In the Matter of the Welfare of: A. J. P., Child.

This opinion is nonprecedential except as provided by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
A24-1533

In the Matter of the Welfare of: A. J. P., Child.

Filed June 16, 2025
Affirmed
Smith, Tracy M., Judge
Dissenting, Johnson, Judge

Dakota County District Court
File Nos. 19HA-JV-21-912, 19HA-CR-24-1285

Cathryn Middlebrook, Chief Appellate Public Defender, Laura G. Heinrich, Assistant
Public Defender, St. Paul, Minnesota (for appellant A.J.P.)

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

Kathryn M. Keena, Dakota County Attorney, Elizabeth Swank, Assistant County Attorney,
Hastings, Minnesota (for respondent State of Minnesota)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from an order revoking extended-juvenile-jurisdiction (EJJ) status and
probation and executing an 86-month prison sentence , appellant A.J.P. argues that the
district court abused its discretion because its findings on all three Austin factors are not
supported by clear and convincing evidence. We conclude that the district court’s findings
are supported by clear and convincing evidence and that the district court therefore did not
2
abuse its discretion. Accordingly, we affirm the district court’s probation revocation and
execution of the stayed sentence.
FACTS
On January 27, 2021, A.J.P. and a friend made a plan to take Percocet pills together.
A.J.P. contacted his “plug,” or dealer, to get the pills. A.J.P. brought the pills to his friend’s
house, where the two each took one-half of a pill. About 15 minutes later, A.J.P.’s friend
consumed another half pill. Shortly after, A.J.P. left his friend’s house. The next day, A.J.P.
learned that his friend had died during the night. The pills turned out to be laced with
fentanyl, and the friend died from fentanyl toxicity resulting in positional asphyxia.
In November 2021, t he state filed a petition in Dakota County juvenile court
charging A.J.P. with murder in the third degree, in violation of Minn. Stat. § 609.195(b)
(2020). The state filed a motion for adult certification.
On January 6, 2022, the day of the adult-certification trial, A.J.P. pleaded guilty to
murder in the third degree pursuant to a plea agreement. The parties agreed that A.J.P.
would be sentenced under the extended juvenile jurisdiction of the district court, with a
stay of an 86-month prison sentence until A.J.P.’s 21st birthday in June 2025. The district
court adjudicated A.J.P. delinquent and imposed the agreed-upon sentence. The district
court also imposed conditions such as completing treatment at Hazelden, refraining from
using or possessing alcohol or unprescribed substances, and taking all prescribed
medications.
A.J.P.’s first probation violation occurred during April and May 2023. A.J.P. had
moved out of a sober- living home in mid-April and stopped showing up for outpatient
3
treatment at Nuway . A.J.P.’s probation officer requested a urinalysis (UA). A.J.P. first
attempted to provide fake urine, then gave a proper sample and admitted to using fentanyl
and marijuana. On May 1, A.J.P. returned to Nuway for outpatient treatment. At Nuway
on May 11, A.J.P. tested positive for marijuana and fentanyl. Nuway warned A.J.P. that he
could not have any more positive UAs and needed to be on time for treatment every day.
The next day, A.J.P. was two hours late to treatment. A.J.P. was unsuccessfully discharged
from Nuway on May 12, 2023.
The hearing for the first probation violation took place on May 23, 2023. A.J.P.
admitted to the violation, and the district court ordered A.J.P. to complete an updated
chemical-dependency evaluation and a 90-day program at the Dakota County Juvenile
Service Center (JSC ). In August 2023, based on the recommendation of Dakota County
Community Corrections, the district court ordered that A.J.P. transition to Frazier sober
living and intensive outpatient treatment after completing the JSC program.
A.J.P.’s second probation violation occurred in December 2023. Frazier informed
