In the Matter of the Welfare of: J. P. R., Child

This opinion will be unpublished and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
A17-0274

In the Matter of the Welfare of: J. P. R., Child

Filed September 5, 2017
Reversed; motion granted
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-JV-16-1860

Mary F. Moriarty, Fourth District Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for appellant J.P.R.)

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this juvenile-de linquency appeal, appellant J.P.R. asserts that the district court
abused its discretion in finding that he violated two conditions of probation, revoking the
stay of adjudication, and ad judicating him delinquent. B ecause the district court’s
disposition relies on clearly erroneous factual findings, we reverse. We grant J.P.R.’s

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motion to strike portions of respondent State of Minnesota’s brief referring to matters not
in the record.
FACTS
J.P.R. was charged with fifth-degree dr ug possession and fifth-degree assault in
March 2016. On April 12, J.P.R. admitted to the drug charge pursuant to a plea agreement.
The district court dismissed the assault charge and stayed adjudication on the drug charge
for 180 days on the condition that J.P.R. complete nine days of sentence to service (STS)
and “obey all laws.”
A review hearing was held on September 15 after J.P.R. was charged with domestic
assault in a separate case. With the agreement of the parties, the district court on that date
extended the stay of adjudication for another 180-day period and ordered J.P.R. to complete
three additional days of STS “over the next two months.” The condition that J.P.R. obey
all laws remained in place.
On November 2, J.P.R.’s probation officer filed a probation-violation report
recommending that the district court revoke th e stay of adjudication because J.P.R. “has
not completed his 3 days of STS, and has continued to receive new charges while on
probation.” The report cited the case number assigned to two new charges against J.P.R.
A probation-revocation hearing was held on January 12, 2017. The probation
officer testified that J.P.R. pleaded guilty to disorderly conduct in the matter that led to the
September 15 review hearing. The probation o fficer also testified th at two new criminal
charges were pending against J.P.R. No evid ence was offered regarding whether J.P.R.
committed the conduct underlying the new charges, and J.P.R. did not admit to committing

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the charged offenses. When asked whether J. P.R. had complied with his other probation
conditions, including STS, the probation officer answered in the affirmative.
The district court found that J.P.R. “violated the terms of his probation by failing to
remain law abiding and by failing to complete three (3) days of [STS].” Specifically, the
district court found that J.P.R. had violated the condition that he obey all laws because he
was “charged with committing a new offense.” The district court noted that J.P.R. “did not
dispute these facts,” and it found that ther e was clear and convin cing evidence that
probation conditions were violated. The district court issued a disposition order revoking
the stay and adjudicating J.P.R. delinquent. The order also terminated the juvenile court’s
jurisdiction over J.P.R.
J.P.R. appeals.
D E C I S I O N
I. The district court abused its discret ion by revoking the stay of adjudication
based on clearly erroneous findings of probation violations.
We review a juvenile-delinquency disposition for a clear abuse of discretion. In re
Welfare of R.V. , 702 N.W.2d 294, 298 (Minn. App. 2005). A district court abuses its
discretion if its disposition is arbitrary or based on clearly erroneous factual findings. See
In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn. App. 1996); see also In re Welfare of
S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007), review denied (Minn. Oct. 24, 2007). A
factual finding is clearly erroneous if there is no reasonable evidence to support it or if the
appellate court “is left with the definite and firm conviction that a mistake occurred.” State
v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).

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A district court is not required to follo w the three-step analysis set forth in State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980), 1 when revoking probation in a juvenile-
delinquency proceeding. R.V., 702 N.W.2d at 302. 2 Instead, to revoke probation in a
juvenile case, the district court must follow th e rules of juvenile-delinquency procedure.
Id. at 304. The district court must find that a violation of the terms of probation has been
established by clear and convincing evidence. Minn. R. Juv. Delinq. P. 15.07, subd. 4(D).
The district court found that J.P.R. viol ated two conditions of probation by failing
to obey all laws and failing to complete three days of STS. J.P.R. argues the state failed to
prove by clear and convincing evidence that he violated either of those conditions.
A. The district court’s finding that the state proved that J.P.R. failed to
obey all laws is clearly erroneous.
J.P.R. argues that the district court abused its discretion by revoking probation based
on new charges without clear and convincing evidence that he committed the conduct
alleged. In finding that J.P.R. violated the condition that he obey all laws, the district court
relied solely on statements in the probation officer’s report and testimony that J.P.R. faced

1 Austin held that, before revoking probation in a criminal case, the district court must
(1) designate the specific condition that wa s violated, (2) find that the violation was
intentional or inexcusable, and (3) find that the need for confinement outweighs the policies
favoring probation. Austin, 295 N.W.2d at 250.
2 J.P.R. cites State v. B.Y. as standing for the proposition that the Austin factors apply to
juvenile cases. 659 N.W.2d 763 (Minn. 2003). But B.Y. held that the Austin factors must
be considered in extended-jurisdiction-juve nile (EJJ) proceedings; that holding does not
extend to this non-EJJ juvenile case. See B.Y., 659 N.W.2d at 768 (applying Austin factors
in EJJ case); R.V., 702 N.W.2d at 302 (distinguishing B.Y. from non-EJJ cases).

