                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0767


                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                Jesus Ivan Torres-Lopez,
                                        Appellant.


                                 Filed October 20, 2014
                                Reversed and Remanded
                                    Bjorkman, Judge


                             Freeborn County District Court
                                 File No. 24-CR-11-298

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

Craig S. Nelson, Freeborn County Attorney, David Walker, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.
                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the revocation of his probation, arguing that the probation

condition at issue was invalid, and revocation violated his due-process rights. Because

the district court did not conduct the required Austin analysis, we reverse and remand.

                                         FACTS

       Appellant Jesus Ivan Torres-Lopez pleaded guilty to a first-degree controlled-

substance crime in April 2011. At the time of the plea, Torres-Lopez was awaiting

deportation to Mexico. Accordingly, the plea agreement called for a dispositional

departure from the presumptive 86-month sentence.         The district court imposed the

presumptive sentence, but stayed execution on the condition that Torres-Lopez was not to

illegally return to the United States within the next 30 years. In the event that Torres-

Lopez was not deported, he was to serve his 86-month sentence.

       Torres-Lopez was deported, but returned to the United States illegally in 2013. He

was arrested and, in July 2013, pleaded guilty in federal court to the felony offense of re-

entry of a removed alien. Respondent State of Minnesota advised the district court of the

conviction and a series of revocation hearings ensued. At the final hearing, Torres-Lopez

objected to the length of his presumptive sentence, but did not challenge the validity of

the probation condition. The district court stated that the sentencing order was “quite

clear” that if he were deported and returned to the United States illegally, his sentence

would be executed. The district court vacated the stay of execution and ordered Torres-

Lopez to serve his 86-month sentence. This appeal follows.


                                             2
                                      DECISION

I.     Torres-Lopez waived his objection to the validity of his probation condition.

       Torres-Lopez contends that the condition that he not illegally re-enter the United

States constitutes impermissible banishment, is not reasonably related to the purposes of

probation, and reflects the district court’s improper consideration of his immigration

status. Torres-Lopez did not challenge this probation condition at sentencing or at his

revocation hearing. We generally do not decide issues that were not raised before the

district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). When an appellant

fails to object to conditions of probation in the district court, challenges to the validity of

those conditions are not properly before this court on appeal. See State v. Anderson, 733

N.W.2d 128, 138-39 (Minn. 2007) (refusing to consider a challenge to the validity of a

probation condition where the issue was not raised in district court).

       We have discretion to consider issues that were not raised in the district court,

“when the interests of justice require . . . and doing so would not unfairly surprise a party

to the appeal.” Roby, 547 N.W.2d at 357. This is not one of those instances. Torres-

Lopez was fully aware of the now-challenged probation condition at sentencing. It was

part of his bargained-for plea agreement, and nothing prevented him from objecting to the

condition at sentencing or during the revocation proceedings. None of his representations

in the district court apprised the state of the present challenge. Accordingly, we will not

consider the merits of this argument.




                                              3
II.     Remand is necessary for the district court to properly consider the alleged
        probation violation.

        The loss of liberty resulting from a probation revocation is “a serious deprivation

requiring that the [probationer] be accorded due process.” Gagnon v. Scarpelli, 411 U.S.

778, 781, 93 S. Ct. 1756, 1759 (1973).       We review questions of constitutional law

de novo. State v. Shattuck, 704 N.W.2d 131, 135 (Minn. 2005). And the interpretation of

the rules of criminal procedure is a question of law, which this court reviews de novo.

Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).

        Torres-Lopez asserts revocation violated his due-process rights because (1) the

state did not provide him with a probation report, (2) the state did not present “clear and

convincing evidence” that he violated his probation, and (3) the district court revoked his

probation without making the required Austin findings. We address each argument in

turn.

        Probation report

        A probationer must be “notified in writing” of the alleged grounds warranting

probation revocation. Minn. Stat. § 609.14, subd. 2 (2012). Revocation proceedings

must be initiated by “a summons or warrant based on a written report showing probable

cause to believe a probationer violated probation.” Minn. R. Crim. P. 27.04, subd.

1(1)(a). A probationer must receive a copy of the violation report at his first appearance

before the district court if one has not already been provided. Minn. R. Crim. P. 27.04,

subd. 2(1)(b).




                                             4
       The state applied to the district court for an arrest warrant, citing Torres-Lopez’s

illegal re-entry and subsequent conviction as the basis for revoking his probation. The

application states that Torres-Lopez was currently serving a seven-month sentence at a

detention center in Arizona, and attaches the sentencing order, which contains Torres-

Lopez’s plea of guilty to illegally re-entering the country.

       Torres-Lopez admits that he and his lawyer received the warrant application and

its attachments prior to the final revocation hearing. Given that Torres-Lopez was only

subject to one probation condition, it is difficult to conclude that he did not receive

sufficient notice of the allegation against him. Any additional documentation or formal

report would have merely repeated the information Torres-Lopez received. And he did

not object in the revocation proceeding to the form or type of notice the state provided.

On this record, we conclude the written notification Torres-Lopez received comports with

Minnesota law and the requirements of due process.

       Clear and convincing evidence

       A district court has “broad discretion in determining if there is sufficient evidence

to revoke probation and should be reversed only if there is a clear abuse of discretion.”

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The state has the burden of

proving the offender violated his probation terms by clear and convincing evidence.

Minn. R. Crim. P. 27.04, subd. 3.

       Torres-Lopez contends that the state did not meet its burden because it did not

offer “any written or testimonial evidence at the hearing to establish that appellant

violated the term of his probation.” He also asserts that there was “no discussion or


                                              5
inquiry into the circumstance of appellant’s re-entry into the United States.”         We

disagree. Torres-Lopez’s probation condition clearly prohibited him from illegally re-

entering the country following deportation. Torres-Lopez’s physical presence at the

revocation hearing made it undeniable that he returned to the United States. The record

before the district court of Torres-Lopez’s plea of guilty demonstrates his return was

voluntary and illegal.

       Austin findings

       Finally, Torres-Lopez contends that reversal is warranted because the district court

failed to make the findings required by Austin. We agree. Before revoking probation, a

district court must: (1) specify the condition or conditions that the probationer violated,

(2) find the violation was intentional or inexcusable, and (3) determine the need for

confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250. In

State v. Modtland, the Minnesota Supreme Court held that the district court’s findings

must be specific and “seek to convey [the district court’s] substantive reasons for

revocation and the evidence relied upon.”        695 N.W.2d 602, 608 (Minn. 2005).

Modtland rejected the notion that there was a “sufficient evidence exception” to Austin,

which would permit an appellate court to affirm a probation revocation if the requisite

findings could be inferred and the record supports such findings. Id. at 606.

       As the parties1 correctly observe, in revoking Torres-Lopez’s probation, the

district court merely summarized several basic facts and noted that it was “quite clear”


1
   During oral argument, the state agreed the district court’s failure to make Austin
findings requires a remand.

                                            6
that if Torres-Lopez re-entered the country the stay of execution would be vacated. The

district court did not explain its reasoning or articulate how the need for confinement

compares to the policies favoring probation. Because implicit findings, even if supported

by the record, are insufficient to satisfy Austin, we reverse and remand for the district

court to make the required findings.

      Reversed and remanded.




                                           7