A.J.P.’s probation officer that A.J.P. had tested positive for THC and cocaine. A.J.P.
admitted to using marijuana that turned out to be laced with cocaine. At the probation -
violation hearing on December 19, A.J.P. admitted the violation. The district court ordered
that A.J.P. be allowed to go only to his sober-living home, Frazier for treatment, and UPS
for work. The district court also ordered an updated chemical-dependency ev aluation and
a complete medical evaluation.
A.J.P.’s third probation violation occurred in February 2024. On February 23,
Frazier moved A.J.P. to a crisis center for mental-health stabilization. Later that day,
4
A.J.P.’s father checked him out of the crisis center and took him home. The next day,
A.J.P.’s parents took him to Hennepin County Medical Center (HCMC) for a mental-
health-crisis evaluation. A.J.P. was evaluated and discharged from HCMC, having not met
the criteria for hospitalization. Frazier agreed to take A.J.P. back if he returned by
February 27 at 4:30 p.m. A.J.P. did not return, and Frazier discharged A.J.P. without his
having successfully completed the program.
On February 29, A.J.P.’s probation officer learned that A.J.P. was having some
struggles at home. A.J.P. missed a mental-health appointment because he left home, and
his father went out looking for him. Once A.J.P.’s parents found him, they brought him
home and then called the police to assist after they saw A.J.P. consume unidentified pills.
A.J.P. was taken to HCMC by ambulance. When A.J.P. returned home later that day,
A.J.P.’s mother said he was “out of control. ” A.J.P.’s probation officer requested the
assistance of law enforcement in transporting A.J.P. to the JSC. Upon arriving at the JSC,
police found fentanyl in A.J.P.’s possession, and A.J.P. admitted to consuming fentanyl
two hours earlier. A.J.P. was arrested and transported to the Dakota County jail on
February 29.
A.J.P.’s hearing on this third probation violation took place on March 12, 2024. The
state alleged violations for chemical use and failing to complete treatment. A.J.P. admitted
the violation of failing to successfully complete treatment. The district court reinstated the
same terms and conditions of probation, noting that “no use” of chemical substances would
include no use of marijuana moving forward. A.J.P. had not posted bail in his adult
possession case from February 29 and was still being held at the Dakota County jail at the
5
time of the hearing. The district court ordered that, if A.J.P. posted bail, he had to return to
Frazier and be on GPS monitoring for 90 days.
A.J.P.’s final probation violation took place in March 2024. A.J.P. had been
furloughed from the Dakota County jail and returned to Frazier. He was placed in a
different sober-living home with GPS monitoring. On March 26, Frazier informed A.J.P.’s
probation officer that A.J.P. had not been taking his prescribed medication and was
exhibiting bizarre behaviors. Frazier intended to transfer A.J.P. to a crisis center to stabilize
him. However, on March 27, a warrant was issued for A.J.P.’s arrest due to A.J.P.
possessing drugs while he absconded from Frazier in February. 1 A.J.P. was arrested at
Frazier and taken to jail. As a result, A.J.P. was unsuccessfully discharged from Frazier. In
the discharge report, Frazier listed the reason for discharge as, “Client was taken into
custody on a warrant.”
The district court held a contested probation- violation and EJJ -revocation hearing
on June 6, 2024. The state alleged that A.J.P. had violations for “failure to complete
treatment as ordered” and “failure to take medications as prescribed.” A.J.P. denied the
probation violations. At the hearing, the state submitted 26 exhibits, and the district court
received testimony from A.J.P. and his probation officer . The probation officer testified
that A.J.P. “is a risk to public safety” and himself, given his repeated rejection of treatment
and continued drug use . The probation officer’s team unanimously agreed to recommend