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two new pending criminal charges. The record contains no evidence that J.P.R. committed
the alleged conduct underlying the charges.
The state cites two cases as authority for the proposition that a court can revoke
probation based on alleged criminal conduct that has not yet resulted in a conviction. In
State v. Phabsomphou , this court held that the defendant’s due-process rights were not
violated when the district c ourt held a probation-revocation hearing before the resolution
of criminal charges that led to the revocatio n hearing. 530 N.W.2d 876, 878-79 (Minn.
App. 1995), review denied (Minn. June 29, 1995). In that case, revocation was supported
by multiple witnesses’ testimony about the alle ged criminal conduct, so the question of
whether the charge alone could have sustained revocation was not raised. Id. at 877. In
State v. Spanyard, this court upheld the revocation of probation based on alleged unlawful
activity that did not result in criminal charges. 358 N.W.2d 125, 127 (Minn. App. 1984),
review denied (Minn. Feb. 27, 1985). In that case, the state offered witness testimony as
evidence of the violation. Id. Neither Phabsomphou nor Spanyard addressed the issue in
this case, which is whether criminal charges alone constitute clear and convincing evidence
that the defendant committed the alleged conduct underlying those same charges.
J.P.R. argues that, instead, this case is governed by State v. Scholberg, 393 N.W.2d
247 (Minn. App. 1986). In Scholberg, this court held that, without an admission or other
evidence of the conduct underlying the charge, the fact that a defendant faces a new
criminal charge is not enough to demonstr ate an intentional violation of a probation
condition against committing the same or similar offenses. Scholberg, 393 N.W.2d at 249.
Although Scholberg was an adult criminal case, and therefore the state in that case had an

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additional burden to prove the inte ntionality of the violation under Austin, the same
principle is applicable here. See id. Following Scholberg, we conclude that criminal
charges alone do not constitute clear and c onvincing evidence of the alleged underlying
unlawful conduct sufficient to support probation revocation in a juvenile case.
A factual finding is clearly erroneous if th ere is no reasonable evidence to support
it or if the appellate court “is left with th e definite and firm c onviction that a mistake
occurred.” Rhoads, 813 N.W.2d at 885. In light of the state’s heightened evidentiary
burden to prove a juvenile probation violation by clear and convincing evidence, the district
court’s finding that J.P.R. violated probation by failing to obey all laws is clearly erroneous.
See Minn. R. Juv. Delinq. P. 15.07, subd. 4(D); Rhoads, 813 N.W.2d at 885. We therefore
conclude that the district court abused its discretion by revoking probation because J.P.R.
was charged with new offenses. See S.J.T., 736 N.W.2d at 346; J.A.J., 545 N.W.2d at 414.
The state argues that, even if the unadjudicated charges were not sufficient, J.P.R.’s
conviction of disorderly conduct in the case that led to the September 15 review hearing
provides sufficient evidence that J.P.R. faile d to obey all laws. The district court’s
disposition order does not identify the diso rderly conduct conviction as a reason for
revocation, so the findings are not sufficient to affirm on that ground. See In re Welfare of
N.T.K., 619 N.W.2d 209, 211-12 (Minn. App. 2000) (holding that district courts must make
sufficient written findings in support of juvenile-delinquency dispositions). Furthermore,
that alleged violation was already addressed at the September 15 review hearing resulting
in an order of additional STS and an extension of the stay. We are not aware of any legal
authority for the state’s assertion that the di strict court could hold a second hearing and

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revoke probation based on an alleged violation that was already resolved at a prior review
hearing. Even if it could, J.P.R. would have been entitled to notice that that violation was
the subject of another review hearing. See Minn. R. Juv. Delinq. P. 15.07, subd. 1. We
therefore cannot affirm the revocation based on J.P.R.’s disorderly conduct conviction.
B. The district court’s finding that J. P.R. failed to complete STS is clearly
erroneous.
J.P.R. argues that the district court abus ed its discretion by revoking probation based
on his failure to complete ST S because the record shows that he did not violate that
condition. The November 2 probation-violation report noted that J.P.R. had not completed
three days of STS. When that report wa s made, the deadline to complete STS by
November 15 had not yet expired. At the probation-revocation hearing on January 12,
2017, the probation officer testified that, as ide from remaining law abiding, J.P.R. had
complied with all conditions of probation, including STS. The probation officer’s
testimony indicates that his previous report was no longer accurate and that J.P.R. fulfilled
the STS condition sometime between the November 2 report and the January 12 hearing.
The record is silent as to precisely when J.P.R. completed STS. Evidence that J.P.R.
completed STS sometime between November 2 and January 12 does not constitute clear
and convincing evidence that J. P.R. failed to complete it by the November 15 deadline.
Given the state’s burden to prove the probation violation by clear and convincing evidence,
the district court’s finding that J.P.R. violated the STS condition is clearly erroneous. See
Minn. R. Juv. Delinq. P. 15.07, subd. 4(D); Rhoads, 813 N.W.2d at 885. We therefore
conclude that the district court abused its discretion by revoking probation based on its

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finding that J.P.R. violated the STS condition. See S.J.T., 736 N.W.2d at 346; J.A.J., 545
N.W.2d at 414.
Because both bases relied upon by the district court for revoking J.P.R.’s probation
are unsupported by the record, we reverse the district court’s order.
II. J.P.R.’s motion to strike portio ns of the state’s brief is granted.
J.P.R. moved to strike from the state’s brief references to matters not in the record.
In an order dated May 24, 2017, this court re ferred J.P.R.’s motion to this panel to be
considered along with the merits of the appeal.
“[A]n appellate court may not base its d ecision on matters outside the record on
appeal,” and “matters not produced and received in ev idence below may not be
considered.” Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977); see
also Minn. R. Civ. App. P. 110. 01 (“The documents filed in th e trial court, the exhibits,
and the transcript of the proceedings, if any, shall constitute the reco rd on appeal in all
cases.”). We therefore grant J.P.R.’s motion to strike portions of the state’s brief.
Reversed; motion granted.