This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Gregory Steven Young,
Filed April 24, 2007
Beltrami County District Court
File No. K2-03-2056
Lori Swanson, Attorney General, 1800
Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, Beltrami County Courthouse Annex, Suite 40, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)
John Stuart, State Public Defender, Renée Bergeron, Assistant
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
At a probation-revocation first appearance, Gregory Young appeared without counsel and admitted that he had violated conditions of his probation. At the probation-revocation hearing, the district court revoked Young’s probation and executed his stayed sentences for failure to register as a predatory offender and false declaration in a welfare application. Because the district court failed to adequately inform Young of his rights and failed to provide a written notice of Young’s alleged probation violations, we reverse.
F A C T S
In March 2004, Gregory Young pleaded guilty to failure to register as a predatory offender and making a false declaration in a welfare application. Based on a plea bargain between Young and the state, the district court sentenced the failure-to-register offense as a gross misdemeanor, stayed both sentences, and placed Young on probation for five years. The district court gave Young concurrent credit for time served but ordered that the stayed sentences would be consecutive.
Young made a first appearance in court in October 2005 on a probation-violation charge. According to the transcript of the hearing, the state alleged that Young had failed to register as a predatory offender, failed to report to his probation officer, and failed to keep his probation officer informed of his residence. The district court informed Young of his right to counsel but did not inform him of his right to a hearing. Young waived his right to counsel, but he requested a written notice of his alleged violations. The record contains no indication that Young received a written notice. After the district court gave Young a short, oral summary of the allegations, Young admitted the violations. The district court ordered that Young be held without bail, and Young asked for a lawyer to represent him.
At the probation-revocation hearing, the district court ordered that Young’s sentences for failure to register and false declaration be executed consecutively. Young appeals, arguing that the procedures at the first appearance that resulted in his admission to the violations denied him due process and that the record provides no justification for the consecutive sentence.
D E C I S I O N
Due process requires that before the
district court may revoke probation and execute a stayed sentence, the
probationer must be given written notice, which “should state what . . . violations
have been alleged.” Morrisey v. Brewer, 408
First, when Young admitted the
probation violations, he was not assisted by counsel. Second, the record provides no basis to find
that the district court informed Young of his right to a contested probation-revocation
hearing, his right to present evidence or witnesses, and his right to have the state
prove the allegations against him by clear and convincing evidence. See
The hearing transcript contains no indication that Young was informed of his trial rights at any time before or during the first appearance. Although the record contains a form titled “Probation Violation or Violation of Sentencing Order Statement of Rights,” the form was not signed by Young. The state did not submit a brief and has not disputed Young’s claim that the district court failed to inform him of these rights. At the first appearance, Young indicated that he had made numerous calls to the probation officer and that the calls were not returned. Under these circumstances, it was essential that Young be fully informed of the alleged violations and his trial rights. Thus, the procedural errors were not harmless.
violations of Young’s Morrisey rights
and the lack of compliance with the rules of criminal procedure require
reversal of the probation revocation and the order to execute the stayed
sentences. We therefore do not reach
Young’s challenge to the imposition of consecutive sentences. We note, however, that Young’s objection to
his consecutive sentences has a basis in caselaw, and if the county provides
proper notice of probation violations that result in a revocation of probation
and an execution of the conditional sentences, the reasons provided in this
record for the consecutive sentencing may be insufficient.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art, VI, § 10.