STATE OF MINNESOTA
Matter of the Welfare of:
Filed March 26, 2002
Hennepin County District Court
Mike Hatch, Attorney
General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin
County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000
Government Center, Minneapolis, MN 55487 (for respondent State of
Leonardo Castro, Chief
Fourth District Public Defender, Peter W. Gorman, Assistant Public
Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for
This appeal is from an order revoking appellant J.K.’s probation imposed
in an extended jurisdiction juvenile (EJJ) prosecution following
convictions of third-degree criminal sexual conduct and crime committed
for the benefit of a gang. J.K. argues that the district court abused its
discretion in revoking probation and executing an 81-month adult prison
sentence based on a series of “technical violations,” including truancy
from school, missing some juvenile programming, and violating a no-contact
order. We affirm.
In April 1998, a delinquency petition was filed charging J.K.
with committing multiple counts of first- and third-degree criminal sexual
conduct and crime committed for the benefit of a gang. The parties
entered into a plea agreement, under which J.K. admitted to committing one
count each of third-degree criminal sexual conduct and crime committed for
the benefit of a gang. The plea agreement provided for an 81-month adult
prison sentence but with execution stayed on the condition that J.K.
successfully complete EJJ probation.
J.K. was 14 years old when he committed
the offenses. In the order revoking probation, the district court found:
The offenses were committed against two young girls, ages 12
and 13, who were sexually assaulted by multiple individuals as part of a
gang initiation. [J.K.] was in the car that drove Victim One to the
garage where Victim Two was being assaulted. He admitted to having
intercourse with Victim One and stated that he was the third one to “f…”
her and that he ejaculated in her because another gang member told him to
kill his sperm. [J.K.] was an active participant and forced the girls to
have sexual intercourse with him at different times in a garage. Both
victims were allegedly prevented from leaving. After one of the victims
had been assaulted by another accomplice, [J.K.] pushed the victim back to
the floor and forcibly penetrated her vagina with his penis. The victim
tried to get away and told [J.K.] she was in pain during sexual
intercourse. Afterwards, [J.K.] and the other gang members celebrated by
going to McDonalds.
J.K. was committed to Mille Lacs Academy, a residential
treatment program for sex offenders. In February 2000, J.K. was
discharged from Mille Lacs Academy after successfully completing the
program and ordered to live with his parents and comply with probation
conditions, including having no contact with known gang members. In May
2000, the district court ordered J.K. to Kohler Hall’s 21/14-day
consequence program. The court also ordered J.K. to complete the Wilder
Foundation Social Adjustment Program for Southeast Asians and to have no
contact with N.X. J.K. was discharged from Kohler Hall on May 25, 2000.
On June 28, 2000, J.K. admitted violating probation by violating the
no-contact order and curfew and by failing to attend the Southeast Asian
program at Wilder. The district court ordered him committed to the Boys
Totem Town long-term residential program. In February 2001, J.K. was
discharged from Boys Totem Town and placed on enhanced supervised
probation, a program designed to provide structure, accountability, and
community-based resources to felony-level offenders who pose a high risk
to public safety.
On April 6, 2001, J.K.’s probation officer, Dominic Dzik,
filed a notice of violation of probation. Dzik alleged that J.K. had
committed the following probation violations: failed to complete weekend
work crew on three occasions in February and March 2001; failed to follow
curfew on numerous occasions; failed to attend a scheduled enrollment
appointment at Central High School on March 5, 2001; truant from classes
at Central High School on several occasions; violated the no-contact order
with N.X. on several occasions; failed to fully cooperate with the Wilder
Southeast Asian program; and absent from classes at Transitions for
Success School on numerous occasions.
At a violation hearing in May 2001, J.K. admitted that he had
failed to complete weekend work crew on two occasions; violated curfew
about six times; failed to attend an enrollment appointment at Central
High School on March 5, 2001; failed to attend about half of his classes
after enrolling at Central High School on March 6, 2001; failed to fully
cooperate with the Wilder Southeast Asian program initially, although J.K.
claimed he had been meeting that requirement at the time of the violation
hearing; and was absent from classes at Transitions for Success School,
although he claimed those absences were due to having to care for his
infant son. J.K. denied violating the no-contact order with N.X.,
claiming that those violations had been addressed in a previous violation
hearing, which resulted in his commitment to Boys Totem Town. The
district court, however, found that J.K. admitted violating the no-contact
order with N.X.
