A17-1750

This opinion will be unpublished and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
A16-1051
A17-1750

State of Minnesota,
Respondent,

vs.

Taylor James Pass,
Appellant,

and

Taylor James Pass, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 7, 2018
Affirmed
Bjorkman, Judge

Dakota County District Court
File No. 19HA-CR-09-1823

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

James C. Backstrom, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

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

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Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
In these consolidated direct and postconviction appeals, appellant challenges the
revocation of his probati on, arguing that he received ineffective assistance of counsel
during the probation-revocation proceedings. We affirm.
FACTS
In August 2013, appellant Taylor Pass pleaded guilty to attempted second -degree
murder. He received a 153 -month stayed sentence (a downward dispositional departure)
and was placed on supervised probation. Pass’s probation officer advised him of the terms
of his probation in person and in writing, including that he was not permitted to leave the
state without permission.
In September 2014, Pass became concerned about the worldwide Ebola outbreak.
He believed that the spread of Ebola would lead to the downfall of civilization and decided
to escape to Alaska. He did not ask permission or notify his probation officer that he was
leaving Minnesota. Pass’s probation officer subsequently learned of Pass’s departure and
reported the violation . In November, Pas s was arrested in Alaska and extradited to
Minnesota. Pass’s probation officer thereafter amended the violation report to allege a
second violation involving “assaultive behavior” during Pass’s time in Alaska. The
probation officer recommended revocation of Pass’s probation.

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In early 2015, the district court appointed counsel to represent Pass in the probation-
revocation proceedings. At counsel’s request, the district court ordered a competency
assessment. Pass was diagnosed with a delusional disorder, and the district court
determined that he was not competent to proceed on the alleged probation violations. Pass
was civilly committed for mental-health treatment. He initially refused medication. After
several months of court-ordered medication, Pass’s mental status and behavior improved,
returning him to competence by the end of the year.
Pass’s counsel advised him to deny the alleged violations, but Pass wanted to admit
the travel violation and explain his conduct. He waived a contested hearing and admitted
that he violated his probation by traveling to Alaska without permission .1 But he
challenged the recommendation that his probation should be revoked.
At the disposition hearing, the state presented the testimony of Pass’s social worker
and his p robation officer. As the probation officer testified about the admitted travel
violation, the following exchange occurred:
DEFENSE COUNSEL: I would stipulate that those were the
probation violations, and further, since he’s already admitted
to violating those—

PROSECUTOR: The state’ s concern is, we have to make a
finding it was intentional and inexcusable. If they’re willing
to stipulate that was intentional and inexcusable—

DEFENSE COUNSEL : I thought we did that already at the
admit or deny and this was just on my misunderstanding.

1 The state dismissed the assault allegation.

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DISTRICT COURT: If we did I ’m finding you’ re doing it
again today. So the record is complete are you willing to
stipulate that it was intentional and—

PROSECUTOR: Yes.

The hearing continued without further discussion of the stipulation. The probation officer
testified that Pass’s violation was intentional, that Pass “knew that you could not leave the
state without permission and he did so.” And the probation officer recommended revoking
probation and executing Pass’s sentence, largely because Pass has resisted medication and
monitoring his medication compliance in the community is problematic. Pass and his
counsel urged the district court not to revoke his probation, pointing to Pass’s previously
undiagnosed delusiona l disorder and the progress he made since his diagnosis and
treatment.
The district court revoked Pass’s probation. After finding that Pass’s “venture to
Alaska” was “significantly strange” and probably caused by his delusional disorder, the
court determined that Pass consciously chose to abscond from supervision and is unlikely
to comply with treatment and medication in the community. The district court
summarized: “ I believe absconding from probation as stipulated was intentional,
inexcusable, and I think the only way we can adequately protect public safety is to execute
the sentence.” Pass appealed, then requested that this court stay the appeal and remand the
case for postconviction proceedings, which we granted.
Pass petitioned for postconviction rel ief, alleging that his probation-revocation
counsel was ineffective because he conceded the travel violation was intentional and
inexcusable, instead of arguing that it was unintentional or excusable because of Pass’s

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delusional thinking . During an evidentiary hearing, Pass testified and presented the
testimony of three witnesses, including his probation-revocation counsel. The district court
denied the petition , reasoning that Pass’s counsel was not ineffective and Pass had not
demonstrated prejudice from the alleged ineffectiveness.
Pass appealed the denial of postconviction relief. We reinstated Pass’s direct appeal
and consolidated the appeals for decision.
D E C I S I O N
Pass challenges only the denial of postconviction relief premised on ineffective
assistance of counsel. We review the denial of a petition for postconviction relief for an
abuse of discretion. Leake v. State , 737 N.W.2d 531, 535 (Minn. 2007). We will not
reverse findings of fact unless they are clearly erroneous but review issues of law de novo.
Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012).
A probationer has the right to counsel in probation -revocation proceedings. Minn.
Stat. § 609.14, subd. 2 (2016); Minn. R. Crim. P. 27.04, subd. 2(1)(c), (2); see also State
v. Kouba, 709 N.W.2d 299, 304 (Minn. App. 2006) (recognizing probationer’s right to
counsel based on Sixth Amendment, statute, and rule). The right to counsel, whether
constitutional or statutory, is the right to effective assistance of counsel . Schleicher v.
State, 718 N.W.2d 440, 447 (Minn. 2006) (constitutional); Beaulieu v. Minn . Dep’t of
Human Servs., 798 N.W.2d 542, 550 (Minn. App. 2011) (statutory), aff’d on other grounds,
825 N.W.2d 716 (Minn. 2013) . A defendant claiming he was denied the effective
assistance of counsel must demonstrate “(1) that his counsel ’s representation ‘fell below
an objective standard of reasonableness’; and (2) ‘there is a reasonable probability that, but

