This opinion will be unpublished and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

A06-680

 

 

In the Matter of the Welfare of:

 

A.E.M.

 

 

Filed November 14, 2006

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 162521/J4-02-058497

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant A.E.M.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

A.E.M.’s extended jurisdiction juvenile (EJJ) probation was revoked after he was in a fight while armed with a knife.  On appeal from the revocation, A.E.M. argues that (1) the statutory requirements for commencing an EJJ revocation were not satisfied because the state did not file a delinquency petition in connection with the assault at the chemical-dependency program; (2) the court’s findings were insufficient to permit effective appellate review; (3) the court’s few findings are unsupported by the evidence; and (4) the court’s analysis was insufficient under State v. Austin, 295 N.W.2d 246 (Minn. 1980).  Because the lack of a delinquency petition in connection with the assault did not invalidate the commencement of revocation proceedings, and because the findings were sufficient, supported by the evidence, and in compliance with caselaw, we affirm.

FACTS

            A.E.M. is now 21 years old.  He has longstanding mental health problems and his cognitive abilities are impaired.  On May 29, 2002, while riding his bicycle in the Whittier neighborhood in Minneapolis, he approached a woman, pointed a fake gun at her, and demanded that she give him her backpack and CD player.  The fake gun was made of duct tape and a hair pick comb.  The woman ran away and called 911 on her cell phone.

            A.E.M. was arrested and charged with attempted aggravated robbery in the first degree.  Because he was 16 at the time of the offense, there was a presumption that he would be certified as an adult.  Minn. Stat. § 260B.125, subd. 3 (2002).  Under a plea agreement, however, he was instead placed on EJJ probation.

            The plea agreement was accepted on January 15, 2003.  A.E.M. was sentenced to 22 months in prison, but the sentence was stayed until his 21st birthday.  As conditions of probation, he was to (1) remain law-abiding in all respects, (2) continue therapy for an appropriate amount of time, (3) pay restitution, (4) continue to take his psychiatric medication, (5) obtain a 30-day supply of medication before release, (5) attend school, and (6) follow the terms and conditions of EJJ probation.  In addition, A.E.M. was placed on 30 days of electronic home monitoring.

            Between the initial EJJ probation order and October 2005, A.E.M. appeared before the district court for review hearings on two occasions.  In the first hearing, on August 20, 2003, A.E.M.’s probation officer, Roy Artis, expressed concern about A.E.M.’s use of cocaine and marijuana.  As a result, the district court ordered A.E.M. to participate in chemical dependency treatment.  Artis did, however, explain that A.E.M. had made some progress and was not a public safety risk.  He had obtained employment, was taking his medication, and contacted Artis every day.  Artis noted, “He is overkill in his contact with me.”

            In the second review hearing, held on December 29, 2004, Artis expressed frustration with A.E.M.’s progress.  A.E.M. had quit his job, stopped taking his medication, overdrawn his bank account, and provided diluted urine samples.  In addition, A.E.M. entered a group home program, but he moved out shortly afterwards.  The district court warned A.E.M. about the possibility that his EJJ probation could be revoked, but the court continued its prior orders.

            In March 2005, A.E.M.’s mother made him move out of her home, and he moved into the St. Barnabas apartments in April 2005.  While living there, he received his GED certificate and entered outpatient chemical dependency treatment.

            On October 20, 2005, A.E.M. got into a fight with another St. Barnabas resident, and cut him with a knife.  A.E.M. had been drinking prior to the incident.  Because of this incident, A.E.M. was discharged from St. Barnabas on the same day.  The probation officer issued an arrest-and-detention order and A.E.M. was immediately detained.

            A probation-revocation hearing was held in December 2005.  Artis, A.E.M.’s supervising probation officer, testified for the defense.  Another probation officer, Malcolm Hargraves, testified for the state.  Hargraves testified about A.E.M.’s chemical dependency treatment and his own chemical health assessment of A.E.M.  While in treatment, A.E.M. had tested positive for marijuana use on October 3 and October 17, 2005.  Neither probation officer recommended that A.E.M.’s EJJ probation be revoked.