1 This was a separate criminal charge from the charge A.J.P. was arrested for on
February 29, but both charges relate to conduct by A.J.P. while absconding from Frazier
in February.
6
A.J.P.’s EJJ status be revoked due to A.J.P.’s inability to be “appropriately supervised
under juvenile probation.”
In an order dated June 28, 2024, the district court found that A.J.P. violated the
conditions that he complete treatment and refrain from using or possessing alcohol and
non-prescribed drugs, and that the violations were intentional and inexcusable. The district
court further concluded that A.J.P.’s “need for confinement outweighs the policies favoring
probation.” The district court also found that A.J.P.’s mental-health issues did not “rise to
the level of a mitigating factor.” The district court revoked A.J.P.’s EJJ status and probation
and executed the stayed prison sentence.
A.J.P. appeals.
DECISION
A.J.P. argues that the district court erred by revoking his EJJ status and probation
and executing his stayed sentence.
“An EJJ prosecution is a blending of juvenile and adult criminal dispositions that
extends jurisdiction over a young person to age twenty-one and permits the court to impose
both a juvenile disposition and a criminal sentence.” In re Welfare of B.N.S., 647 N.W.2d
40, 42 (Minn. App. 2002); see Minn. Stat. § 260B.193, subd. 5(b) (2020).
In an EJJ proceeding, if the juvenile is found or pleads guilty, the district court
“shall: (1) impose one or more juvenile dispositions under section 260B.198; and
(2) impose an adult criminal sentence, the execution of which shall be stayed on the
condition that the offender not violate the provisions of the disposition order and not
commit a new offense.” Minn. Stat. § 260B.130, subd. 4(a) (2020).
7
Before revoking EJJ probation and executing the stayed sentence, the district court
must conduct the three-step Austin analysis. State v. Austin, 295 N.W.2d 246, 250 (Minn.
1980) (identifying three factors that must be considered in probation-revocation
proceedings); State v. B.Y., 659 N.W.2d 763, 768-69 (Minn. 2003) (holding that Austin
factors must be considered in EJJ probation- revocation proceedings). The Austin factors
require that the district court (1) “designate the specific condition or conditions [of
probation] 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; see also Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(2)
(requiring written findings on the three factors). The district court must base these findings
on clear and convincing eviden ce. Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(1). If the
district court has made these findings, it “ shall order execution of the sentence unless the
court makes written findings indicating the mitigating factors that justify continuing the
stay.” Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(3).
“The [district] court has broad discretion in determining if there is sufficient
evidence to revoke probation,” and appellate courts will reverse a revocation of EJJ status
and probation only if there is a clear abuse of discretion. Austin, 295 N.W.2d at 249-50;
see B.Y., 659 N.W.2d at 768-69. “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). We review de novo whether the district
court made the required findings on the Austin factors. State v. Modtland, 695 N.W.2d 602,
605 (Minn. 2005). We will not reverse the district court’s findings of fact unless they are
8
clearly erroneous. In re Welfare of J.H., 844 N.W.2d 28, 34-35 (Minn. 2014). “A finding
is clearly erroneous only if there is no reasonable evidence to support the finding or when
an appellate court is left with the definite and firm conviction that a mistake occurred.” Id.
at 35 (quotation omitted).
A.J.P. advances two arguments why we should reverse the revocation of A.J.P.’s
EJJ status and probation and the execution of his stayed sentence. The first argument is that
the district court erred by finding that A.J.P. “intentionally and inexcusably” violated a
condition of his probation. The second is that the “state did not prove with clear and
convincing evidence that A.J.P.’s confinement in adult prison outweighed the policies
favoring retention of his case in the juvenile court.” We understand the first argument to
be addressing the first and second Austin factors and the second argument to be addressing
the third Austin factor.
I. The district court did not err by finding that A.J.P. inexcusably and
intentionally violated a condition of his EJJ probation.
A.J.P. argues that the district court failed to make findings supported by clear and
convincing evidence on the first two Austin factors.
A. First Austin Factor
The first Austin factor requires the district court to “designate the specific condition
or conditions [of probation] that were violated.” Austin, 295 N.W.2d at 250.
Here, the district court determined that A.J.P. violated the condition of probation
that he complete treatment. The district court specifically found that A.J.P. “failed to
complete treatment and was unsuccessfully discharged from the Frazier program on
9
March 27, 2024.” This finding is supported by the discharge report from Frazier and the
testimony of A.J.P.’s probation officer. A.J.P. was unsuccessfully discharged from Frazier
on March 27, despite being required to complete the program. Neither party disputes that
the unsuccessful discharge occurred. Therefore, the district court did not err by concluding
that A.J.P. violated a condition of his probation under the first Austin factor.2
B. Second Austin Factor
The second Austin factor requires the district court to find that the violation was
intentional or inexcusable. Id.
In a conclusion of law in its order, the district court stated, “[A.J.P.’s] violations are
intentional and inexcusable.” It w ent on to state that A.J.P. “chose to leave treatment at
Frazier,” was then “evaluated at HCMC and discharged,” and “fail[ed] to return to Frazier.”
A.J.P. argues that the district court erred by focusing on his February conduct,
during which he absconded from Frazier, when the court was “supposed to be addressing
violations that occurred after the March 12, 2024 hearing.” 3 In A.J.P.’s view, the district

