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This opinion is nonprecedential except as provided by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
A22-0917

State of Minnesota,
Respondent,

vs.

Hector Vivas Buezo,
Appellant.

Filed January 30, 2023
Reversed and remanded
Reyes, Judge

Watonwan County District Court
File No. 83-CR-17-569

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

Stephen J. Lindee, Watonwan County Attorney, St. James, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In t his appeal from the district court’s probation- revocation decision, appellant
argues that the district court violated Minn. R. Crim. P. 27.04 by failing to give a rights
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advisory at his first-hearing appearance and abused its discretion by revoking his probation
without making sufficient findings on the third Austin1 factor. We reverse and remand.
FACTS
On November 12, 2017, the St. James Police Department received a report of a
possible criminal sexual offense involving a victim under the age of 13. The victim claimed
that appellant Hector Vivas -Buezo had sexually assaulted her repeatedly since she was
about five or six years old , from 2011 to 2017. Respondent State of Minnesota charged
appellant with three counts of second -degree criminal sexual conduct. The parties entered
into a plea agreement in which appellant would plead guilt y to one of the char ges on an
Alford2 basis, and the state would dismiss the remaining two charges and release him to
the custody of United States Immigration and Customs Enforcement Unit (ICE) at
sentencing. The district court accepted the Alford plea and convicted appellant of one count
of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a)
(2010).
The district court sentenced appellant to 36 months in prison but stayed execution
and placed him on supervised probation for 30 years. The probation contains several
conditions, two of which require appellant to follow all state and federal criminal laws, and
to contact his probation agent immediately if released from ICE custody in the U.S. or upon

1 State v. Austin, 295 N.W.2d 246 (Minn. 1980) .
2 Under North Carolina v. Alford, a court may constitutionally accept a defendant’s guilty
plea in which the defendant maintains his innocence but admits that the prosecutor’s
evidence, if brought to trial, would likely result in a guilty verdict. 400 U.S. 25 (1970); see
also State v. Theis, 742 N.W.2d 643 (Minn. 2007).
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returning to the U.S. after being deported before his sentence expires. On or around April
20, 2018, appellant was deported to Honduras.
On April 13, 2021, the United States Border Patrol found appellant unlawfully
present in Cameron County, Texas, and arrested him. Pursuant to a guilty plea, the United
States District Court for the Southern District of Texas convicted appellant of illegal re -
entry in violation of 8 U.S.C. §§ 1326(a), (b)(1), and sentenced him to ten months in prison.
Appellant remained in federal custody until he was moved to Watonwan County Jail on
March 16, 2022.
The Minnesota Department of Corrections (DOC) issued a probation- violation
report on May 11, 2021, alleging that appellant violated the probation condition of failing
to contact his probation agent immediately upon his return to the U.S. after being deported.
Because appellant had been convicted of illegal re -entry into the U.S., which is a federal
felony, the DOC filed an addendum to add that appellant violated the probation condition
of failing to abide by state and federal criminal law s.
On March 17, 2022, appellant attended a remote hearing without counsel . The
district court asked , “Okay. Now, you have rights that you signed a statement of right
sheet, and do you understand the rights that you have in regard to this probation violation?”
Appellant answered, “Yes.” The district court then explained that appellant had the right
to an attorney a nd a public defender would be appointed to represent him before the next
hearing.
On March 22, 2022, the district court held a admit/deny hearing which appellant
attended with an attorney. Appellant admitted to violating the probation conditions
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requiring him to contact the probation agent upon re-entry to the U.S. and to abide by state
and federal criminal laws. The district court accepted his admission and found both
probation violations intentional and inexcusable. At the dispositional hearing, the district
court determined that the need for incarceration outweighed public policy considerations
for probation, that confinement was necessary to protect the public from further criminal
activity, and that if probation were not revoked, it would unduly de preciate the seriousness
of the violation. The district court revoked appellant’s probation and execute d the
previously stayed sentence of 36 months. This appeal follows.
DECISION
Appellant argues that the district court erred by failing to provide him with a
required rights advisory upon his first appearance at the probation- violation hearing and
abused its discretion by failing to make sufficient findings on the third Austin factor before
revoking probation. We agree as to the third Austin factor findings.
Probation-Violation Rights Advisory
Because appellant did not challenge the district court’s failure to provide the rights
advisory required by Minn. R. Crim. P. 27.04 at trial, and because “it is the type of
nonstructural error that the district court could have corrected had it been brought to the
court’s attention,” we may review this issue for plain error. State v. Beaulieu, 859 N.W.2d
275, 281 (Minn. 2015) . Under this standard, a ppellant must establish (1) an error (2) that
is plain and (3) affects his substantial rights. Id. at 279. Once appellant satisfies the first
three prongs of the plain-error test, we “may correct the error only if it seriously affects the
fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation omitted).
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In Beaulieu, our supreme court held that a district court’s “failure to provide appellant with
the rights advisory set forth in Minn. R. Crim. P. 27.04 did not affect his substantial rights.”
859 N.W.2d at 276. Appellant thus cannot satisfy the third prong under the plain-error
review, and we need not address the other prongs.
Austin Factors
“A 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. Modtland, 695 N.W.2d 602, 605 (Minn. 2005) (quoting Austin, 295 N.W.2d at
249-50). 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 the need for confinement outweighs the policies favoring
probation.” Austin, 295 N.W.2d at 250. A district court must make the three Austin
findings on the record before revoking probation. Modtland, 695 N.W.2d at 606. The
Austin framework requires courts not only to recite the three factors but to “seek to convey
their substantive reasons for revocation and the evidence relied upon.” Id. at 608. “This
process prevents courts from reflexively revoking probation when it is established that a
defendant has violated a condition of probation.” Id. We review whether a district court
has made the Austin findings de novo. Id. at 605.
As an initial matter, appellant does not dispute that the district court satisfied the
first two Austin factors. The issue before us is whether the district court made sufficient
findings on the third Austin factor. A district court may find the third Austin factor satisfied
if it finds that any of the three sub- factors is present: (1) that “confinement is necessary to
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protect the public from further criminal activity by the offender,” (2) that “the offender is
in need of correctional treatment which can most effectively be provided if he is confined,”
or (3) that a further stay of the senten ce “would unduly depreciate the seriousness of the
violation.” Austin, 295 N.W.2d at 251 (quotation omitted).
The record shows that the district court did not make the requisite findings on the
third Austin factor. Instead, it recited the subfactors almost verbatim without providing
any substantive reason for revocation or the evidence that it relied on . This is the kind of
“general, non-specific reasons for revocation” that our supreme court concluded did not
satisfy Austin. Modtland, 695 N.W.2d at 608.
We therefore reverse and remand for the district court to make substantive findings
on the third Austin factor. To the extent that the district court inquired into appellant’s
immigration status at the dispositional hearing, we caution the district court not to consider
it as part of its probation-revocation analysis. State v. Mendoza, 638 N.W.2d 480, 481
(Minn. App. 2002) , rev. denied (Minn. Apr. 16, 2002) (holding that possible deportation
because of immigration status is not proper consideration in criminal sentencing).
Reversed and remanded.