                                 STATE OF MINNESOTA

                                  IN SUPREME COURT

                                         A12-2192


Court of Appeals                                                                   Dietzen, J.
                                                  Dissenting, Lillehaug, Page, and Wright, JJ.

State of Minnesota,

                      Respondent,

vs.                                                                  Filed: February 4, 2015
                                                                   Office of Appellate Courts
Clarence Bruce Beaulieu,

                      Appellant.
                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Gregory A. Widseth, Polk County Attorney, Andrew W. Johnson, Assistant Polk County
Attorney, Crookston, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota, for
appellant.
                          ________________________

                                      SYLLABUS

       1.     A probationer does not have a constitutional right “to be advised” that he or

she has the procedural due process rights articulated in Morrissey v. Brewer, 408 U.S.

471 (1972).

       2.     The failure to provide appellant with the rights advisory set forth in Minn.

R. Crim. P. 27.04 did not affect his substantial rights.

       Affirmed.

                                              1
                                     OPINION

DIETZEN, Justice.

      Appellant Clarence Bruce Beaulieu pleaded guilty and was convicted of first-

degree burglary. The district court imposed a 57-month sentence, which was stayed, and

Beaulieu was placed on probation. Two years later, Beaulieu appeared before the district

court regarding alleged probation violations. After Beaulieu personally admitted the

probation violations, the court revoked Beaulieu’s probation. On appeal, Beaulieu argued

for the first time that the district court committed reversible error when it violated a

claimed constitutional right “to be advised” of his due process rights under Morrissey v.

Brewer, 408 U.S. 471, 488-89 (1972), and when it failed to provide him the rights

advisory required by Minn. R. Crim. P. 27.04. Because we conclude that Beaulieu’s

arguments lack merit, we affirm.

      In May 2010, the State charged Beaulieu with first-degree burglary, Minn.

Stat. § 609.582, subd. 1(c) (2014), alleging that he entered the apartment of his ex-

girlfriend and assaulted her. Pursuant to a plea agreement, Beaulieu pleaded guilty to

first-degree burglary. In accordance with the plea agreement, the district court stayed

execution of a 57-month sentence and placed Beaulieu on probation for 20 years.

Beaulieu’s sentence reflected a downward dispositional departure. As conditions of his

probation, Beaulieu was required to fully cooperate with his probation agent and

complete periodic chemical dependency assessments.

      In September 2010, Beaulieu’s probation agent filed a probation-violation report

alleging that Beaulieu had failed to keep necessary appointments and comply with the

                                           2
conditions of his probation. At the first-appearance hearing, the district court asked

Beaulieu’s counsel: “[H]ave you had a chance . . . to go through that claimed probation

violation with [Beaulieu]?” Beaulieu’s counsel responded that he had, and that his client

intended to admit the violation. The court asked Beaulieu if he admitted the probation

violation. Beaulieu answered: “Admit it, your Honor.” At the disposition hearing, the

court followed the recommendation of Beaulieu’s probation agent and continued

Beaulieu’s probation.

       Two years later, Beaulieu’s probation officer filed a second probation-violation

report. The report alleged that Beaulieu failed to “keep all appointments, be truthful, and

comply with all instructions of the probation agent,” and failed to “show proof of

completing a chemical dependency assessment.”           At the first-appearance hearing,

Beaulieu’s counsel informed the court that he had reviewed the allegations with Beaulieu.

Counsel then made a request for an admit/deny hearing, which the court granted.1 At the

admit/deny hearing, Beaulieu’s counsel stated: “Your Honor, [Beaulieu would] admit the

allegations.”   When asked if he admitted the alleged probation violations, Beaulieu

responded: “Yes, I do, your Honor.” The court accepted the admissions and scheduled a

disposition hearing. At the disposition hearing, the court revoked Beaulieu’s probation

and executed his 57-month sentence.



1
       Although Minn. R. Crim. P. 27.04 does not contain the phrase “admit/deny
hearing,” the court of appeals used the phrase in State v. Narvaez to describe a hearing
that occurs between a first-appearance hearing and a contested-revocation hearing.
No. A13-0511, 2013 WL 6569943, at *1 (Minn. App. Dec. 16, 2013).