2 Because only one violation is required under the first Austin factor, we decline to address
A.J.P.’s argument that clear and convincing evidence does not support the district court’s
conclusion that A.J.P. also violated the condition of probation requiring “no use or
possession of alcohol or non-prescribed drugs.” See id. (requiring district court to designate
violated “condition or conditions”).

3 The state argues that A.J.P. forfeited any argument regarding the district court’s
consideration of events outside the March 27 violation because A.J.P.’s counsel failed to
object to the admission of that evidence at the revocation hearing . But A.J.P. is not
objecting to the admissibility of that evidence and agrees that it is admissible as to the third
Austin factor. Rather, A.J.P. argues that the district court erred in relying on this evidence
in making findings in its order on the first and second Austin factors. A.J.P.’s argument
here is not forfeited.
10
court should have focused only on A.J.P.’s arrest on March 27, when he was “forcefully
taken from treatment.”
The district court did connect its conclusion on the second Austin factor to A.J.P.’s
February conduct, during which A.J.P. voluntarily left Frazier and did not return to Frazier
after being discharged from HCMC. And t he district court did address the February
conduct at a probation-violation hearing on March 12, 2024, at which A.J.P. admitted the
violation and the district court reinstated his probation. A.J.P. asserts that the district court
therefore erred by relying on past conduct that was “previously admitted” and “ already
sanctioned” at the prior probation-violation hearing. We disagree that the district court’s
decision was erroneously based only on already sanctioned conduct.
In its order revoking EJJ probation, the district court found that A.J.P. failed to
complete treatment and was unsuccessfully discharged from treatment on March 27, 2024.
The March 27, 2024 discharge report from Frazier states that A.J.P. was discharged
because A.J.P. “was taken into custody on a warrant.” Thus, the basis for the district court’s
revocation of probation was the March 27 dismissal from Frazier and A.J.P.’s failure to
complete treatment. The district court did not revoke A.J.P.’s EJJ probation based on the
same violative conduct that was considered in the March 12 probation-revocation hearing.
A.J.P. argues that his unsuccessful discharge from treatment cannot be considered
“intentional or inexcusable” because it was due to his arrest, rather than him leaving
voluntarily or refusing to participate. This argument is unconvincing. The record provides
support that the conduct underlying AJ.P.’s arrest was both intentional and inexcusable.
A.J.P. allegedly possessed drugs while absconding from Frazier in February, which led to
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his March 27 arrest and his subsequent unavailability for treatment. A.J.P. does not argue
that he did not possess the drugs in February 2024. He simply argues that the second Austin
factor cannot be based on conduct that predates the last probation-violation hearing. But a
consequence of A.J.P.’s intentional conduct in February 2024 was that he was charged with
a crime and arrested and, as a result, was discharged from treatment on March 27 and could
not complete treatment. This failure to complete treatment was a new violation. On this
record, the district court did not abuse its discretion by concluding that A.J.P.’s violation
was intentional and inexcusable.4

4 We make two points in response to the dissent. First, the dissent reasons that the district
court’s finding lacks evidentiary support because A.J.P. did not engage in “willful conduct”
on March 27 and he was discharged from treatment “through no fault of his own.” But, as
we explain above, A.J.P. was discharged from treatment on March 27—violating the
condition of probation that he successfully complete treatment—and the arrest that led to
his discharge was based on his intentional conduct.

