This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-98-217

In the Matter of the

Welfare of: C.A.S., Child.

Filed June 30, 1998

Affirmed

Schultz, Judge*

Olmsted County District Court

File No. J2-95-50392

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant C.A.S.)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, 151 Fourth Street S.E., Rochester, MN 55904 (for respondent)

Considered and decided by Toussaint, Chief Judge, Davies, Judge, and Schultz, Judge.

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

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Appellant, an extended jurisdiction juvenile, challenges the district court's order revoking his probation and executing his 48-month sentence. We affirm.

FACTS

In March 1995, appellant C.A.S., then 17 years old, was charged by extended jurisdiction juvenile (EJJ) petition with two counts of burglary and one count of aggravated robbery. As part of a plea agreement, appellant pleaded guilty to first-degree aggravated robbery. The district court adjudicated appellant a delinquent and an extended jurisdiction juvenile. The court sentenced appellant to 48 months, execution stayed, and placed him on probation until he reached the age of 21. The court dismissed the two counts of first-degree burglary.

In January 1996, at appellant's request, probation supervision was transferred to South Dakota (so that appellant could live with his grandmother). While there, appellant was convicted of possession of a controlled substance (methamphetamine). He also admitted to use of marijuana and alcohol. He was placed on two years' probation and ordered to serve 180 days.

Following his release, appellant returned to Minnesota, where he admitted violating the terms of his probation. Following a probation revocation hearing, the court revoked appellant's probation and committed him to the Commissioner of Corrections to serve his four-year sentence.

D E C I S I O N

A trial court has broad discretion in determining whether there is sufficient evidence to revoke probation; absent a clear abuse of that discretion, a decision to revoke will not be reversed on appeal. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

Minn. Stat. 260.126 (1996), which governs EJJ prosecutions, states:

A proceeding involving a child alleged to have committed a felony offense is an extended jurisdiction juvenile prosecution if: * * * (2) the child was 16 or 17 years old at the time of the alleged offense; the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or to have committed any felony in which the child allegedly used a firearm; and the prosecutor designated in the delinquency petition that the proceeding is an extended jurisdiction juvenile prosecution.

Id., subd. 1. If the juvenile pleads or is found guilty, the court shall

(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.

Id., subd. 4(a). If the juvenile violates the condition of the stayed sentence or commits a new offense, the court may revoke the stay. Id., subd. 5.

If the offender was convicted of an offense [that presumes a commitment to prison], and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.

Id. (emphasis added); see also Minn. R. Juv. P. 19.09, subd. 3(C)(2) (if disposition order violated and EJJ conviction was for offense with presumptive prison sentence, court shall order execution of sentence or make written findings indicating mitigating factors justifying continued stay).

Appellant's aggravated burglary offense was an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison. Because appellant violated probation and re-offended, the court was required to order execution of appellant's adult criminal sentence unless there were mitigating factors that would justify a continued stay. Minn. Stat. 260.126, subd. 5.

Appellant has not shown any mitigating factors in the underlying offense or in the probation violation. The evidence does not support appellant's argument that the most appropriate treatment for his psychological, behavioral, and chemical abuse problems is found in the community. According to appellant, he is in need of "cognitive behavioral programming" for a brain injury caused by inhalant abuse and an attention deficit disorder. Both diagnoses, however, have been refuted in a recent neuropsychological evaluation conducted at the Mayo Clinic.

Appellant cites Austin in support of his argument that probation should not be revoked in this instance unless "the need for confinement outweighs the policies favoring probation." 295 N.W.2d at 250. Austin, however, relates to adults who violate probation. If an extended jurisdiction juvenile violates probation, the statute presumes that, absent mitigating factors, the court will impose an executed prison sentence. Minn. Stat. 260.126, subd. 5. Further, in its disposition order the district court determined that, in appellant's case, the need for prison confinement outweighed the policies favoring probation. The court based its determination on the seriousness of appellant's crime, appellant's decision to re-offend and violate probation, and the availability of appropriate treatment programs in prison.

Appellant has shown no mitigating factors to justify continuing the stayed sentence. The district court did not abuse its discretion in revoking appellant's probation.

Affirmed.