This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


McKinley Levon Mays,


Filed March 21, 2006

Reversed and remanded

Wright, Judge


Hennepin County District Court

File No. 04036820



John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Presiding; Wright, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N



            Appellant challenges the district court’s imposition of an executed sentence following his discharge from a halfway house.  Appellant argues that the district court erred by failing to consider the Austin probation-revocation factors before ordering the executed sentence.  We reverse and remand.



Minneapolis police officers arrested appellant McKinley Mays after a confidential reliable informant identified him as a drug dealer delivering a large quantity of narcotics to a location in north Minneapolis.  During a search incident to arrest, police seized from Mays 25 grams of cocaine.  Mays was charged with first-degree possession of a controlled substance, a violation of Minn. Stat. § 152.021, subd. 2(1) (2002). 

            On June 16, 2004, Mays entered a guilty plea under a plea agreement with the district court.  Under the plea agreement, the district court postponed sentencing and permitted Mays to enter chemical-dependency treatment.  Mays’s performance in treatment would determine the nature of his sentence.  If Mays successfully completed inpatient chemical-dependency treatment along with aftercare, he would receive a dispositional departure.  Execution of the 86-month sentence would be stayed, and Mays would serve one year in the workhouse.  Otherwise, he would receive the presumptive executed sentence of 86 months’ imprisonment.  At the guilty-plea hearing, the district court summarized the terms of the plea agreement as follows: 

THE COURT: All right.  Well, as I understand it here, Mr. Mays, you have . . . received a referral with the Turning Point treatment [p]rogram, is that in-patient?


[DEFENDANT’S COUNSEL]: I am sure it is.


PROBATION OFFICER: It is, Your Honor, with the halfway house to follow.


THE COURT: All right, . . . I’ll just repeat it so that it’s clear to you, that you would be released to go to this Turning Point in-patient program, followed by the aftercare.  That if you do a satisfactory or all of that treatment, don’t get rearrested for anything, then Judge Howard has indicated that he would not make you go to prison for 86 months, but rather do some workhouse time as I understand it.  The flip side of it is if you don’t go to Turning Point or you mess up or you get re-arrested or you run and they have to come get you, we get you back here, its 86 months to prison.




The prosecution objected to this agreement between Mays and the district court,[1] and sought a sentence of 86 months’ imprisonment.

            On June 17, Mays entered inpatient treatment at Turning Point.  According to the chemical-dependency counselor, Mays made good progress and had a positive attitude during his inpatient treatment.  Upon discharge from the inpatient program, Turning Point recommended completion of a 75-day term at the Turning Point halfway house.  Mays entered the halfway house on July 8 and began the aftercare program, which entailed weekly meetings at Turning Point. 

Mays had some difficulty with a staff member at the halfway house.  As a result, Mays contacted the probation officer assigned to his case, who advised Mays that successful completion of the halfway-house program was a condition of the plea agreement with the district court.  Mays responded that his understanding of the agreement did not include the halfway-house requirement.  Shortly thereafter, Mays was discharged from the halfway house on August 17 after breaching treatment contracts and restrictions.  Even after his discharge from the halfway house, Mays attended his aftercare meeting shortly before being taken into custody for sentencing.

At the sentencing hearing, the district court found that the terms of the plea agreement included successful completion of the halfway-house program.  The district court determined that, because Mays had been discharged from the halfway house, he was in breach of the plea agreement.  The district court imposed an executed sentence of 74 months in prison, with a recommendation to the Challenge Incarceration Program.  This appeal followed.



Mays challenges the imposition of the executed sentence, arguing that it was a revocation of probation without an application of the factors articulated in State v. Austin, 295 N.W.2d 246, 249-51 (Minn. 1980).  As an initial matter, we must examine the proceedings to determine the status of Mays’s case before the district court imposed an executed sentence in order to determine the applicable procedures and substantive rights.  Without characterizing the period between the guilty plea and sentencing as probation, respondent State of Minnesota maintains that the district court merely imposed the presumptive sentence after it “deferred sentencing.”  But this characterization ignores the period during which Mays was subject to the terms and conditions imposed by the district court.  The possibility of avoiding the presumptive executed sentence by satisfying these conditions induced Mays to plead guilty.  Thus, we must assess whether Mays was on probation and, if so, whether the legal safeguards for revoking probation were followed.

We recently discussed dispositions that postpone sentencing, distinguishing between the sentencing dispositions of “stay of imposition of sentence,” “stay of adjudication,” and “continuance for dismissal.”  State v. C.P.H., 707 N.W.2d. 699, 702-03 (Minn. App. 2006).  A stay of imposition of sentence allows a district court to postpone the imposition of a sentence on certain conditions.  Minn. Stat. § 609.135 (2004); C.P.H., 707 N.W. 2d at 702.  “By staying the imposition of the sentence, the district court reserves the right, in the event the defendant does not meet certain conditions, to vacate the stay and impose a sentence.”  C.P.H., 707 N.W.2d at 702.  When a district court stays the imposition of a sentence, it may place the defendant on probation subject to terms and conditions, including intermediate sanctions, such as chemical-dependency treatment.  Minn. Stat. § 609.135, subd. 1(a)(2), (b) (2004).  A district court may revoke probation upon finding that the defendant has violated the probation conditions.  See State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (when imposition of sentence has been stayed district court may revoke probation upon violation of conditions); State v. Spanyard, 358 N.W.2d 125, 126-27 (Minn. App. 1984) (same), review denied (Minn. Feb. 27, 1985). 