                                            3
       The district court failed to provide Beaulieu with the rights advisory required by

Minn. R. Crim. P. 27.04, which informs a probationer of his or her right to:

       a. a lawyer, including an appointed lawyer if the probationer cannot afford
          a lawyer;

       b. a revocation hearing to determine whether clear and convincing
          evidence of a probation violation exists and whether probation should
          be revoked;

       c. disclosure of all evidence used to support revocation and of official
          records relevant to revocation;

       d. present evidence, subpoena witnesses, and call and cross-examine
          witnesses, except the court may prohibit the probationer from
          confrontation if the court believes a substantial likelihood of serious
          harm to others exists;

       e. present mitigating evidence or other reasons why the violation, if
          proved, should not result in revocation;

       f. appeal any decision to revoke probation.

Minn. R. Crim. P. 27.04, subd. 2(1)(c). The rights set forth in Rule 27.04, subdivision 2,

reflect the rights articulated in Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972), and its

progeny. In Morrissey, the Court explained that in the context of a parole revocation, that

certain minimum requirements of due process were required. 408 U.S. at 484. Unlike

the rule governing the waiver of counsel, Minn. R. Crim. P. 5.04, subd. 1, and the rule

governing the waiver of a jury trial, Minn. R. Crim. P. 26.01, subd. 1(2), Rule 27.04 does

not require a defendant to personally waive his or her Morrissey rights in writing or on

the record in open court.

       Before the court of appeals, Beaulieu argued for the first time that the district court

violated an alleged constitutional right “to be advised” of his Morrissey due process

                                              4
rights prior to accepting his admission of the probation violations, and that he did not

knowingly and intelligently waive his Morrissey rights.         The court rejected both

arguments, concluding in part that under the circumstances of Beaulieu’s case, one could

assume he “was adequately informed of his rights because he was represented by

counsel.” State v. Beaulieu, No. A12-2192, 2013 WL 4779046, at *4 (Minn. App. Sept.

9, 2013) (citing State v. Lorentz, 276 N.W.2d 37, 38 (Minn. 1979) (explaining that a

presumption arose that the defendants had been fully advised of their rights when the

record revealed that both defendants had discussed their cases with their respective

attorneys)). Consequently, the court affirmed the district court’s revocation of Beaulieu’s

probation.

       On appeal, Beaulieu argues that (1) the district court erred by violating an alleged

constitutional right “to be advised” of his due process rights under Morrissey, 408 U.S. at

488-89; and (2) the district court erred when it failed to provide him the rights advisory

required by Minn. R. Crim. P. 27.04. 2 We address each issue in turn.

                                            I.

       We first consider Beaulieu’s argument that his probation revocation must be

reversed because the district court violated a claimed constitutional right “to be advised”


2
        In his brief, Beaulieu fails to acknowledge the distinction between the procedural
requirements of Minn. R. Crim. P. 27.04 and the procedural due process requirements of
the state and federal constitutions. Cf. State v. Everett, 472 N.W.2d 864, 867 n.2 (Minn.
1991) (noting the distinction between a violation of a court rule and a violation of the
federal constitution). Because the distinction between a rule violation and a
constitutional violation is important, we separately discuss the alleged violations.



                                            5
of the due process rights articulated in Morrissey, 408 U.S. at 488-89. Because Beaulieu

did not assert the alleged constitutional right in the district court, we must address the

threshold issue of whether the common law forfeiture doctrine precludes the requested

relief.3

           “[A] constitutional right, or a right of any other sort, may be forfeited in criminal

as well as civil cases by the failure to make timely assertion of the right before a tribunal

having jurisdiction to determine it.” United States v. Olano, 507 U.S. 725, 731 (1993)

(citation omitted) (internal quotation marks omitted); see also State v. Williams, 794

N.W.2d 867, 874 (Minn. 2011) (explaining that “[w]e ordinarily do not consider issues

raised for the first time on appeal, even when those issues are constitutional questions of

criminal procedure or are challenges to the constitutionality of a statute”); State v.

Goodloe, 718 N.W.2d 413, 422 n.6 (Minn. 2006) (explaining that the term “forfeiture”

most accurately described the effect of failing to bring an alleged error to the attention of

the district court).      The forfeiture doctrine reflects the “need to encourage all trial

participants to seek a fair and accurate trial the first time around.” United States v.

Young, 470 U.S. 1, 15 (1985); accord State v. Ramey, 721 N.W.2d 294, 299 (Minn.


3
        We have sometimes used the phrase “waived . . . appellate review” when
discussing a defendant’s failure to object to an error in the district court. See, e.g.,
Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011). But the United States Supreme
Court has drawn a distinction between forfeiture and waiver, explaining that “[w]hereas
forfeiture is the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725,
733 (1993) (citation omitted) (internal quotation marks omitted) (quoted in State v.
Jeffries, 806 N.W.2d 56, 64 n.4 (Minn. 2011)). We therefore use the word “forfeiture”
when describing a failure to make a timely assertion of a right.

