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State v. B.Y.

April 24, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
B.Y., PETITIONER, APPELLANT.



SYLLABUS BY THE COURT

Minnesota Statutes § 260B.130, subd. 5, applies to an Extended Jurisdiction Juvenile offender who was 15 years old at the time of the underlying offense.

Under Minn. Stat. § 260B.130, subd. 5, the Austin factors must be considered when determining whether "reasons exist to revoke the stay" of execution of sentence.

The district court erred in failing to find mitigating factors where appellant completed a rehabilitation program, had been law abiding throughout the probationary period, the probation violation at issue was a minor curfew violation, and complying with a curfew was an additional term of probation imposed by the probation officer and was not originally a term of appellant's probation imposed by the court.

Reversed and remanded.

Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Gilbert, Justice

OPINION

Appellant, B.Y., was on Extended Jurisdiction Juvenile (EJJ) probation with a stayed 108-month sentence pursuant to a plea agreement under which he pleaded guilty to kidnapping and committing a crime for the benefit of a criminal gang. In a hearing on February 22, 2001, the district court revoked appellant's EJJ designation for violating probation and, finding no mitigating factors, executed the 108-month sentence. Appellant appealed to the Minnesota Court of Appeals arguing that the EJJ statute, Minn. Stat. §á260B.130, subd. 5 (2002), controls and does not require the execution of appellant's stayed sentence. Therefore, appellant argued that the EJJ statute conflicts with Minn. R. Juv. P. 19.09, subd. 3, which the district court relied upon when appellant's sentence was executed, and that the statute should control. The court of appeals affirmed the district court and concluded that the EJJ statute, absent written findings of mitigating factors, requires the execution of appellant's sentence. The court of appeals did not reach the second issue raised by appellant as to whether the rule or the statute controls.

In this appeal, appellant argues that the EJJ statute requires that the age of the offender at the time of the offense and the severity of the offense be considered in determining the appropriate sanction for a violation of a condition of probation; and that the language of Minn. Stat. § 260B.130, subd. 5, controls over Minn. R. Juv. P. 19.09, subd. 3. We reverse the court of appeals and remand to the district court for further proceedings consistent with our ruling.

On February 9, 1998, appellant pleaded guilty to kidnapping and committing a crime for the benefit of a criminal gang for his part in the gang rape of a 12-year-old girl occurring December 14, 1997, when he was 15 years old. Under the terms of the plea agreement, appellant agreed to plead guilty to kidnapping and committing a crime for the benefit of a criminal gang and to testify truthfully at the trials of the other individuals involved in the crime. Minn. Stat. § 609.25, subd.1(2); Minn. Stat. § 609.229, subd. 2. The kidnapping charge was a Level VII offense and had a presumptive prison sentence of 48 months.*fn1 Appellant's plea agreement called for a double durational departure from that sentence, resulting in a 96-month prison term. The crime for the benefit of a criminal gang charge had a presumptive sentence of 12 months consecutive to the underlying charge. Pursuant to the plea agreement, 12ámonths were added to the 96ámonths for the kidnapping charge, amounting to a total of 108 months.

In accordance with the plea agreement, appellant was sentenced to the custody of the Commissioner of Corrections of the State of Minnesota, the execution of the adult sentence was stayed, and appellant was designated an Extended Jurisdiction Juvenile until the age of 21. See Minn. Stat. §á260B.130, subd. 4(a) (2002). At the conclusion of the sentencing hearing, the district court notified appellant that if he violated the "terms and conditions" of probation, the prison sentence of 108 months would be executed. The plea agreement included the conditions that appellant testify truthfully if subpoenaed in the trials of the others involved in the crime, complete a juvenile rehabilitation program, not associate with any known gang members and have no contact with the victim. No other specific terms of probation were discussed in the hearing where the plea agreement was accepted nor apparently set forth in the disposition order where the terms of the agreement were imposed.

Over a year later, in June of 1999, after successfully completing the juvenile rehabilitation program at Woodland Hills, appellant appeared for a hearing in district court. The court approved the favorable recommendation of Woodland Hills and appellant was returned to his home. Again, at this hearing, the court reminded appellant that the 108-month sentence remained, and a violation of probation before he turned 21áwould result in the execution of that sentence. The court in reference to the EJJ probationary period stated, "So while it seems like a long time, it's not a long time when we are not asking a lot of you except don't commit any new crimes and keep in touch."

After another year and a half had passed, on February 9, 2001, appellant admitted, in a probation violation hearing, that he had violated his 9 p.m. curfew. The record before us does not include a transcript of that February 9, 2001 hearing. However, appellant's brief states that the probation violation hearing was in front of a different judge than the subsequent disposition hearing and that appellant admitted to the violation in the probation violation hearing. This was the first time the appellant had been brought to court for a probation violation hearing. On February 22, 2001, a disposition hearing was held in district court on that probation violation. A Ramsey County juvenile probation officer appeared for the probation department. He informed the court that the probation department and staffing committee recommended that appellant's EJJ designation be revoked. At the hearing, the state argued that it would not be seeking revocation of probation for a mere curfew violation had there not been multiple violations and had appellant not shown that he was unamenable to supervision.

The probation officer testified that appellant had been transferred to enhanced probation ("stricter level of supervision"), because he was not following the conditions of regular probation supervision, including coming into the office once a week to check in with his probation officer. According to the probation officer the transfer to enhanced probation occurred because there was a 1 to 2 month period where appellant did not check in with his probation officer, and there was concern that he was failing to attend school and not residing at his parents' home full-time.

The state asserted that prior to the curfew violation at issue, appellant had been placed at the Juvenile Detention Center on a 24-hour waiver (hold) for breaking curfew on a previous occasion. For yet another violation, appellant was given 16 hours on a work crew to be served on a Saturday and Sunday. Appellant was present on Saturday but did not show up the next day for the remaining 8 hours of work. Appellant was told to make up the 8 hours the following week, but he refused to do so. Following that incident, appellant was placed in the Adult Detention Center for curfew and school attendance violations. After being placed for 48áhours in the Adult Detention Center, at 7áp.m. an officer took appellant home. At 9:20áp.m., his probation officer and another officer returned to appellant's home. According to his probation officer, appellant was not at home even though his curfew was 9 p.m. and had been since November. The district court found that appellant knew of this curfew. It is this curfew violation, which the court believed was flagrant, that resulted in the execution of his entire 108-month sentence.

Complying with a curfew was not mentioned in appellant's original plea agreement, nor does it appear that it was provided for in the disposition order, nor stated as a condition of the stayed sentence. Rather, it was apparently implemented by the probation officer and more strictly enforced as time passed. Appellant argued that this curfew violation was at most a technical violation.

The district court found that the appellant, in his February 9, 2001 probation violation hearing, had admitted that he had failed to be home by his 9 p.m. curfew, and that missing curfew amounted to a violation of probation. Although a curfew was not part of the original plea agreement, pursuant to Minn. R. Juv. P. 19.09, subd. 3(C)(2), the court used the one admitted curfew violation to execute the previously imposed sentences for kidnapping and committing a crime for the benefit of a criminal gang. The court stated that while not necessarily agreeing with the state's position that appellant's violation showed that he was likely to start committing crimes, appellant was not doing the things he needed to insure public safety. The court stated there were no mitigating factors, but made no indication of what would be considered mitigating factors in this situation. The court then stated, "As I understand ...


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