State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-0499

State of Minnesota,
Respondent,

vs.

Samuel Wayne Behrens, Jr.,
Appellant.

Filed October 2, 2017
Reversed and remanded
Randall, Judge*

Benton County District Court
File No. 05-CR-13-594

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

Philip K. Miller, Benton County Attorney, Rebecca A. Hoffman, Assistant County
Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Randall,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RANDALL, Judge
In this probation revocation appeal, appellant argues that his revocation is invalid;
claiming he received ineffective assistance of counsel. We reverse and remand.
FACTS
In early April 2013, appellant Samuel Wayne Behrens, Jr. was charged with first-
degree criminal sexual conduct and second-degree criminal sexual conduct. In May 2013,
Behrens pleaded guilty to the second-degree charge in exchange for dismissal of the first-
degree charge and a stay of imposition, which included 25 years’ probation. Conditions of
Behrens’ probation included completion of a sex-offender treatment program, individual
counseling, and chemical dependency treatment. Behrens was also forbidden from
accessing the internet without approval of his probation agent and from using monitoring
software.
The district court held several probation-violation hearings over the course of
Behrens’ probation. On June 23, 2016, the district court held a probation-violation hearing
regarding Behrens’ use of electronic devices capable of accessing the internet. The district
court dismissed the violation but amended Behrens’ probation conditions to include no
internet access and no possession of internet-capable devices without agent approval. The
district court held another violation hearing on August 25, 2016, in which Behrens admitted
to purchasing a phone capable of accessing the internet. As a consequence f or this
violation, the district court imposed a 36- month prison sentence, but stayed execution of
that sentence and ordered Behrens to serve 120 days in jail.
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Shortly after serving his jail time, Behrens appeared for a contested probation
violation hearing in which the state alleged that Behrens had violated several terms of his
probation, including accessing the internet without permission, consuming alcohol,
possessing five cell phones capable of accessing the internet, failing to complete chemical
dependency treatment, and failing to attend a chemical dependency treatment intake
appointment. The state presented testimony from Behrens’ probation agent. Behrens also
testified at the hearing and admitted drinking, explaining that he had “a problem with
alcohol or drugs.” He also explained that he did not show up for intake due to work
obligations, admitted his internet use but explained that it was only to obtain a college
transcript, and admitted he had unapproved cell phones but explained that they were not in
service and not used to access the internet. Following testimony, the state asked the court
to find that the alleged violations had been proven by clear and convincing evidence.
Behrens’ attorney responded with the following:
I don’t know what to say for this man, Your Honor. He has
been on probation a few years now. He probably should be
farther along with things.

I think given his disability and mental illness and untreated
chemical addiction problems I don’t think he is capable of
being successful on probation.

Every time I have talked with him in the past week or so since
I have gotten this case he has been talking about going to
treatment and wanting help for his alcohol problem and drug
problem because he thinks that is sort of the overarching issue,
but I know he wants to try one more time on probation, and
that is what he is asking for, Your Honor.

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The district court judge found the violations were proven by clear and convincing
evidence and that they were intentional and inexcusable and asked the state to address
potential sanctions. After the state provided a detailed history of violations, the st ate
argued that it would depreciate the seriousness of those violations if the court did not
revoke probation and execute the 36 -month sentence. Behrens’ attorney was asked to
address sanctions and responded with, “Nothing further to say, Your Honor.” The district
court executed the previously stayed 36-month prison sentence. Behrens appeals.
D E C I S I O N
Behrens argues that his attorney provided ineffective assistance of counsel by failing
to contest the violations at the revocation hearing and that he is entitled to a new revocation
hearing with effective counsel. We agree.
A defendant has a statutory right to the assistance of counsel in a probation-
revocation proceeding. Minn. Stat. §§ 611.14(3); 609.14, subd. 2 (2016). The parties have
analyzed the issue under the Sixth Amendment. We follow that analysis. But see Gagnon
v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763-64 (1973) (concluding that Morrissey
applies to probation-revocation proceedings, but that the state has no constitutional duty to
provide counsel in probation-revocation cases).
Ineffective assistance of counsel claims are mixed questions of law and fact and are
evaluated de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). When evaluating
claims of ineffective assistance of counsel under the Sixth Amendment, we employ the
Strickland test, which has two prongs: deficiency of representation and prejudice to the
defendant. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). “The defendant must
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affirmatively prove that his counsel’s representation ‘fell below an objective standard of
reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Gates v.
State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S.
668, 688, 695, 104 S. Ct. 2052, 2064, 2068 (1984)).
With respect to the first prong of Strickland, “an attorney acts within the objective
standard of reasonableness when he provides his client with the representation of an
attorney exercising the customary skills and diligence that a reasonably competent attorney
would perform under the circumstances.” Doppler, 590 N.W.2d at 633 (quotation
omitted). Behrens argues that his counsel’ s representation was u nreasonable because
counsel conceded that Behrens violated probation and that he could not be successful on
probation. According to Behrens, “[n]o reasonably competent attorney would do such a
thing.”
The state does not even argue that Behrens’ defense counsel’s representation was
objectively reasonable.
The state does not bother to address the first prong of Strickland but argues that
Behrens is not entitled to relief because he “cannot meet the prejudice prong.” See
Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006) (stating that “[a] court may address
the two prongs of the test in any order and may dispose of the claim on one prong without
analyzing the other”). The state argues that there is no reasonable probability that the result
of the proceeding would have been different, considering Behrens’ detailed history of
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probation violations and lack of meaningful progress while on probation. The state
contends that it is unnecessary to decide whether counsel’s representation was
unreasonable, because Behrens cannot show that the result of the probation-revocation
proceeding would have been different but for his counsel’s representation. See Gates, 398
N.W.2d at 561-62.
We agree with Behrens that counsel’s concession that Behrens could not be
successful on probation was objectively unreasonable representation. We need only focus
on the second prong of the Strickland test, prejudice to Behrens.
Behrens argues that, under the circumstances of this case, where counsel admits
guilt in a probation revocation hearing without his client’s consent, he is not required to
demonstrate prejudice but is entitled to a new revocation hearing, regardless of whether his
probation would have been revoked anyway. To support this argument, Behrens relies on
Dukes v. State, where the supreme court acknowledged that “there are some Sixth
Amendment right to counsel violations in which prejudice to the defendant will be
presumed.” 621 N.W.2d 246, 254 (Minn. 2001) (citing Strickland 466 U.S. at 692, 104 S.
Ct. 2052). In Dukes the supreme court identified the situation “where counsel admits guilt
without the consent of the defendant” as a situation in which the defendant would be
“entitled to a new trial, regardless of whether he would have been convicted without the
admission.” Id. at 254 (citing State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984)
(ordering a new trial after defense counsel merely implied defendant’s guilt during cross -
examination of the victim)).
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Counsel’s conduct in this case is close to a failure to subject the probation-
revocation proceeding to “ meaningful adversarial testing.” See State v. Dalbec, 800
N.W.2d 624, 627 (Minn. 2011) (quoting United States v. Cronic, 466 U.S. 648, 659, 104
S. Ct. 2039, 2047 (1984)). Behrens’ counsel said, “I don’t know what to say for this man,
Your Honor. . . I don’t think he is capable of being successful on probation.” Behrens
demanded a contested probation-revocation hearing, yet his counsel said nothing on his
behalf except to admit that Behrens could not be successful on probation. As difficult as
Behrens’ case may be, he is entitled to a new probation violation hearing with new assigned
counsel.
Reversed and remanded.