State of Minnesota v. R.A.G.
Minnesota Court of Appeals
State of Minnesota v. R.A.G.
Opinion
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1103
State of Minnesota,
Respondent,
vs.
R.A.G.,
Appellant.
Filed December 21, 2015
Affirmed
Chutich, Judge
Ramsey County District Court
File Nos. 62-JV-13-2219
62-CR-15-4760
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
R.A.G. appeals a district court order revoking his extended-jurisdiction juvenile
probation and executing his adult sentence. He argues that the district court abused its
discretion because its decision to revoke was not supported by clear-and-convincing
evidence. Because we conclude that the district court’s decision is well-supported by the
record, we affirm.
FACTS
When R.A.G. was fifteen years old, he was charged with first-degree assault for
the benefit of a gang, first-degree aggravated robbery for the benefit of a gang, aiding and
abetting first-degree assault, and aiding and abetting first-degree aggravated robbery.
According to the probable-cause statement, the victim of the offense was walking
near a party in Saint Paul when a young male hit him on the head and knocked him down.
Witnesses reported that a group of young men affiliated with local gangs began hitting
and stomping on the man. Two men, one of whom was identified by a witness as R.A.G.,
kicked the man, went into his pockets, and pulled off his pants. When the police arrived,
the victim was on his back on the ground with his shirt and pants off, bleeding from the
nose, and unresponsive. He was admitted to the hospital with severe and potentially fatal
brain swelling. According to the probation officer’s report, his injuries were so severe
that he was placed in a medically-induced coma and suffered permanent brain damage.
The victim had no known connection to R.A.G.
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The state filed a motion for non-presumptive certification. R.A.G. pleaded guilty
to first-degree assault and, in exchange, the state withdrew its certification motion and
dismissed all remaining charges. Following the plea agreement, the district court
adjudicated R.A.G. delinquent, sentenced him to 103 months in prison, stayed the
execution of that sentence, and placed him on extended-jurisdiction juvenile probation.
See Minn. Stat. § 260B.130, subd. 1(3) (2014). As conditions of his probationary
sentence, R.A.G. was required to complete an 18- to 24-month placement at the
Minnesota Correctional Facility in Red Wing, have no contact with known gang
members, and remain law-abiding.
R.A.G. had been at Red Wing for fourteen months when he became eligible for a
short-term furlough to Auburn Lake Academy to prepare him for his eventual transition
to independent living. R.A.G. began his furlough on February 17, 2015, and absconded
three days later. A warrant issued for his arrest. On May 10, 2015, nearly two months
later, Saint Paul police pulled over a car driven by a known gang member and found
R.A.G. in the passenger seat. He fled on foot but was quickly arrested and charged with
misdemeanor fleeing police and misdemeanor tampering with a motor vehicle.
At a probation revocation hearing, the state alleged that R.A.G. violated his
probation by failing to complete programming at Red Wing and by having contact with a
known gang member. R.A.G. admitted both violations, and the district court found that
they were intentional and without any legal excuse. In addition, R.A.G. pleaded guilty to
the charge of misdemeanor fleeing police on foot, and the tampering charge was
dismissed. The hearing was continued for a disposition hearing, at which R.A.G. was
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adjudicated delinquent on the misdemeanor fleeing charge and the parties argued over the
proper disposition for his three proven violations, now also including failure to remain
law-abiding.
R.A.G.’s probation officer submitted a probation violation report, with which the
state agreed, recommending that the district court revoke R.A.G.’s extended-jurisdiction
juvenile probation and execute his adult sentence. The probation officer opined that
R.A.G. had “not made internal changes” in treatment. The probation officer reported that
after he absconded from his furlough, R.A.G. committed at least one new offense, was
found in a stolen car with a known gang member, and had been seen in “many postings
on the internet glorifying gangs, guns and violence.” The probation officer also reported
that R.A.G. has been “seen in photos, videos, fighting in the street, holding guns or
replica guns, and smoking marijuana.”
R.A.G.’s counsel argued that he should be returned to Red Wing to complete
programming, noting that he was only 17 and the district court would retain jurisdiction
for approximately four more years. R.A.G.’s counsel acknowledged that R.A.G.’s
behavior was rash, but argued that, given his youth and lack of family support, it should
not outweigh his largely successful record at Red Wing in determining whether he is
amenable to probation. On June 26, 2015, the district court issued a written order
revoking R.A.G.’s extended jurisdiction juvenile probation and executing his adult
sentence. R.A.G. appeals.
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DECISION
A district court has broad discretion in determining whether to revoke probation,
and this court will not reverse that decision absent a clear abuse of that discretion. State
v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). Before revoking probation, however, the district court must perform a three-step analysis: it must designate the specific probationary conditions that were violated, find that the violation was intentional or inexcusable, and find “that [the] need for confinement outweighs the policies favoring probation.”Id. at 250
; see also State v. B.Y.,659 N.W.2d 763
, 768–69 (Minn. 2003)
(holding that the Austin factors apply to extended-jurisdiction juvenile probation
revocation proceedings).
