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This opinion will be unpublished and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
A17-1280

State of Minnesota,
Respondent,

vs.

D. E. C.,
Appellant.

Filed March 12, 2018
Affirmed
Bratvold, Judge

Nicollet County District Court
File Nos. 52-JV-12-101;
52-CR-17-189;
52-JV-12-138; and
52-CR-17-188

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

Michelle M. Zehnder Fischer, Nicollet County Attorney, St. Peter, Minnesota; and

Scott A. Hersey, Special Assistant Nicollet County Attorney, Minnesota County Attorneys
Association, St. Paul, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges the district court’s decision to revoke his extended jurisdiction
juvenile (EJJ) status and place appellant on adult probation. Because we conclude that the
court did not abuse its discretion, we affirm.
FACTS
In May 2012, the state filed a delinquency petition (No. 52-JV-12-101) charging
appellant D.E.C. with three counts of first-degree criminal sexual conduct and three counts
of third -degree criminal sexual conduct. The petition alleged that D.E.C. sexually
penetrated his younger sister over a four -year period. Two months later, in July 2012, the
state filed a second delinquency petition (No. 52-JV-12-138) charging D.E.C. with two
counts of first-degree criminal sexual conduct. The new charge involved sexual penetration
of his younger cousin.
The state moved to certify D.E.C. as an adult and refer both cases to adult criminal
court, or alternatively, to designate the cases as EJJ proceedings. At the plea hearing on
August 13, 2012, the district court adjudicated D.E.C. an extended jurisdiction juvenile and
the state dismiss ed it s motion to certify D.E.C. as an adult. In accordance with a plea
agreement, D.E.C. pleaded guilty to one count of first -degree criminal sexual conduct for
each case.
At the disposition hearing in September 2012, the district court imposed concurrent
adult sentences of 144 months for the May 2012 petition and 180 months for the July 2012
petition. The court stayed both sentences until D.E.C. turned 21 years old on the condition

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that D.E.C. remain law abiding and not violate the terms of his juvenile dispos ition. The
court also imposed a juvenile disposition and committed D.E.C. to the custody of the
Commissioner of Corrections for placement at the Minnesota Correctional Facility (MCF)-
Red Wing, and ordered D.E.C. comply with rules and regulations, as well as recommended
programming, and the terms of his supervised release.
In December 2013, D.E.C. completed programming at MCF-Red Wing and moved
to Mapletree Group Home in Maplewood, Minnesota. Mapletree is an “aftercare” facility
that the Department of Corrections (DOC) often uses for individuals after release from the
Red Wing program. While at Mapletree, D.E.C. received treatment and programming,
earned his high -school diploma, and began working at a restaurant. During this time,
D.E.C.’s supervising a gent reported that D.E.C. violated three group home rule s,
specifically chemical use, assaulting a nother resident, and absconding ; but no formal
violation proceedings occurred.
In November 2016, D.E.C. successfully completed the treatment and programming
at Mapletree, transitioned to “step down” aftercare treatment, and rented a room in North
St. Paul on a month-to-month basis. D.E.C. remained employed at the same restaurant he
was working at during his time at Mapletree . D.E.C.’s release conditions includ ed
obtaining permission from his supervising agent before leaving the state for any reason.
In December 2016, D.E.C. contacted his social worker, and told him that he planned
to move to South Dakota. According to D.E.C., his landlord was terminating his month-to-
month lease. The social worker contacted D.E.C.’s supervising agent , who contacted
D.E.C. and told him that he was not allowed to leave Min nesota without prior approval