At the contested disposition hearing, Dzik testified that when
placed in the community, J.K. was consistently noncompliant with probation
conditions. Dzik cited the examples of J.K. staying out until 12:00 or
1:00 a.m. despite a 9:00 p.m. curfew and of J.K. having a sexual
relationship and fathering a child with N.X., an 18-year-old female gang
member who is married to a relative of J.K.’s, despite the no-contact
order. Dzik also expressed concern about J.K. displaying an attitude that
he would do as he wanted despite a clear understanding of probation
conditions and expectations and repeated warnings that continued
violations could result in the revocation of probation. Dzik recommended
revoking J.K.’s EJJ probation because, despite the variety of
community-based and long-term residential treatment programs that had been
made available to J.K., he continued to display an unwillingness to comply
with probation and to exhibit the same behaviors that brought him before
the juvenile court and led to his designation as an EJJ.
Donna Gillitzer, a Hennepin County juvenile probation officer who
supervises EJJ clients, testified that she reviewed J.K.’s entire
probationary file, met with him several times, and presented his file for
review by the Hennepin County EJJ screening committee. Gillitzer and the
screening committee agreed that despite being given numerous opportunities
to remain in the juvenile justice system, J.K. failed to comply with the
expectations of his EJJ status. Gillitzer explained that although J.K.
did very well in placements, when he returned to the community, he
reverted to noncompliance with probation conditions. Gillitzer testified
that J.K. continued to exhibit the same types of behavior that he
exhibited when he committed the offenses that resulted in his EJJ status
and that those types of behavior created a public-safety concern.
Gillitzer also testified that J.K. had told her that he did not want
further treatment. Gillitzer and the Hennepin County screening committee
recommended revoking J.K.’s probation.
I S S U E
Did the district court err in revoking J.K.’s probation?
This court applies an abuse-of-discretion standard when
reviewing a district court’s revocation of probation. State v. Bradley,
592 N.W.2d 886, 887 (Minn. App. 1999), review denied (Minn. July
28, 1999). But revocation of EJJ probation is governed by statute, and
statutory construction is a question of law subject to de novo review.
Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.
Minn. Stat. § 260B.130 (2000) governs EJJ prosecutions. If an
EJJ prosecution results in a guilty plea or a finding of guilt, the
district court shall
impose an adult criminal sentence, the execution of which shall be stayed
on the condition that the offender not violate the provisions of the
disposition order and not commit a new offense.
Generally, in revoking probation, a district court must (1)
designate the specific probation condition or conditions that were
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). But
when considering the revocation of EJJ probation, the court’s discretion
must be exercised consistently with the provisions of Minn. Stat. §
260B.130, subd. 5. Bradley, 592 N.W.2d at 887. The text of the
EJJ statute dictates that the district court need not consider the third
Austin factor, whether the need for confinement outweighs the
policies favoring probation. Id. at 888.
1. J.K. argues that the district court did not find that his
probation violations were intentional or inexcusable. Following the
revocation hearing, the district court orally found that J.K.’s violations
were “intentional and unexcusable.” Moreover, although the court did not
specifically find in its written order that J.K.’s violations were
intentional and inexcusable, we can infer such a finding from a reading of
the district court’s order as a whole, and the evidence supports such a
finding. Although J.K. presented evidence of cultural difficulties to
excuse his behavior, the testimony of Dzik and Gillitzer showed that J.K.
deliberately and repeatedly refused to comply with probation requirements
or take advantage of treatment opportunities and instead continued to
engage in the behaviors that led to his EJJ status.
2. J.K. next argues that the district court’s comments at the
revocation hearing seemed to imply that the court incorrectly believed
that under Minn. Stat. § 260B.130, subd. 5, it had little choice about the
revocation and was required to execute the previously imposed sentence.
J.K. argues that Minn. Stat. § 260B.130, subd. 5, requires revocation only
when the original offense of the probationer fell under Minn. Stat.
§ 260B.130, subd. 1(2), and the offense for which he was previously
sentenced did not fall under Minn. Stat. § 260B.130, subd. 1(2). J.K.’s
interpretation of Minn. Stat. § 260B.130, subd. 5, is incorrect.
Minn. Stat. § 260B.130, subd. 5, states:
the offender was convicted of an offense described in [Minn. Stat.
§ 260B.130,] 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. 1, states:
A proceeding involving a child alleged to have committed a felony offense
is an extended jurisdiction juvenile prosecution if:
(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
(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.
J.K. argues that when used in Minn. Stat. § 260B.130, subd. 5,
the phrase “an offense described in subdivision 1, clause (2),” means an
offense that meets all of the criteria in Minn. Stat. § 260B.130, subd.
