This opinion will be unpublished and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

A05-2234

 

Tommy Lee Williams, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed November 14, 2006

Affirmed

Wright, Judge

 

Ramsey County District Court

File No.  K7-98-2780

 

 

John Stuart, State Public Defender, Susan Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 445 Minnesota St., Suite 1800, St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

 

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

 

WRIGHT, Judge

            This appeal from a postconviction order denying appellant’s challenge to his 2001 probation revocation was remanded by the Minnesota Supreme Court for our consideration of whether the probation-revocation transcript, which had not been submitted for our review, establishes that the district court made the required Austin findings.  State v. Williams, No. A05-2234 (Minn. App. July 11, 2006), review granted and remanded (Minn. Aug. 23, 2006).  We conclude that, although the district court did not make the required Austin findings, appellant waived the issue; and he cannot benefit from retroactive application of the rule requiring strict compliance with Austin.  We, therefore, affirm.

FACTS

Appellant Tommy Williams pleaded guilty in 1999 to first-degree criminal sexual conduct for an offense against his daughter, L.W.  Pursuant to a downward dispositional departure from the Minnesota Sentencing Guidelines, Williams was sentenced to 134 months’ imprisonment, with execution stayed.  Williams was placed on probation; and when he later moved to Illinois, his probation was transferred.

On June 5, 2000, while in Chicago, Williams confronted his wife with a gun that apparently was inoperable in an effort to regain possession of a vehicle that he claimed to own.  At the time, L.W., the victim of the 1999 offense, was in the vehicle.  As a condition of Williams’s probation, he was ordered to have no contact with L.W.  Thus, the state alleged that Williams’s conduct on June 5, 2000, violated three conditions of his probation: that he obey all laws, that he have no contact with L.W., and that he refrain from possessing a firearm.

The district court revoked Williams’s probation in March 2001.  At the revocation hearing, the state presented a certified copy of Williams’s conviction in Illinois of aggravated assault.  The state argued that Williams violated probation by having a new conviction and by having contact with L.W.  After waiving his right to contest the probation-revocation allegations, Williams admitted violating probation by committing a new offense.

The district court heard Williams’s testimony regarding the Illinois incident as well as argument on the appropriate disposition.  The district court observed that Williams had been told at the guilty-plea hearing that if he committed a new offense he would be brought back to court for a probation violation.  The district court advised Williams that he had “gotten [his] chance” and termed the Illinois offense a “very serious offense.”  The district court concluded that Williams had been “given an opportunity,” and, “by putting a gun in [his] hand,” had “taken that opportunity away.”  The district court proceeded to revoke probation and execute the 134-month sentence.

Williams did not appeal the probation-revocation decision.  In April 2005, however, he filed a pro se petition for postconviction relief, claiming that the State of Minnesota improperly obtained his extradition for the probation violation based on a false claim that he had fled from this state.  The district court denied the petition, ruling that the extradition was not improper and that there were ample grounds to revoke probation.  We affirmed the district court’s decision in State v. Williams, No. A05-2234 (Minn. App. July 11, 2006), review granted and remanded (Minn. Aug. 23, 2006).  Although the Minnesota Supreme Court did not vacate our opinion, we have issued a full opinion after following the instructions of the remand.

D E C I S I O N

 

On appeal, we examine factual issues to determine whether the evidence is sufficient to sustain the postconviction court’s findings.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).  The postconviction court’s decision will not be reversed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Whether the district court has made the findings required by Austin is a question of law, which we review de novo.  State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

Williams argues for the first time on appeal that the district court revoked probation in 2001 without making the required findings on the three Austin factors.  In Austin, the Minnesota Supreme Court directed district courts, when finding a probation violation, to designate the specific condition(s) of probation that were violated, to determine whether the violation(s) were inexcusable or intentional, and to determine whether the need for confinement outweighs the policies favoring probation.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  Our review of the newly furnished transcript indicates that the district court addressed the first two Austin factors, but not the third.

Thus, the record confirms that the district court did not make the requisite findings, as first articulated in Austin and reiterated by the supreme court in Modtland.  But as the state points out, Williams did not raise the Austin/Modtland issue in his postconviction petition.  Modtland makes evident that, in the absence of findings on all of the Austin factors, an appellate court is not permitted to determine whether there is record support for each factor.  695 N.W.2d at 608.  And Modtland was filed nearly four years after Williams’s probation revocation became final.  In Erickson v. State, we held that Modtland does not apply retroactively to postconviction petitioners like Williams who are challenging a probation revocation that occurred before Modtland was released.  702 N.W.2d 892, 897 (Minn. App. 2005).

 We generally will not consider issues raised for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  An exception may be made when the interests of justice require consideration of the issue and it would not result in unfair surprise to a party.  Id.  But Williams, who received probation as a downward dispositional departure, waited four years to challenge his probation revocation at a time when the circumstances relevant under the third Austin factor may have changed considerably.  Moreover, although Williams’s pro se postconviction petition was forwarded to the State Public Defender’s Office, as required by Minn. Stat. § 590.02, subd. 1(4) (2004), the State Public Defender’s Office did not add a Modtland claim to Williams’s petition.  Therefore, the interests of justice do not require that we consider the Modtland argument for the first time on appeal.

Williams argues that Erickson, whichheld that Modtland is not retroactively applicable in a collateral challenge to a probation revocation that occurred before Modtland was released, was wrongly decided.  But Erickson’s holding is precedent that is binding on this court.  Thus, although the probation-revocation transcript shows that the district court failed to make the required Austin findings, we affirm both because Williams has waived the issue and because he is not entitled to the retroactive application of Modtland.

Affirmed.