Opinion
No. A09-2044.
Filed August 10, 2010.
Appeal from the District Court, Blue Earth County, File No. 07-JV-08-509.
Lori Swanson, Attorney General, and Ross Arneson, Blue Earth County Attorney, Casey M. Hardy, Assistant County Attorney, Mankato, Minnesota; and Robert D. Hinnenthal, Brown County Attorney, John L. Yost, Assistant County Attorney, (for respondent).
Mark E. Betters, (for appellant).
Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
Appellant N.R.S. challenges the district court's decision to revoke his extended jurisdiction juvenile (EJJ) probation. The state has not filed a respondent's brief, and the matter is proceeding pursuant to Minn. R. Civ. App. P. 142.03. Because the district court erred in failing to consider the Austin factors in this EJJ proceeding, we reverse and remand.
DECISION
Based on an incident that occurred in April 2007, appellant, who was 16 at the time, was certified for prosecution as an adult. Under the terms of a plea agreement, appellant was given EJJ status and a delinquency petition was filed charging him with first-degree burglary involving a dangerous weapon. In October 2007, the district court placed appellant on EJJ probation and stayed the 48-month presumptive adult sentence. The matter was transferred from Brown County, where the offense occurred, to Blue Earth County, where appellant resided.
In his brief, appellant states that he was convicted of second-degree burglary — dangerous weapon, but it appears that he was charged and adjudicated delinquent of first-degree burglary under Minn. Stat. § 609.582, subd. 1(b) (2006) (defining first-degree burglary as entering building without consent and committing crime while possessing dangerous weapon).
In September and December 2008, appellant twice violated the terms of his probation, but his probation was not revoked. In May 2009, appellant violated his probation a third time when he failed a drug test. At a probation violation hearing in July 2009, appellant admitted that he violated probation by using marijuana and alcohol. The matter was continued to allow appellant to enter inpatient chemical dependency treatment.
Appellant entered and successfully completed treatment, and his ensuing drug tests were negative. At a hearing in Blue Earth County in September 2009, the district court concluded that appellant had been given enough chances and that his probation should be revoked. The district court found that revocation was in appellant's "best interest" and was the "least restrictive alternative." The court did not make findings regarding, nor did either party present argument or evidence on, the Austin factors. The district court transferred the matter to Brown County, the county where the offense occurred, for adult sentencing. Sentencing has apparently been stayed pending this appeal.
Appellant argues that the district court erred in revoking his EJJ probation without considering the Austin factors and in relying on the "best interest of the juvenile" and the "least restrictive alternative." We agree. The "best interest" and "least restrictive alternative" are relevant when determining whether to revoke probation in a juvenile setting. See In re Welfare of R.V., 702 N.W.2d 294, 304 (Minn. App. 2005) (holding that district court need not follow the three-step probation revocation analysis set forth in Austin when revoking a juvenile's probation, but must make sufficient written findings that address why a particular disposition serves the juvenile's best interests, what alternative dispositions were considered, and why those alternatives were rejected). But in the EJJ context, "all three of the Austin factors must be considered when a court is determining whether reasons exist to revoke the stay." State v. B.Y., 659 N.W.2d 763, 768-69 (Minn. 2003) (quotation omitted).
Austin requires a district court to perform the following analysis before it revokes probation: (1) designate the specific condition of probation that has been violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The court must make specific findings that "convey [its] substantive reasons for revocation and the evidence relied upon," rather than simply "reciting the three factors and offering general, nonspecific reasons for revocation." State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005). Because the district court failed to make any express findings under Austin, this matter is reversed and remanded for further proceedings. See id.
The record indicates that the parties did not present evidence or argument on the Austin factors, and that the district court did not consider these factors. Thus, on remand, the parties should be given an opportunity to present additional evidence, including evidence on appellant's updated and current circumstances, in such proceedings as the district court deems appropriate.
Reversed and remanded.