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 activity. Austin, 295 N.W.2d at 251. In creating a record of the three Austin findings, “courts must seek to convey their substantive reasons for revocation and the evidence relied upon.” State v. Modtland,695 N.W.2d 602, 608
(Minn. 2005). “The required Austin findings ensure that the district court has fully considered any claims by the defendant that revocation is not warranted because his probation violation was either unintentional or excusable, or because revocation would be inconsistent with the public policies favoring probation.” State v. Cottew,746 N.W.2d 632, 637
(Minn. 2008). The “purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed.” Modtland,695 N.W.2d at 606
(quoting Austin,295 N.W.2d at 250
).
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The Third Austin Factor
R.A.G. does not contest the first two Austin factors and concedes that the only
issue is whether the need for confinement outweighs the policies favoring probation. He
argues that the district court abused its discretion because the record failed to establish by
clear-and-convincing evidence that the need for confinement outweighed the policies
favoring probation. He specifically contends that the district court erred by improperly
considering three pieces of evidence: his 2012 delinquency adjudications, allegations in
the probation officer’s report, and the allegations in a dismissed misdemeanor charge.
R.A.G.’s arguments are not persuasive.
When making a determination that the need for confinement outweighs the
policies in favor of probation, a district court must find the presence of at least one of
three subfactors: that (1) confinement is necessary to protect the public from further
criminal activity by the offender; or (2) the offender is in need of correctional treatment
which can most effectively be provided if he is confined; or (3) the seriousness of the
violation would be unduly depreciated if probation were not revoked. Modtland, 695
N.W.2d at 607(quoting Austin,295 N.W.2d at 251
).
Here, the district court found that all three subfactors were present. It found that
confinement is necessary to protect the public from further criminal activity because
R.A.G. is “entrenched in a gang lifestyle,” “has exhibited significant violent and
antisocial behavior,” and treatment within the juvenile system has been ineffective. The
district court also found that R.A.G. is in need of correctional treatment that can most
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effectively be provided in confinement and that the seriousness of the violation would be
unduly depreciated if probation were not revoked.
Prior Delinquency Adjudication
R.A.G. contends that the district court erred in considering his prior conduct in its
decision to revoke his probation. R.A.G.’s argument is based entirely on the prefatory
language introducing the three need-for-confinement subfactors. See Austin, 295 N.W.2d
at 251. Austin states that a district court should not revoke probation unless the court finds the presence of one of the three subfactors “on the basis of the original offense and the intervening conduct of the offender.”Id.
Accordingly, R.A.G. contends that district
courts must not rely on past conduct to support a revocation decision. R.A.G.’s argument
is unavailing because it ignores caselaw following Austin.
The language quoted in Austin was taken directly from a 1970 draft of the
American Bar Association Standards for Criminal Justice. Id.In 2007, the Minnesota Supreme Court noted that the most recent version of the American Bar Association standards had been amended to remove the statement relied on by R.A.G. State v. Osborne,732 N.W.2d 249, 253
(Minn. 2007) (citing ABA Standards for Criminal Justice: Sentencing 18-7.3 cmt. (3d ed. 1994)). The Osborne court also noted that, following the amendments, the supreme court “had repeated Austin’s direction to follow the 1970 draft.”Id.
(citing Modtland,695 N.W.2d at 607
).
But the Osborne court did consider the appellant’s juvenile record, stating that
“[d]espite the 1970 ABA Standards' direction to consider only the offense and
intervening conduct, determining the threat to the public and the need for confinement
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will, on occasion, require analysis of a defendant’s juvenile record.” Id. The Osborne
court ultimately held that the district court did not abuse its discretion when it revoked
the appellant’s probation “after a full review of [his] lengthy history of criminal activity.”
Id. at 256.
Following Osborne, this court has affirmed probation revocations when a district
court considered the defendant’s criminal history. See State v. Rottelo, 798 N.W.2d 92,
95 (Minn. App. 2011) (holding that “appellant’s criminal record supports rather than
refutes his need for confinement and treatment”).
This court has also cited Osborne for the proposition that the Minnesota Supreme
Court affirmed and follows the “offense and the intervening conduct” language from
Austin. See, e.g., State v. Allen, No. A15-0333, 2015 WL 5312295, at *2 n.1 (Minn. App. Sept. 14, 2015) (citing Osborne to say “th[e supreme] court repeated Austin’s direction to follow the 1970 draft in Modtland”); State v. Risher, No. A14-1142,2015 WL 404696
, at *2 n.1 (Minn. App. Feb. 2, 2015) (same). But these opinions are unpublished and may only be used as persuasive authority. See Minn. Stat. § 480A.08, subd. 3(b) (2014). To the extent that they contradict Osborne and Rottelo, we are bound to follow published authority. See State v. M.L.A.,785 N.W.2d 763, 767
(Minn. App. 2010), review denied
(Minn. Sept. 21, 2010) (stating that this court “is bound by supreme court precedent and
the published opinions of the court of appeals”). Applying this caselaw, we conclude that
the district court did not err in considering R.A.G.’s delinquency history.
