This opinion will be unpublished and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,
Gordon W. Shumaker, Judge
File No. J296555297
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55013; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Harten, Presiding Judge, Shumaker, Judge, and Parker, Judge.*
GORDON W. SHUMAKER, Judge
Under a plea agreement, the district court placed appellant on extended juvenile jurisdiction status, imposed and stayed consecutive sentences, and released appellant on probation subject to certain conditions. When appellant violated his probation, the court, finding no mitigating circumstances, ordered the execution of his sentences. Appellant contends the court abused its discretion in revoking the stay. We affirm.
Sixteen-year-old appellant Chee Yang pleaded guilty to three counts of first-degree criminal sexual conduct and one count of a crime committed for the benefit of a gang.
Under a plea agreement, the district court imposed and stayed consecutive sentences totaling 270 months, placed Yang on extended juvenile jurisdiction (EJJ), and ordered probation subject to various conditions.
About three and one-half years later, Yang admitted that he violated his probation by failing to abide by his curfew and by having contact with a known gang member. As a sanction, the court ordered Yang’s commitment for one year to the Red Wing Correctional Facility, but did not revoke the stay on existing sentences.
A month later, after an evidentiary hearing, the court found that Yang again violated his probation while he was in the correctional facility by brokering firearms over the telephone with a known gang member.
Yang contends that the district court abused its discretion by revoking his EJJ status and executing his sentences because his probation violations were not severe. He contends that his sentences are unjustifiably disparate because they are greater than the sentences given his co-defendants.
The district court has broad discretion when determining whether to revoke probation and execute a sentence. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Such decisions will only be reversed upon a finding that the district court abused that discretion. Id.
However, when a juvenile is given a stayed sentence and probation under the extended juvenile jurisdiction statute and later violates the conditions of probation, the statute requires the court to execute the sentence, unless the court finds 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) (stating “the court shall order the execution of the sentence or make written findings indicating the mitigating factors that justify continuing the stay”).
To revoke probation, the district court generally must (1) designate the specific condition that was violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation. Id. at 250. When revoking probation under the extended jurisdiction juvenile statute, however, the court must exercise its discretion in accordance with the provisions of Minn. Stat. § 260B.130, subd. 5. State v. Bradley, 592 N.W.2d 886, 887 (Minn. App. 1999) (discussing Minn. Stat. § 260.126, subd. 5 (1998), repealed by 1999 Minn. Laws ch. 139, art. 4, § 3, and recodified at Minn. Stat. § 260B.130, subd. 5 (2000)), review denied (Minn. July 28, 1999). It need not consider the third Austin factor, whether the need for confinement outweighs the policies favoring probation. Id. at 887.
In this case, the district court expressly found that Yang violated his probation. Although the court did not specifically find that Yang’s violations were intentional or inexcusable, we can infer such a finding from a reading of the entire order. See In re J.K., 641 N.W.2d 617, 621 (Minn. App. 2002) (inferring findings that appellant’s probation violation was intentional or inexcusable). The court’s order contains findings that Yang’s first probation violations included contact with known gang members and therefore Yang knew that such contact constituted a probation violation. Even so, Yang’s second violation consisted of contact with a known gang member and the contact was made for the purpose of brokering the sale of an illegal firearm. Therefore, the district court satisfied both statutory requirements for the revocation of Yang’s EJJ status and for the execution of sentences. The severity of Yang’s probation violations is immaterial. Nevertheless, Yang’s violation in the correctional facility was serious because it revealed his ongoing involvement in gang activity and his willingness to participate in the trafficking of firearms. The district court did not abuse its discretion by executing Yang’s sentences.
Yang contends next that the district court abused its discretion by imposing cumulative presumptive sentences totaling 270 months. He argues that 270 months is excessive because it is much greater than the 86-month and 105-month sentences received by his adult co-defendants. This court will only reverse a district court’s decision to impose presumptive sentences if the district court abused its discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Although one of the purposes of the sentencing guidelines is to achieve equity in sentencing, equality and fairness in sentencing involve not only comparing the sentences of co-defendants, but also involve comparing the sentence of the appealing defendant with those of other offenders. State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983). A co-defendant’s sentence is not an automatic basis for reversal. Id. (refusing to decrease appellant’s sentence to that of appellant’s co-defendants).
Yang’s sentences are the presumptive sentences for the crimes he committed and therefore his sentences are presumptively comparable to those of other defendants who committed similarly serious crimes. See Minn. Sent. Guidelines IV (assigning 86 months as presumptive sentence for each first-degree criminal sexual conduct conviction – offense severity VIII); II.F (providing that consecutive sentences for multiple felonies against persons are permissive and not a departure); II.G (requiring an additional 12 months if defendant guilty of committing a crime for the benefit of a gang). Additionally, Yang specifically bargained for and agreed to these sentences as part of his plea agreement in return for EJJ status and a stay of execution, and he does not challenge the validity of his negotiated plea agreement. Nothing in the record indicates that Yang’s co-defendants pleaded to identical charges, or that Yang showed any mitigating circumstances upon which the district court could have granted him a downward departure. Therefore, we hold that the district court did not abuse its discretion by imposing the presumptive sentences.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.