Second, the dissent asserts that A.J.P.’s due- process rights were violated because
his conduct was already the subject of a probation-violation charge and hearing and
therefore could not be considered again. As a preliminary matter, we note that A.J.P. did
not make a due-process argument on appeal. The principle of party presentation counsels
against deciding a case based on an issue that was not raised or briefed on appeal. See
Greenlaw v. United States, 554 U.S. 237, 244 (2008). In any event, we do not agree that
A.J.P.’s due-process rights were violated. The foreign decisions cited in the dissent are not
persuasive on the question. Although the appellant in Green v. Commonwealth raised a
due-process argument, the court did not “reach the merits of [the appellant’s] assignment
of error” because the appellant failed to provide a sufficient record to the court. 779 S.E.2d
207, 212 (Va. Ct. App. 2015). And, in State v. Quarles, the court held that due process did
not bar a hearing on a probation-violation charge when the charge was previously brought
and considered at a hearing but then withdrawn by the state before decision. 761 P.2d 317,
320 (Kan. Ct. App. 1988). That case simply did not address the factual situation that we
have here. In addition, we disagree that A.J.P. was sanctioned twice for the same conduct.
A.J.P.’s failure to complete treatment due to his March 27 discharge was a consequence of
his conduct that did not materialize until that date, and he therefore was first held
accountable for that consequence in the district court’s order here.
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II. The district court did not err by concluding that the need for confinement
outweighed the policies favoring retention in the juvenile system.
A.J.P. argues that the district court failed to make findings supported by clear and
convincing evidence on the third Austin factor.
The third Austin factor requires the district court to find that the “need for
confinement outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250. When
analyzing the third Austin factor, the district court must consider the Modtland subfactors.
Modtland, 695 N.W.2d at 606 -07. The Modtland subfactors are as follows:
(1) “confinement is necessary to protect the public from further criminal activity by the
offender,” (2) “the [juvenile] offender is in need of correctional treatment which can most
effectively be provided if he is confined,” and (3) “it would unduly depreciate the
seriousness of the violation” if the district court did not revoke probation. Id. at 607. “Only
one Modtland subfactor is necessary to support revocation.” State v. Smith, 994 N.W.2d
317, 320 (Minn. App. 2023), rev. denied (Minn. Sept. 27, 2023).
In making these findings, the district court should not merely recite the Austin
factors and “offer[] general, non-specific reasons for revocation.” Modtland, 695 N.W.2d
at 608. Rather, the district court must make “thorough, fact -specific records” and provide
“substantive reasons for revocation and the evidence relied upon.” Id. Importantly, “[t]he
decision to revoke probation cannot be a reflexive reaction to an accumulation of technical
violations but requires a showing that the offender’s behavior demonstrates that he or she
cannot be counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251 (quotations
omitted).
13
The district court made findings on all three Modtland subfactors, even though only
one is needed to satisfy the third Austin factor. See Smith, 994 N.W.2d at 320. For the
second Modtland subfactor, the district court concluded that A.J.P. “is in need of
correctional treatment which can be most effectively provided if he is confined.” The
district court explained that A.J.P. “will not successfully complete an outpatient treatment
program.” This conclusion is supported by the district court’s many findings that A.J.P.
was unsuccessfully discharged from outpatient treatment and the probation report detailing
A.J.P.’s many unsuccessful outpatient attempts. Though A.J.P. notes his success in
inpatient treatment, the district court properly concluded that this success was not
translating to outpatient programs. While we acknowledge A.J.P.’s argument that he did
not feel that any of the treatment programs “adequately addressed [his] mental health
needs,” the record provides evidence that Frazier was trying to work with A.J.P. to address
his mental-health issues.5
For the third Modtland subfactor, the district court concluded that “it will unduly
depreciate the seriousness of the violation if the EJJ probation is not revoked.” The district

