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This opinion is nonprecedential except as provided by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
A21-1438

State of Minnesota,
Respondent,

vs.

Luis Garcia Ortiz,
Appellant.

Filed May 31, 2022
Reversed and remanded
Smith, John, Judge*

Nobles County District Court
File No. 53-CR-16-77

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assi stant County Attorney, William C. Lundy (certified student
attorney), Slayton, Minnesota (for respondent)

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Slieter, Pr esiding Judge; Johnson, Judge; and Smith,
John, Judge.

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

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We reverse and remand, with instructions for the district court to vacate its
revocation of Ortiz’s stay of adjudication, because the dist rict court erred by (1) finding
appellant violated a specific condition of his probation and (2) failing to clarify the specific
conditions of Ortiz’s probation.
FACTS
These facts are taken from the district c ourt’s findings from its sentencing order
after a contested probation-re vocation hearing and are supple mented by the record when
relevant to the issues on appeal.
In September 2017, appellant Luis Garcia Ortiz entered a Norgaard plea to one
count of first-degree criminal sexual conduc t under Minn. Stat. § 6 09.342, subd. 1(a)
(2020).1 Under the plea deal, adjudication woul d be stayed, Ortiz would complete a
psychosexual evaluation and share the results with the district court before sentencing, and
argument about the psychosexual evaluato r’s recommendations would be made at
sentencing.
Ortiz completed the psychosexual evaluation with licensed psychologist Dr. Tricia
Aiken. Ortiz “denied any hist ory of sexual abuse” during the evaluation and Dr. Aiken

