                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-1156

                                    State of Minnesota,
                                       Respondent,
                                             vs.

                                    Jesse Tyler Schafer,
                                         Appellant.

                                 Filed February 21, 2017
                                        Affirmed
                                     Schellhas, Judge

                               Meeker County District Court
                                 File No. 47-CR-14-823

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

Brandi L. Schiefelbein, Meeker County Attorney, Thomas Boenigk, Assistant County
Attorney, Litchfield, Minnesota (for respondent)

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

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

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges his probation revocation, arguing that (1) the district court

lacked jurisdiction over his case based on the juvenile court’s certification of the case to

adult court; (2) the district court committed reversible error by finding appellant in
violation of a condition regarding unsupervised contact with minors; and (3) the evidence

was insufficient to show that the need for appellant’s confinement outweighs the policies

favoring probation. We affirm.

                                           FACTS

       On November 1, 2013, when appellant Jesse Schafer was 17 years old, he had sexual

intercourse with a 14-year-old girl. Respondent State of Minnesota initially filed a

delinquency petition against Schafer in juvenile court, charging him with third-degree

criminal sexual conduct. The juvenile court certified Schafer to stand trial as an adult,1 and

the state then filed a complaint in adult court, charging Schafer with one count of third-

degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2012)

(complainant at least 13 but less than 16 years of age and actor more than 24 months older

than complainant).

       At a plea hearing on October 6, 2014, Schafer pleaded guilty to one count of third-

degree criminal sexual conduct. The district court stayed adjudication for four years,

conditioned on Schafer’s full compliance with terms of probation, which included, among

other things, that any contact by Schafer with females under age 16 be supervised and

approved in advance by Schafer’s corrections agent. In less than a year, Schafer signed

four probation agreements that, in pertinent part, prohibited him from (1) using or


1
 Although the addendum to Schafer’s appellate brief includes a copy of the certification
order, the record before us does not include the delinquency petition filed in juvenile court,
Schafer’s waiver of a certification hearing in juvenile court, or the juvenile court’s
certification order. See Minn. R. Civ. App. P. 110.01 (“The documents filed in the trial
court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record
on appeal in all cases.”).

                                              2
possessing alcohol or mood-altering chemicals, except as prescribed; (2) owning or

possessing “any computer (or anything with computer capabilities such as iphones, smart

phones, ipads, tablets, watches, etc) that does not have installed pornographic filters and

social media filters”; (3) having “unsupervised contact with females under the age of 16.

Supervised contact is approved through sex offender treatment therapist and supervising

Corrections Agent”; and (4) possessing or using “any pornographic/sexually explicit

material.”

       On April 13, 2015, Schafer admitted to violating his probation by using

methamphetamine and marijuana, by not putting a pornography filter on his phone, and by

viewing pornography. The district court revoked the stay of adjudication, stayed imposition

of the sentence, and continued Schafer on probation for four years from the date of the

hearing with terms of probation as previously imposed. The court also ordered Schafer to

register as a sex offender.

       On June 16, 2015, Schafer again admitted that he violated his probation by using

marijuana and by using the Internet to access Facebook. Among other things, the district

court vacated the stay of imposition, imposed a prison sentence of 36 months, and stayed

execution of the sentence. On September 4, 2015, after Schafer committed another

probation violation, the court imposed sanctions on him.

       On April 14, 2016, Schafer appeared at another admit-deny probation-violation

hearing. The district court explained the alleged probation violations on the record as

follows:




                                            3
              THE COURT: The violation report — I’m just going to go over
              the violations with you to make sure you understand ‘em. [I]t’s
              alleged that you violated the following. Condition—special
              condition number fourteen, not to use or possess alcohol or
              mood-altering chemicals except as prescribed. The specifics of
              that are that you did admit to having a few beers and some pills,
              and admitted to that around April 13.
                      [A]lso it’s alleged that you violated special condition
              number nineteen, not to access or use of internet without
              approval. That on April 6 you admitted you had possession of
              a cell phone that you did turn over to your agent at that time,
              and there was a confirmation the proper filters weren’t in place.
              [A]nd that you also admitted there was a second cell phone
              which was returned to your mother.
                      There’s another allegation that you violated special
              condition number twenty. That you were not to have
              unsupervised contact with females under the age of sixteen and
              that there were numerous pictures of you having contact with
              females that appeared to be under sixteen in that phone.
                      Special condition number twenty-two is alleged to be in
              violation, not to use or possess any pornographic or sexual
              explicit material, and after review of the phone it showed that
              there were two sexually explicit pictures and one video. Do you
              understand the allegations?
              THE DEFENDANT: Ah, yes, Your Honor.

