Opinion
No. C7-01-897.
Filed April 9, 2002.
Appeal from the District Court, Ramsey County, File No. K201000690.
Mike Hatch, Attorney General, and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Mary M. McMahon, Special Assistant State Public Defender, McMahon Associates Criminal Defense, Ltd., (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges the execution of his stayed adult sentences after a probation violation, arguing that (1) the extended-jurisdiction juvenile statute does not require the execution of his stayed sentences and (2) the statute conflicts with Minnesota Rule of Juvenile Procedure 19.09, and, when the statute and the rule conflict, the statute controls. He raises additional issues in a pro se brief. Because we conclude that the statute requires the execution of his stayed sentences and that the pro se brief provides no basis for relief, we affirm.
FACTS
Appellant Bee Yang, then 15 years old, participated in the kidnapping of a girl in December 1997. Yang negotiated a plea agreement with the state under which he pleaded guilty to kidnapping and crime committed for benefit of a gang and agreed to be designated an extended-jurisdiction juvenile (EJJ). See Minn. Stat. § 260.126, subd. 1 (1996) (providing procedure for EJJ designation). The district court designated Yang an EJJ, sentenced him to consecutive prison terms of 96 months and 12 months, respectively, for the crimes, and stayed the sentences on the condition that he not violate the terms of his probation.
Recodified as Minn. Stat. § 260B.130, subd. 1 (2000). 1999 Minn. Laws ch. 139, art. 2, § 12.
In February 2001, Yang admitted that he violated the terms of his probation by returning home after a curfew. The district court found that no mitigating factors existed and executed the stayed sentences on the ground that "the rules and the law as it relates to the EJJ status" do not permit a court to continue EJJ status in the absence of mitigating factors. This appeal follows.
DECISION I.
Yang argues that the EJJ statute does not require the execution of his stayed sentences. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
The EJJ statute provides the district court with extended juvenile jurisdiction in cases in which a juvenile is alleged to have committed a felony. Minn. Stat. § 260B.130, subd. 1 (2000). A juvenile is designated an EJJ when
(1) the child was 14 to 17 years old at the time of the alleged offense, a certification hearing was held, and the court designated the proceeding an extended jurisdiction juvenile prosecution;
(2) the child was 16 or 17 years old at the time of the alleged offense; the child is alleged to have committed an offense for which the sentencing guidelines and applicable statutes presume a commitment to prison or to have committed any felony in which the child allegedly used a firearm; and the prosecutor designated in the delinquency petition that the proceeding is an extended jurisdiction juvenile prosecution; or
(3) the child was 14 to 17 years old at the time of the alleged offense, the prosecutor requested that the proceeding be designated an extended jurisdiction juvenile prosecution, a hearing was held on the issue of designation, and the court designated the proceeding an extended jurisdiction juvenile prosecution.
Id., subd. 1(1), (2), (3). If a juvenile is found guilty or enters a guilty plea in an EJJ prosecution, the district court imposes both a juvenile disposition and an adult criminal sentence. Id., subd. 4(a) (2000). The adult sentence is stayed on the condition that the juvenile not violate the terms of the juvenile disposition and not commit a new offense. Id., subd. 4(a)(2).
The EJJ statute does not require the district court to execute the stayed sentence in every case in which a person convicted as an EJJ violates the condition of the stay. Generally,
if the court finds that reasons exist to revoke the stay of execution of sentence, the court shall treat the offender as an adult and order any of the adult sanctions authorized by section 609.14, subdivision 3.
Id., subd. 5 (2000) (emphasis added). The adult sanctions authorized by section 609.14, subdivision 3, include intermediate sanctions and do not require the execution of the stayed sentence. Minn. Stat. § 609.14, subd. 3 (2000). But
[i]f the offender was convicted of an offense described in subdivision 1, clause (2), and the court finds that reasons exist to revoke the stay, the court must order execution of the previously imposed sentence unless the court makes written findings regarding the mitigating factors that justify continuing the stay.
Minn. Stat. § 260B.130, subd. 5 (emphasis added); see Minn.R.Juv.P. 19.09, subd. 3(C)(2) ("[T]he court shall order the execution of the sentence or make written findings indicating the mitigating factors that justify continuing the stay."). Here, the district court found that no mitigating factors existed and executed Yang's stayed sentences on the ground that he was convicted of offenses for which the sentencing guidelines presume a commitment to prison.
Yang does not dispute that his offenses had presumptive prison sentences under the sentencing guidelines. See Minn. Sent. Guidelines II.G, IV, V. Nor does he challenge the district court's finding that no mitigating factors existed. Rather, Yang argues that, because he was not designated an EJJ under subdivision 1, clause (2), the mandatory execution of his previously imposed sentences required by subdivision 5 does not apply to him.
As Yang asserts, he was not designated an EJJ under subdivision 1, clause (2), because he was 15 years old at the time of his offenses. But subdivision 5 makes no distinction among the three methods by which a juvenile is designated an EJJ. The subdivision's mandatory-execution provision refers only to "an offense described in subdivision 1, clause (2)." The offense described in subdivision 1, clause (2), is one for which "the sentencing guidelines and applicable statutes presume a commitment to prison or * * * the child allegedly used a firearm [while committing a felony]." Minn. Stat. § 260B.130, subd. 1(2) (emphasis added); see Minn.R.Juv.P. 19.09, subd. 3(C)(2) (requiring execution of stayed sentence if the "conviction was for an offense with a presumptive prison sentence or the probationer used a firearm"). When a juvenile is designated an EJJ and later violates the condition of the stayed sentence, the juvenile is subject to the applicable sanctions provided by subdivision 5 regardless of the method by which the juvenile was designated. See Minn. Stat. § 260B.130, subd. 1(1), (2), (3) (providing three methods for EJJ designation). We conclude that the EJJ statute, in the absence of mitigating factors, requires the execution of Yang's stayed sentences. See In re Welfare of J.K., ___ N.W.2d ___ (Minn.App. Mar. 26, 2002).
Because we reject Yang's construction of the statute, we do not reach his arguments that under that construction the statute conflicts with Minnesota Rule of Juvenile Procedure 19.09 and that, when there is a conflict between the statute and the rule, the statute controls.
II.
Yang argues, in his pro se supplemental brief, that complying with a curfew was not a term of the district court's juvenile-disposition order, and, therefore, breaking the curfew did not result in a violation of the conditions of his stayed sentence. But Yang acknowledges that he was required to maintain contact with his probation officer. A probation officer may give instructions to a probationer, and if the instructions are disobeyed, the district court may revoke probation. See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (concluding that district court did not abuse its discretion in revoking probation when there was sufficient evidence to warrant finding that probationer disobeyed probation officer's instructions). Yang's probation officer instructed him to comply with a curfew, and he disobeyed the instruction.
He also contends that breaking a curfew is, at most, a "technical" violation of his probationary conditions. But it is still a violation. And, at the probation-revocation hearing, the district court noted Yang's probationary history, which includes repeated failures to comply with conditions set by his probation officer and repeated warnings by the court and the probation officer that violations would result in the revocation of his probation.
Finally, Yang argues that the district court's revocation of his probation is unfair, claiming that the execution of his prison sentences resulted in his "doing 108 months hard time in a prison, right now, over just" a curfew violation. But he received his sentences for kidnapping and for crime committed for benefit of a gang, not for a curfew violation.