                                                 6
2006). Put differently, the forfeiture doctrine “encourages defendants to object while in

the [district] court so that any errors can be corrected before their full impact is realized.”

State v. Pearson, 775 N.W.2d 155, 161 (Minn. 2009). But because “[a] rigid and

undeviating judicial[]” application of the forfeiture rule “would be out of harmony with

. . . the rules of fundamental justice,” state and federal rules of criminal procedure

provide appellate courts “a limited power to correct errors that were forfeited because not

timely raised in district court.” Olano, 507 U.S. at 731-32 (citation omitted) (internal

quotation marks omitted).

       Minnesota Rule of Criminal Procedure 31.02 provides that a “[p]lain error

affecting a substantial right can be considered by the court on motion for new trial, post-

trial motion, or on appeal even if it was not brought to the trial court’s attention.” Rule

31.02 is based on Fed. R. Crim. P. 52(b), which reads: “A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.”4 The limited power provided by the state and federal rules is known as the

“plain-error doctrine.” Young, 470 U.S. at 15; accord Ramey, 721 N.W.2d at 297-98.

       The plain-error doctrine “tempers the blow of a rigid application of the

contemporaneous-objection requirement” through a “careful balancing of [the] need to

encourage all trial participants to seek a fair and accurate trial the first time around

against [the] insistence that obvious injustices be promptly redressed.” Young, 470 U.S.

at 15 (citation omitted) (internal quotation marks omitted); accord Ramey, 721 N.W.2d at

4
      See Minn. R. Crim. P. 31 cmt.—1990 (“Rule 31.02 (Plain Error) comes from Fed.
R. Crim. P. 52(b)”).

                                              7
299. As part of that careful balance, the plain-error doctrine requires a defendant to

establish (1) an error, (2) that is plain, and (3) that affects the defendant’s substantial

rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United

States, 520 U.S. 461, 466-67 (1997)). If the defendant satisfies the first three prongs of

the plain-error test, “we may correct the error only if it ‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’ ”      State v. Crowsbreast, 629

N.W.2d 433, 437 (Minn. 2001) (quoting Johnson, 520 U.S. at 467) (alteration in

original); accord State v. Bahtuoh, 840 N.W.2d 804, 811 (Minn. 2013).

       To satisfy the first prong of the plain-error doctrine, Beaulieu must establish: (1) a

probationer has a constitutional right “to be advised” of the due process rights articulated

in Morrissey, and (2) the district court violated that right in his case. We begin by

considering the issue of whether a probationer has a constitutional right “to be advised”

of the due process rights articulated in Morrissey.

       Both the United States and Minnesota Constitutions afford criminal defendants

due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. “The

fundamental requirement of due process is the opportunity to be heard ‘at a meaningful

time and in a meaningful manner.’ ” State v. Krause, 817 N.W.2d 136, 145 (Minn. 2012)

(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Whether a defendant has been

denied due process of law is a question of law that we review de novo.               Rew v.

Bergstrom, 845 N.W.2d 764, 785 (Minn. 2014).

       In Morrissey, the Supreme Court held that a parolee, faced with parole revocation

and a loss of liberty, is entitled to procedural due process. 408 U.S. at 482. The Court

                                             8
acknowledged that parole revocation is not part of a criminal prosecution and thus the

“full panoply of rights due a defendant in such a proceeding does not apply.” Id. at 480.

Nevertheless, it concluded that in the context of a parole revocation, the minimum

requirements of due process included:

       (a) written notice of the claimed violations of parole; (b) disclosure to the
       parolee of evidence against him; (c) opportunity to be heard in person and
       to present witnesses and documentary evidence; (d) the right to confront
       and cross-examine adverse witnesses (unless the hearing officer specifically
       finds good cause for not allowing confrontation); (e) a “neutral and
       detached” hearing body such as a traditional parole board, members of
       which need not be judicial officers or lawyers; and (f) a written statement
       by the factfinders as to the evidence relied on and reasons for revoking
       parole.

Id. at 489. The Court extended the Morrissey procedural due process rights to probation

revocations in Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). The Court reasoned that

“[p]robation revocation, like parole revocation . . . result[s] in a loss of liberty.” Id.

Therefore, a probationer “is entitled to a preliminary and a final revocation hearing, under

the conditions specified in Morrissey.” Id.

