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This opinion is nonprecedential except as provided by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
A22-0082

State of Minnesota,
Respondent,

vs.

David Homer South,
Appellant.

Filed December 19, 2022
Reversed and remanded
Slieter, Judge

Crow Wing County District Court
File No. 18-CR-18-3709

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

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this challenge to a probation-revocation decision, appellant first argues that the
district court erred by determining that he was on probation when the alleged violations
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occurred. Second, appellant argues that the district court erred by not enforcing the
agreement reached with the state, which would result in placing appellant back on
probation following his admission to the violations and the entry of convictions. Finally,
appellant argues that the district court failed to make the required findings regarding his
jail credit. Because the record does not establish whether appellant was on probation at the
time of the alleged violations, we reverse and remand.
FACTS
In September 2018, appellant David Homer South was charged with ten counts of
criminal sexual conduct alleging that he sexually assaulted his two minor granddaughters
from January 2014 through July 2017. In November 2018, as part of his pretrial release
conditions, South was ordered to have no contact with the victims and was also prohibited
from consuming alcohol or entering any establishment that served alcohol.
In May 2019, South pleaded guilty to two counts of second-degree criminal sexual
conduct. In exchange for his guilty plea, South received a stay of adjudication on both
counts and dismissal of the eight remaining charges.
On August 21, 2019, during the scheduled sentencing hearing , the district court
accepted the agreement and imposed a dispositional departure, stayed adjudication, placed
South on supervised probation for 25 years, and imposed several probationary conditions.
Among the conditions, South was to have no contact with the victims or the victims’
families and was prohibited from consuming alcohol or entering an y establishment that
served alcohol. South was also ordered to successfully complete sex-offender treatment at
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a facility approved by the court or probation. At the time of sentencing, South was
participating in sex-offender treatment with CORE Professional Services.
In September 2020, the probation agent filed a probation- violation report alleging
four violations, all of which had been disclosed by South during a polygraph conducted by
CORE as a regular part of treatment: contact with a minor, contact with the victims and the
victims’ families, and entering an establishment that served alcohol. Additionally, the
report alleged that South was discharged from sex-offender treatment because he “failed
to progress” in treatment.
During the probation-violation hearing in April 2021, the parties informed the
district court that they had reached an agreement. South agreed to waive his right to a
contested hearing, admit the violations, participate in “maintenance and criminal sexual
history po lygraph[s],” have the convictions immediately entered for the two counts to
which he previously pleaded guilty, and be “admitted back into treatment.” In exchange
for compliance with all these conditions, South would be placed back on probation if he
“pass[ed]” the polygraphs.
Upon inquiry by the district court, the parties explained what was meant to “pass”
the polygraphs. Defense counsel stated:
As long as Mr. South is truthful, that’s passing the polygraph
exam. That’s as I understand it, just put all the cards on the
table, all the history, answer all the questions truthfully. That’s
what I understand passing it means, is being truthful. And
that’s what Mr. South understands too.

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The state concurred, indicating that South would pass the polygraph as long as he provided
“a full disclosure.” The district court accepted the agreement and South’s admission to the
probation violations.
Consistent with the terms of the agreement, South participated in a polygraph on
July 1, 2021. Following the results of the polygraph, CORE concluded that, though South
“passed” the maintenance polygraph by being honest, it no longer believed that South was
amenable to outpatient sex-offender treatment. As a result, CORE “recommend[ed]
inpatient sex offender treatment in a secure setting.”
Directly resulting from South’s admissions made during the polygraph, the
probation agent filed an addendum to the probation-violation report, noting that South
“disclosed contact with multiple victims” and “mentioned being alone with a victim twice.”
South “also discussed ongoing contact with the victim s’ families, specifically [South]’s
children, who are parents to the victims.”
During the first appearance on the new violations, the state informed the district
court that, because CORE “will not take [South] back,” it was no longer bound by the
agreement because the state had “no authority whatsoever to tell CORE they have to accept
someone.” South denied the new violations, and an evidentiary hearing was scheduled.
During the probation-violation hearing, in July 2021, South’s attorney argued that
South had complied with the April agreement and asked the district court to enforce it. The
district court stated that it could not enforce the agreement, though it acknowledged that
the original sentencing order did not specifically require that South’s treatment be
completed at CORE, and South could argue for treatment at another program as part of the
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disposition hearing. South decided to waive his right to a contested hearing and admit the
additional probation violation. The district court postponed the disposition hearing to allow
South to present an alternative treatment facility that would admit him.
During the disposition hearing South presented evidence of a treatment program that
was willing to admit him. The district court issued an order in October 2021 and
specifically found, based upon South’s April admissions, that South had committed two
probation violations. The district court concluded that South was not amenable to
treatment as part of a probationary condition and revoked South’s probation. The district
court imposed and executed concurrent prison sentences of 110 and 150 months, and
ordered ten years of conditional release. South appeals.
DECISION