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from probation. The supervising agent also told D.E.C. how he could get approval to move
out-of-state.
D.E.C. quit his job, left his residence, removed most of the money from his savings
account, and on December 23, 2016, D.E.C. moved to South Dakota even though he had
not obtained approval to do so . On January 3, 2017, D.E.C. cal led his supervising agent
and told her that he had left Minnesota and was in Tea, South Dakota. D.E.C. later told
probation that, while he was in South Dakota, he smoked marijuana on two or three
occasions and consumed alcohol on New Year’s Eve.
D.E.C. returned to Minnesota on January 4, 2017 , turned himself in to probation,
and on January 18, 2017, appeared before the Department of Corrections’ Hearings and
Release Unit. The hearing officer found that D.E.C. had violated several conditions of his
release. D.E.C.’s release was revoked, and he was ordered back to MCF-Red Wing.
The district court held an EJJ violation hearing on April 26, 2017. Probation
recommended that the court revoke D.E.C.’s EJJ status, stay execution of the 180 month
sentence, and place D.E.C. on adult probation for 0 -30 years. D.E.C. admitted that he had
violated the conditions of his disposition and asked the court to maintain his EJJ status until
his 21st birthday on August 28, 2017, when his EJJ status would expire.
D.E.C. argued that despite his recent violations, he had been mostly successful: he
had completed the programing at MCF -Red Wing, was successfully discharged from
Mapletree, obtained his high-school diploma , and maintained employment. T he state
responded that D. E.C.’s violations were “serious ” because D.E.C. “abscond[ed] from
supervision” despite knowledge of the requirements and consequences. The state argued

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that D.E.C. need ed supervision to ensure that he “make[s] appropriate choices.” While
contending that the court should revoke EJJ status, the state recognized mitigating factors
in D.E.C.’s case, and asked the court to stay execution and place D.E.C. on adult probation.
D.E.C.’s social worker testified that he did not think that D.E.C. would sexually reoffen d,
but that D.E.C. would benefit from therapy and someone “checking up on him.”
On May 24, 2017, the district court issued an order revoking D.E.C.’s status as EJJ
and staying D.E.C.’s adult sentences for 10 years. The district court found that D.E.C. had
violated the conditions of his disposition, as proven by clear and convincing evidence, and
that the violations were intentional and inexcusable . The court also considered mitigating
factors, including that D.E.C. completed required programming, mostly complied with
supervised release, had relatively few violations, obtained a high-school diploma, and was
employable. Still, the court decided that, given the nature and timing of the violations, it
was “appropriate and necessary” to revoke D.E.C.’s EJJ stat us, treat him as an adult
offender, and place him on adult probation. D.E.C. appeals.
D E C I S I O N
The district court “has broad discretion in determining if there is sufficient evidence
to revoke probation.” See State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Absent
a clear abuse of discretion, we will affirm a probation -revocation order and a disposition
in a juvenile-delinquency case. In re Welfare of R.V. , 702 N.W.2d 294, 298 (Minn. App.
2005). When revoking the juvenile’s probation, the court must make sufficient written
findings in support of its disposition order. Id. at 302-04.

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In Austin, the Minnesota Supreme Court established a three-step analysis that must
be applied by a district court before revoking probation. 295 N.W.2d at 250. The district
court must (1) designate the specific condition of probation that has been violated, (2) “find
that the violation was intentional or inexcusable,” and (3) “find that [the] need for
confinement outweighs the policies favoring probation.” Id. The state argues that the
district court was not required to analyze the Austin factors before it revoked EJJ status.
We disagree. In State v. B.Y., the Minnesota Supreme Court held that the Austin factors
apply to the revocation of EJJ status. 659 N.W.2d 763, 768-69 (Minn. 2003); see also R.V.,
702 N.W.2d at 302 (recognizing B.Y. extended application of Austin factors to EJJ
revocation proceedings). A violation of the terms and conditions of supervised release must
be proven by clear and convincing evidence before revocation of EJJ status. Minn. R. Juv.
Delinq. P. 19.11, subd. 3(C)(1).
In his briefs to this court, D.E.C. has conceded that the first two Austin factors were
satisfied. At the EJJ revocation hearing, D.E.C. admitted that he moved to South Dakota
without obtaining approval from probation and that he used marijuana on two occasions
and consumed alcohol on New Year’s Eve. At D.E.C.’s disposition hearing in 2012, the
district court stayed execution on the condition that D.E.C. “have no further violations of
the law, misdemeanor level or greater” and that D.E.C. comply with the terms of his
juvenile disposition which included any release conditions . Upon D.E.C.’s release from
Red Wing, he was required to get permission from probat ion before leaving the state. We
conclude that the district court did not err in determining that D.E.C. violated the terms of