Schafer denied the allegations, and the court conducted a contested probation-violation

hearing. On April 18, 2016, after the contested probation-violation hearing, the court found

that Schafer violated probation, that his probation violations were serious, not technical,

and went directly to the underlying offense, and that Schafer’s confinement was

appropriate because probation was no longer sufficient to protect public safety. The court

revoked the stay of execution and committed Schafer to the Minnesota Department of

Corrections for 36 months.

       This appeal follows.




                                             4
                                      DECISION

                                              I

       Schafer argues that his conviction and sentence are void because the adult court that

convicted and sentenced him never obtained subject-matter jurisdiction over his case.

Schafer argues that the juvenile court’s certification order was insufficient to confer

subject-matter jurisdiction on the adult court because the juvenile court transferred the case

to adult court based on his waiver and the parties’ plea agreement, not on public safety.

This court “review[s] the juvenile court’s decision to certify a child to adult court for an

abuse of discretion.” In re Welfare of J.H., 844 N.W.2d 28, 34 (Minn. 2014). We “review

questions of law de novo, and . . . findings of fact under the clearly erroneous standard.”

(citation omitted). Id. at 34–35. “A finding is clearly erroneous only if there is no

reasonable evidence to support the finding or when an appellate court is left with the

definite and firm conviction that a mistake occurred.” Id. at 35 (quotation omitted).

       We construe Schafer’s subject-matter jurisdiction argument to be a challenge to the

validity of the juvenile court’s certification order. Because the record before us does not

include Schafer’s waiver of a certification hearing in juvenile court or the juvenile court’s

certification order, the record is insufficient to conduct a review of the validity of the

certification order. Based on our reading of the certification order included in the

addendum to Schafer’s appellate brief, even if we were to consider Schafer’s challenge to

the validity of the certification order, Schafer would not prevail. Schafer attacks the

certification order on the basis that it does not contain a required finding that certification

would serve public safety. But the certification order in Schafer’s addendum complies with


                                              5
the requirements applicable to an order issued following a waiver of the right to a

certification hearing and stipulation to the certification order. See Minn. R. Juv. Delinq. P.

18.07, subds. 1 (outlining the requirements for a certification order following a waiver and

stipulation, which do not include a requirement that such an order contain public-safety

findings), 2 (requiring a certification order issued after a contested certification hearing to

contain public-safety findings); see also Minn. R. Juv. Delinq. P. 18.01, subd. 1 (stating

that Rule 18 of the Minnesota Rules of Juvenile Delinquency Procedure applies when, as

here, “the prosecutor moves for certification and a child is alleged to have committed, after

becoming fourteen (14) years of age, an offense that would be a felony if committed by an

adult”).

                                              II

       Schafer argues that the district court committed reversible error by finding that he

violated a condition regarding unsupervised contact with minors, contending that his

probation conditions did not require him to obtain his corrections agent’s advance approval

of his contact with females under age 16, as long as an adult supervised the contact. He

claims that he fully complied with his probation conditions because his adult girlfriend

supervised his contact with her female children under age 16.

       Before revoking probation, a district court must determine on the record (1) if a

specific condition of probation was violated and (2) whether that violation was intentional

or inexcusable. State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (citing State v.

Austin, 295 N.W.2d 246, 250 (Minn. 1980)). If the court finds clear and convincing

evidence of an intentional or inexcusable violation, the district court also must evaluate


                                              6
whether the need for confinement outweighs the policies favoring probation. Id.; see also

Minn. R. Crim. P. 27.04, subd. 2(1)(c)b (requiring proof of a probation violation by clear

and convincing evidence before probation can be revoked). “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 that discretion.” State v. Ornelas, 675 N.W.2d 74,

79 (Minn. 2004) (quoting Austin, 295 N.W.2d at 249−50) (quotation marks omitted).