Based on the record before us, we conclude that a stay of imposition of sentence best describes the nature of the disposition of Mays’s case between the entry of his guilty plea in June and the district court’s pronouncement of the sentence in December.  The record makes clear that, in June 2004, Mays entered a guilty plea under a plea agreement.  After entering into the plea agreement with the district court, Mays’s release for treatment was subject to the conditions of that agreement.  During this period, the district court reserved the right to impose either an executed or a stayed sentence.  On determining that Mays breached the conditions, the district court performed the functional equivalent of vacating the stay of imposition and imposing a 74-month executed prison sentence.

Here, the facts demonstrate that Mays was on probation for the six-month period between the guilty plea and the imposition of the executed sentence.  Probation is defined as “a court-ordered sanction imposed upon an offender for a period of supervision no greater than that set by statute. It is imposed as an alternative to confinement or in conjunction with confinement or intermediate sanctions.”  Minn. Stat. § 609.02, subd. 15 (2004).  Indeed, at the hearing at which the sentence was imposed, the district court refers to Mays’s discharge from the halfway house as a “violation of the sentencing agreement and probation.”  Neither the district court nor the parties deemed Mays’s conduct a violation of conditions of release set pursuant to Minn. R. Crim. P. 6.02.  A probation officer supervised Mays after the guilty plea.  And Mays sought a clarification of his obligations from the probation officer, who advised Mays that residing in the halfway house was a probation condition.  The district court later described the probation officer as “my agent,” who was “speaking for me.”  Because a district court may impose probation after a guilty plea and the facts indicate that the district court did so here, we conclude that a revocation of probation preceded the imposition of Mays’s sentence.    

Having concluded on these facts that the status of Mays’s disposition was akin to that of a stay of imposition of sentence with conditions of probation, we consider whether the district court erred in revoking Mays’s probation.  A sentencing court has broad discretion to determine whether sufficient evidence exists to revoke probation.  Austin, 295 N.W.2d at 249-50.  Before revoking probation, a district court is required to perform a three-step analysis to address the nature of the probation violation and “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.”  Id. at 250; see also State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (reiterating the requirements of Austin); State v. Morrow, 492 N.W.2d 539, 543 (Minn. App. 1992) (same).  Whether the district court made the findings required by Austin is a question of law, which we review de novo.  Modtland, 695 N.W.2d at 605. 

            The district court directly addressed only the first Austin factor, designating a breach of the halfway-house condition as the basis for the probation violation.  In doing so, the district court relied on (1) the record from the guilty-plea hearing during which a probation officer addressed the halfway-house condition in open court in the presence of Mays; (2) the recommendation of the inpatient-treatment staff; and (3) the probation officer’s notice to Mays of the halfway-house condition before Mays was discharged from the program.  The district court concluded that the halfway house was a required condition of which Mays was aware.[2] 

The second Austin factor—that the violation was intentional or inexcusable—was addressed indirectly when the district court stated that it had imposed a reduced sentence of 74 months’ imprisonment, rather than the presumptive 86-month term, because Mays may have believed that residence in the halfway house was not required.  Although such a finding appears to weigh in Mays’s favor, without an unequivocal statement as to this factor, we cannot discern whether the district court intended to find the violation unintentional or excusable.  

The district court did not address the third Austin factor, whether the need for Mays’s confinement outweighs the policies favoring probation. 

Because the district court was required to address each of the Austin factors before revoking Mays’s probation, we reverse and remand to the district court to address the second and third Austin factor and to consider all of the factors in determining whether the violation of the probation condition warrants the sanction imposed.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We recently addressed the impropriety of a plea agreement negotiated between a defendant and the district court because such negotiation requires the district court to “abandon[] its role as an independent examiner.”  State v. Anyanwu, 681 N.W.2d 411, 415 (Minn. App. 2004) (concluding that guilty plea is per se invalid when district court engages in plea negotiations).  But because neither party has raised this issue and Mays is not seeking to withdraw his guilty plea or challenge his conviction, this issue is not before us for review.  See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (finding that issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

[2] Mays also challenges this aspect of the district court’s decision, arguing that the halfway house was not a condition imposed by the district court.  But the record from the guilty-plea hearing does not support this contention.  “[B]efore a probation violation can occur, the condition alleged to have been violated must have been a condition actually imposed by the court.”  State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004); see also State v. B.Y., 659 N.W.2d 763, 769 (Minn. 2003) (finding violation of curfew could not be basis for executing defendant’s sentence because it was not a provision of disposition order).  We are satisfied from our review of the statements of the district court, the probation officer, and Mays at the guilty-plea hearing that inpatient treatment “with the halfway house to follow” was a condition of probation.