                        This opinion will be unpublished and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                         UNPUBLISHED OPINION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.




                                             2
      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


                                           3
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.




                                           4
                                     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).


                                             5
       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




                                              6
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


                                             7
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.




                                              8
       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


                                             10
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




                                             11
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.




                                             12
