This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Frank Anthony Loprete, Sr.,



Filed April 3, 2007


Kalitowski, Judge


Dakota County District Court

File No. K9-04-293


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


James C. Backstrom, Dakota County Attorney, Thomas Lockhart, Special Staff Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)


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


            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Frank Anthony Loprete, Sr., challenges the revocation of his probation imposed for felony theft, arguing that (1) the district court abused its discretion by revoking his probation without making adequate Austin/Modtland findings; and (2) his sentence unconstitutionally violates his jury-trial rights.  We affirm.



            Appellant argues that the district court abused its discretion by revoking his probation without making adequate Austin/Modtland findings.  We disagree.

            A district court has “broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Whether the district court made the proper findings before revoking probation is a legal question which we review de novo.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). 

            Generally, the district court must consider three factors on the record before revoking probation.  Id. at 606.  It must:  “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250. 

            Prior to Modtland, we upheld a revocation decision if the record provided sufficient evidence to support the district court’s decision.  Modtland, 695 N.W.2d at 606.  Modtland announced that this “sufficient evidence exception” was a “misreading of Austin” and that:

[t]he requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation. . . . [I]n making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon. 


Id. at 606, 608.  Thus, “[district] courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.”  Id. at 608.  

            Here, the district court did not expressly recite either the second or third Austinfactor.  Rather the court stated it was basing revocation on appellant’s admission that he failed to remain law abiding as required by the terms of his probation.  Thus, under Modtland, the district court’s findings would be insufficient.  But we conclude that Modtland is distinguishable from the facts here.

            In Modtland, the defendant admitted that his actions were a violation of his probation, but argued that the violation should not result in probation revocation.  Id. at 604-05.  Unlike the defendant in Modtland, appellant, represented by counsel, actively negotiated and agreed that the court could revoke his probation and execute his stayed sentence in exchange for lenient sentences on two pending criminal charges and the dismissal of a third charge.  We conclude that when a defendant voluntarily admits to probation violations and agrees to the execution of a stayed sentence in exchange for prosecutorial leniency, the underlying policy reasons for the Modtland rule do not apply.  Therefore, we affirm the district court’s revocation of appellant’s probation.


            Appellant challenges his sentence under the career-offender statute, arguing that it violates his Sixth Amendment jury-trial rights.  We disagree.

            The United States Supreme Court has held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  In Blakely v. Washington, the Court held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant.  Blakely, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004). 

            The career-offender statute provides enhanced sentences for offenders who commit a sixth crime as part of a pattern of criminal conduct.  Under the 2004 version of the career-offender statute, a “judge may impose an aggravated durational departure . . . up to the statutory maximum sentence if the judge finds . . . that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.”  Minn. Stat. § 609.1095, subd. 4 (2004).  Following Blakely, this statute has been declared unconstitutional because it requires fact-finding by a judge rather than a jury.  State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005).

            But a defendant may waive his constitutional right to a jury trial as long as the waiver is knowing, voluntary, and intelligent.  Blakely, 542 U.S. at 310, 124 S. Ct. at 2541. 

            At appellant’s plea and sentencing hearing, appellant answered “yes” when asked by his attorney if he understood that by pleading guilty he was giving up the right to a trial by jury.  Appellant also waived his right to any Blakely issues in the following open-court exchange with his attorney:

 Q.       [D]id we talk today . . . about this issue as relates to the case that I talked to you about from the United States Supreme Court [?]


. . .


A.        Yes.


Q.        The Blakely case?     


A.        Right.


Q.        And I advised you that kind of the state of the law is in flux, that being that there’s not any real set of guidelines as to how the decision from the United States Supreme Court is being dealt with in Minnesota Courts, right?


A.        That’s correct.


Q.        And I’ve advised you that there have been cases that are kind of pending before the courts in Minnesota as to how we’re going to deal with them here?


A.        That’s correct.


Q.        But, if you accept the plea agreement from the state, do you understand that you give up your right to claim any constitutional violations . . . if the Judge imposes the 60 months?


A.        That’s correct.


Q.        In other words, you’re not going to be able to come back later and say, well, he shouldn’t have given me 60 months because I had a right to a trial under this issue or the other issue?


A.        I understand.


Q.        You understand that you’re agreeing that based on your prior record that you are a career criminal?


A.        Absolutely.


Q.        Okay.  And you understand that you’re giving up the right to a formal hearing as it relates to the issue of whether or not your prior offenses could be considered as part of a pattern?


A.        That’s correct.          


            Despite this exchange, appellant now argues that his waiver of a jury trial is invalid because, under the applicable career-offender statute, a right to a jury determination of aggravating sentencing factors did not exist and therefore could not be waived.  We disagree.

              The Minnesota Supreme Court recently declared that district courts have inherent judicial authority to empanel sentencing juries where the judicial fact-finding portion of the Minnesota Sentencing Guidelines violates the Sixth Amendment and the legislature has not provided for an alternative process to effectuate the intent of the guidelines.  State v. Chauvin, 723 N.W.2d 20, 27 (Minn. 2006).  If appellant had not waived his right to a jury trial in exchange for prosecutorial leniency, the district court could have conducted a bifurcated trial and convened a sentencing jury because the legislature had yet to provide an alternative process to effectuate the intent of the career-offender statute.  Therefore, appellant had the right to have a jury determine any aggravating sentencing factors at the time he made a valid waiver of such rights.