This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000)






State of Minnesota,





Usi Azarad Gaona,



Filed January 15, 2002


Lansing, Judge


Nicollet County District Court

File No. K89945


Mike Hatch, Attorney General, Suite 500, 525 Park Ave., St. Paul, MN  55103; and


Michael K. Riley Sr., Nicollet County Attorney, Philip J. Elbert, Assistant County Attorney, 326 South Minnesota Avenue, P.O. Box 360, St. Peter, Minnesota, 56082 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Hanson, Presiding Judge, Lansing, Judge, Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the revocation of his probation for felony theft, Usi Gaona contends that the district court failed to obtain an adequate waiver of his right to counsel and thus, his revocation should be reversed.  Because the record establishes a valid waiver of Gaona's right to counsel, followed by an admission of three violations, we affirm. 


            As part of a plea negotiation on charges of felony theft, criminal damage to property, and tampering with a motor vehicle, the district court stayed imposition of Usi Gaona’s prison sentence in March 1999 and placed him on probation for five years.  In December 1999 and again in February 2000, Gaona was deported to Mexico.  Before each deportation, Gaona’s probation officer instructed him that if he returned to the United States, he must contact the probation office immediately. 

Gaona returned to the United States after his second deportation and lived in the state of Washington for some time without notifying the probation office.  In June 2001, Gaona’s probation officer filed a violation report alleging that Gaona failed to report to the agent, notify the agent before making any changes in employment and residence, and pay restitution and fines.  Gaona returned to Minnesota in June 2001 to visit relatives.  Police became aware of his presence in Minnesota because of an investigation of a vehicle stolen in Washington state that they believed Gaona had driven to Minnesota.  Mankato police took Gaona into custody during an investigation of a loud party.  He provided police with an address in Madelia, Minnesota.

            At Gaona's first appearance in the probation-revocation proceedings, the district court informed Gaona that he had the right to be represented by an attorney of his choosing, that if he could not afford an attorney one would be provided for him by the state, that he would be asked whether he admits or denies the alleged violations, that he would be allowed to make a statement on his behalf, and that if he denies the alleged violations, there would be a hearing at which the state would be required to prove by clear and convincing evidence that he violated his probation.  The district court then asked Gaona if he wanted an attorney. In response, Gaona stated, “No, your Honor, that’s fine.  Thank you.”

Gaona admitted that he violated all three of the conditions.  The district court revoked the stay and committed Gaona to the custody of the Commissioner of Corrections for one year and one day minus time served.  Gaona now appeals, arguing that the revocation was constitutionally invalid because he did not adequately waive his right to counsel.


The Minnesota Rules of Criminal Procedure provide that at the first appearance in a probation-revocation proceeding, the district court should inform the probationer of the following:  (1) that he is entitled to counsel and that if he is financially unable to pay for counsel, one will be provided for him; (2) that a revocation hearing will be held; (3) that, before the hearing, all evidence against the probationer will be disclosed to him and that he will have access to all official records regarding the proceeding; (4) that, at the hearing, the probationer and the prosecution will have the right to present evidence, arguments, witnesses, and mitigating circumstances; and (5) that the probationer has the right to appeal the determination of the court after the revocation hearing.  Minn. R. Crim. P. 27.04, subd. 2.  This rule is consistent with Minnesota statutes and implements federal constitutional mandates.  See Minn. Stat. § 609.14, subd. 2 (2000) (mandating that at probation-revocation hearings, the “defendant is entitled to be heard and to be represented by counsel”); Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763 (1973) (“[T]he decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.”) 

At Gaona’s probation-revocation hearing, the district court partially complied with rule 27.04 by notifying Gaona that he had a right to have counsel present, that counsel would be appointed if he could not afford one, and that a revocation hearing would be held.  But the district court did not inform Gaona that he would have access to all evidence before the hearing, would be able to present evidence and mitigating circumstances at the hearing, and would be allowed to appeal the decision.

At the outset, we reaffirm the importance of district courts' full compliance with all notice provisions of rule 27.04 to protect the rights of those facing probation revocation, which often results in incarceration.  But we are satisfied on this record that the district court adequately advised Gaona of the nature of the charges and substantially complied with rule 27.04 both by notifying Gaona of his right to have the assistance of counsel throughout the probation-revocation process and by providing information on which Gaona could base his decision to represent himself.

First, noncompliance with rule 27.04 is not a constitutional violation and does not automatically invalidate a waiver of the right to counsel.  The notifications prescribed in rule 27.04 exceed the protections required by the federal constitution for probation-revocation proceedings.  See Gagnon v. Scarpelli, 411 U.S. at 790, 93 S. Ct. at 1764 (1973) (noting that due process may require counsel at a probation-revocation hearing when (1) the probationer requests counsel and (2) (a) he claims that he has not committed the alleged probation violation or (b) he argues that there are complex mitigating circumstances that justify the violation).  Consistent with these constitutional protections, this court has previously explained that in order to have a valid waiver of the right to counsel at a probation-revocation hearing, the district court is required to inform the probationer that he has a right to counsel at all stages of the probation-revocation process.  State v. Murray, 529 N.W.2d 453, 455 (Minn. App. 1995) (holding that the full scope of a probationer’s right to counsel under rule 27.04 includes counsel at first appearance and all subsequent proceedings). 

Second, in cases involving waiver of counsel at trial, which involves a higher constitutional standard than waiver of counsel at probation-revocation proceedings, Minnesota courts have noted that substantial compliance with the Rules of Criminal Procedure’s pre-waiver notification requirements is sufficient.  See Minn. R. Crim. P. 5.02(4) (noting that, before accepting a defendant’s waiver of trial counsel, the district court must notify the defendant of the charges, the punishments, the potential for the existence of defenses and mitigating circumstances, and the disadvantages and advantages of self-representation); State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (“[A]lthough the trial court’s on-the-record inquiry regarding waiver did not include a recitation of the charges or potential punishments, it is clear that [the defendants] were in fact given counsel and then unequivocally fired their attorneys” with knowledge of the consequences.); State v. Savior, 480 N.W.2d 693, 694 (Minn. App. 1992) (“Although the trial court did not make a full on-the-record inquiry to ensure a valid wavier, the surrounding circumstances show that [defendant] was aware of the consequences of proceeding pro se.”)

The district court advised Gaona of the nature of the probation-revocation proceedings and that he had the right to have counsel present during the proceedings.  The court further advised Gaona that if he could not afford an attorney, one would be provided.  The court also advised him that the state was required to present clear and convincing evidence of a violation of the probation conditions.  This notice substantially complied with Minn. R. Crim. P. 27.04 and fully complied with federal constitutional standards and previous Minnesota decisions.  As a result, Gaona’s waiver of his right to counsel at the probation-revocation hearing was valid.