                         This opinion will be unpublished and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
                                    A14-1592

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                        J.A.H.,
                                       Appellant.

                                 Filed April 13, 2015
                                       Affirmed
                                    Hudson, Judge
                               Dissenting, Reyes, Judge

                            Hennepin County District Court
                       File Nos. 27-CR-14-22063, 27-JV-12-413

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

HUDSON, Judge

      Appellant argues that the district court abused its discretion when, following his

first probation violation, it declined to follow the recommendation of his probation agent
and revoked his extended-juvenile-jurisdiction (EJJ) status, executing his 120-month

sentence. Because the district court appropriately weighed the factors in State v. Austin,

295 N.W.2d 246, 249–50 (Minn. 1980), including that the need for appellant’s

confinement outweighed the policies favoring probation, we affirm.

                                        FACTS

      In 2012, appellant J.A.H., then 16 years old, was identified as a person who shot

and seriously injured two people in an incident involving Native Mob gang members.

The state charged appellant by petition with attempted second-degree felony murder,

first-degree assault, and first-degree burglary, all committed for the benefit of a gang—

the Native Mob. The district court denied the state’s motion for presumptive adult

certification and ordered appellant designated as EJJ pursuant to Minn. Stat. § 260B.130

(2010).

      In August 2012, appellant pleaded guilty to two amended counts of second-degree

assault and one count of first-degree burglary. The district court sentenced appellant to

120 months, stayed on the condition that he successfully comply with EJJ probation,

which included standard conditions of probation, completing the Woodland Hills

Residential Treatment Program, and having no contact with the victims.

      Appellant completed the program at Woodland Hills in Duluth and transitioned to

a semi-independent living program. But he returned to the Twin Cities in December

2013, and in February 2014, his probation agent filed an arrest-and-detain report after




                                            2
appellant failed to maintain contact with his probation agent.1 Appellant waived his right

to a contested Morrissey hearing and admitted that he had remained out of contact with

his probation agent for approximately six weeks, tested positive for illegal drugs, had

ongoing contact with documented Native Mob gang members, and failed to attend school

or make a good-faith effort to obtain employment. The district court accepted evidence

of a disposition review from appellant’s probation officer, who recommended

commitment for appellant at Minnesota Correctional Facility-Red Wing (MCF-Red

Wing).

      The district court issued an order revoking EJJ probation and ordering execution

of appellant’s 120-month adult sentence. The district court found that appellant had

violated the terms of his probation, that the violations were intentional and inexcusable,

and that the need for his confinement outweighed the policies favoring continued

probation. The district court found that, although appellant had spent more than 15

months in treatment in Duluth, within weeks after his return to the Twin Cities, he had

failed to attend school; failed to maintain contact with his probation agent; used illegal

drugs, including marijuana and methamphetamine; and actively affiliated with gangs by

taking pictures with known gang members and posting those pictures on social-media

sites. The district court found that, based on this immediate departure from his probation

terms, treatment at MCF-Red Wing would be inadequate. The district court also found

that appellant had extremely serious original offenses, which implicated public-safety

1
 Appellant’s probation officer contacted appellant prior to issuing an apprehension-and-
detention order, directing appellant to report to the probation office immediately.
Appellant did not do so.

                                            3
concerns and were influenced by gang relations; that his re-association with gang

members demonstrated he was a public-safety risk; and that his use of illegal drugs and

failure to remain in contact with probation further established that he was unamenable to

services in the juvenile system. Appellant moved for reconsideration, which the district

court denied, finding that his actions were a choice; that psychological evidence in the

EJJ proceeding had identified his association with gang peers as his greatest risk to

reoffend; that confinement was necessary to protect the public from further criminal

activity; and that it would unduly depreciate the seriousness of the violation if probation

were not revoked. This appeal follows.

                                     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 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: designating the specific probationary

conditions that were violated, finding that the violation was intentional or inexcusable,

and finding “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 EJJ 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. The district court’s findings on the Austin

factors must conform to procedural requirements and convey the substantive reasons for


                                            4
revoking probation and the evidence supporting that decision. 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).