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his release by clear and convincing evidence.1 See State v. Ornelas, 675 N.W.2d 74, 79-80
(Minn. 2004) (noting that “condition al leged to have been violated must have been a
condition actually imposed by the court”) . D.E.C. also admitted in his briefs to this court
that his violations were intentional and inexcusable. We therefore conclude that the district
court did not err in its determination that the first two Austin factors were satisfied.
The third Austin factor requires the district court to decide whether, on the facts
before it, the need for confinement outweighs the policies favoring probation. 295 N.W.2d
at 250. When assessing the third Austin factor, the court must find at least one of three
policies favor revocation: (1) “confinement is necessary to protect the public from further
criminal activity by the offender”; (2) “the offender is in need of correctional treatment
which can most effectively be provided if he is confined”; or (3) “it would unduly
depreciate the seriousness of the violation if probation were not revoked.” State v.
Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quotation omitted).
Here, the district court modified the third Austin factor somewhat and found that
additional “programming, services, and oversight” were necessary to protect the public
from D.E.C.’s further criminal activity . The district court relied on D.E.C.’s failure to
remain law-abiding and his use of drugs and alcohol. Specifically, the district court found
that D.E.C. “demonstrat[ed] an inability to make sound and mature decisions, [and his] use
of chemicals could reasonably result in a lowering of his inhibitions which, in turn, could

1 D.E.C. made several admissions on other violations of his supervised release conditions,
including failure to obtain approval before changing employment; failure to abide by a 9:00
p.m. curfew; failure to obtain and maintain employment; and failure to keep in close
contact with his supervising agent. We do not consider these other violations.

8
reasonably lead to his commissi on of further sexual assaults.” The court also found that
D.E.C. was aware that he was required to obtain approval from probation before he moved
out of the state, and “that he did not have that approval, and that he [moved] anyway.” The
district court determined that the necessity for adult probation outweighed any policies that
might favor D.E.C. retaining his EJJ status until he turned 21 years old. We conclude that
the district court did not abuse its discretion in finding that the third Austin factor had been
satisfied to support revocation of D.E.C.’s EJJ status.2
In this case, the district court placed D.E.C. on adult probation rather than executing
his previously imposed prison sentence. Because D.E.C. was convicted of an offense with
a presumptive prison sentence,3 the district court must, after finding that reasons existed to
revoke the stay of the adult sentence, “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 (c) (2016); Minn. R. Juv. Delinq. P.
19.11, subd. 3(C)(3). Mitigating factors include amenability to treatment, successful
completion of a treatment program, and whether the violations show a potential for
recidivism. B.Y., 659 N.W.2d at 770.

2 D.E.C. relies on an unpublished opinion, in which this court reversed a district court’s
decision to revoke EJJ status. Unpublished decision are not precedent. See Minn. Stat.
§ 480A.08, subd. 3(c) (2016) (stating that “[u]npublished opinions of the court of appeals
are not precedential”); State v. Ellis-Strong, 899 N.W.2d 531, 537 (Minn. App. 2017). In
any event, D.E.C.’s case is readily distinguishable because the district court appropriately
evaluated the Austin factors, and considered mitigating factors before staying execution of
D.E.C.’s adult sentence.

3 D.E.C. was convicted un der Minn. Stat. § 609.342, subd. 1(h)(i) (2012), which is a
presumptive commitment offense. Minn. Sent. Guidelines 4.B (2012).

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Here, the district court concluded that there were several mitigating factors that
justified stay ing the execution of D.E.C.’s adult sentence . These factors included that
D.E.C. completed required programming at MCF-Red Wing and Mapletree, complied with
most probation terms and had relatively few violations, obtained a high -school diploma,
and was employable. The court also found that supervised release terms and conditions can
be imposed to protect public safety “without the need to resort to imprisonment.” The
district court’s decision reflects that the c ourt weighed mitigating factors and determined
that they justified continuing the stay.
We conclude that the district court did not abuse its discretion in revoking D.E.C.’s
EJJ status, staying execution of his adult sentence, and placing D.E.C. on adult probation.
Affirmed.