This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brandon Eric Henson,
Dissenting, Randall, Judge
Ramsey County District Court
File No. J099552168
Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Kathryn A. Santelmann, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.
This appeal is taken from an order revoking extended juvenile jurisdiction probation and executing stayed adult sentences for aiding and abetting aggravated robbery. Appellant argues that the district court abused its discretion in revoking probation because appellant had made progress in juvenile probation and did not commit a new offense, other than a violation of the house arrest imposed by appellant’s probation officer, which had occurred because appellant’s mother had told him to leave the house. Because the district court did not abuse its discretion in revoking extended juvenile jurisdiction probation, we affirm.
On a late evening in January 2000, appellant, who was 16 years old at the time, and several other teenagers approached a man near the Farmers’ Market at 5th and Wacouta Streets in St. Paul. The man stated that the teenagers came up to him, and a black male in a red Chicago Bulls jacket grabbed his left hand, held a handgun and pointed it at him. When the man attempted to walk away, the teenager turned and struck him in the head with the butt of the gun. The man took his wallet out of his pocket; the male in the Chicago Bulls jacket grabbed the wallet from him and yelled, “I got it, let’s go.”
A few minutes after the first robbery, the teenagers approached another man at 250 East 5th Street. As the man was going up the steps leading to the building, one of the teenagers approached him from behind and demanded his money. The man saw a handgun pointed at him and when asked for his wallet, took it out and opened it. One suspect took $24 in cash out of the wallet and fled across Mears Park with the other teenagers.
Appellant and one of the other suspects were apprehended a few minutes after the second robbery. When the first victim reported the incident to police, he was transported to headquarters, where he positively identified appellant as the person with the gun who had robbed him. Appellant was wearing a red Chicago Bulls jacket that evening. The second victim also identified another suspect, who had pointed the gun during the second robbery, and identified appellant as being present during that robbery.
Both appellant and the other identified suspect gave statements to police. The other identified suspect stated that appellant had the gun, a B.B. pistol, during the first robbery. Appellant told police that the other identified suspect had the gun during the first robbery and hit the victim with it. Both victims believed that the B.B. pistol used in the robberies was a handgun.
Appellant was initially charged as a juvenile with two counts of aggravated robbery in violation of Minn. Stat. §§ 609.245, subd. 1, .11, and .05 (1998). Upon the prosecutor’s motion to certify appellant for trial as an adult, the court ordered a certification study and a psychological evaluation. The probation department recommended that appellant be designated an Extended Jurisdiction Juvenile (EJJ). Appellant’s mother reported that her son would follow the rules at home, but she was aware of his gang involvement and that he acted very differently on the street.
A licensed psychologist evaluated appellant and recommended that he be certified to stand trial as an adult. Although appellant scored in the above-average range of intellectual functioning relative to peers from his cultural background, clinical scales indicated that he was oppositional and defiant. He was also diagnosed with attention deficit disorder.
Appellant waived his right to a certification hearing and agreed to EJJ designation pursuant to a plea agreement. He then pleaded guilty to both counts of aggravated robbery and agreed to a stayed adult sentence of 48 months on each count, to be served consecutively. For the juvenile portion of the EJJ sentence, the court ordered appellant to complete successfully a program at Glen Mills, Pennsylvania. Upon completion of that program, he was to remain law abiding, with no same or similar offenses, and follow all the rules and directives of probation. At the plea hearing, the district court spoke directly to appellant concerning the effect of parole violation on his EJJ status:
On EJJ, when you are on EJJ status, the law says that the Court shall, if there is a violation, the Court shall send you to the penitentiary. That means—That means, one shot. That’s all you got. So if you come back and see me, you are probably going to be going to the penitentiary.
Appellant completed the Glen Mills program, where he obtained his GED. When he returned from that program, he agreed to face-to-face meetings with his probation officer. In September 2001, appellant and his mother met with the probation officer because the probation officer had heard from the St. Paul police that an altercation between appellant and others had occurred at a Super America store, and a gun was found in the area. Appellant had a urinalysis test that was positive for cocaine, and his probation officer placed him on daily supervision, gave him a 9:00 p.m. curfew, and required him to obtain a job. After a few weeks, appellant returned home one night 50 minutes after curfew. The probation officer then took away appellant’s privileges and placed him under house arrest.