       Pursuant to Morrissey and Gagnon, a probationer is entitled to procedural due

process prior to the revocation of probation. But there is nothing in Morrissey or Gagnon

to suggest that a probationer has a separate constitutional right to be advised of the due

process rights articulated in Morrissey. Beaulieu contends that such a right can be found

in United States v. Correa-Torres, 326 F.3d 18, 25 (1st Cir. 2003), and United States v.

LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999). But the issue in Correa-Torres and LeBlanc

was not whether a probationer had a separate due process right “to be advised” of the due

process rights articulated in Morrissey. Instead, the issue was whether a probationer’s

                                              9
waiver of the Morrissey due process rights had to be knowing and voluntary. 326 F.3d at

25; 175 F.3d at 515.

      We conclude that a probationer does not have a separate constitutional right “to be

advised” that he or she has the procedural due process rights articulated in Morrissey.

Because Beaulieu has failed to establish a separate constitutional right “to be advised” of

the due process rights articulated in Morrissey, he has not satisfied the “error”

requirement of the plain-error doctrine, and therefore the common law forfeiture doctrine

precludes the requested relief—a reversal of his probation revocation.

                                            II.

      Second, Beaulieu argues that his probation revocation must be reversed because

the district court erred by failing to provide him with the rights advisory required by

Minn. R. Crim. P. 27.04. Because defense counsel did not object to the court’s failure to

comply with Rule 27.04, and the error falls within the category of an alleged trial error,

we must determine whether the plain-error doctrine allows us to remedy this otherwise

forfeited error. See State v. Kuhlmann, 806 N.W.2d 844, 852-53 (Minn. 2011).

      Rule 27.04 requires a district court to inform a probationer of his right to:

      a. a lawyer, including an appointed lawyer if the probationer cannot afford
         a lawyer;

      b. a revocation hearing to determine whether clear and convincing
         evidence of a probation violation exists and whether probation should
         be revoked;

      c. disclosure of all evidence used to support revocation and of official
         records relevant to revocation;



                                            10
       d. present evidence, subpoena witnesses, and call and cross-examine
          witnesses, except the court may prohibit the probationer from
          confrontation if the court believes a substantial likelihood of serious
          harm to others exists;

       e. present mitigating evidence or other reasons why the violation, if
          proved, should not result in revocation;

       f. appeal any decision to revoke probation.

Minn. R. Crim. P. 27.04, subd. 2(1)(c).

       We have not previously applied the plain-error doctrine to a defendant’s claim that

the court failed to provide him with the rights advisory required by Minn. R. Crim. P.

27.04. We have, however, recently applied the doctrine to a claim that the court failed to

obtain the defendant’s personal waiver of his right to a jury trial, as required by Minn. R.

Crim. P. 26.01, subd. 1(2).      Kuhlmann, 806 N.W.2d at 852-53.           In Kuhlmann, we

explained that the alleged error should be reviewed for plain error because the “trial

court’s failure to obtain a personal waiver in this case falls into the category of ‘trial

errors’ occurring in the prosecution of the case, rather than a defect in the constitution of

the trial mechanism.” Id. at 852. The district court’s failure to provide Beaulieu the Rule

27.04 rights advisory falls into the same category as the error in Kuhlmann.               Put

differently, it is the type of nonstructural error that the district court could have corrected

had it been brought to the court’s attention, and therefore Beaulieu has forfeited appellate




                                              11
review of his Rule 27.04 claim unless he can satisfy the requirements of the plain-error

doctrine.5

       We conclude that Beaulieu has established the first two prongs of the plain-error

doctrine.    The district court’s failure to provide Beaulieu with the rights advisory

mandated by Minn. R. Crim. P. 27.04 was an error that was plain because it contravened

an unambiguous rule of criminal procedure. Nevertheless, we conclude that Beaulieu has

not met his heavy burden of showing the error affected his substantial rights. Beaulieu

has not alleged, much less offered any evidence, that he lacked actual knowledge of the

rights set forth in Rule 27.04, nor that he would have denied the probation violations had

the court read him the Rule 27.04 rights advisory.6 Because Beaulieu has failed to meet



