State of Minnesota, ex rel. Gumdel Nygare Gilo, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1122

State of Minnesota, ex rel. Gumdel Nygare Gilo,
Appellant,

vs.

Paul Schnell,
Commissioner of Corrections,
Respondent.

Filed May 3, 2021
Affirmed
Reyes, Judge

Rice County District Court
File No. 66-CV-20-773

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, Kevin Jonassen, Assistant Attor ney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Kalitowski,
Judge.*

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

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NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from the district court’s denial of his petition for a writ of habeas
corpus, appellant argues that (1) the district court failed to recognize his protected liber ty
interest in remaining in phase II of the Challenge Incarceration Program (CIP) and (2) the
Department of Corrections (DOC) violated his right to procedural due process because it
failed to notify him that he could be held responsible for the conduct of a third party in his
residence. We affirm.
FACTS
In March 2018, the district court sentenced appellant Gumdel Nygare Gilo to 60
months in prison for prohibited possession of a firearm. While in custody at the Minnesota
Correctional Facility in St. Cloud, appellant applied for and was accepted into the CIP.
The CIP is a three-phase program created by the legislature “to prepare the offender
for successful reintegration into society” through educational programs, a rigorous physical
program, and vocational training. Minn. Stat. § 244.171 (2018). During phase I of the
CIP, an offender remain s at a correctional facility to receive training and must
“successfully participate in all intensive treatment, education, and work programs ” as set
by the DOC. Minn. Stat. § 244.172 , subd. 1 (2018). During phase II, the offender may
live in the community under intensive supervision. Id., subd. 2 (2018). Finally, phase III
lasts until the DOC determines that the offender has successfully completed the program
or until the offender reaches his supervised-release date, whichever happens first. Id., subd.

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3 (2018). If the offender completes the program f irst, the offender may be placed on
supervised release for the remainder of the sentence. Id.
In June 2019, appellant began phase II of the CIP. Offenders entering phase II must
sign a form containing the conditions of their CIP release. Relevant here are the conditions
that appellant must: (1) “submit to any unannounced searches by the agent/designee of the
offender’s person, residence, possessions, cell phone, vehicle, or premises”; (2) “refrain
from the use or possession of mood altering substances, i ncluding alcohol , or drug
paraphernalia”; and (3) “refrain from purchasing, possessing, accessing, or controlling any
type of firearm, ammunition, or dangerous weapon” and “must not be found in the presence
of a firearm, including those found in a vehicle where the offender is also present.”
During appellant’s time in phase II, his supervising agent (the agent) noted that he
had unauthorized contact with a victim and unauthorized visitors. The agent also suspected
that he possessed marijuana based on observing a leafy green residue and what appeared
to be marijuana seeds in his residence on two occasions. On one of those occasions, the
agent warned appellant of his responsibility for the conduct of anyone in his residence.
However, appellant never received a formal violation for this conduct.
In October 2019, appellant rented a residence and requested and received approval
to have a roommate, A.C. Appellant’s room was on the second floor while A.C.’s room
was on the first floor. On November 14, 2019, the agent visited the residence and smelled
marijuana. Appellant submitted to a urinalysis, which returned negative. The agent
returned later that evening with additional law-enforcement officers and searched the

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residence. The officers found two small bags of marijuana, two bottles of liquor, and a
loaded 9mm handgun in A.C.’s room.
During the search of the residence , the agent requested that appellant allow her to
search his cell phone, but he provided an incorrect passcode and entered the wro ng
passcode himself. Later, while the phone was still locked and appellant remained in jail,
the agent saw a notification on the home screen revealing that someone tried to access
appellant’s Apple account. She obtained transcripts of appellant’s jail calls and discovered
that appellant had asked others to try to lock or reset his device.
The DOC served appellant with notice of three violations of his CIP release:
(1) possessing mood-altering substances, (2) failing to submit to a search of his cell phone,
and (3) accessing or being in the presence of a firearm. At the violation hearing, counsel
represented appellant, and he denied all three alleged violations . Both the agent and
appellant testified. The hearing officer found that appellant committed all three violations
including “material violations when intoxicants . . . and a loaded firearm . . . were
discovered in his residence.” It also determined that he “failed to submit to a search of his
cell phone by refusing to provide the access code/password to his agent.”
Appellant administratively appealed, arguing that he cannot be held responsible for
the conduct of another and that the violations regarding intoxicants and the firearm were
not material because a third party committed them. The executive officer of the Hearings
and Release Unit affirmed.
Appellant filed a petition for a writ of habeas corpus in district court, arguing that
(1) he has a constitutionally protected liberty interest in p hase II of CIP; (2) he cannot be

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held accountable for the actions of another; and (3) the cell-phone-search violation was not
material and therefore could not alone sustain the revocation. The district court denied the
petition without an evidentiary hearing, concluding that appellant has no protected liberty
interest in phase II of the CIP and that, even if he did, the DOC provided sufficient process.
The district court also determined that a “material” violation is not required to sustain
revocation of CIP release, and the hearing officer did not abuse its discretion by revoking
appellant’s CIP release. This appeal follows.
DECISION
In reviewing an order denying a petition for a writ of habeas corpus, we give the
district court’s factual findings “great weight” and “will uphold the findings if they are
reasonably supported by the evidence.” State ex rel. Marlowe v. Fabian, 755 N.W.2d 792,
794 (Minn. App. 2008). We review q uestions of law relating to a habeas corpus petition
de novo. Id.
I. The district court did not err by affirming the hearing officer’s revocation of
appellant’s CIP release because officers found appellant in the presence of a
firearm.

