State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A20-1155

State of Minnesota,
Respondent,

vs.

L. P. K.,
Appellant.

Filed April 5, 2021
Affirmed
Florey, Judge

Scott County District Court
File Nos. 70-JV-17-9918; 70-CR-20-7555

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Ronald B. Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Laura G. Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Presiding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant L.P.K. appeals from an order revoking his extended juvenile jurisdiction
(EJJ) status and executing the stayed adult sentence. Because clear and convincing
evidence supports the district court’s exercise of discretion, we affirm.

2
FACTS
Appellant was charged with two counts of second -degree criminal sexual conduct
after his younger sister told their parents that he had sexually assaulted her over a three -
year period from February 2014 to March 2017. Because of his age, 16 years old, and the
nature of the charges, appellant presumptively would have been charged as an adult, but
the state agreed not to seek adult certification and to place appellant on EJJ status if he
pleaded guilty to one count of second-degree criminal sexual conduct. In November 2017,
the district court adjudicated appellant delinque nt, imposed a guidelines sentence of 90
months, and stayed the sentence under EJJ. The district court added a number of
conditions, including : (1) having no contact with minor females; (2) completing a
psychosexual evaluation and cooperati ng with any reco mmendations; (3) engaging in no
assaultive behavior; (4) having limited access to the internet and social media; and
(5) remaining law abiding.
In February 2019, the county corrections department recommended that probation
be revoked, alleging that appellant failed to remain law-abiding because he had a new third-
degree criminal-sexual-conduct charge, had unsupervised contact with minor females, used
social media to contact a minor female, and used the internet, all in violation of his EJJ
conditions.
In November 2019, appellant submitted the issue of guilt on the new charge to the
district court on stipulated facts. The district court found appellant guilty in December
2019. In June 2020, the district court held a hearing to sentence appellant on the new

3
charge, revoke his EJJ status, and execute the stayed adult sentence. Appellant was
represented by counsel throughout both matters.
At this hearing, the district court asked counsel if he had advised appellant that the
new conviction could result in revocation of his EJJ status, to which counsel replied in the
affirmative. Next, the district court asked appellant if he understood he could have “a full-
blown hearing” on the EJJ violation, at which he would be represented by counsel; the state
“would have to prove by clear and convincing evidence that [appellant] violated the terms
of [his] probation ;” the state would call witnesses who would be subject to cross -
examination; he could subpoena witnesses and submit documents and evidence; he could
choose t o testify or opt not to testify, and this choice would not be held against him.
Appellant acknowledged that he had failed to remain law -abiding by being charged and
convicted of third-degree criminal sexual conduct and that he had enough time to consult
with his attorney.
Appellant hesitated when asked if he admitted or denied being in violation of his
EJJ probation, but the district court explained that he failed to remain law-abiding by being
convicted of a new charge. Again, with some hesitation, he admitted that meant he was in
violation of the EJJ probation and stated that he had no questions about the new charge.
He admitted he knew that remaining law-abiding was a condition of probation. The district
court then inquired of counsel whether appellant understood his rights to a full EJJ hearing,
to which counsel replied, “Yes, Your Honor.” Based on the guilty finding on the new
charge and appellant’s admissions at this hearing, the district court revoked appellant’s EJJ

4
status and executed the 90-month sentence. In response to the state’s request for findings
to support the revocation, the district court stated:
I do find that [appellant’s] actions were both intentional and/or
inexcusable. I’ve had [him] on EJJ status since about 2014
with a number of different violations. Given the fact that he’s
been convicted of a new sex offense, I do find that confinement
outweighs any and all probation at this time. And I also do so
for public safety.

The district court confirmed these findings in a written order issued on June 25, 2020. This
appeal, as well as a separate appeal of the new conviction, follow.
DECISION
I. Application of the Austin factors to EJJ revocation
We will reverse the district court’s probation -revocation decision for an ab use of
discretion. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). But this court reviews
the adequacy of the district court’s Austin findings as a question of law subject to de novo
review. Id.; see State v. Austin, 295 N.W.2d 246 (Minn. 1980). Appellant argues that the
district court failed to make the requisite finding supported by clear and convincing
evidence that the need for confinement outweighs the policies favoring probation, as
required by Austin.
In Austin, the Minnesota Supreme Court outlined the analysis a district court must
make before revoking probation. Id. at 250. First, the district court must designate the
specific conditions violated; next, the district court must determine if the violation was
intentional or inexcusable; and, finally, the district court must weigh whether the need for
confinement outweighs policies favoring probation. Id. These determinations, which also