5
        We acknowledge that in State v. Osborne, we concluded the defendant had not
forfeited appellate review of a claim that the district court failed to provide him with a
Blakely trial, even though the defendant failed to raise the claim in the district court. 715
N.W.2d 436, 441-42 (Minn. 2006). But Osborne is procedurally and factually
distinguishable from Beaulieu’s case. In Osborne, an intervening change in the law
excused the defendant’s failure to assert what would have otherwise been a futile
objection in the district court. Id. at 442 (explaining that at the time of the defendant’s
sentencing, “our case law had consistently rejected any Blakely-type claim”). Put
differently, the purpose underlying the general forfeiture rule—encouraging a defendant
to object while in the district court so that any errors can be corrected before their full
impact is realized—was not implicated in Osborne because asserting a futile Blakely
objection would not have led to correction of the error.
6
       The record in this case is distinguishable from State v. Little, 851 N.W.2d 878
(Minn. 2014), in three important respects. First, the record in Little contained a statement
by defense counsel that indicated Little may not have had a full appreciation of what was
happening in the days leading up to his trial because everything was moving at “laser
light speed.” Id. at 885. Second, Little told the probation officer who conducted his
presentence investigation that he did not know about the added charge until after he was
found guilty. Id. Third, the rule at issue in Little not only required the court to advise
                                                        (Footnote continued on next page.)
                                             12
his heavy burden of showing the error was prejudicial and affected the outcome of the

proceedings, we conclude the district court’s plain error in failing to provide Beaulieu the

rights advisory required by Minn. R. Crim. P. 27.04 did not affect his substantial rights.7

       Affirmed.




(Footnote continued from previous page.)
Little of his right to a jury trial, it also required the defendant’s jury trial waiver to be
made “personally, either in writing or on the record.” Id. at 881.
7
        The dissent contends that Beaulieu’s brief raises an additional issue—whether
Beaulieu waived his Morrissey rights. To support that contention, the dissent relies on
the court of appeals’ opinion, the order granting review, the brief filed by Beaulieu in this
court, and some of the questions asked during oral argument. With all due respect to the
dissent, we conclude that the basis for Beaulieu’s waiver claim throughout these
proceedings is that the district court failed to advise Beaulieu of his Morrissey rights on
the record. For example, Beaulieu’s brief describes the issue presented as whether “the
district court violated [his] due process rights by failing to inform him of his Morrissey
rights prior to accepting his admission to the alleged probation violation.” He then
argues that the district court erred by violating an alleged constitutional right “to be
advised” of his Morrissey due process rights and by failing to comply with Minn. R.
Crim. P. 27.04. Following these arguments, Beaulieu states, “The next question is
whether despite this failure, was there a valid waiver of these rights.” Beaulieu contends
the answer to this question is “no” because “he was never advised of his rights on the
record.” Yet that is the precise claim we reject above. Because Beaulieu’s waiver claim
is not independent of his “notice” argument, we need not separately address it.

                                             13
                                       DISSENT

LILLEHAUG, Justice (dissenting).

       As the majority acknowledges, the district court “contravened an unambiguous

rule of criminal procedure” when it failed to advise Clarence Bruce Beaulieu of his

constitutional rights before it revoked his probation and executed his prison sentence. In

the aftermath of this error, the parties presented and argued three issues: (1) whether

Beaulieu had a constitutional right “to be advised” by the district court of his Morrissey

due process rights; (2) whether the district court’s plain error in failing to advise Beaulieu

of his rights as required by Minn. R. Crim. P. 27.04 affected Beaulieu’s substantial rights;

and (3) whether Beaulieu knowingly and voluntarily waived his Morrissey due process

rights. Inexplicably, the majority decides only the first and second issues. The majority

evades the third issue—whether there was knowing and voluntary waiver—with a

footnote at the end of the opinion to the effect that Beaulieu’s brief did not assert an

independent waiver claim.

       I will demonstrate, in considerable detail, that the allegation that Beaulieu failed to

describe clearly and press the waiver issue strays far from reality. The court of appeals

squarely decided the issue. We granted review on that very issue. Beaulieu’s brief

argued it.   The State responded on the merits. And, from the first minute of oral

argument, the waiver issue took center stage and never left the spotlight.




                                            D-1
       The majority should have reached the waiver issue, decided it, reversed the court

of appeals, and remanded the case to the district court to do what it should have done in

the first place: follow our Rules of Criminal Procedure.1

                                               I.

       In 2010, Beaulieu pleaded guilty to one count of burglary in the first degree. He

was sentenced to 57 months in prison.           But the district court stayed execution of

Beaulieu’s sentence for 20 years and placed him on probation.

       Two years later the State sought to revoke Beaulieu’s probation. Minnesota Rule

of Criminal Procedure 27.04 requires that, at a probationer’s initial appearance, “the court

must . . . [t]ell the probationer” of his or her constitutional rights, including the right to a

probation revocation hearing in which the State would have the burden to prove the

alleged probation violation by clear and convincing evidence. Id., subd. 2(1). The court

must also tell the probationer that, among other things, he or she has the right to see the

State’s evidence, present evidence, subpoena witnesses, cross-examine witnesses, and

present reasons why the alleged violation should not result in revocation. Id.