        Appellant challenges the district court’s finding on the third Austin factor. When

finding that the need for confinement outweighs the policies favoring probation, the

district court must find the presence of at least one of three policy subfactors:

(1) “confinement is necessary to protect the public from further criminal activity by the

offender”; (2) “the offender is in need of correctional treatment which can most

effectively be provided if he is confined”; or (3) “it would unduly depreciate the

seriousness of the violation if probation were not revoked.” Modtland, 695 N.W.2d at

607 (quotations omitted). Appellant maintains that he does not need to be confined to

protect the public from additional criminal activity because his probation violations

displayed only immature behavior; that any need for his confinement to protect the public

can be best served by his commitment through the juvenile system, rather than adult

prison; and that if probation were not revoked, it would not unduly depreciate the

seriousness of his offense because he would still be under confinement at MCF-Red

Wing.

        Here, the district court found that confinement was necessary to protect the public

from appellant’s further criminal activity, based on his immediate violation of several


                                             5
substantive probation conditions after returning to the Twin Cities, including his

association with gang members, a previously identified risk factor. See Austin, 295

N.W.2d at 251 (noting that probation revocation “requires a showing that the offender’s

behavior demonstrates that he or she cannot be counted on to avoid antisocial activity”

(quotation omitted)). Unlike the minor curfew violations involved in B.Y., 659 N.W.2d at

770–71, cited by the dissent, appellant’s probation violations included the use of illegal

drugs and association with gang members.         Thus, the district court also found that

appellant’s violations made him unamenable to additional treatment in the juvenile

system and that the seriousness of his violation would be depreciated if probation were

not revoked. See Austin, 295 N.W.2d. at 251 (noting that a failure to make a commitment

to rehabilitation supported a reasonable conclusion that treatment had failed).

Specifically, the district court noted that the MCF-Red Wing program recommended by

appellant’s probation officer was not a viable option as it was “another out of home

placement with similar treatment goals [and thus] would be unlikely to change

[appellant’s] conduct.” Appellant’s failure to heed his probation officer’s warning of

consequences for failing to maintain contact with probation also illustrates his disinterest

in rehabilitation. See State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (holding

that failure to heed warnings that a particular behavior violates probation and may trigger

consequences indicates that probation is not succeeding and a greater need for

confinement exists), review denied (Minn. July 20, 1995), abrogated in part on other

grounds by Modtland, 695 N.W.2d at 606.




                                             6
       The district court’s decision to revoke probation reveals it considered appellant’s

successful completion of his residential treatment program. Indeed, the district court

observed that appellant had “accomplished a great deal throughout the time at Woodland

Hills and has learned the tools to live a clean and health[y] lifestyle if he chooses.” But

the district court also considered appellant’s inability to commit to continued

rehabilitation, as shown by his swift violation of probation conditions within weeks after

re-entering the community. In particular, given the gravity of appellant’s initial crimes

and his continued association with Native Mob gang members, the district court

concluded that appellant was a risk to public safety. As evidenced by the district court’s

willingness to take additional argument on appellant’s motion for reconsideration, the

district court did not make a reflexive decision to revoke probation, but rather, carefully

reviewed appellant’s arguments. See, e.g., State v. Osborne, 732 N.W.2d 249, 255

(Minn. 2007) (upholding probation-revocation decision when the district court continued

a hearing to review the record and issued a thorough explanation for its decision). A

close examination of the record shows that it supports the district court’s findings on the

third Austin factor, and the district court did not abuse its discretion in revoking

probation.

       Affirmed.




                                            7
REYES, Judge (dissenting)

       I respectfully dissent. The district court’s failure to address relevant mitigating

factors when they are present in an Extended Juvenile Jurisdiction (EJJ) probation

revocation is error under Minnesota Supreme Court precedent. Moreover, the district

court abused its discretion in determining that the need to execute a 10-year adult prison

sentence on J.A.H. after his first offense outweighs the policies favoring probation. I

would reverse.

       Failure to Consider Mitigating Factors

       In determining whether to revoke an EJJ probation and execute a sentence after

admitted violations, courts must consider all circumstances of probation, including any

mitigating factors relating to the violations. State v. B.Y., 659 N.W.2d 763, 772 (Minn.

