This opinion will be unpublished and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
A16-0238
State of Minnesota,
Respondent,
vs.
Obataye Ogunmola Powell,
Appellant.
Filed September 12, 2016
Affirmed
Bjorkman, Judge
Stearns County District Court
File No. 73-CR-12-5966
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Schellhas, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the revocation of his probation, arguing that this court should
adopt a heightened standard under State v. Austin, 295 N.W.2d 246 (Minn. 1980), for
probationers whose sentences include a lifetime conditional-release term. We affirm.
FACTS
On August 9, 2012, appellant Obataye Ogunmola Powell pleaded guilty to fourth-
degree criminal sexual conduct. The district court imposed a stayed 27-month sentence,
and placed Powell on probation with conditions. The conditions required him to, among
other things, maintain contact with his probation officer, complete sex-offender
treatment, and submit to a polygraph test as directed for case management purposes. The
district court also told Powell at sentencing that he would be subject to a lifetime
conditional-release term if his sentence was executed.
On May 6, 2014, an arrest warrant was issued based on allegations that Powell
violated his probation conditions by failing to (1) submit to a polygraph test as directed
by his probation officer, (2) complete sex-offender treatment, and (3) report to probation
as directed. Powell remained at large for nearly 18 months. On November 4, 2015,
Powell waived his right to a contested hearing and admitted the probation violations. The
district court subsequently revoked Powell’s probation, executed his 27-month prison
sentence, and imposed a lifetime conditional-release term.1 Powell appeals.
1
Powell is subject to a mandatory lifetime conditional-release term due to a prior sex-
offense conviction. Minn. Stat. § 609.3455, subd. 7(b) (2010).
2
DECISION
A district court has broad discretion to determine whether there is sufficient
evidence to revoke probation and will not be reversed absent an abuse of that discretion.
State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). Before revoking an offender’s
probation, a district court must find (1) the defendant violated a specific probation
condition, (2) the violation was intentional or inexcusable, and (3) the need for
confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250.
Revocation “requires a showing that the offender’s behavior demonstrates that he or she
cannot be counted on to avoid antisocial activity.” Id. at 251 (quotations omitted).
The district court made all three Austin findings. First, the district court
determined that Powell did not undergo a polygraph test as directed by his probation
officer, did not complete sex-offender treatment, and failed to maintain contact with his
probation officer for a year and a half. Second, the district court found that Powell was
aware of his responsibilities while on probation and that his violations were intentional or
inexcusable. Third, the district court determined that the need for confinement
outweighed the policies favoring probation. The district court specifically found that
Powell was not amenable to probation because he evaded supervision for 18 months.
And the court observed that confinement would allow Powell to get necessary treatment.
Powell does not challenge the adequacy of the district court’s findings or assert
that the revocation decision constitutes abuse of discretion. Rather, Powell argues that
we should adopt a heightened analysis under Austin for offenders whose sentences
include a lifetime conditional-release term. Specifically, he urges a heightened standard
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on the third Austin factor so that courts would be required to find that the need for
confinement does not just outweigh, but substantially outweighs the policies favoring
probation. We are not persuaded to do so.
First, Powell offers no precedential or persuasive legal support for his proposed
heightened standard; he relies on policy arguments. He contends that a heightened
standard is warranted based on the “extreme consequences” of a lifetime conditional-
release term. And he asserts that because it is so difficult for sex offenders to find
approved housing in certain communities, a lifetime conditional-release term “can easily
become a life sentence.”
Second, as an error-correcting court, we are not authorized to change the law in
response to such policy concerns. State v. Dorn, 875 N.W.2d 357, 361 (Minn. App.
2016). “The task of extending existing law falls to the supreme court or the legislature,
but it does not fall to this court.” State v. Anderson, 603 N.W.2d 354, 357 (Minn. App.
1999) (quotation omitted), review denied (Minn. Mar. 14, 2000); see also In re Welfare of
J.P.-S., 880 N.W.2d 868, 873 (Minn. App. 2016) (declining to require district courts to
consider parents’ finances when making out-of-home placement decisions because as an
error-correcting court we “cannot impose such a burden on the district court in the
absence of authority mandating such consideration”). Accordingly, we decline to adopt a
heightened standard under Austin for probationers whose sentences include a lifetime
conditional-release term.
Affirmed.
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