1
       Because I conclude that the record does not show a knowing and voluntary waiver
of Beaulieu’s Morrissey rights, I need not address the two issues the majority does reach:
whether Beaulieu had a separate constitutional right “to be advised” by the district court
of his right to a revocation hearing (Part I of the majority’s opinion) or whether his
probation revocation must be reversed solely because of the district court’s plain error in
failing to deliver the rights advisory required by Minn. R. Crim. P. 27.04 (Part II of the
majority’s opinion). The majority dismisses the subject of whether Beaulieu knowingly
and voluntarily waived his Morrissey rights—what should have been Part III of the
majority opinion—at the very end of the opinion, in footnote 7.



                                             D-2
       When Beaulieu made his first appearance, on August 10, 2012, the district court

did not give the required advisory. When Beaulieu made his second appearance three

days later to admit the violation, the district court did not give the required advisory.

When Beaulieu made his third appearance and the district court revoked Beaulieu’s

probation and executed the 57-month sentence, the district court did not give the required

advisory. As the majority agrees, this was error.

        Not only did the district court fail to tell Beaulieu of his rights at any of the three

hearings, it did not make any finding that Beaulieu had knowingly and voluntarily waived

his constitutional rights.   Neither the prosecutor, nor defense counsel, nor Beaulieu

himself asserted that Beaulieu knew his rights and had decided to waive them.

       Beaulieu appealed the revocation of his probation and execution of his sentence.

In an unpublished opinion, the court of appeals affirmed. We granted review.

                                             II.

       The concept is hardly new that a probationer must understand his or her

constitutional rights, and either exercise those rights or waive them knowingly and

voluntarily before a loss of liberty. As the U.S. Supreme Court made clear in Morrissey

v. Brewer, 408 U.S. 471, 482 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973),

a probationer charged with a probation violation and at risk of a loss of liberty is entitled

to procedural due process. The minimum requirements of procedural due process include

preliminary and final revocation hearings. Gagnon, 411 U.S. at 782. The purpose of

these hearings is to provide the parties an opportunity to present evidence on the issue of



                                             D-3
whether there was a probation violation and whether any mitigating circumstances exist.

See Morrissey, 408 U.S. at 487-88.

       The importance of the constitutional right to procedural due process in probation

revocation proceedings is demonstrated by the fact that, in the aftermath of Morrissey and

Gagnon, we promulgated Minn. R. Crim. P. 27.04.             Rule 27.04, subdivision 2(1),

requires that the district court “[t]ell the probationer” of the probationer’s rights to:

(1) counsel; (2) a revocation hearing at which the State must present clear and convincing

evidence of a probation violation; (3) pre-hearing discovery; (4) subpoena and cross-

examine witnesses; (5) present evidence; and (6) appeal any decision to revoke probation.

Further, the rule allows the probationer to “present mitigating evidence or other reasons

why the violation, if proved, should not result in revocation.” Id.

       Of course, constitutional rights can be waived.          “Waiver is the voluntary

relinquishment of a known right.” State v. Jones, 772 N.W.2d 496, 504 (Minn. 2009).

“Whether a waiver of a constitutional right is valid depends ‘upon the particular facts and

circumstances surrounding that case . . . .’ ” State v. Worthy, 583 N.W.2d 270, 275-76

(Minn. 1998) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is black-letter

law that “[t]here is a presumption against the waiver of constitutional rights.” Brookhart

v. Janis, 384 U.S. 1, 4 (1966); see also Illinois v. Allen, 397 U.S. 337, 343 (1970); State

v. Finnegan, 784 N.W.2d 243, 247 (Minn. 2010) (“The right may be waived . . . . But the

court must indulge every reasonable presumption against the loss of constitutional

rights.”). While the U.S. Supreme Court has not spoken on how Morrissey rights may be

waived, the federal circuit courts have held that rights may be waived by fair implication.

                                            D-4
See, e.g., United States v. Correa-Torres, 326 F.3d 18, 23 (1st Cir. 2003) (no “particular

mantra” or “magic words” are required for knowing and voluntary waivers of Morrissey

rights).

                                            III.

       So, where is the evidence that overcomes the presumption that Beaulieu did not

waive his constitutional rights? Which particular facts and circumstances show, by fair

implication, that Beaulieu knew his rights and decided to relinquish them?

