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This opinion is nonprecedential except as provided by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
A22-1147

State of Minnesota,
Respondent,

vs.

Raul Segundo Benitez-Rivero,
Appellant.

Filed April 10, 2023
Affirmed
Ross, Judge

Freeborn County District Court
File No. 24-CR-10-335

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

David Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Gaïtas, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Probationer Raul Benitez-Rivero left Minnesota for about eight years after the
district court authorized him to leave the state for only one week. The district court found
that Benitez-Rivero violated his probation. It therefore revoked his probation and executed
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his 86-month sentence for his underlying controlled-substance conviction. Benitez-Rivero
argues on appeal from that decision that the district court erroneously revoked his probation
when it found that he violated a condition never imposed and found that the need for his
confinement outweighed the policies favoring probation. Because Benitez-Rivero’s
unauthorized remaining absent from the state for a period longer than he was permitted
violated the term of his probation requiring him not to leave without permission and
because the district court did not abuse its discretion in its weighing of confinement against
continued probation, we affirm.
FACTS
The state charged appellant Raul Benitez-Rivero in February 2010 with first-degree
controlled-substance sale for selling cocaine. Benitez-Rivero pleaded guilty, and he and
the state jointly recommended probation, a dispositional departure. The district court
sentenced Benitez-Rivero to 86 months in prison in September 2010, staying execution of
the sentence under the plea-agreement terms and ordering probation for 6 to 30 years. The
conditions of his probation required Benitez-Rivero to remain law-abiding, abstain from
using drugs or alcohol, obtain permission before leaving the state, report to his probation
officer as directed, and complete a drug-treatment program.
Benitez-Rivero’s probation officer filed two probation-violation reports in
September and December 2010, asserting that Benitez-Rivero failed to abstain from drugs,
to enter a treatment program, and to be truthful with his probation officer. After hearings
on each violation, the district court continued Benitez-Rivero on probation.
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In May 2014, a district judge permitted Benitez-Rivero to leave Minnesota for one
week. In November 2014, Benitez-Rivero’s probation officer filed another probation-
violation report, alleging that Benitez-Rivero failed to remain law- abiding and failed to
report to her as directed between May and August 2014. She recommended that the district
court revoke his probation. The district court issued a warrant for Benitez-Rivero’s arrest.
Benitez-Rivero remained a fugitive with no contact with his probation officer until 2022.
Law enforcement apprehended Benitez-Rivero in California in late March 2022 and
returned him to Minnesota. His probation officer amended the 2014 probation report to
reflect his absence from Minnesota without permission, again asking the district court to
revoke probation. The district court conducted a probation-violation hearing in May 2022.
Benitez-Rivero admitted that he had been thrice convicted of crimes, a violation of his
probation requirement that he remain law-abiding. And he admitted that he failed to report
to his probation officer between at least May and August 2014 as alleged. He also admitted
that he remained absent from Minnesota longer than he had been permitted.
The district court found that Benitez-Rivero violated the terms of his probation as
alleged in the probation-violation report and its addendum, and it found that all violations
were intentional or inexcusable. It found that the need for his confinement outweighed the
policies favoring probation, and it revoked his probation, executing his 86-month prison
sentence.
Benitez-Rivero appeals.
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DECISION
Benitez-Rivero argues on appeal that the district court erroneously revoked his
probation. He maintains that the district court revoked his probation for violating a
condition that was not imposed by the district court. He also argues that the district court
erred by finding that the need for confinement outweighed the policies favoring his
probation. Neither argument persuades us to reverse.
I
Benitez-Rivero argues that, because returning to the state tardy after having been
permitted to leave was not a condition imposed by the district court, the district court had
no authority to revoke his probation based on his failure to return. We reject the argument
as an overly constrained reading of the condition. On e of the necessary elements before
revoking probation is a finding that the alleged misconduct violated a probationary
condition. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). This includes a finding that
the allegedly violated condition is one that was actually imposed. State v. Ornelas, 675
N.W.2d 74, 79 (Minn. 2004). The relevant written condition here was the district court’s
requirement that Benitez-Rivero “obtain permission from [his probation officer] before
leaving the State.” Benitez-Rivero would have us treat his leaving the state for eight years
as not violating this provision because he did not actually leave without permission, he
instead remained absent without permission. Clever, but unavailing.
The prohibition against Benitez- Rivero’s leaving the state before obtaining
permission is meaningless if it also does not prohibit his remaining intentionally absent
from the state without permission. Despite including the word “before,” the prohibition is
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not primarily temporal, but substantive. Benitez-Rivero did not leave after receiving
generalized permission to depart; he left after receiving temporally quantified
permission—permission he flouted for eight years. The district court found that he “did
leave -- well, [he] didn’t leave the state without permission but [he] didn’t return in the
time frame that was provided to [him]. Therefore, [he] didn’t have the appropriate
permission to be outside the state of Minnesota.” This is exactly so. Because Benitez-
Rivero’s probation precluded him from being absent from Minnesota without permission,
the district court did not err by finding a violation.
II
Benitez-Rivero contends that the district court erroneously evaluated another Austin
factor—the determination that the need f or confinement must outweigh the policies
favoring probation for probation to be revoked. See Austin, 295 N.W.2d at 250. We review
the district court’s Austin findings for a clear abuse of discretion, id. at 249–50, and our
review here leads us to affirm.
Benitez-Rivero argues that the policy reasons favoring his continued probation
outweigh those favoring his confinement. We reiterate that imprisonment generally should
not be imposed without a finding either that “confinement is necessary to protect the public
from further criminal activity ”; that the offender needs correctional treatment most
effectively provided in confinement; or that “it would unduly depreciate the seriousness of
the violation” not to revoke probation. State v. Modtland, 695 N.W.2d 602, 607 (Minn.
2005) (quoting Austin, 295 N.W.2d at 251). District courts must convey the reasons for
revocation and the evidence relied on in making the determination. Id. at 608.
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Benitez-Rivero suggests that his failure to maintain contact was mino r because the
court found a violation only between May and August 2014. But he also admits that his
violations were serious, requesting a lesser sanction because of an alleged language barrier
and his alleged good conduct in the eight years he was out of contact. He claims that a
language barrier between him and his probation officer justified his failure to remain in
contact. Having agreed to the probationary condition to report as directed to his probation
officer, Benitez-Rivero accepted the obligation to do so without regard to any difficulties
the alleged language barrier presented.
Benitez-Rivero also highlights his alleged sobriety and law-abiding conduct in the
years he was absent from Minnesota, insisting that this demonstrates that he should have
remained on probation . The district court reasonably recognized, however, that it could
hardly evaluate Benitez-Rivero’s supposed progress because of his lack of contact with his
probation officer. The district court observed that Benitez-Rivero had been subject to two
prior probation-violation proceedings and that some of the additional conduct underlying
the state’s contention that he failed to remain law-abiding included offenses that involved
victims. Although Benitez-Rivero alleges mitigating factors—the alleged language barrier
and his alleged sobriety—the district court’s findings, which Benitez-Rivero does not
contest, are well supported by the record. The district court’s analysis went beyond general,
nonspecific reasons for revocation, and reasonably found that it would unduly depreciate
the seriousness of the violations if it did not revoke Benitez-Rivero’s probation. It therefore
did not abuse its discretion.
Affirmed.