This opinion will be unpublished and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
Tommy Lee Williams, petitioner,
State of Minnesota,
Filed November 14, 2006
Ramsey County District Court
File No. K7-98-2780
John Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General,
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
This appeal from a postconviction
order denying appellant’s challenge to his 2001 probation revocation was
remanded by the Minnesota Supreme Court for our consideration of whether the
probation-revocation transcript, which had not been submitted for our review,
establishes that the district court made the required Austin findings. State v. Williams, No. A05-2234 (Minn.
App. July 11, 2006), review granted and
Appellant Tommy Williams pleaded guilty in 1999 to first-degree criminal sexual conduct for an offense against his daughter, L.W. Pursuant to a downward dispositional departure from the Minnesota Sentencing Guidelines, Williams was sentenced to 134 months’ imprisonment, with execution stayed. Williams was placed on probation; and when he later moved to Illinois, his probation was transferred.
On June 5, 2000, while in Chicago, Williams confronted his wife with a gun that apparently was inoperable in an effort to regain possession of a vehicle that he claimed to own. At the time, L.W., the victim of the 1999 offense, was in the vehicle. As a condition of Williams’s probation, he was ordered to have no contact with L.W. Thus, the state alleged that Williams’s conduct on June 5, 2000, violated three conditions of his probation: that he obey all laws, that he have no contact with L.W., and that he refrain from possessing a firearm.
The district court revoked Williams’s probation in March 2001. At the revocation hearing, the state presented a certified copy of Williams’s conviction in Illinois of aggravated assault. The state argued that Williams violated probation by having a new conviction and by having contact with L.W. After waiving his right to contest the probation-revocation allegations, Williams admitted violating probation by committing a new offense.
The district court heard Williams’s testimony regarding the Illinois incident as well as argument on the appropriate disposition. The district court observed that Williams had been told at the guilty-plea hearing that if he committed a new offense he would be brought back to court for a probation violation. The district court advised Williams that he had “gotten [his] chance” and termed the Illinois offense a “very serious offense.” The district court concluded that Williams had been “given an opportunity,” and, “by putting a gun in [his] hand,” had “taken that opportunity away.” The district court proceeded to revoke probation and execute the 134-month sentence.
Williams did not appeal the
probation-revocation decision. In April
2005, however, he filed a pro se petition for postconviction relief, claiming
that the State of Minnesota improperly obtained his extradition for the
probation violation based on a false claim that he had fled from this
state. The district court denied the
petition, ruling that the extradition was not improper and that there were
ample grounds to revoke probation. We affirmed
the district court’s decision in State v.
Williams, No. A05-2234 (Minn. App. July 11, 2006), review granted and remanded (
On appeal, we examine factual issues to determine
whether the evidence is sufficient to sustain the postconviction court’s
findings. Butala v. State, 664 N.W.2d 333, 338 (
Williams argues for the first time on appeal that the district court
revoked probation in 2001 without making the required findings on the three Austin factors. In Austin,
the Minnesota Supreme Court directed district courts, when finding a probation
violation, to designate the specific condition(s) of probation that were
violated, to determine whether the violation(s) were inexcusable or
intentional, and to determine whether the need for confinement outweighs the
policies favoring probation. State v.
Thus, the record confirms that the district court did not make the requisite
findings, as first articulated in
We generally will not consider
issues raised for the first time on appeal.
Roby v. State, 547 N.W.2d 354,
Williams argues that Erickson, whichheld that Modtland is not retroactively applicable in a collateral challenge to a probation revocation that occurred before Modtland was released, was wrongly decided. But Erickson’s holding is precedent that is binding on this court. Thus, although the probation-revocation transcript shows that the district court failed to make the required Austin findings, we affirm both because Williams has waived the issue and because he is not entitled to the retroactive application of Modtland.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.