       The record before us does not contain a single piece of direct or circumstantial

evidence that Beaulieu knowingly and voluntarily waived his constitutional rights. We

know that the district court did not tell Beaulieu of his rights, as it should have. We know

that the prosecutor did nothing to secure a waiver. We know that defense counsel and

Beaulieu said nothing on the record about his rights. The record fails to show anything

that comes close to a waiver, much less one that was knowing and voluntary.

       The circumstances here are remarkably similar to a case from the U.S. Court of

Appeals for the First Circuit, United States v. Correa-Torres, 326 F.3d 18 (1st Cir. 2003).

As here, the First Circuit considered whether a probationer had waived his right to a

revocation hearing. Id. at 20. As here, the record did not reflect that the district court,

the prosecutor, or the probationer’s counsel had advised the probationer of his rights. Id.

at 24. As here, the record was silent on the probationer’s waiver. Id. at 23-24. As here,

the district court did not make a specific finding regarding the probationer’s waiver. Id.

As here, the exchanges between the district court and probationer’s counsel did little to

clarify matters. Id. at 24.

                                            D-5
      As I conclude here, the First Circuit concluded that there was no evidence to show

that the probationer had knowingly and voluntarily waived his rights. Id. at 23. The

record failed to show that “someone had advised the [probationer] of his [procedural]

rights” or “explained the effect of a decision not to exercise those rights.” Id. at 24.

After all, “[o]ne cannot knowingly waive rights if one does not realize that they exist.”

Id.

      As in Correa-Torres, we simply do not know what, if anything, Beaulieu knew

about his constitutional rights.     As in Correa-Torres, the particular facts and

circumstances do not show, affirmatively or even by fair implication, that Beaulieu

waived his rights knowingly and voluntarily.

                                          IV.

        The court of appeals attempted to fill the factual void with a presumption: that

because Beaulieu was represented by counsel, “the district court may assume that

appellant was adequately informed of his rights” and must have waived them. State v.

Beaulieu, No. A12-2192, 2013 WL 4779046, at *4 (Minn. App. Sept. 9, 2013).

      In this case, that is hardly a safe presumption. At Beaulieu’s first appearance, his

counsel said: “I have reviewed with him the allegations in the Petition.” But this

statement does not fairly imply that Beaulieu knew his rights. Read fairly, the statement

suggests that Beaulieu’s counsel reviewed with him the factual basis of the alleged

probation violations—i.e., that Beaulieu failed to keep appointments, be truthful, comply

with instructions, and complete a chemical dependency assessment. That is not enough



                                          D-6
to support a reasonable inference that Beaulieu’s counsel fully advised him of his

constitutional rights and he then silently, but knowingly and voluntarily, waived them.

       Granted, the court of appeals’ reliance on the presumption that attorneys properly

advise their clients of their rights finds some support in our case law. We have stated that

it is appropriate to presume that an individual, represented by counsel, is informed of his

or her procedural rights. See, e.g., State v. Lorentz, 276 N.W.2d 37, 38 (Minn. 1979);

State v. Propotnik, 299 Minn. 56, 57, 216 N.W.2d 637, 638 (1974). Once, in Shackelford

v. State, 253 N.W.2d 149, 149-50 (Minn. 1977), we even applied this presumption in the

guilty plea context. But Shackelford’s usefulness as precedent is limited because, in that

case, defense counsel testified “that in fact he had advised petitioner of his rights prior to

his plea.” Id. at 150. There is nothing like that here.

       In any event, like the United States Court of Appeals for the First Circuit in

Correa-Torres, I am not satisfied that Beaulieu knew that he had a right to a revocation

hearing merely because he was represented by counsel. 326 F.3d at 24 (“[T]he record

does not reflect . . . that counsel reviewed [the probationer’s] rights with him.”). Instead,

in the absence of other evidence, I would apply the presumption against the waiver of

constitutional rights.

       To summarize, whether there has been a knowing and voluntary waiver is

determined by an examination of the particular facts and circumstances.            Here, the

circumstances do not show, by fair implication, a knowing and voluntary waiver of

Beaulieu’s constitutional rights.



                                             D-7
                                           V.

      In a footnote, the majority says that the issue of whether Beaulieu waived his

Morrissey rights was not made in a fashion sufficiently “independent” from his claim that

he had a constitutional right to be advised of those rights. By declining to address

whether Beaulieu knowingly and voluntarily waived his Morrissey rights, the majority

wishes away the very issue on which we granted review.

      In affirming Beaulieu’s probation revocation, the court of appeals squarely held

that Beaulieu had waived his constitutional right to due process in probation revocation.

