This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2351

 

 

In the Matter of the

Welfare of:  G.V.

 

 

Filed August 29, 2006

Reversed

Parker, Judge*

 

 

Hennepin County District Court

File No. 233746/J1-01-065669

 

 

Leonardo Castro, Chief Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant G.V.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent State of Minnesota)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Appellant G.V. challenges the district court’s revocation of his extended-jurisdiction-juvenile (EJJ) probation and decision to place him on adult probation, with conditions that he complete sex offender and chemical dependency treatment and that he comply with medication requirements.  Because the district court’s findings, particularly the finding that appellant’s probation violation was intentional or inexcusable, are not supported by clear and convincing evidence, we reverse.

FACTS

            In March 2001, appellant engaged in sexual contact with a 12-year-old girl who was extremely intoxicated.  At the time, appellant was 16 years old.

            A petition was filed charging appellant with second- and third-degree criminal sexual conduct, but the district court continued the matter after finding appellant incompetent to stand trial.  Appellant experienced psychiatric symptoms that included auditory and visual hallucinations, paranoia, and depression; he was eventually diagnosed with schizophrenia.

            In May 2003, appellant was ordered to stand trial after he was deemed competent by forensic psychologist Katheryn Cranbrook.  Dr. Cranbrook noted that appellant was currently stabilized and on medication, but he was at risk to decompensate and behave in a potentially dangerous manner should he cease psychiatric treatment.

            In August 2003, appellant pleaded guilty to one count of third-degree criminal sexual conduct; he was placed on EJJ probation until his twenty-first birthday on October 4, 2005, received a stayed 18-month prison sentence, and was ordered to complete sex offender treatment at Project Pathfinders.  In January 2004, he was discharged from that program for failing to take his prescribed medication, was hospitalized for psychiatric symptoms, and was once again deemed competent after his medications were stabilized.  In April 2004, he admitted that he violated his probation and his EJJ probation was restructured to allow him to remain at home under electronic surveillance and undergo outpatient treatment.

            In July 2004, a second probation-violation report was issued after appellant missed treatment sessions.  Appellant again was evaluated and found competent after his medications were stabilized.  In November 2004, appellant admitted to violating his probation and was ordered to successfully complete the program at Benchmark Hospital in Utah.

            While at Benchmark, appellant made significant progress.  Nevertheless, in September 2005, a third probation-violation report was issued because he had not yet completed the program and his EJJ probation was scheduled to expire.  Following a probation-revocation hearing, the district court revoked appellant’s EJJ probation, placed him on adult probation, and ordered that he complete sex offender treatment, chemical dependency treatment, and remain medication compliant.

D E C I S I O N

            A district court has broad discretion in determining whether to revoke probation, and the decision will not be set aside absent an abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Before revoking probation, a district court must (1) “designate the specific condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.”  Id. at 250.  A district court must consider all three Austin factors and must use revocation “only as a last resort when treatment has failed, . . . balanc[ing] the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety, and [basing its decision] on sound judgment and not just [its] will.”  State v. Modtland, 695 N.W.2d 602, 606-07 (Minn. 2005) (quotation omitted).  The supreme court has held that the Austin factors apply to revocation of EJJ probation, and the parties agree that Austin applies here.  See State v. B.Y., 659 N.W.2d 763, 768-69 (Minn. 2003).

            Appellant argues that the district court abused discretion in revoking his EJJ probation because the court’s findings on the Austin factors are not supported by clear and convincing evidence.  See Minn. R. Juv. Delinq. P. 19.09, subd. 3(C)(1) (providing that violation of terms and conditions of probation must either be proven by “clear and convincing evidence or be admitted by the probationer”).  Evidence is clear and convincing if it is “unequivocal and uncontradicted, and intrinsically probable and credible.”  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994); see Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978) (stating that clear and convincing means that truth of facts alleged must be “highly probable”).

            First Factor

            The first Austin factor requires the district court to designate the condition or conditions that have been violated.  The district court found that this factor was satisfied because appellant’s failure to complete treatment at Benchmark Hospital, as outlined in the discharge summary, was a “clear violation” of the court’s November 10, 2004 order.  Appellant argues that because appellant could not successfully complete the Benchmark program within the time remaining on his EJJ probation, the district court could not properly impose this as a condition of his probation and later rely on it as the basis for revoking his probation.

            However, successful completion of the Benchmark program was a condition actually imposed by the district court in November 2004, and appellant had ample notice of this condition.  See State v. Ornelas, 675 N.W.2d 74, 79-80 (Minn. 2004) (noting that “condition alleged to have been violated must have been a condition actually imposed by the court”).  In addition, appellant acquiesced in the imposition of this condition in November 2004 because he was allowed to retain his EJJ status even though he was before the district court on his third probation-revocation hearing.  We therefore conclude that the district court did not abuse discretion in finding that the first Austin factor was satisfied.