1 “A defendant may enter a Norgaard plea when he or she is unable to remember the
specific facts of the offense because of intoxication or amnesia but is persuaded that he or
she is likely to be convicted of the crime charged.” State v. Solberg, 882 N.W.2d 618, 621
n.1 (Minn. 2016) (citing State v. Ecker, 524 N.W.2d 712, 716-17 (Minn. 1994); State ex
rel. Norgaard v. Tahash, 110 N.W.2d 867, 872 (Minn. 1961).
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reported it was “not possible to currently dete rmine whether or not [Ortiz] meets criteria
for any deviant sexual interests due to lack of information” because of Ortiz’s denials. Dr.
Aiken’s recommendation stated, “I nevertheless recommend if [Ortiz] is convicted of this
offense he participate in outpatient sex offender group treatment.”
In February 2018, the district court “sentenced and placed [Ortiz] on probation” for
ten years. The district court’s sentencing order required Ortiz to complete the psychosexual
evaluation “and comply with all recommendati ons made therein” as a condition of his
probation.
In June 2021, Ortiz’s probation offi cer, Shanell Schneider, filed a probation
violation report (PVR), which led to a cont ested revocation hearing in September 2021,
where Schneider, Ortiz’s treatment prov ider—Tonya Grothe-Bumgardner, and Ortiz
testified.
The PVR stated the psychosexual evaluation recommended “outpatient sex offender
group treatment” and alleged that Ortiz vi olated his probation by “not successfully
completing sex offender treatment,” claiming this violated the condition requiring Ortiz to
complete a psychosexual evaluation and comply with all recommendations.
The PVR alleged Ortiz “began indivi dual sex offender programming through
Southwestern Mental Health Center” in August 2018 with Grothe-Bumgardner, but
throughout treatment Ortiz waffled between taking responsibility for the offense, denying
the offense occurred, and jus tifying the offense because he was too intoxicated. Grothe-
Bumgardner testified Ortiz su ccessfully completed the tr eatment workbook, “but was
unsuccessfully discharged because he plateaued in treatment.”
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Ortiz testified that he worked and cooperated with Grothe-Bumgardner for his three
years in therapy, he attended all sessions except when Grothe-Bumgardner was on
vacation, he did not fail to do anything asked, and he fully cooperated with treatment.
Based on its factual findings, the district court concluded Ortiz “failed to comply
with probationary terms” by failing “to complete a Psychological Sexual Assessment and
comply with all recommendations,” Ortiz’s “violation is intention[al] and without excuse,”
and “[t]he need for confinement outweighs the policies favoring probation and not
revoking probation would unduly depreciate the seriousness of the violations.” The district
court revoked Ortiz’s probation, vacated his stay of adjudication, adjudicated him guilty of
first-degree criminal sexual conduct, and executed his 86-month prison sentence.
DECISION
“The [district] court has broad discreti on in determining if there is sufficient
evidence to revoke probation and should be reve rsed only if there is a clear abuse of that
discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). “A district court abuses
its discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” State v. Guzman , 892 N.W.2d 801, 810 (Minn. 2017). But
whether the district court made the findings required for revocati on of probation is a
question of law we review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
District courts must consider the following Austin factors before revoking probation
and must make specific findings about each factor: (1) “designate the specific condition or
condition that were violated”; (2) “find that the violation was intentional and inexcusable”;
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and (3) “find that the need for confinement outweighs the policies favoring probation.”
Austin, 295 N.W.2d at 250.
The district court must “designate the specific condition” that was violated. Id.
“Inherent” in this court’s consideration of which specific probation condition was violated
“is the question of whether the condition was actually imposed as a condition of probation.”
State v. Ornelas , 675 N.W.2d 74, 79 (Mi nn. 2004). “[I]f the condit ion was not properly
imposed, it would be anomalous to conclude that the first Austin factor had been satisfied
and go on to consider” the remaining Austin factors, as the district court cannot revoke
probation for violation of a probation condition that was never actually imposed. Id. at 79-
80.
When probation conditions prohibit non-cr iminal actions, “due process mandates
that the petitioner cannot be subjected to a forfeiture of his liberty for those acts unless he
is given prior fair warning.” Id. at 80 (quoting United States v. Dane , 570 F.2d 840, 844
(9th Cir.1977)); Minn. R. Crim. P. 27.03, subd. 4(E)(2). “Whe n prior fair warning ‘is not
contained in a formal condition, the record must be closely scrutinized to determine
whether the defendant did, in fact , receive the requisite warning.’” State v. Hoskins, 943
N.W.2d 203, 210 (Minn. App. 2020) (quoting Austin, 295 N.W.2d at 251).
Ortiz moved to dismiss the probation viol ation claiming the recommendation to
attend treatment was conditioned on a conviction, not a stay of adjudication. Even so, the
district court did not address this argument as it made no findings about whether the
psychosexual evaluation recommended treatmen t. The district court concluded Ortiz
“failed to comply with probationary terms by [failing] to complete a Psychological Sexual
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Assessment and comply with all recommendations.” The district court’s only findings on
the existence of this condition were that (1) one of Ortiz’s conditions of probation was to
complete a psychosexual evaluation and “comply with all recommendations made therein”;
and (2) Schneider’s PVR stated the psychose xual evaluation recommended Ortiz “[e]nter
and successfully complete an outpatient sex offender group treatment program and follow
all recommendations.”
The record reflects that Ortiz completed the psychosexual evaluation in December
2017 and the district court had the report at se ntencing in February 2018. Contrary to the
district court’s finding about the PVR’s characterization of the probation condition, Dr.
Aiken’s report stated, “I nevertheless recommend if [Ortiz] is convicted of this offense he
participate in outpatient sex offender group treatment.”
Ortiz contends the district court “failed to designate the spec ific condition” he
violated because the condition of completing sex offender treatment was never made as the
psychosexual evaluation’s “explicit recommendation” is for him to participate in sex-
offender treatment “if he is convicted of this offense.” Specifically, Ortiz contends, first,
that he was never convicted because adjudication was stayed, and, second, that the district
court never ordered at sentencing that the psychosexual evaluation required completion of
sex offender treatment.
We begin by considering Or tiz’s second argument. Dr. Aiken recommended that,
“if [Ortiz] is convicted of this offense[,] he participate in outpatient sex offender group
treatment.” Dr. Aiken stated that Ortiz’s risk level is comparable to a typical sex offender
even based on the limited knowledge she c ould glean from the assessment. Dr. Aiken
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recommended Ortiz participate in objective testing to assess his sexual interests,
assessments for anger management issues, and work on learning coping skills during
treatment. Dr. Aiken stated her hope that Ortiz would be open about his emotions, stressors,
and sexual interests so treatment could be beneficial. Lastly, Dr. Aiken stated she had
“concerns about the safety of [Ortiz’s] young step-daughter” and stated he should have no
unsupervised contact with his step-daughter “until his sexual interests can be more
accurately assessed in sex offender treatmen t” so his treatment providers could assess
whether contact with young children was advisable.
When reviewed as a whole, Dr. Ai ken’s recommendation was for Ortiz to
“participate” in sex offender treatment, not co mplete treatment. Th e record evidence
contradicts the district court’s finding that the psychosexual evaluation recommended Ortiz
“[e]nter and successfully complete an outpatient sex offender group treatment program and
follow all recommendations.” We conclude that the district court, through the psychosexual
evaluation, imposed a probation condition requiri ng Ortiz to participate in sex offender
treatment. Furthermore, we conclude that Ortiz fulfilled this condition by participating in
sex offender treatment for around three years, beginning in June 2018, attending
polygraphs as required, and completing his sex offender treatment workbook.
Thus, the district court e rred by determining the first Austin factor was satisfied
because the condition it determined Ortiz violated—completion of sex offender
treatment—was never actually imposed. See Austin , 295 N.W.2d at 250; Ornelas, 675
N.W.2d at 79 (holding a probation condition must be actually imposed to meet the first
Austin factor). In light of that conclusion, we need not address Ortiz’s first argument, that
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the district court did not order him to follow Dr. Aiken’s recommendations on the ground
that he was not “convicted” of the offense to which he pleaded guilty because of the stay
of adjudication. Because the first Austin factor was not satisfied, we need not review the
remaining Austin factors. See Ornelas , 675 N.W.2d 79-80 (“ [I]f the condition was not
properly imposed, it would be anomalous to conclude that the first Austin factor had been
satisfied and go on to consider” the remaining Austin factors as the district court cannot
revoke probation for violating a probatio n condition unless the condition was actually
imposed).
Accordingly, this matter is reversed and re manded with instructions to the district
court to vacate its revocation of Ortiz’s stay of adjudication.
Reversed and remanded.