5
apply to revocation of EJJ status, must be supported by clear and convinc ing evidence.
Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(1), (2).
When deciding whether the need for confinement outweighs the policies supporting
probation, such as rehabilitation, a court must balance the probationer’s interest in freedom
against the st ate’s interest in rehabilitation and public safety. Modtland, 695 N.W.2d at
606-07. Typically, to support confinement, a court must find “on the basis of the original
offense and the intervening conduct” that it is necessary to confine the probationer for
reasons of public safety, treatment is more readily available in confinement, or the
seriousness of the violation would be unduly depreciated if probation was not revoked. Id.
at 607 (quotation omitted).
Here, the district court found that (1) appell ant was adjudicated delinquent of
second-degree criminal sexual conduct; (2) he was charged with and found guilty of third-
degree criminal sexual conduct in violation of the condition to remain law -abiding; and
(3) confinement was necessary because appellant committed a second sexual offense while
on EJJ status, which “demonstrate[d] a serious threat to public safety” and indicated that
he “ha[d] not rehabilitated under EJJ status.” The district court concluded that “[p]ublic
safety require[s] further supe rvision and confinement.” These findings are supported by
clear and convincing evidence and are adequate to sustain the district court’s revocation of
appellant’s EJJ status.
II. Waiver of contested revocation hearing
Under Minn. R. Juv. Delinq. P. 19.11, sub d. 2(A), an EJJ probationer facing
revocation of his status must be informed of his rights to counsel; to a revocation hearing,

6
unless waived; to clear and convincing evidence of a violation; to disclosure of evidence;
to subpoena and cross -examine witnesses; to presentation of mitigating evidence; and to
appeal. Appellant contends that although the district court explained the various rights he
had under Rule 19.11, he never personally waived his right to a hearing on the record.
An EJJ probationer may wa ive the right to a contested hearing. Minn. R. Juv.
Delinq. P. 19.11, subd. 2(A)(2). The validity of a waiver is generally a question of law.
See State v. Williams, 664 N.W.2d 432, 434 (Minn. App. 2003), review denied (Minn. Sep.
24, 2003). The right t o a contested hearing under Rule 19.11 is similar to the right to a
contested hearing under Minn. R. Crim. P. 27.04, governing probation revocation. Under
each rule, a probationer is afforded certain rights as specified in Morrissey v. Brewer, 408
U.S. 471, 486-88, 92 S. Ct. 2593, 2603-04 (1972), and as extended to probation revocation
by Gagnon v. Scarpelli , 411 U.S. 778, 782 -83, 93 S. Ct. 1756, 1759 -60 (1973). But in
contrast to the requirement under Minn. R. Crim. P. 26.01, subd. 1(2)(a), governing waiver
of a jury trial, the rules governing probation and EJJ revocation do not specify that a
probationer must personally waive the right to a contested hearing on the record. State v.
Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015) (regarding probation revocation).
The district court here advised appellant of his rights under Rule 19.11 and appellant
acknowledged that he understood those rights and made no objection to proceeding without
a contested hearing. Appellant had been represented by counsel throughout the EJJ
proceeding and subsequent revocation. See Hernandez v. State , 408 N.W.2d 623, 626
(Minn. App. 1987) (assuming that defendant had been adequately informed of rights when
he had a full opportunity to consult with counsel). He acknowledged that he had adequate

7
time to consult with his attorney , and the attorney assured the district court that appellant
understood his right to a hearing. Under these circumstances, appellant’s personal waiver
of a contested revocation was not required.
III. Effect of appeal of companion case
Appellant argues that his conviction of third-degree criminal sexual conduct cannot
be used as a basis for revocation of his EJJ status because he has appealed the district
court’s guilty finding on the new charge. He notes that the district court did not ask about
the facts of the new charge and used only the fact of conviction as a basis for revoking the
EJJ status for failure to remain law-abiding. Appellant cites no authority for preemptively
reversing the EJJ revocation on these grounds.
Moreover, appellant admitted that he had failed to remain law -abiding. EJJ status
may be revoked on the probationer’s admission that he has violated provisions of the
disposition order. Minn. R. Juv. Delinq. 19.11, subd. 3(C )(1); see also Minn. Stat.
§ 609.14, subd. 1 (providing that probation revocation can be premised on violation of stay
conditions; subd. 3 (permitting district court to impose previously stayed sentence on
finding of a violation of probation conditions).
Affirmed.