“The [district] court has broad discretion in determining if there is sufficient
evidence to revoke probation and should be reversed only if there is a clear abuse of that
discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Before revoking
probation, the district court must: “1) designate the specific condition or conditions that
were violated; 2) find that the violation was intentional or inexcusable; and 3) find that
need for confinement outweighs the policies favoring probation.” Id. at 250. Whether the
district court considered these factors is a question of law, which appellate courts review
de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
“[B]efore a probation violation can occur, the condition alleged to have been
violated must have been a condition actually imposed by the court.” State v. Ornelas, 675
N.W.2d 74, 80 (Minn. 2004); see also 9 Henry W. McCarr & Jack S. Nordby, Minnesota
6
Practice § 36-60 (4th ed. 2020) (“If a condition was not actually and properly imposed, no
violation can result even if the defendant believes and admits that it was a condition of
probation.”). That is, the defendant must have been placed on probation at the time the
violation is alleged to have occurred. Ornelas, 675 N.W.2d at 80.
South argues that the district court erred by concluding that he violated the
conditions of his probation because the record does not demonstrate that South was on
probation when the violations allegedly occurred. We agree.
The district court found, from South’s admissions, that South (1) violated the
no-contact-with-victim condition because he was twice alone with a victim, and
(2) violated probation by entering an establishment that served alcohol.
We have held that:
When a probationer waives the first part of a revocation
hearing, the state is no longer obliged to present evidence to
prove the violations, and the district court may base its finding
on the violation report and the probationer’s waiver, which
serves as a stipulation to the state’s allegations in the violation
report.

State v. Xiong, 638 N.W.2d 499, 503 (Minn. App. 2002), rev. denied (Minn. Apr. 16, 2002).
However, neither the violation report nor South’s testimony establish that South was on
probation at the time of his admitted conduct.
First, during the April probation-violation hearing during which South admitted to
the violations, the district court read from the probation-violation report when questioning
South. But the report provides no dates as to when the alleged violations occurred. The
district court asked South whether the allegations were true that he had contact with the
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victim “after [his] conviction during the summer of 2019.” South stated “Yeah, they are
true, but I’m not certain about the date that my son [who brought the victims] made his
visit. But I said at the time of the [September 202 0] polygraph that it was after my
conditions were in effect.” South then stated that the incident would have occurred around
“the first of May 2019, and the restrictions went on my -- on record from the Court on
about the 20th or so of May 2019.” Critically, South was not placed on probation until
August of 2019.
Further uncertainty as to whether South was yet on probation at the time the
violations occurred are reflected in the following colloquy from the same hearing. The
prosecutor asked South,
THE STATE: At the time -- even if it was before you were
sentenced, and granted then it might not be a violation of
probation, but you’ve been continuously on a condition to have
no contact since you were first arraigned on this case, correct?”

SOUTH: So the no-contact rule was in place at that time?

THE STATE: I mean, you knew that you were required as a
condition of your release to not have any contact with any
minors, correct?

SOUTH: But I was under the impression that it didn’t take
effect until the Court date, that 24th.

THE STATE: You understand prior to entering your plea, you
were still under conditions that the Court set back on
November 5th of 2018, that required that you have no contact?

SOUTH: Okay.

THE STATE: And you knew you weren’t supposed to have
contact?

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SOUTH: Yup.

THE STATE: Okay. So you’re saying it may have happened
before you entered your plea and it may have happened after
you[] entered your plea, you’re not sure; but regardless,
you’ve been under conditions to not have contact since
November 5th of 2018, correct?

SOUTH: Okay, so it was in effect then. Okay.

(Emphasis added.)
And even if we consider South’s testimony during the September 2021 disposition
hearing, it also provides no more detail as to whether South was on probation when the
violations occurred. South was asked by his attorney, “When you were with the polygraph
examiner answering his questions, [you were] asked . . . about a number of disclosures that
you made. Had those all happened, those instances all happened since you had been
convicted, since you had entered your guilty plea?” (Emphasis added.) South answered,
“Yes.”
South had not yet been convicted at the time he pleaded guilty. South pleaded guilty
in May 2019. South was placed on probation without a conviction (stay of adjudication)
in August 2019. South was convicted of the two offenses after he admitted the probation
violations in April 2021.
The state argues that the probation-violation report combined with South’s
testimony is sufficient to conclude that South violated probation. But as we have already
explained, the probation-violation report does not add clarity because it also indicates that
these incidents occurred “after [South’s] conviction during the summer of 2019.” In other
words, the report simply mimicked what South reported during his September 202 0
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polygraph interview, it erroneously states that South was convicted, and it refers to a time
period for the alleged violation that was before South had been placed on probation.
At no time during the April admission hearing, nor during the disposition hearing,
was South asked whether the violation occurred on or after August 21, 2021, the date on
which the district court imposed the probation conditions. It is axiomatic that a probation
violation can only be found when the violation is of a probation-condition that is actually
imposed by the court. See Ornelas, 675 N.W.2d at 80.
This record fails to demonstrate whether South was on probation at the time “the
specific . . . conditions . . . were violated.” Austin, 295 N.W.2d at 250. Thus , the district
court abused its discretion in revoking South’s probation. Id. at 249-50. Therefore, we
reverse and remand for further proceedings. The decision whether to reopen the record on
remand rests within the district court’s sound discretion.1
Reversed and remanded.

1 Because we remand for further proceedings to determine whether South was on probation
at the time of the admitted conduct, we need not address South’s second argument that the
district court failed to abide by his agreement reached with the state that would place him
back on probation. However, we note that the district court believed the agreement
required that treatment occur at CORE and that, because CORE would not accept South
back, it could not enforce the agreement. Our review of the agreement, as stated orally to
the district court, is that it was not limited to treatment by CORE and that South presented
evidence of a treatment program other than CORE which was willing to accept him. But
because South has been in prison since probation was revoked, we are mindful that a
treatment program may no longer be available for South and that an additional evaluation
may need to occur. As for South’s third argument regarding jail credit, on appeal, the state
concedes that South is entitled to 394 days of jail credit and that the district court failed to
clarify in its order and warrant of commitment the amount of jail credit to which South is
entitled. Because we reverse and remand on the earlier issue, the district court may also
address the jail credit issue at that time.