, courts must consider all circumstances of probation, including any
mitigating factors relating to the violations. State v. B.Y., 659 N.W.2d 763, 772 (Minn.
2003). Failure to find any mitigating factors when they are present is reversible error. Id.
at 770. “This is especially true because a mitigation finding, when reduced to writing,
can be sufficient to avoid the harsh and inflexible result otherwise required by Minn. Stat.
§ 260B.130, subd. 5 or [related EJJ rules].” Id. at 772. Moreover, “[d]ue process
requires that a defendant be given an opportunity to show that even if a condition of
probation was violated, mitigating circumstances exist such that the violation does not
warrant revocation.” State v. Cottew, 746 N.W.2d 632, 636 (2008) (citing Pearson v.
State, 308 Minn. 287, 289–90, 241 N.W.2d 490, 492 (Minn. 1976)) (other citations
omitted). “Mitigating factors include amenability to treatment, successful completion of
a treatment program, and whether the violations show a potential for recidivism.” State
v. J.E.S., 763 N.W.2d 64, 69 (Minn. App. 2009) (citing B.Y., 659 N.W.2d at 770).
D-1
Here, the district court failed to find any mitigating factors, contrary to the
undisputed record containing several mitigating factors. See B.Y., 659 N.W.2d at 772
(stating that “a district court in its mitigation findings must be certain to take all of the
circumstances of probation into consideration”). In that case, B.Y. was on EJJ probation
after pleading guilty to kidnapping and committing a crime for the benefit of a criminal
gang. Id. at 764. He had successfully completed the Woodland Hills program, but
subsequently violated the terms of his probation. Id.at 764-766. B.Y.’s probation officer
recommended revoking probation, and the state did as well due to his “multiple
violations.” Id. at 766. The district court revoked probation, “finding no mitigating
factors,” without additional findings on those factors, and executed his 108-month
sentence. Id. at 767. B.Y. appealed, and we affirmed, concluding that in the absence of
written findings of mitigating factors by the district court, the EJJ statute required the
execution of B.Y.’s sentence. Id. at 765. The supreme court reversed and remanded for
the district court to make additional findings on mitigating factors present in the record.
Id. at 771.
Similarly here, at the July 29, 2014 hearing, the district court twice stated that the
“Court has previously found that there are no mitigating factors.”2 This finding is clearly
erroneous based on the record before us. Here J.A.H., just like B.Y., successfully
completed the rigorous 16-month residential program at Woodland Hills in Duluth and
received positive reports from the very beginning of the program, demonstrating his
2
The district court stated earlier in the hearing that “[J.A.H.] has accomplished a great
deal throughout the time at Woodland Hills and has learned the tools to live a clean and
healthy lifestyle if he chooses,” but apparently did not find this to be a mitigating factor.
D-2
amenability to probation. “[S]uccessful completion of the rigorous Woodland Hills
rehabilitation program should be appropriately considered by the district court as a
mitigating factor demonstrating amenability to probation.” B.Y. at 770. J.A.H. then
successfully transitioned into the semi-independent living program. Moreover, J.A.H.
obtained his high school diploma while in the program and even finished a semester of
college. And until the present violation, which was his first and only violation, J.A.H.
had complied with all of the terms and conditions of his probation. I would conclude that
on this record, the district court’s failure to address clearly documented mitigating factors
amounts to reversible error. See B.Y., 659 N.W.2d. at 770.
Analysis of the Third Austin Factor
I would also conclude that the district court abused its discretion in determining
that the need for public safety from J.A.H. outweighs the policies favoring probation.
Before revoking probation, a district court must make three findings under State v.
Austin, 295 N.W.2d 246 (Minn. 1980). “[T]he court must (1) designate the specific
condition or conditions that were violated; (2) find that the violation was intentional or
inexcusable; and (3) find that the need for confinement outweighs the policies favoring
probation.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (quoting Austin, 295
N.W.2d at 250). Only the third Austin factor is at issue here. Furthermore, when
analyzing the third Austin factor, the district court must find at least one of three policy
factors: (1) the need for “confinement is necessary to protect the public from further
criminal activity by the offender”; (2) “the offender is in need of correctional treatment
D-3
which can most effectively be provided if he is confined”; or (3) “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” Id. at 607.