5 A.J.P. cites several nonprecedential cases in support of his argument, but they do not alter
our analysis. This case is distinguishable from the cases that A.J.P. relies on: State v. N.R.S.,
No. A11-0523, 2011 WL 6351868, at *3-4 (Minn. App. Dec. 20, 2011) (reversing EJJ-
probation revocation because N.R.S. was having success in treatment leading up to
revocation), and State v. G.D.T., No. A13-1515, 2014 WL 1272383, at *2-3 (Minn. App.
Mar. 31, 2014) (reversing EJJ-probation revocation where probation officer opposed
revocation and offered another viable option), rev. denied (Minn. June 17, 2014). A.J.P.’s
case is more analogous to the case cited by the state: State v. M.N.M., No. A21-0291, 2021
WL 5441819, at *4-5 (Minn. App. Nov. 22, 2021) (affirming EJJ-probation revocation
where record showed M.N.M.’s continued unsuccessful attempts at treatment and new
offenses in the community), rev. denied (Minn. Jan. 26, 2022).
14
court explained that A.J.P. was “given multiple chances” and was told by the court “many
times that if he did not follow the directives of probation, his probation would be revoked,
and he would face an 86-month prison sentence.” The district court’s findings outline the
many times A.J.P. was warned of the consequences of continuing to violate his probation.
For example, on August 18, 2023, the district court told A.J.P. that “he must complete [the]
treatment program.” On November 7, 2023, the district court warned A.J.P. to “follow the
terms of his medical marijuana prescription.” On March 12, 2024, the district court ordered
A.J.P. to go back and complete treatment at Frazier and have no overnight visits. The
district court’s multiple warnings and chances for A.J.P. to complete treatment did not
prevent A.J.P. from continuing to violate his probation. The district court’s findings on the
third Modtland subfactor are supported by clear and convincing evidence.
The district court also briefly addressed the first Modtland subfactor by concluding
that “[t]here are no other suitable options in the juvenile justice system to provide treatment
and accountability to [A.J.P.] that will serve to reduce his risk to public safety before he
turns 21 on June 30, 2025.” The district court determined that there was not enough time
to complete treatment through the available options before A.J.P. would turn 21. Although
A.J.P. disagrees with this conclusion, it is supported by the testimony of A.J.P.’s probation
officer. The probation officer testified that two of the options for treatment were not
suitable because they were not secure enough. The probation officer also testified that Red
Wing Correctional Facility was not suitable because, though A.J.P. may have finished
treatment in a year, there would not be enough time to supervise him in the community
15
after completion. The district court’s conclusion on the first Modtland subfactor is thus
supported by clear and convincing evidence.6
Because the district court made findings on all three Modtland subfactors that are
supported by clear and convincing evidence, the district court did not abuse its discretion
by concluding that A.J.P.’s “ need for confinement outweighed the policies favoring
retention in the juvenile system.”
Affirmed.

6 A.J.P. also argues that two findings of the district court are clearly erroneous: (1) the
district court’s finding that A.J.P. “ has not been able to complete an inpatient program”
and (2) the district court’s finding that A.J.P. “never followed the [marijuana] dosage
prescribed . . . as shown by his U/A test results indicating increasing levels of THC.”
Because the other findings of the district court are sufficient to support its conclusion on
the third Austin factor, we do not reach this argument.

D-1

JOHNSON, Judge (dissenting)
The district court twice found that A.J.P. committed the same intentional violation
of a condition of his probation: leaving the Frazier facility and not completing treatment
on February 23, 2024. After first making that finding at the March 12, 2024 hear ing, the
district court reinstated A.J.P. on probation. After making that finding a second time at the
June 6, 2024 hearing, the district court revoked A.J.P.’s probation and executed his
sentence. A.J.P. did not engage in any willful violative conduct between the March 12,
2024 hearing and the June 6, 2024 hearing. Accordingly, I respectfully dissent from the
opinion of the court.
A.
Because a probationer may suffer a loss of liberty in a probation-revocation
proceeding, the Due Process Clause applies. Gagnon v. Scarpelli, 411 U.S. 778, 781-82
(1973); State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008). “[F]undamental fairness” is
“the touchstone of due process.” Gagnon, 411 U.S. at 790. In a probation-revocation
proceeding, due process requires a court to ask “whether and when it is fundamentally
unfair or arbitrary for the State to revoke probation.” Bearden v. Georgia, 461 U.S. 660,
666 (1983).
B.
The procedural history relevant to this appeal is somewhat complicated but is
essential to resolving A.J.P.’s argument.
On March 1, 2024, A.J.P.’s probation officer filed a third probation-violation report
alleging that, between February 23, 2024, and February 29, 2024, A.J.P. violated three

