This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Douglas Kaiser,

Filed November 2, 1999
Mulally, Judge[*]

Dakota County District Court
File No. K79801108

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Mary J. Theisen, Assistant County Attorney, Government Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

Deborah K. Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102; and

Lisa Lodin Peralta, W-1260 First National Bank, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


Douglas Kaiser appeals his 91-day sentence for probation violation; he argues due process violations and abuse of discretion. Because we see no due process violations or abuse of discretion, we affirm.


On October 13, 1998, Appellant Douglas Kaiser pleaded guilty to Possession of Pictorial Representation of Minors, in violation of Minn. Stat. § 617.247, subd. 4 (1998). He was sentenced to two years probation, conditioned on paying a $1,000 fine, having no contact with the victim of his offense (B.B.) or with other juvenile females, following rules and regulations of probation, and remaining law-abiding.

Between November 2, 1998, and February 18, 1999, Kaiser violated the terms of probation on several occasions. At a March 5, 1999, hearing before another judge, Kaiser requested that the sentencing judge handle the hearing. The request was denied and Kaiser was found to have violated the terms of probation by leaving the state of Minnesota without consent of his probation agent. After observing that Kaiser was a "difficult probationer" and "one of the least cooperative people [the district court has] seen" the judge gave Kaiser the options of 30 days in jail or being sentenced by the original sentencing judge. He chose the latter.

The sentencing judge in turn gave Kaiser the options of 30 days in jail with reinstatement of probation or 91 days in jail with discharge of probation. He chose the 91 days, which he now challenges, alleging due process violations and abuse of discretion.


1. Due Process in Probation Revocation.

Appellant raises two due process challenges. Neither was raised in the district court; therefore neither is properly before this court. This court generally will not decide issues that were not raised before the district court, including constitutional questions of criminal procedure. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). However, the court may deviate from this rule when the interests of justice require consideration of an issue and the deviation does not unfairly surprise a party to the appeal. Id. We review these issues in the interest of justice.

First, Kaiser relies on Minn. R. Crim. P. 27.04, subd. 2(4); he claims his due process rights were abrogated because his original sentencing judge did not preside over his probation revocation hearing. This rule provides:

The court shall set a date for the revocation hearing to be held within a reasonable time before the court which granted probation.

Kaiser argues that the rule means a probation violation hearing may be held only before the sentencing judge in the underlying criminal conviction. For reasons of judicial economy, offenders usually should appear before the sentencing judge who is already familiar with the case. But this extremely narrow reading of the rule is impractical and fails to account for a judge's absence or for crowded district court calendars.

A broader reading of this rule is that a probation revocation hearing be in the same district court, although not necessarily before the sentencing judge. Kaiser was both sentenced on the underlying conviction and heard on his probation revocation in the same district court. His due process rights were not violated.

Second, Kaiser claims that his due process rights were violated because one judge held the probation revocation hearing and another determined the sentence. But Kaiser waived his right to have the same judge. Waiver is "a voluntary relinquishment of a known right." Flaherty v. Independent Sch. Dist. No. 2144, 577 N.W.2d 229, 232 (Minn. App. 1998) (quoting Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 311, 41 N.W.2d 422, 424 (1950)) review denied (Minn. June 17, 1998). By choosing to be sentenced for his probation revocation by his original sentencing judge, Kaiser relinquished the right to have the probation violation hearing judge sentence him. Accordingly, Kaiser's due process rights were not violated; he voluntarily waived this right.

2. Abuse of Discretion.

The district court's decision to revoke probation will not be reversed absent a clear abuse of discretion. State v. Theel, 532 N.W.2d 265, 266-67 (Minn. App. 1995) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)), review denied (Minn. July 20, 1995). Before the district court can revoke probation, it must

(1) designate the specific conditions that were violated; and (2) find that the violation was inexcusable or intentional; and (3) find that the need for confinement outweighs the policies supporting probation.

Id. at 267 (citing Austin, 295 N.W.2d at 250). A reviewing court may affirm the district court even when the district court has failed to make the three Austin findings, provided there is sufficient evidence in the record to support the necessary findings. State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995).

Kaiser contends that the district court abused its discretion in revoking probation because it did not issue written Austin findings. But the district court based its decision on Kaiser's intentional disobedience of a condition of probation and stated its reasons for revocation on the record. Thus, the first Austin prong is met.

The second prong requires a determination that the violation was intentional or inexcusable. The district court did not make an explicit finding to that effect, but failure to make such findings does not require reversal where the record supports a revocation. State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989). Kaiser admitted to intentionally leaving the state. His only excuse was that he left for business purposes, but he never clearly explained the term. He did not attempt to contact his probation officer for permission to leave. The second Austin prong is met because the Kaiser's probation violation was intentional.

The third prong requires a finding that the need for confinement outweighs the policies in favor of probation. The district court made no explicit finding on this prong, but again, failure to make such findings does not require reversal where the record supports a revocation. Id. Revocation of probation is appropriate where "confinement is necessary to protect the public from further criminal activity by the offender" or where "it would unduly depreciate the seriousness of the violation if probation were not revoked." Austin, 295 N.W.2d at 251 (quoting A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (1970)). Kaiser's complete disregard of the order that he not leave the state without permission of his probation officer, his repeated probation violations including contact with his victim, and his long history as a "difficult probationer" and "one of the least cooperative people [the district court has] seen" indicate that he is not amenable to probation. Finally, Kaiser himself chose the 91-day jail sentence over a 30-day sentence.

The district court stated on the record the reasons for which Kaiser's probation was revoked. There is sufficient evidence in the record to support the necessary findings, and the district court did not abuse its discretion.


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