2003). Failure to find any mitigating factors when they are present is reversible error. Id.

at 770. “This is especially true because a mitigation finding, when reduced to writing,

can be sufficient to avoid the harsh and inflexible result otherwise required by Minn. Stat.

§ 260B.130, subd. 5 or [related EJJ rules].” Id. at 772. Moreover, “[d]ue process

requires that a defendant be given an opportunity to show that even if a condition of

probation was violated, mitigating circumstances exist such that the violation does not

warrant revocation.” State v. Cottew, 746 N.W.2d 632, 636 (2008) (citing Pearson v.

State, 308 Minn. 287, 289–90, 241 N.W.2d 490, 492 (Minn. 1976)) (other citations

omitted). “Mitigating factors include amenability to treatment, successful completion of

a treatment program, and whether the violations show a potential for recidivism.” State

v. J.E.S., 763 N.W.2d 64, 69 (Minn. App. 2009) (citing B.Y., 659 N.W.2d at 770).

                                            D-1
       Here, the district court failed to find any mitigating factors, contrary to the

undisputed record containing several mitigating factors. See B.Y., 659 N.W.2d at 772

(stating that “a district court in its mitigation findings must be certain to take all of the

circumstances of probation into consideration”). In that case, B.Y. was on EJJ probation

after pleading guilty to kidnapping and committing a crime for the benefit of a criminal

gang. Id. at 764. He had successfully completed the Woodland Hills program, but

subsequently violated the terms of his probation. Id.at 764-766. B.Y.’s probation officer

recommended revoking probation, and the state did as well due to his “multiple

violations.” Id. at 766. The district court revoked probation, “finding no mitigating

factors,” without additional findings on those factors, and executed his 108-month

sentence. Id. at 767. B.Y. appealed, and we affirmed, concluding that in the absence of

written findings of mitigating factors by the district court, the EJJ statute required the

execution of B.Y.’s sentence. Id. at 765. The supreme court reversed and remanded for

the district court to make additional findings on mitigating factors present in the record.

Id. at 771.

       Similarly here, at the July 29, 2014 hearing, the district court twice stated that the

“Court has previously found that there are no mitigating factors.”2 This finding is clearly

erroneous based on the record before us.        Here J.A.H., just like B.Y., successfully

completed the rigorous 16-month residential program at Woodland Hills in Duluth and

received positive reports from the very beginning of the program, demonstrating his

2
 The district court stated earlier in the hearing that “[J.A.H.] has accomplished a great
deal throughout the time at Woodland Hills and has learned the tools to live a clean and
healthy lifestyle if he chooses,” but apparently did not find this to be a mitigating factor.
                                            D-2
amenability to probation.    “[S]uccessful completion of the rigorous Woodland Hills

rehabilitation program should be appropriately considered by the district court as a

mitigating factor demonstrating amenability to probation.” B.Y. at 770. J.A.H. then

successfully transitioned into the semi-independent living program. Moreover, J.A.H.

obtained his high school diploma while in the program and even finished a semester of

college. And until the present violation, which was his first and only violation, J.A.H.

had complied with all of the terms and conditions of his probation. I would conclude that

on this record, the district court’s failure to address clearly documented mitigating factors

amounts to reversible error. See B.Y., 659 N.W.2d. at 770.

       Analysis of the Third Austin Factor

       I would also conclude that the district court abused its discretion in determining

that the need for public safety from J.A.H. outweighs the policies favoring probation.

Before revoking probation, a district court must make three findings under State v.

Austin, 295 N.W.2d 246 (Minn. 1980). “[T]he 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.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (quoting Austin, 295

N.W.2d at 250). Only the third Austin factor is at issue here. Furthermore, when

analyzing the third Austin factor, the district court must find at least one of three policy

factors: (1) the need for “confinement is necessary to protect the public from further

criminal activity by the offender”; (2) “the offender is in need of correctional treatment



                                             D-3
which can most effectively be provided if he is confined”; or (3) “it would unduly

depreciate the seriousness of the violation if probation were not revoked.” Id. at 607.

