This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the
Welfare of: G.V.
Filed August 29, 2006
Hennepin County District Court
File No. 233746/J1-01-065669
Leonardo Castro, Chief Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant G.V.)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant G.V. challenges the district court’s revocation of his extended-jurisdiction-juvenile (EJJ) probation and decision to place him on adult probation, with conditions that he complete sex offender and chemical dependency treatment and that he comply with medication requirements. Because the district court’s findings, particularly the finding that appellant’s probation violation was intentional or inexcusable, are not supported by clear and convincing evidence, we reverse.
In March 2001, appellant engaged in sexual contact with a 12-year-old girl who was extremely intoxicated. At the time, appellant was 16 years old.
A petition was filed charging appellant with second- and third-degree criminal sexual conduct, but the district court continued the matter after finding appellant incompetent to stand trial. Appellant experienced psychiatric symptoms that included auditory and visual hallucinations, paranoia, and depression; he was eventually diagnosed with schizophrenia.
In May 2003, appellant was ordered to stand trial after he was deemed competent by forensic psychologist Katheryn Cranbrook. Dr. Cranbrook noted that appellant was currently stabilized and on medication, but he was at risk to decompensate and behave in a potentially dangerous manner should he cease psychiatric treatment.
In August 2003, appellant pleaded guilty to one count of third-degree criminal sexual conduct; he was placed on EJJ probation until his twenty-first birthday on October 4, 2005, received a stayed 18-month prison sentence, and was ordered to complete sex offender treatment at Project Pathfinders. In January 2004, he was discharged from that program for failing to take his prescribed medication, was hospitalized for psychiatric symptoms, and was once again deemed competent after his medications were stabilized. In April 2004, he admitted that he violated his probation and his EJJ probation was restructured to allow him to remain at home under electronic surveillance and undergo outpatient treatment.
In July 2004, a second probation-violation report was
issued after appellant missed treatment sessions. Appellant again was evaluated and found
competent after his medications were stabilized. In November 2004, appellant admitted to
violating his probation and was ordered to successfully complete the program at
While at Benchmark, appellant made significant progress. Nevertheless, in September 2005, a third probation-violation report was issued because he had not yet completed the program and his EJJ probation was scheduled to expire. Following a probation-revocation hearing, the district court revoked appellant’s EJJ probation, placed him on adult probation, and ordered that he complete sex offender treatment, chemical dependency treatment, and remain medication compliant.
D E C I S I O N
court has broad discretion in determining whether to revoke probation, and the
decision will not be set aside absent an abuse of that discretion. State
argues that the district court abused discretion in revoking his EJJ probation
because the court’s findings on the
successful completion of the Benchmark program was a condition actually imposed
by the district court in November 2004, and appellant had ample notice of this
condition. See State v. Ornelas, 675 N.W.2d 74, 79-80 (
Appellant argues that the district court’s finding on this factor is unsupported by the evidence in the record and ignores the opinions of appellant’s probation officer and the staff at Benchmark. We agree.
The staff at Benchmark indicated that appellant was “compliant in all aspects of his treatment,” including his medications, and described him as a “patient [who] demonstrates slow and steady progress toward treatment goals.” Staff further noted that appellant failed to complete the program because of “his relatively brief time at Benchmark,” and opined that had appellant’s “treatment been allowed to continue . . . , it is possible that he could have successfully completed an acceptable ratio of expected treatment goals.”
Appellant’s probation officer expressed similar sentiments. In his disposition-review report, the officer opined that it was not clear whether appellant had committed a willful, intentional, or inexcusable probation violation. The officer further stated that “it is difficult to ascertain whether [appellant’s] periods of stagnation and slowed progress [while at Benchmark] were willful, intentional, and/or inexcusable.”
suggests that appellant’s problems or failure to progress were intentional or
inexcusable, as opposed to being caused by symptoms associated with his
schizophrenia or by the lack of time remaining before his twenty-first
birthday. Given this lack of evidence,
we cannot conclude that the state offered clear and convincing evidence to
establish that appellant’s failure to complete the program was willful,
intentional, or inexcusable. The
district court’s finding on this second
With respect to this factor, the district court found that revocation is “appropriate after balancing the need for confinement and the policies favoring continued probation.” The court explained that “attempts to treat [appellant] through EJJ probation have failed because of [appellant’s] conduct and choices,” that appellant “remains an untreated sex offender with serious mental health and substance abuse issues,” that he “has shown a disinterest in remaining on his prescribed medications,” and that “[a]s recognized in the Discharge Summary from Benchmark, [he] remains a danger to the community.” Nevertheless, the district court then placed appellant on adult probation.
The district court erred by focusing on the circumstances of the original offense rather than on mitigating factors relating to appellant’s probation violation, which was caused by appellant’s serious mental health limitations and by the lack of time remaining until the expiration of his EJJ probation. In the four years since appellant committed this crime, he has not reoffended or become involved in further criminal activity. And while at Benchmark, he remained medication compliant and made significant progress, which demonstrates that the rehabilitative purposes of his probation were being served.
The state counters that the district court properly determined that the necessity for adult probation outweighs any policies that might favor appellant’s outright discharge from EJJ probation. By continuing appellant’s adult probation, the state insists that the district court was able to place him in a program that will provide him with sex offender and chemical dependency treatment, as well as monitor his psychotropic medications. While appellant’s condition may warrant additional treatment and monitoring, we cannot conclude that it warrants revocation of his EJJ probation or his placement in the adult correctional system. Appellant has not reoffended and has moved toward completing treatment; he should be given the benefit of EJJ probation and status.
Because the state has failed to prove by clear and convincing evidence that appellant’s failure to complete the Benchmark program was intentional or inexcusable and that the need for confinement outweighs the rehabilitative purposes of EJJ probation, we reverse the district court’s decision, reimpose appellant’s EJJ probation, and order it discharged because it expired on his twenty-first birthday.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.