The DOC “shall impose severe and meaningful sanctions ” for CIP condition
violations. Minn. Stat. § 244.171, subd. 4. It must revoke a CIP participant for certain
violations, including “material violation[s] of . . . the rules of [ the CIP].” Id., subd. 4(1).
“Revocation is justified when there is enough evidence to satisfy the decision -maker that
the conduct of the offender does not meet the conditions of his release.” State ex rel. Guth
v. Fabian, 716 N.W.2d 23, 27 (Minn. App. 2 006), review denied (Minn. Aug. 15, 2006) ;

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see also Minn. Dep’t of Corrs., Policy No. 106.114 Hearings for Adult Offenders (Sept. 4,
2018) (noting that standard of proof for violation hearings is preponderance of evidence).
Here, appellant’s CIP conditions prohibited him from accessing or being found in
the presence of a firearm. As an initial matter, “the burden of showing error rests upon the
one who relies upon it.” Midway Ctr. Assocs. v. Midway Ct r., Inc., 237 N.W.2d 76, 78
(Minn. 1975) (quoting Waters v. Fiebelkorn, 13 N.W.2d 461, 464 -65 (Minn. 1944). And
a party forfeits a right by failing to timely assert it. State v. Beaulieu , 859 N.W.2d 275,
278 (Minn. 2015). Here, each decision -maker recognized that appellant’s conditions
prohibit hi m from being found in the presence of a firearm, and the executive officer
explicitly affirmed the hearing officer’s decision to revoke on the basis of presence . Yet,
appellant argues only that he never accessed the firearm, and fails to raise any argumen t
regarding whether officers found him in the presence of a firearm. Appellant therefore
forfeited any challenge to his revocation on that basis.
Although appellant forfeited this argument, we acknowledge that the district court
did not make an explicit finding that officers found appellant in the presence of a firearm .
Instead, the district court affirmed the DOC’s decisions, which included an explicit finding
that officers found appellant in the presence of a firearm. The district court therefore
implicitly affirmed that decision. In any event, we may affirm the district court on any
basis supported by the record and the law. State v. Stanke, 764 N.W.2d 824, 827 (Minn.
2009) (quoting Minn. R. Crim. P. 29.04, subd. 6). We therefore turn to whether the record
supports revocation based on officers finding appellant in the presence of a firearm.

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Neither caselaw nor the CIP conditions define “presence” in this context, but the
dictionary definition of “presence” indicates that it is a broad concept. Jaeger v. Palladium
Holdings, LLC, 884 N.W.2d 601, 605 (Minn. 2016) (noting that we may look to dictionary
definition when term is otherwise undefined ). Merriam-Webster defines “presence” as
“the part of space within one’s immediate vicinity.” Merriam-Webster’s Collegiate
Dictionary 982 (11th ed. 2014). “Immediate” means “ being near at hand. ” Id. at 620.
“Vicinity” means “the quality or state of being near; proximity” or “a surrounding area or
district.” Id. at 1393. A common understanding of “presen ce” therefore requires that
appellant only be in the surrounding area or near a firearm to be in its presence.
Here, A.C.’s bedroom is connected to common areas in the home and was unlocked
at the time of the search. Appellant remained in the residence at the time the officers found
the firearm. The agent observed appellant close the door to the bedroom earlier on the
evening of the search, drawing him into closer proximity to the bedroom and its contents.
And officers found the firearm under a jacket on the bedroom floor, not locked away in a
safe or closet. Additionally, on a prior occasion, the agent had verbally warned appellant
of his responsibility for anything found in his residence. Appellant’s CIP conditions
required that he submit to unannounced searches of his entire residence. This condition is
not limited to specific rooms, times, or property, there by broadening the areas for which
appellant is responsible in this particular context. These facts establish a violation by a
preponderance of the evidence based on officers finding appellant in the presence of a
firearm.

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Finally, appellant did not dispute whether the firearm violation was material.
Because appellant’s underlying conviction was a firearm offense and his C IP conditions
expressly prohibited him accessing or being found in the presence of a firearm, we discern
no error in the district court’s implicit affirmance of the hearing officer’s materiality
findings. We therefore conclude that the district court did not err by affirming the hearing
officer’s determination that appellant materially violated his CIP conditions.1
II. Appellant forfeited his lack-of-due-process argument.
Appellant argues that the DOC violated his procedural due-process rights because
it failed to notify him that he bore responsibility for the conduct of a third party in his
residence. The DOC argues that appellant forfeited this argument because he failed to raise
it before the district court. We agree with the DOC.
On appeal, w e ordinarily consider only the issues presented to and considered by
the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) . And a party may
not shift theories on appeal. Id. Here, appellant argued before both the hearing officer and
the district court that he cannot be held accountable for the actions of a third party. But on
appeal he argues that he had no notice that he could be held accountable for the actions of
a third party. Because neither the hearing officer nor the district co urt considered

1 Because one material violation sufficiently supports revocation, we need not address
appellant’s other two violations. See Minn. Stat. § 244.171, subd. 4(1) (stating that DOC
must revoke CIP participant for material violation).

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appellant’s new argument, we have no decision on this issue to review. Appellant has
forfeited his lack-of-due-process argument.2
Affirmed.

2 Because appellant forfeited this argument, we need not address whether he has a protected
liberty interest in phase II of the CIP.