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for counsel’ s unprofessional errors, the result of the proceeding would have been
different.’” Nissalke v. State , 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
We presume c ounsel’s performance was reasonable and generally do not review
counsel’s strategic decisions . State v. Vang , 847 N.W.2d 248, 266 -67 (Minn. 2014).
Counsel provides reasonable assistance when he exercises the customary skills and
diligence that reasonably competent counsel would exercise under the circumstances.
Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).
The circumstances relevant here are those of the “two-part revocation hearing”
required under Minn. R. Crim. P. 27.04. State v. Xiong, 638 N.W.2d 499, 503 (Minn. App.
2002), review denied (Minn. Apr. 1 6, 2002). First, the state must present clear and
convincing evidence, or the probationer must admit, that “a probation violation exists .”
Minn. R. Crim. P. 27.04, subd. 2(1)(c)b. Second, the state must demonstrate that
“probation should be revoked.” Minn. R. Crim. P. 27.04, subds. 2(1)(c)b., 3(2)(b). In the
second phase, the probationer may “present mitigating circumstances or other reasons why
the violation, once proved or admitted, should not result in revocation.” Xiong, 638
N.W.2d at 503. Based on the evidence and admissions in the record, the district court must:
(1) “designate the specific condition or conditions ” that were violated , (2) “find the
violation was inexcusable or intentional,” and (3) determine that “the need for confinement
outweighs the policies favoring probation.” State v. Modtland , 695 N.W.2d 602, 606
(Minn. 2005) (reciting factors from State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980)).

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Pass argues that his counsel’s performance was deficient because he stipulated to or
otherwise conceded the second Austin factor—that Pass’s probation v iolation was
intentional or inexcusable—“when doing so was contrary to both his client’s wishes and
any legitimate strategy.” This argument has some merit.
It is apparent from the postconviction record that defense counsel believed Pass’s
admission to the probation violation constituted an admission that the violation was
intentional or inexcusable and only the proposed disposition would be challenged . This
belief is in consistent w ith Austin and its progeny , which plainly distinguish between
whether a probationer engaged in prohibited conduct and whether the violation was
intentional or inexcusable, requiring the state to prove and the district court to find both
factors before probation can be revoked.2 See id. Insofar as Pass’s counsel failed to advise
him of the significance of these distinct issues and advocate for his client in addressing
each, his performance was flawed. But that does not end our analysis.
While Pass’s counsel may not have expressly challenged the second Austin factor,
he substantively addressed the significance of Pass’s delusional disorder in the context of
the probation violation . He elicited testimony that Pass had not been diagnosed with
delusional disorder when initially placed on probation, felt “justified” in his flight to Alaska
at the time , and now has been properly di agnosed, made significant progress with
appropriate medication and treatment, and “would handle it differently” if faced with th e

2 We observe that counsel’s mistake appears attributable to a lack of clarity in the law
regarding how the three Austin factors track the two phases o f a probation -revocation
hearing. But ambiguity regarding when and how the second Austin factor should be
addressed does not obviate defense counsel’s obligation to address it.

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same concerns. Based on that evidence, counsel argued that Pass “was sent out without
the proper tools,” his unauthorized flight to Alaska was the result of his undiagnosed and
untreated delusional disorder, and he should be afforded a chance to continue his successful
treatment in a probationary setting. Thus, while Pass’s probation -revocation counsel
appeared to stipulate or concede the second Austin factor was met, he squarely presented
the evidence and arguments relevant to that fact or that Pass contends he should have
presented.
Moreover, Pass has not demonstrated prejudice from any claimed deficiency in his
counsel’s performance. Despite the alleged stipulation, the record contains substantial
evidence and argument on the issue of whether Pass’s trip to Alaska was an intentional
violation of his probation or excused as the product of his undiagnosed delusional disorder.
This includes undisputed evidence that Pass was aware of the travel restriction. The district
court considered this evidence, together with the evidence of Pass’s delusional disorder,
and expressly found that Pass made a conscious, intentional decision to abscond from
probation. Because the district court made the requisite finding of intentionality after
considering the impact of Pass’s mental illness , and the court’s finding has ample
evidentiary support, any deficiencies in Pass’s counsel’s performan ce do not warrant
reversal.
Affirmed.