       Schafer’s argument that he complied with the terms of his probation fails because

the terms of his probation required him to get advance approval from his corrections agent

before having supervised contact with females under age 16.

       Schafer also argues that his probation revocation violates due process because

the written terms of his probation did not afford him fair notice that he must obtain

agent approval before having supervised contact with females under age 16. “When

sentencing a defendant, a court shall state the precise terms of the sentence.” Id. at 80

(quoting Minn. R. Crim. P. 27.03, subd. 4(A)) (quotation marks omitted). “In imposing a

probationary sentence, if noncriminal conduct could result in revocation, the trial court

should advise the defendant so that the defendant can be reasonably able to tell what lawful

acts are prohibited.” Id. (quotation omitted). “It is an essential component of due process

that individuals be given fair warning of those acts which may lead to a loss of liberty.” Id.

(quotation omitted). “This is no less true whether the loss of liberty arises from a criminal

conviction or the revocation of probation.” Id. (quotation omitted). “When the acts

prohibited by the probation conditions are not criminal, due process mandates that the

petitioner cannot be subjected to a forfeiture of his liberty for those acts unless he is given


                                              7
prior fair warning.” Id. (quotation omitted). “Whether a defendant has been denied due

process of law is a question of law that [this court] review[s] de novo.” State v. Beaulieu,

859 N.W.2d 275, 280 (Minn. 2015).

       At his sentencing hearing, the district court specifically clarified the meaning of the

advance-approval probation condition and Schafer acknowledges that, “[b]ack in 2014, the

court did state that he needed such approval.” Moreover, the probation condition was

included in each of the four probation agreements that Schafer signed, and we reject

Schafer’s suggestion that the wording in the probation agreements is ambiguous. His past

conduct was consistent with an understanding that he was required to receive agent

approval before having adult-supervised contact with females under age 16. On at least one

occasion, he asked his corrections agent to approve his mother to supervise him when he

had contact with females under age 16.

       Schafer also argues that he did not have fair notice that he needed agent approval

before having adult-supervised contact with females under age 16 because he received

mixed messages from the district court. After a careful review of the record, we are not

persuaded. The record contains sufficient evidence that Schafer had fair notice that he

needed approval from his corrections agent before having supervised contact with females

under the age of 16. We conclude that his probation revocation therefore did not violate his

due-process rights.

                                             III

       Schafer argues that clear and convincing evidence does not show that the need for

confinement outweighs the policies favoring probation. Even if the facts allow probation


                                              8
revocation, “policy considerations may require that probation not be revoked.” Modtland,

695 N.W.2d at 606 (quotation omitted). “[T]he purpose of probation is rehabilitation and

revocation should be used only as a last resort when treatment has failed.” Id. (quotation

omitted). “When 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, and base their decisions on sound judgment and not just their will.” Id.

at 606–07 (quotations omitted); see also State v. Rottelo, 798 N.W.2d 92, 95 (Minn. App.

2011) (holding that the district court did not abuse its discretion when it revoked probation

because Rottelo did not remain in contact with probation officers, had multiple offenses in

his history, and showed a pattern of noncompliance with probation), review denied (Minn.

July 19, 2011). A court should only revoke probation if the court finds

              on the basis of the original offense and the intervening conduct
              of the offender that:
                     (i) confinement is necessary to protect the public from
              further criminal activity by the offender; or
                     (ii) the offender is in need of correctional treatment
              which can most effectively be provided if he is confined; or
                     (iii) it would unduly depreciate the seriousness of the
              violation if probation were not revoked.

Modtland, 695 N.W.2d at 607 (quotation omitted).

       We conclude that the record contains clear and convincing evidence supporting the

district court’s finding that “the need for confinement [was] outweighed by the public

policy that favors it.” The district court did not abuse its discretion in revoking Schafer’s

probation.

       Affirmed.



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