                           This opinion will be unpublished and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
                                      A14-0712

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                               Agustin Jaime Barron Aranjo,
                                        Appellant.

                                 Filed December 29, 2014
                                 Reversed and remanded
                                       Ross, Judge

                             Watonwan County District Court
                                File Nos. 83-CR-13-318
                                          83-CR-13-576

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

Stephen Lindee, Watonwan County Attorney, St. James, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION

ROSS, Judge

         Juvenile teenager Barron Aranjo twice pleaded guilty (in 2012 and 2013) to third-

degree criminal sexual conduct after the state discovered that he had been in a sexual
relationship with a younger teenage girl. One year after his second guilty plea, Barron

(then 19 years old) was found in a car with the same girl (then 16 years old). The district

court revoked Barron’s probation and executed his combined 70-month prison sentence.

Barron appeals the probation revocation and resulting sentence execution, arguing that

the district court did not make the necessary Austin findings on the record before

revoking his probation. No transcript was made of the revocation hearing and the district

court made no written findings. We reverse the revocation and remand for the district

court to make the required findings.

                                         FACTS

       In 2012, 17-year-old Barron Aranjo was in a sexual relationship with 14-year-old

A.K.V. Police learned of this relationship in June 2012 while responding to a report of

domestic assault. The victim of the alleged assault, A.K.V., told police that she and

Barron had been in a relationship since November 2010 and had been having sex since

February 2011. Based on this information, the Watonwan County prosecutor charged

Barron with various crimes, including third-degree criminal sexual conduct.

       Barron pleaded guilty to third-degree criminal sexual conduct in August 2012.

Before accepting the plea, the district court designated Barron’s case as extended juvenile

jurisdiction (EJJ). Barron admitted that he had sexual intercourse with A.K.V., who was

under 16 years old and more than 24 months younger than Barron. The district court

accepted Barron’s guilty plea, ordered a presentence investigation report, and set a

sentencing hearing.




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       At the November 2012 sentencing hearing, the district court ordered EJJ probation

until Barron reached age 21. It also imposed a 36-month presumptive adult prison

sentence, which the court stayed pending successful completion of EJJ probation.

       Barron did not successfully complete his probation. In June 2013, the Watonwan

County prosecutor again charged Barron with third-degree criminal sexual conduct. The

complaint alleged that Barron and A.K.V. had again engaged in sexual intercourse

repeatedly after his probation began. Barron pleaded guilty to the new charge. The

district court revoked Barron’s EJJ probation. It imposed a 36-month sentence for the

2012 conviction and a 70-month sentence for the 2013 conviction, but it stayed execution

of both sentences. The court ordered Barron to serve 180 days in jail and placed him on

probation for 15 years, requiring that he not have contact with A.K.V., among other

conditions.

       Barron did not stay away from A.K.V. Police found the two together in a vehicle

in January 2014. They arrested Barron and filed a probation violation report. Barron

admitted to violating probation. The probation office recommended that Barron complete

a polytrophic test, undergo sex-offender treatment, and serve 180 days on electronic

home monitoring. The prosecutor urged instead that the district court execute the 70-

month prison sentence for the 2013 conviction.

       The district court conducted a revocation hearing. But an equipment malfunction

resulted in there being no transcript of the hearing, and the district court did not include

any written findings in the record. It did, however, revoke Barron’s probation and execute

both the 2012 and 2013 sentences, ordering them to run concurrently. In sum, it ordered


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Barron to serve 70 months in prison with a lifetime of conditional release to follow.

Barron appeals the district court’s revocation decision and the execution of the 70-month

sentence.

                                     DECISION

      A district court has discretion to revoke probation if it finds that the defendant

violated a condition of probation, the violation was intentional or inexcusable, and the

need for confinement outweighs the policies favoring probation. State v. Austin, 295

N.W.2d 246, 250 (Minn. 1980). The court must make these three findings “on the record

before probation is revoked.” State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005); see

also State v. B.Y., 659 N.W.2d 763, 768–69 (Minn. 2003) (holding that court must

consider Austin factors in an EJJ revocation); Minn. R. Crim. P. 27.04, subd. 3(3) (“A

verbatim record must be made of the probation revocation hearing.”). In articulating their

findings, “courts must seek to convey their substantive reasons for revocation and the

evidence relied upon.” Modtland, 695 N.W.2d at 608.

      Barron argues that his case should be remanded because the district court did not

make an adequate record of the Austin findings before revoking his probation. Whether

the district court made these findings is a question of law reviewed de novo, which we

answer based on the record. Id. at 605. In the alternative, Barron contends that the

revocation should be reversed because the third Austin factor is not fulfilled—that is, the

need for his 70-month confinement does not outweigh the policies favoring probation.

We will not reverse a district court’s probation revocation decision unless the court

abused its discretion. Austin, 295 N.W.2d at 249–50.


                                            4
       We cannot address Barron’s argument that the 70-month incarceration was

inappropriate. Because no transcript of the January 28 hearing exists and the district court

did not record an order making or describing its findings, we cannot assess whether the

district court adequately articulated and substantiated the three Austin findings before

revoking Barron’s probation.

       We therefore reverse Barron’s probation revocation and remand the case to the

district court to make a sufficient record of the findings it made prior to its decision or

conduct a new hearing. We do not reach the question of whether the district court abused

its discretion when it presumably determined that the Austin factors were all satisfied. We

remand solely because the district court did not make an adequate record of its findings

before revoking Barron’s probation.

       Reversed and remanded.




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