            The district court revoked A.E.M.’s EJJ probation and committed him to the Minnesota Commissioner of Corrections for a period of 22 months.  Execution of the sentence was again stayed, and A.E.M. was placed on five years of adult probation.  Conditions of probation were that he participate in and successfully complete treatment, remain law abiding, and follow all reasonable rules and expectations of adult probation.

D E C I S I O N

I.

                  A.E.M. first argues that the EJJ revocation proceeding was not properly commenced.  Under Minn. Stat. § 260B.130, subd. 5 (2004), revocation proceedings can be commenced if the probationer (1) has violated the conditions of the stayed sentence or (2) is alleged to have committed a new offense.

            In this case, the revocation proceedings were commenced, in part, because A.E.M. had been drinking alcohol, was involved in an altercation with another and cut that person with a knife, and then cut another person with a knife.  While A.E.M. argues that these acts did not support the commencement of probation revocation, he cites no authority requiring that he be officially charged with an offense before revocation proceedings may be commenced.  Minn. Stat. § 260B.130, subd. 5, requires only that commission of a new offense be alleged.

II.

A.E.M. next argues that under Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989), and State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005), the district court’s factual findings were insufficient to permit effective appellate review.  In both of those cases, however, the district court failed to make required findings of fact.  In this case, in contrast, the district court addressed each of the Austin factors.  We conclude that the findings are therefore sufficient to enable us to conduct meaningful appellate review.

III.

A district court has broad discretion in determining whether to revoke probation, and its decision will not be set aside absent an abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  In exercising its discretion, the 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.  When revoking EJJ probation, the district court must follow the same procedure.  State v. B.Y., 659 N.W.2d 763, 768 (Minn. 2003) (interpreting Minn. Stat. § 260B.130).  The findings must be proved by clear and convincing evidence.  Minn. R. Juv. Delinq. P. 19.11, subd. (3)(A).  We review findings of fact for clear error.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).

            A.E.M. argues that the district court failed to designate the three terms and conditions of EJJ probation that were violated.  We disagree.  The court found that A.E.M. did not abstain from mind-altering chemicals; did not maintain contact with his EJJ probation officer, Roy Artis; and did not follow the rules of the EJJ probation contract “such as attend school and/or maintain employment and remain law-abiding in all aspects.”  The district court properly designated the probation terms that it found were violated.

            We note initially that the district court clearly erred in finding that A.E.M. did not maintain contact with his probation officer.  Artis testified not only that A.E.M. contacted him every day, but that such contact was “overkill.”  There is no indication in the record that this situation changed.  At the revocation hearing, Artis indicated that he would meet with A.E.M. weekly while he was living at St. Barnabas.  We must, therefore, examine the two remaining conditions identified by the district court—abstention from mind altering substances and failure to comply with conditions set forth in the probation contract.

At the root of A.E.M.’s challenge is his argument that abstention from mind-altering substances was not a condition of his probation.  We recognize that two recent decisions by the Minnesota Supreme Court contain strong, cautionary language about what qualifies as a probation condition.  See State v. Ornelas, 675 N.W.2d 74, 79-81 (Minn. 2004); B.Y., 659 N.W.2d at 769-71.

            In B.Y., a 2003 decision, the supreme court concluded that a 19-year-old’s violation of a 9:00 p.m. curfew was insufficient to permit probation revocation.  659 N.W.2d at 769.  Under a plea agreement, B.Y. had been placed on EJJ probation with a 108-month stayed sentence.  Id.at 764.  The 9:00 p.m. curfew was not included in B.Y.’s plea agreement, in the disposition order, nor as a condition of the stayed sentence.  Id.at 766.  The curfew was, however, implemented by B.Y.’s probation officer.  Id.  In B.Y.’s first court appearance for a probation violation, the 9:00 p.m. curfew was used to execute the 108-month sentence.  Id. at 770-71.  In reversing the probation revocation, the supreme court noted that the curfew had not been imposed by a court and that B.Y. probably did not fully comprehend the harsh sanction he would face for violating the curfew.  Id. at 771.