On October 27, 2001, appellant left his mother’s house. He had not returned by the time she arrived home at 11:30 p.m. and finally arrived home at about 2:30 a.m. His mother became upset and told him to get out of the house and “stay over there,” meaning his girlfriend’s house. She then called the probation officer and reported that appellant had left her house.
Appellant called his probation officer and met with him on October 29, 2001. Appellant stated that he had moved in with a girlfriend downtown. The probation officer told him that he needed to move back in with his mother. Appellant stated that he would do this, but three days later, his mother informed the probation officer that appellant had not yet returned home. On November 1, 2001, a probation violation was filed and a warrant was issued for appellant’s arrest. About two weeks later, appellant was found and arrested.
At the probation revocation hearing, the district court took testimony from appellant’s mother, who described the family life as “very strict,” where only Christian music was allowed. She stated that appellant had started having problems when his grandfather got cancer and the family was evicted from the home they were buying. She stated that she had locked appellant out of the house when he came home after his curfew, and expressed concern that girls he was dating had their own apartments.
The district court found that, based on his own admission, appellant had violated the terms of his EJJ probation, and that there were no mitigating factors to justify a deviation from the requirements of Minn. Stat. § 260B.130, subd. 5 (2000). The court revoked appellant’s EJJ status, vacated the stay of execution of the sentence, and ordered the execution of the two 48-month sentences, to be served concurrently, with two-thirds of the sentence to be served in custody and one-third on supervised release.
This appeal followed.
The terms of the governing statute require that if an EJJ prosecution results in a guilty plea or a finding of guilt, the district court shall
impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.
Minn. Stat. § 260B.130, subd. 4(a)(2) (2000). This legislation provides a system of “one last chance” where “[j]uveniles will know there is a certainty of punishment, combined with an opportunity to be successful in the juvenile system.” See Minnesota Supreme Court Advisory Task Force on the Juvenile Justice System, Final Report 34 (Jan. 1994).
In cases regarding adult offenders, the district court has broad discretion to determine whether to revoke probation and execute a sentence; this determination will be reversed only upon an abuse of discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). This court has held, however, that in considering sentence revocation under the extended juvenile jurisdiction (EJJ) statute, the court must exercise its discretion consistently with the provisions of that statute. State v. Bradley, 592 N.W.2d 886, 887 (Minn. App. 1999), review denied (Minn. July 28, 1999). The EJJ statute provides, in relevant part, that
[i]f the offender was convicted of an offense described in subdivision 1, clause (2), and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.
Minn. Stat. § 260B.130, subd. 5 (2000); see also Minn. R. Juv. P. 19.09, subd. 3(C)(2) (“[T]he court shall order the execution of the sentence or make written findings indicating the mitigating factors that justify continuing the stay.”).
Minn. Stat. § 260B.130, subd. 1(2) (2000), provides for EJJ designation in a proceeding where a child is alleged to have committed a felony offense if
the child was 16 or 17 years old at the time of the alleged offense; the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or to have committed any felony in which the child allegedly used a firearm; and the prosecutor designated in the delinquency petition that the proceeding is an [EJJ] prosecution.
In this case, appellant was 16 years old at the time of the robberies—felony offenses for which the sentencing guidelines presume a commitment to prison. SeeMinn. Sent. Guidelines IV. Furthermore, appellant allegedly used a firearm in committing one of the robberies.
In revoking appellant’s probation, the district court stated:
[Your probation officer] didn’t violate you when you had a positive [urinalysis]. He could have. * * * [W]hat I * * * know is there have been curfew issues, and then I know that you weren’t doing what you were supposed to after October 27th.
You saw [your probation officer] two days after you were gone, and he explained to you again what you were supposed to do. And you didn’t do it.
* * * *
I don’t hear anything about you not understanding your conditions of probation, you not understanding what [EJJ] is all about. You made choices. You made choices to use cocaine, you made choices to violate your probation. * * *
* * * *
* * * [Your probation officer] laid it on the line for you. He told you * * * what you needed to do. And what was your choice? Your choice was not to do anything. Your choice was not to keep in contact with him, not to go home, not to follow the terms and conditions of your probation. * * *
* * * I cannot make the findings that there are mitigating circumstances in your case.