       The supreme court has stated that “[w]hen determining if revocation is

appropriate, courts must balance ‘the probationer's interest in freedom and the state's

interest in insuring his rehabilitation and the public safety’. . . .” Id. at 606-607 (citing

Austin, 295 N.W.2d at 250).       But even when probation terms are violated, “policy

considerations may require that probation not be revoked.” Austin, 295 N.W.2d at 250.

Indeed, “revocation should be used only as a last resort when treatment has failed.” Id.

“If the violation is one of youthful obstinance, it may not always foreclose a

determination that an EJJ defendant is amenable to probation.” B.Y., 659 N.W.2d at 772.

       In its June 3, 2014 order and again during the July 29, 2014 hearing, the district

court relied on the first policy factor—that “confinement is necessary to protect the

public from further criminal activity”—to support its finding on the third Austin factor.

At the July 29, 2014 hearing, the district court also found “that it would unduly

depreciate the seriousness of the violation if the probation was not revoked.” However,

the district court did not provide any substantive reasons for this finding. See Modtland,

695 N.W.2d at 608 (“courts must seek to convey their substantive reasons for revocation

and the evidence relied upon”). Because the district court primarily relied on the

confinement policy with substantive reasoning but did not do so for the third policy

factor, I address the confinement policy. Id.

       The district court’s finding on the third Austin factor, that the need for

confinement outweighed the policies favoring probation, is an abuse of discretion for

                                            D-4
three reasons. First, there is a viable alternative to execution of his 120-month sentence

with the MCF-Red Wing program recommended by J.A.H.’s probation officer.3 This

program would provide treatment while keeping him confined, thereby addressing the

concern for confinement to protect the public expressed by the district court. At the same

time, that placement would encourage rehabilitation, which has been recognized as “the

purpose of probation”. Modtland, 695 N.W.2d at 606 (quotation omitted).

      Second, J.A.H. has shown that he is amenable to probation and rehabilitation. As

stated above, he successfully completed a 16-month residential program, transitioned into

a semi-independent living program, obtained his high school diploma, completed a

semester of college and until the violation otherwise complied with the terms of

probation. See B.Y., 659 N.W.2d at 770 (stating that “successful completion of the

rigorous Woodland Hills rehabilitation program . . . demonstrate[ed] amenability to

probation”).   The MCF-Red Wing program would provide J.A.H. the skills and

individual therapy necessary to assist him in avoiding association with gang members.

And since he obtained his high school diploma while in the Woodland Hills program, he

would be eligible to continue his post-secondary education or vocational training at the

MCF-Red Wing program.




3
  In contrast to the probation officer’s recommendation in the instant case, in Modtland
the probation officer recommended incarceration, stating that he was a “huge risk to
public safety,” not amenable to the Minnesota Teen Challenge program, and that the only
alternative was execution of his sentence. 695 N.W.2d at 605. The supreme court
nevertheless reversed and remanded for failing to address the second and third Austin
factors. Id. at 608.
                                           D-5
       Third, while J.A.H’s underlying convictions were for unquestionably serious

crimes (second-degree assault and first-degree burglary), his probation violations were

unrelated to those underlying crimes. Nevertheless, the district placed great weight on

J.A.H. violating the terms of his probation by having contact with gang members, noting

that he posted photographs on Facebook of himself wearing gang colors and flashing

gang signs. While these were admitted violations of probation, postings on Facebook

appear to reflect “youthful obstinance” and do not necessarily foreclose the possibility

that he is amenable to probation. Id. at 772.

       I recognize the challenge district courts face when having to make decisions on

EJJ revocation hearings by balancing public safety concerns with the desire for

rehabilitation. Although we afford district courts great deference, as an error-correcting

court we must reverse when errors occur. Failure to find mitigating factors when such

exist is reversible error. Moreover, the supreme court has consistently emphasized the

strong preference for rehabilitation and using revocation as a last resort only when

treatment has failed. See Modtland, 695 N.W.2d at 606 (quoting Austin, 295 N.W.2d at

250). I would reverse.




                                            D-6