D-2

conditions of his probation. At a March 12, 2024 hearing, the state withdrew one
allegation, a “remain-law-abiding violation,” which was based on the fact that A.J.P. had
been charged with a crime for possessing fentanyl on February 29, 2024. A.J.P. admitted
that he committed a violation by leaving Frazier and not successfully completing treatment
on February 23, 2024. The district court accepted A.J.P.’s admission, found that his
violation was intentional and inexcusable, and reinstated him on probation. The district
court imposed an additional condition that, if A.J.P. were released from the Dakota County
jail, he would be required to return to Frazier. A.J.P. was furloughed from jail on March 18,
2024, and returned to Frazier.
On March 27, 2024, A.J.P.’s probation officer filed a fourth probation-violation
report. On June 3, 2024, three days before the fourth violation hearing, the probation
officer filed an amended fourth violation report, which alleged a single violation: that
A.J.P. “violated the terms and conditions of his EJJ probation by not attending and
completing Frazier Wellness outpatient chemical health treatment.”
In its June 28, 2024 order, the district court made the first finding required by State
v. Austin, 295 N.W.2d 246, 250 (Minn. 1980), and State v. Modtland, 695 N.W.2d 602,
606-07 (Minn. 2005):
The State has proven by clear and convincing evidence
that [A.J.P.] violated the conditions ordered on January 6,
2022, as follows: (a) Failed to enter and complete chemical
dependency evaluation and follow recommendations for
treatment; (b) No use or possession of alcohol or non-
prescribed drugs.

D-3

In the next paragraph, the district court made the second finding required by Austin and
Modtland:
[A.J.P.]’s violations are intentional and inexcusable.
[A.J.P.] chose to leave treatment at Frazier. His self-diagnosed
mental health crisis is not a mitigating excuse. He was
evaluated at HCMC and discharged and he chose not to return
to treatment. It was made clear to [A.J.P.] that failure to return
to Frazier was a violation of the express directive of probation,
and would result in his discharge from treatment.

The district court’s second Austin-Modtland finding refers only to the violation
described in subparagraph (a) of the previous paragraph (but not to the violation described
in subparagraph (b)). Thus, the only violation for which both the first and second Austin-
Modtland findings were made—and, thus, the only violation that might justify
revocation—is the violation described in subparagraph (a): failure to enter and complete
chemical-dependency evaluation and follow recommendations for treatment.
The district court’s second Austin-Modtland finding makes clear that the conduct
on which the district court relied in revoking A.J.P.’s probation is A.J.P.’s leaving Frazier
without successfully completing treatment on February 23, 2024 — the same conduct he
admitted at the March 12, 2024 hearing.
C.
The opinion of the court reasons that the district court’s first Austin-Modtland
finding is supported by a finding that A.J.P. was discharged from Frazier on March 27,
2024. See supra at 8-9. In the finding concerning A.J.P.’s March 27, 2024 discharge, the
district court cited an exhibit consisting of the Frazier discharge summary, which states:

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“Reasons for and circumstances of service termination: Client was taken into custody on a
warrant.” There are two interrelated problems with the court’s reasoning.
1.
First, the court’s interpretation of the district court’s first Austin-Modtland finding
(that it is based on the involuntary March 27, 2024 discharge) does not align with the
district court’s second Austin-Modtland finding, which refers to A.J.P.’s voluntary self -
discharge on February 23, 2024. The district court’s statements that A.J.P. “chose to leave
treatment at Frazier,” that he did so because of a “self-diagnosed mental health crisis,” that
he was evaluated at HCMC, and that he “chose not to return to treatment” refer to A.J.P.’s
conduct in late February 2024. The court affirms the district court for reasons not stated
by the district court.
A.J.P.’s argument for reversal is based on the implied premise that evidence of a
probationer’s conduct previously used to prove a probation violation may not be used again
in a subsequent violation proceeding to prove another probation violation. I agree with
that premise. To be sure, the Double Jeopardy Clause of the Fifth Amendment does not
apply in probation-revocation proceedings. See, e.g., State v. Vaden, 526 P.3d 620, 627
n.12 (Haw. 2023); State v. Quarles, 761 P.2d 317, 319-20 (Kan. Ct. App. 1988); State v.
Maynard, 233 P.3d 331, 341 (Mont. 2010); Green v. Commonwealth, 779 S.E.2d 207, 211-
12 (Va. Ct. App. 2015); Peterson v. State, 558 P.3d 210, 211-13 (Wyo. 2024). But
analogous principles are part of the due-process protections that apply to probation-
revocation proceedings.