Appellant argues that the district court abused its discretion in failing to make findings regarding mitigating factors. He contends that he did not commit a new offense, and that his only probation violation constituted failing to return to his mother’s home when his mother was unwilling to have him go back. While both the district court and this court recognize that appellant achieved several positive results during his probation, we conclude that the district court’s observation that there were no mitigating circumstances was not an abuse of discretion. Despite appellant’s mother’s initial reaction to the curfew violation, she subsequently called appellant’s probation officer to report the incident. A few days later, appellant met with his probation officer, who told him to return home. Appellant clearly was aware of what he was required to do. He did nothing. Had he followed his probation officer’s instructions and attempted to return home, and had he been refused access by his mother, we would have a different record to review. Even under that scenario, however, appellant would have been obligated to keep in touch with his probation officer and apprise him of what was happening. Appellant failed even to attempt to comply with the requirement of contact with the probation officer.
A probation officer may give instructions to a probationer, and if those instructions are disobeyed, the district court may revoke probation. See Austin, 295 N.W.2d at 250 (concluding that district court did not abuse its discretion in revoking probation when sufficient evidence existed to warrant finding that probationer disobeyed probation officer’s instructions). In this case, the district court at the plea hearing explained to appellant the meaning of EJJ, and that a single violation would result in execution of the previously-stayed sentence. At the probation revocation hearing, appellant admitted that he knew his failure to obey his probation officer and return home would be a violation of his probation. By ignoring this directive, appellant effectively gave up his “one last chance” to be successful in the juvenile system. The district court did not abuse its discretion in revoking the stay and ordering execution of his earlier sentence.
I respectfully dissent. The majority correctly analyzes the procedural background and appellant's acts that brought him to the hearing. But I believe that on the narrow facts that constituted the basis for appellant's revocation, the administration of justice and the legislative purposes of "EJJ" are better served by restructuring the terms of appellant's probation and continuing him under the rein of extended juvenile jurisdiction.
The purpose of extending juvenile jurisdiction is to keep, at least as many as possible, juveniles like appellant, whose acts brought them into the "no man's land," under the partial umbrella of the juvenile justice system. The land between juvenile EJJ and "real adulthood for minors—we call it prison" is where appellant found himself. Yes, he violated his probation, but the probation violation was "not living at home with his mother." Appellant had qualified originally for EJJ. That means that he "passed the test" at that time. That is in his favor.
While the facts do reflect that appellant had a positive UA for cocaine, he was not violated for that. As the majority correctly points out, after the dirty UA, appellant was placed on daily supervision, given an early curfew, and told to get a job. While the positive UA for cocaine was there, the "not living at home" triggered the violation seriously enough that appellant's EJJ probation was revoked and he was sentenced to prison to serve two four-year sentences concurrently.
The facts are not in dispute. Appellant returned home one morning at 2:30 a.m. and his mother told him to get out of the house. Appellant did. Had he not, perhaps there would have been a verbal argument, his mother could easily have called the probation officer, and appellant could have had his probation revoked for "not getting out of his mother's house." Appellant now does what his mother says and goes to his girlfriend's house; put another way, does exactly what his mother told him to do. His mother then called the probation officer and tells him that appellant has left her house. Now the probation officer tells appellant to move back home, and when appellant was not at home four days later, a bench warrant was issued, and appellant now finds himself facing a four-year prison sentence.
At the probation revocation hearing, the district court goes through all the facts and brings up, not without logic, appellant's procedural history wherein he had not been violated for possibly some things that he could have. But ultimately, the court had to focus on the violation at issue, the "not going home for four days," and on that basis, appellant goes to prison.
The majority states that the district court recognized "that appellant achieved several positive results during his probation." Then the district court said: "I cannot make the findings that there were mitigating circumstances in your case." That is an oxymoron.
With the ultimate violation being nothing more than a status offense, like four consecutive days of truancy from school when you were under 16, and have been previously warned about truancy, I cannot find that the district court's legal conclusion is supported by its findings. No harm is done by further EJJ. The record shows no more danger to society now than society was at risk when appellant was first put on EJJ. By continuing appellant on EJJ with whatever restructuring and terms of probation the district court deems proper, the interests of justice and the legislative intent of EJJ is served well.
I respectfully dissent and would have reversed and remanded to the district court to continue appellant on EJJ, and take whatever testimony deemed appropriate to rewrite appellant's conditions of probation.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[The following footnote is from the dissenting opinion.]
 Appellant left his mother's home and failed to return on October 27, 2001. On October 29, he met with his probation officer, who told him to return home. On November 1, the probation officer received a message that appellant had failed to return home. A warrant was then issued.