            The next year, in Ornelas, the supreme court provided further guidance on what qualifies as a probation condition.  675 N.W.2d at 79-81.  Ornelas had been on probation for a 1994 third-degree criminal sexual conduct conviction and a 2001 gross misdemeanor firearms possession conviction.  Id.at 75-77.  As a condition of probation on the firearms matter, Ornelas was required to have no unsupervised contact with anyone under the age of 18 without his probation officer’s approval.  Id.at 77.  Although Ornelas believed that the no-contact provision also applied to his criminal sexual conduct probation, the condition was never imposed by the district court.  Id. at 80.  After Ornelas violated the no-contact provision, his criminal sexual conduct probation was revoked.  Id.at 78.  In reaching its decision, the supreme court noted that when “the acts prohibited by the probation conditions are not criminal, due process mandates that the petitioner cannot be subjected to a forfeiture of his liberty for those acts unless he is given prior fair warning.”  Id.at 80 (quotation omitted).  Because there was no evidence that the no-contact provision was a condition of the probation, the supreme court reversed the revocation.  Id.at 81.

            Do the decisions of the supreme court in B.Y. and Ornelas require reversal in this case?  It is a question not easily answered.  Ultimately, however, we conclude that under the facts in this case, the district court did not err in revoking A.E.M.’s EJJ probation, imposing an adult sentence, staying execution of that sentence, and again placing A.E.M. on probation, albeit this time as an adult offender.  When A.E.M was first placed on EJJ probation, the district court told him that he must “remain law-abiding in all respects.”  At the December 2004 review hearing, the district court repeated this condition, telling A.E.M.:  “If you come back and have violated the law or have another violation, all bets are off.  If you come back and you got—been at somebody’s house and there was a drug raid, they caught you with crack cocaine in your pocket, forget it.”

            In contrast to the probation violations in B.Y. and Ornelas, A.E.M. committed a crime when he engaged in underage drinking and the use of drugs.  A.E.M. therefore had notice that he was engaged in prohibited conduct.  Equally important is that A.E.M. was brought before the court on two occasions because of issues related to mind-altering chemicals.  We believe that these factual distinctions support a result in this case different from that reached in B.Y. and Ornelas.  When the district court here warned A.E.M. that he must remain law abiding in all respects, implicit in that warning was the requirement that A.E.M. abstain from mind-altering chemicals.  The district court therefore correctly designated a probation condition that had been violated.

            Finally, we note as to the district court’s third stated grounds for revocation that although A.E.M. was apparently not working at the time he was taken into custody, he had a number of jobs while on EJJ probation, and had recently obtained his GED.  Even if we were to conclude that this third proferred ground for revocation was not supported by the evidence, only one term of probation needs to be designated.  Clearly, based on the circumstances underlying the altercation at St. Barnabas and on the tests of October 5 and October 17, 2005, which revealed the presence of marijuana, there was sufficient evidence to show that A.E.M. had failed to abstain from mind-altering chemicals.

            The district court also made the second finding required under Austin, and determined that A.E.M. violated the terms and conditions of his EJJ probation “willingly and without valid excuse.”  The district court received testimony about a number of failed drug tests.  In addition, there was testimony that A.E.M. had been drinking when he cut another St. Barnabas apartment resident with a knife.  Even a single incident of drug use can support a finding that the violation was willful and intentional.  See State v. Losh, 694 N.W.2d 98 (Minn. App. 2005).  There was sufficient evidence to support the district court’s finding that A.E.M.’s drug use was willful and without valid excuse.

            On the third Austinfactor, the district court stated that “the appropriate factors for analysis are to balance the Respondent’s need and interest to complete his probation at the age of [twenty-one] and not having the adult felony point on his permanent record against [p]ublic safety and the need for continued probation.”[1]  The state was recommending further probation, and with commendable logic the district court departed from the standard Austin analysis and demonstrated that it was carefully considering each of the relevant factors.  The court concluded that

[A.E.M.] remains a significant risk to himself and the public at large if he continues to abuse illegal chemicals and is not under close supervision following his prescribed medications.  However, when sober and under supervision and compliant with his medications, the risk to himself and public safety is significantly reduced.

 

Under the facts of this case, this was the third finding required under Austin.  We therefore conclude that the district court did not abuse its discretion in considering all necessary factors in reaching the conclusion it did in this proceeding.

            Affirmed.