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Allegations in Probation Officer’s Report
Next, R.A.G. argues that the district court improperly relied on allegations in the
probation violation report. The district court referred to the report, stating that R.A.G.
“has been seen in many postings on the internet ‘glorifying gangs, guns, and violence’”
and “in multiple videos glorifying gang lifestyle, including violence, drug use, and
weapons and fighting in the streets.” R.A.G. notes that he only admitted to violating
probation by a single contact with a known gang member and that the allegations in his
probation officer’s report “do not amount to clear and convincing evidence.” His
arguments lack merit.
R.A.G. does not cite any caselaw to support his assertion that the district court
improperly considered his probation officer’s allegations. The district court did not treat
these allegations as a separate violation. It considered them in determining whether the
need for confinement outweighed the policies favoring probation. See State v. Xiong, 638
N.W.2d 499, 504 (Minn. App. 2002) (affirming a probation revocation when the district
court considered conduct that was not alleged as a violation as “an aggravating factor” in
its decision to revoke), review denied (Minn. Apr. 16, 2002).
Further, at the disposition hearing, the parties agreed that the probation officer’s
report, as well as all other documents in the court’s file, could be considered by the
district court. R.A.G. may not have admitted to the allegations as a probation violation,
but the probation officer’s report was properly admitted into evidence, and the district
court implicitly found its allegations to be credible. Accordingly, the district court did
9
not abuse its discretion by giving weight to the allegations in the probation officer’s
report.
Allegations in Dismissed Misdemeanor Charge
Finally, R.A.G. contends that the district court improperly relied on a dismissed
tampering with a motor vehicle misdemeanor charge when it stated that R.A.G. was
“found in a stolen vehicle with a known gang member.” Again, R.A.G. does not cite any
caselaw to support his argument; he simply notes that he was never asked about the status
of the car and that the charge was dismissed. This argument is unavailing.
The information about the stolen car is also contained in the probation officer’s
report, which, as discussed earlier, was properly considered by the district court. The
district court did not treat it as another violation, but mentioned it to support its finding
that R.A.G.’s confinement is necessary to protect the public. Further, even if the district
court improperly considered the allegation that the car was stolen, it did not rely on that
fact at all. It did not imply that R.A.G. stole the car and made only one reference to the
car among more salient facts, including: the details of the underlying offense; R.A.G.’s
past violent conduct; his admitted probation violations; allegations of continued gang
affiliation; and the admitted misdemeanor charge of fleeing the police on foot. We
conclude that the district court did not abuse its discretion by considering the allegation
that R.A.G. was found riding in a stolen vehicle.
Additional Arguments
R.A.G. makes two additional arguments. He asserts that a return to Red Wing for
additional programming would be “an appropriate and measured response to his first
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violation.” He also contends that rehabilitation is a process and that he “still has time
under the Extended Jurisdiction Juvenile statute to become a productive member of
society.” R.A.G. does not cite any caselaw to support either of these arguments, except
to state that “Austin and Modtland are based on the principle that a decision to revoke
probation must be thoughtful, not reflexive.”
Here, the district court made findings on all of the Austin factors, including the
three subfactors required to determine that the need for confinement outweighs the
policies in favor of probation. The district court found that “R.A.G. is entrenched in a
gang lifestyle,” that he “has exhibited significant violent and antisocial behavior,” and
that “[j]uvenile probation has been ineffective and it is unlikely that any further juvenile
programming or community programming as an adult would be effective.” The district
court also found that R.A.G.’s previous treatments have failed to rehabilitate him: it
stated that “low-risk probation and community service have had no impact,” that R.A.G.
failed intensive supervised probation, did not attend classes at the Evening Learning
Center, and committed the underlying violent offense after completing a previous out-of-
home treatment program. These findings are supported by the record.
Further, the record reflects that the district court did not make a reflexive decision
to revoke, but carefully considered R.A.G.’s arguments. The district court not only
continued the revocation hearing for a separate disposition hearing, it also agreed to allow
the parties to file additional memoranda citing caselaw and the record. The district court
acknowledged at the disposition hearing that “this is obviously a really important
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decision about [R.A.G.’s] life and about the community” and agreed not to make a
decision until reading the parties’ submissions.
The details of the underlying offense, R.A.G.’s failure to complete treatment, his
continued association with known gang members, and his juvenile delinquency history all
support the district court’s finding that confinement is necessary to protect the public
from further criminal activity. Because that finding is sufficient to support the conclusion
that the need for confinement outweighs the policies favoring probation, the district court
did not abuse its broad discretion when it revoked R.A.G.’s extended-jurisdiction juvenile
probation and executed his adult sentence.
Affirmed.
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Reference
- Status
- Unpublished