1(2). Therefore, J.K. continues, because he was 14 when he committed his
offense and the prosecutor did not designate in the delinquency petition
that the proceeding is an EJJ prosecution, he did not commit an offense
described in Minn. Stat. § 260B.130, subd. 1(2). The state argues that
the phrase “an offense described in subdivision 1, clause (2),” refers to
the single criterion in Minn. Stat. § 260B.130, subd. 1(2), that limits
application of the clause to “an offense for which the sentencing
guidelines and applicable statutes presume a commitment to prison or * * *
any felony in which the child allegedly used a firearm.” The overall
structure of Minn. Stat. § 260B.130, subd. 1, persuades us that the
state’s interpretation of Minn. Stat. § 260B.130, subd. 5, is correct.
The individual clauses in Minn. Stat. § 260B.130, subd. 1,
describe three sets of criteria under which “[a] proceeding involving a
child alleged to have committed a felony offense is an extended
jurisdiction juvenile prosecution.” The individual clauses do not
describe offenses; they describe circumstances under which a proceeding
that involves an alleged felony offense becomes an EJJ prosecution. One
criterion in subdivision 1, clause 2, is that the alleged offense is “an
offense for which the sentencing guidelines and applicable statutes
presume a commitment to prison or * * * any felony in which the child
allegedly used a firearm.” This criterion describes offenses. The other
criteria in subdivision 1, clause 2, describe the offender and activities
of the prosecutor.
Because Minn. Stat. § 260B.130, subd. 5, refers to “an offense described
in [Minn. Stat. § 260B.130,] subdivision 1, clause (2),” rather than to an
EJJ prosecution under Minn. Stat. § 260B.130, subdivision 1, clause (2),
we conclude that “an offense described in subdivision 1, clause (2),”
means an offense for which the sentencing guidelines and applicable
statutes presume a commitment to prison or any felony in which the child
allegedly used a firearm. J.K. does not dispute that he was convicted of
such an offense. Consequently, under Minn. Stat. § 260B.130, subd. 5, the
court was required to revoke the stay and order execution of J.K.’s
sentence unless it made written findings regarding mitigating factors that
justified continuing the stay.
This interpretation of Minn. Stat. § 260B.130, subd. 5, is consistent with
Minn. R. Juv. P. 19.09, subd. 3(C)(2), which states:
If the court finds upon clear and convincing evidence that any provisions
of the disposition order were violated, or if the probationer admits the
violation, and the extended jurisdiction juvenile conviction was for an
offense with a presumptive prison sentence or the probationer used a
firearm, the court shall order the execution of the sentence or make
written findings indicating the mitigating factors that justify continuing
Under rule 19.09, subd. 3(C)(2), if the probationer violates
the disposition order, and the probationer was convicted of “an offense
with a presumptive prison sentence or the probationer used a firearm,” the
court is required to revoke probation and execute the sentence unless it
makes written findings indicating that mitigating factors justify
continuing the stay. The rule refers only to particular offenses; it does
not refer to characteristics of the offender or to activities of the
3. J.K. contends that because mitigating factors that justified
continuing the stay existed as a matter of law, the district court erred
in revoking his probation under Minn. Stat. § 260B.130, subd. 5. We
disagree. The district court found:
[J.K.’s] counsel urged the court to consider certain
circumstances as mitigating factors which would justify continuing the
stay of the eighty-one month prison commitment. Specifically, counsel
stated that when [J.K.] was returned to the community his family was
unable to provide enough structure for him. This was due in part to a
language barrier and the fact that [J.K.’s] family has chosen to stay
within their Hmong community. [J.K.] has also chosen to stay very much
within the Hmong community and so, “it is hard for him to get motivated to
go out and do what he has to do on his own.” Counsel also characterized [J.K.’s]
probation violations as “technical” and emphasized that [J.K.] has not
been cited for any new offenses. The court finds that the aforementioned
circumstances do not rise to the level of persuasive mitigating factors
which would justify continuation of [J.K.’s] EJJ status or the stay of the
eighty-one month sentence.
the numerous and varied treatment services made available to J.K. and
J.K.’s continuing refusal to comply with probation conditions, we cannot
conclude that the district court erred when it found that J.K.’s family
circumstances and the “technical” nature of his violations did not
constitute mitigating factors.
D E C I S I O N
The district court did not err in revoking J.K.’s probation
and executing the 81-month adult prison sentence.