            Second Factor

            The second Austin factor requires the district court to find that violation of the condition was intentional or inexcusable.  Here, the district court found that the violation was “intentional or inexcusable” because appellant “stalled or delayed his treatment by failing to participate fully in his sex offender programming, even though he knew he had only eight months to complete the program.”  The court further explained that appellant “failed to fully engage in his group therapy sessions and failed to complete and turn in assignments in a timely manner” and that “given [his] history of failing treatment programs and refus[ing] to take prescribed medications, his failure to complete the court-ordered program at Benchmark was entirely inexcusable.”

            Appellant argues that the district court’s finding on this factor is unsupported by the evidence in the record and ignores the opinions of appellant’s probation officer and the staff at Benchmark.  We agree.

            The staff at Benchmark indicated that appellant was “compliant in all aspects of his treatment,” including his medications, and described him as a “patient [who] demonstrates slow and steady progress toward treatment goals.”  Staff further noted that appellant failed to complete the program because of “his relatively brief time at Benchmark,” and opined that had appellant’s “treatment been allowed to continue . . . , it is possible that he could have successfully completed an acceptable ratio of expected treatment goals.”

            Appellant’s probation officer expressed similar sentiments.  In his disposition-review report, the officer opined that it was not clear whether appellant had committed a willful, intentional, or inexcusable probation violation.  The officer further stated that “it is difficult to ascertain whether [appellant’s] periods of stagnation and slowed progress [while at Benchmark] were willful, intentional, and/or inexcusable.”

            No one suggests that appellant’s problems or failure to progress were intentional or inexcusable, as opposed to being caused by symptoms associated with his schizophrenia or by the lack of time remaining before his twenty-first birthday.  Given this lack of evidence, we cannot conclude that the state offered clear and convincing evidence to establish that appellant’s failure to complete the program was willful, intentional, or inexcusable.  The district court’s finding on this second Austin factor thus lacks support in the record and fails to support the revocation of his EJJ probation.

            Third Factor

            The third Austin factor requires the district court to decide whether, on the facts before it, the need for confinement outweighs the policies favoring probation.  As the supreme court has recognized, since the “purpose of probation is rehabilitation[,] revocation should be used only as a last resort when treatment has failed” and there must be a “balancing of the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and the public safety.”  Austin, 295 N.W.2d at 250.  For these reasons, the “decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial behavior.”  Id. at 251 (quotations omitted).  And in an EJJ revocation, the court must consider the “relevant mitigating factors” relating to the probation violation, not the circumstances surrounding the original offense.  B.Y., 659 N.W.2d at 772.

            With respect to this factor, the district court found that revocation is “appropriate after balancing the need for confinement and the policies favoring continued probation.”  The court explained that “attempts to treat [appellant] through EJJ probation have failed because of [appellant’s] conduct and choices,” that appellant “remains an untreated sex offender with serious mental health and substance abuse issues,” that he “has shown a disinterest in remaining on his prescribed medications,” and that “[a]s recognized in the Discharge Summary from Benchmark, [he] remains a danger to the community.”  Nevertheless, the district court then placed appellant on adult probation.

            The district court erred by focusing on the circumstances of the original offense rather than on mitigating factors relating to appellant’s probation violation, which was caused by appellant’s serious mental health limitations and by the lack of time remaining until the expiration of his EJJ probation.  In the four years since appellant committed this crime, he has not reoffended or become involved in further criminal activity.  And while at Benchmark, he remained medication compliant and made significant progress, which demonstrates that the rehabilitative purposes of his probation were being served.

            The state counters that the district court properly determined that the necessity for adult probation outweighs any policies that might favor appellant’s outright discharge from EJJ probation.  By continuing appellant’s adult probation, the state insists that the district court was able to place him in a program that will provide him with sex offender and chemical dependency treatment, as well as monitor his psychotropic medications.  While appellant’s condition may warrant additional treatment and monitoring, we cannot conclude that it warrants revocation of his EJJ probation or his placement in the adult correctional system.  Appellant has not reoffended and has moved toward completing treatment; he should be given the benefit of EJJ probation and status.

            Because the state has failed to prove by clear and convincing evidence that appellant’s failure to complete the Benchmark program was intentional or inexcusable and that the need for confinement outweighs the rehabilitative purposes of EJJ probation, we reverse the district court’s decision, reimpose appellant’s EJJ probation, and order it discharged because it expired on his twenty-first birthday.

            Reversed.