The supreme court has stated that “[w]hen determining if revocation is
appropriate, courts must balance ‘the probationer's interest in freedom and the state's
interest in insuring his rehabilitation and the public safety’. . . .” Id. at 606-607 (citing
Austin, 295 N.W.2d at 250). But even when probation terms are violated, “policy
considerations may require that probation not be revoked.” Austin, 295 N.W.2d at 250.
Indeed, “revocation should be used only as a last resort when treatment has failed.” Id.
“If the violation is one of youthful obstinance, it may not always foreclose a
determination that an EJJ defendant is amenable to probation.” B.Y., 659 N.W.2d at 772.
In its June 3, 2014 order and again during the July 29, 2014 hearing, the district
court relied on the first policy factor—that “confinement is necessary to protect the
public from further criminal activity”—to support its finding on the third Austin factor.
At the July 29, 2014 hearing, the district court also found “that it would unduly
depreciate the seriousness of the violation if the probation was not revoked.” However,
the district court did not provide any substantive reasons for this finding. See Modtland,
695 N.W.2d at 608 (“courts must seek to convey their substantive reasons for revocation
and the evidence relied upon”). Because the district court primarily relied on the
confinement policy with substantive reasoning but did not do so for the third policy
factor, I address the confinement policy. Id.
The district court’s finding on the third Austin factor, that the need for
confinement outweighed the policies favoring probation, is an abuse of discretion for
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three reasons. First, there is a viable alternative to execution of his 120-month sentence
with the MCF-Red Wing program recommended by J.A.H.’s probation officer.3 This
program would provide treatment while keeping him confined, thereby addressing the
concern for confinement to protect the public expressed by the district court. At the same
time, that placement would encourage rehabilitation, which has been recognized as “the
purpose of probation”. Modtland, 695 N.W.2d at 606 (quotation omitted).
Second, J.A.H. has shown that he is amenable to probation and rehabilitation. As
stated above, he successfully completed a 16-month residential program, transitioned into
a semi-independent living program, obtained his high school diploma, completed a
semester of college and until the violation otherwise complied with the terms of
probation. See B.Y., 659 N.W.2d at 770 (stating that “successful completion of the
rigorous Woodland Hills rehabilitation program . . . demonstrate[ed] amenability to
probation”). The MCF-Red Wing program would provide J.A.H. the skills and
individual therapy necessary to assist him in avoiding association with gang members.
And since he obtained his high school diploma while in the Woodland Hills program, he
would be eligible to continue his post-secondary education or vocational training at the
MCF-Red Wing program.
3
In contrast to the probation officer’s recommendation in the instant case, in Modtland
the probation officer recommended incarceration, stating that he was a “huge risk to
public safety,” not amenable to the Minnesota Teen Challenge program, and that the only
alternative was execution of his sentence. 695 N.W.2d at 605. The supreme court
nevertheless reversed and remanded for failing to address the second and third Austin
factors. Id. at 608.
D-5
Third, while J.A.H’s underlying convictions were for unquestionably serious
crimes (second-degree assault and first-degree burglary), his probation violations were
unrelated to those underlying crimes. Nevertheless, the district placed great weight on
J.A.H. violating the terms of his probation by having contact with gang members, noting
that he posted photographs on Facebook of himself wearing gang colors and flashing
gang signs. While these were admitted violations of probation, postings on Facebook
appear to reflect “youthful obstinance” and do not necessarily foreclose the possibility
that he is amenable to probation. Id. at 772.
I recognize the challenge district courts face when having to make decisions on
EJJ revocation hearings by balancing public safety concerns with the desire for
rehabilitation. Although we afford district courts great deference, as an error-correcting
court we must reverse when errors occur. Failure to find mitigating factors when such
exist is reversible error. Moreover, the supreme court has consistently emphasized the
strong preference for rehabilitation and using revocation as a last resort only when
treatment has failed. See Modtland, 695 N.W.2d at 606 (quoting Austin, 295 N.W.2d at
250). I would reverse.
D-6
State of Minnesota v. J.A.H.
Combined Opinion