The last sentence of the court of appeals’ decision on this issue states: “Therefore,

appellant’s argument that he never validly waived his Gagnon or Morrissey rights is

unavailing given the appointment of counsel and his opportunity to contest the revocation

with the assistance of counsel.” State v. Beaulieu, No. A12-2192, 2013 WL 4779046, at

*4 (Minn. App. Sept. 9, 2013) (Emphasis added.)

      Beaulieu’s petition seeking review of the court of appeals’ decision presented the

issue squarely. In our order granting review, we directed: “IT IS HEREBY ORDERED

that the petition of Clarence Bruce Beaulieu for further review of the decision of the

Court of Appeals be, and the same is, granted on the Morrissey-waiver issue. Review is

denied as to all other issues.” (Emphasis added.)

      That Beaulieu briefed the waiver issue is clear. In the Table of Contents to

Beaulieu’s brief, subpart C, Beaulieu asserted: “Mr. Beaulieu Was Not Informed of His

Constitutional Rights and Did Not Validly Waive Those Rights Before He Admitted the

Probation Violation.” Leaving no doubt, in subpart D, Beaulieu asserted: “A Waiver of

                                           D-8
Constitutional Rights Must Be Knowing and Voluntary and Counsel Cannot Waive Such

Constitutional Rights on Behalf of a Probationer Without a Personal Acknowledgement

of Such Rights.”

       Beaulieu’s brief argued two alleged constitutional violations: (1) a failure to

advise of rights; and (2) a failure to obtain a knowing and voluntary waiver of rights. As

the brief made clear, there were two issues: “[T]he district court erred by not advising

Mr. Beaulieu of his Morrissey rights. The next question is whether despite this

failure, was there a valid waiver of these rights.” (Emphasis added.) Beaulieu’s brief

went on to argue that any waiver of a constitutional right must be accurately, voluntarily,

and intelligently made. On whether representation by counsel alone was enough for a

waiver, Beaulieu’s brief cited the very case on which I rely in this dissent, Correa-

Torres, and argued that the district court’s failure to obtain a knowing and voluntary

waiver required reversal. In other words, Beaulieu’s brief forcefully pressed the waiver

issue the majority now chooses not to see.

       Finally, the issue of waiver was presented at oral argument. In the first minute,

Beaulieu’s counsel, the able Chief Appellate Public Defender, stated: “The issue before

the Court in this case is whether Mr. Beaulieu’s due process rights were violated by the

district court’s failure to advise him of his Morrissey rights and obtain a knowing and

voluntary waiver of those rights prior to accepting his admission to the probation

violation.” (Emphasis added.) In other words, she made due process arguments based

on: (1) the failure to advise and, alternatively, (2) the failure to obtain a waiver. The

alternative issue was argued fully, with the justices posing several questions on the

                                             D-9
subject of whether the court could infer that Beaulieu waived his rights simply due to his

being represented by counsel.

       Tellingly, the majority does not disagree that the issue of whether Beaulieu

knowingly and voluntarily waived his Morrissey rights was decided by the court of

appeals, that we granted review on it, and that it was argued orally. Instead, the majority

insists that, when parsed, Beaulieu’s brief somehow failed to present the issue as

“independent.” If Beaulieu’s brief truly sidestepped the issue decided by the court of

appeals on which we granted review, it would be more than a little odd that such a glaring

omission was not mentioned—by the State or by any justice—at oral argument.

       There is sidestepping going on here, but it’s not in Beaulieu’s brief. By imagining

that the most important issue in the case is not before it, the majority fails to protect

constitutional rights.

                                            VI.

       I respectfully dissent because, on this record, there is no evidence that Beaulieu

knowingly and voluntarily waived his rights. I would reverse the court of appeals, vacate

the probation revocation, and remand for a revocation hearing to be conducted in

accordance with Minn. R. Crim. P. 27.04.2


2
       When a term of probation is revoked following an invalid waiver of the right to a
revocation hearing, the “preferred practice” is to reverse and remand for a new revocation
hearing. See Correa-Torres, 326 F.3d at 25; see also State v. Modtland, 695 N.W.2d
602, 608 (Minn. 2005) (reversing and remanding for “a new hearing” on the district
court’s revocation of probation because it did not address whether the probation violation
was intentional or inexcusable or whether the need for confinement outweighed the
policies favoring probation).

                                          D-10
PAGE, Justice (dissenting).

      I join in the dissent of Justice Lillehaug.



WRIGHT, Justice (dissenting).

      I join in the dissent of Justice Lillehaug.




                                            D-11