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For example, in Green, a probationer argued that his due-process rights were
violated because his probation was revoked based on conduct that was alleged in a prior
violation proceeding, which resulted in the re-suspension of his prison sentence. 779
S.E.2d at 209-13. The court engaged the argument, without questioning its viability, but
denied relief because the probationer did not provide a record of the first violation
proceeding that would allow the appellate court to determine whether the conduct at issue
in the second proceeding was the sole factual basis of the violation that was found in the
first proceeding. Id. at 212-13. In this case, in contrast, A.J.P. has presented this court
with the full district court record, and it is clear that the violation found by the district court
at the third violation hearing on March 12, 2024, is based on the same conduct on which
the district court relied in finding a violation and revoking probation at the fourth violation
hearing on June 6, 2024.
As another example, in Quarles, the state alleged that a probationer violated a
probation condition by using cocaine, but the state “encountered difficulties” in presenting
its evidence at the hearing and withdrew the allegation. 761 P.2d at 318. One month later,
the state again alleged the same violation, which it later proved at a hearing, resulting in
revocation. Id. at 318-19. On appeal, the probationer argued that his due-process rights
required application of the res judicata doctrine. Id. at 320. The court applied the
requirements of res judicata but concluded that the second allegation was not precluded by
the first because there was no final judgment on the merits in the first proceeding due to
the state’s withdrawal of the alleged violation. Id. In this case, in contrast, the state
obtained a determination on the merits of its third alleged violation when A.J.P. admitted

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that he left Frazier on February 23, 2024, without successfully completing treatment and
the district court found an intentional violation but reinstated A.J.P.’s probation.
2.
Second, if the district court’s first Austin-Modtland finding is understood to refer to
A.J.P.’s discharge from Frazier on March 27, 2024, as the opinion of the court reasons, the
finding is without proper evidentiary support because A.J.P. did not engage in any willful
conduct that violated his probation conditions on March 27, 2024, or during the period
between the third hearing on March 12, 2024, and March 27, 2024. A.J.P. was discharged
from Frazier on March 27, 2024, because police officers executed an arrest warrant at
Frazier and removed A.J.P. to the Dakota County jail. The arrest warrant was issued
because the county attorney’s office filed a second set of criminal charges against A.J.P. in
a new criminal case alleging that he possessed fentanyl on February 28, 2024, two weeks
before the March 12, 2024 hearing.
In Bearden, the Supreme Court considered “whether a sentencing court can revoke
a defendant’s probation . . . absent evidence and findings that the defendant was somehow
responsible for” a violation of a condition of probation. 461 U.S. at 665. The Court stated
that “the State is perfectly justified in using imprisonment as a sanction” if a probationer
“willfully” violates or “fail[s] to make sufficient bona fide efforts” to comply with a
condition of probation. Id. at 668. But if a probationer “has made all reasonable efforts”
to comply with a condition of probation “yet cannot do so through no fault of his own, it is
fundamentally unfair to revoke probation automatically without considering whether
adequate alternative methods of punishing the defendant are available.” Id. at 668-69.

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As a matter of due process, A.J.P. cannot be held “responsible for” his discharge
from Frazier on March 27, 2024, because, between March 12, 2024, and March 27, 2024,
he did not “willfully” violate or “fail[] to make sufficient bona fide efforts” to comply with
a condition of probation. See id. at 665, 668. Because A.J.P.’s discharge from Frazier
occurred “through no fault of his own” during the relevant time period, “it is fundamentally
unfair” to revoke his probation without any evidence of willful conduct during the relevant
period. See id. at 668-69.
To be clear, a probationer may be held accountable for willful conduct that results
in a discharge from a treatment facility if a condition of probation requires the probationer
to remain in or complete treatment. But a probationer should be held accountable for such
conduct only once. In this case, A.J.P. was held accountable for his conduct occurring in
late February 2024 at both the March 12, 2024 hearing and the June 6, 2024 hearing. It is
fundamentally unfair for A.J.P. to twice be subjected to the risk of revocation of his
probation based on the same underlying conduct. The district court did not merely consider
A.J.P.’s prior violation when analyzing the third Austin-Modtland factor; the district court
relied on the same conduct on two successive occasions when analyzing the first Austin-
Modtland factor.
In sum, I would consider the state’s evidence of a fourth probation violation only to
the extent allowed by constitutional due- process principles. In my view, due- process
principles forbid the state from proving a violation with the same evidence that was used
to prove a prior violation and from proving a violation without evidence that a probationer
engaged in willful violative conduct since the prior violation. Thus, I would conclude that

D-8

the district court clearly erred by finding that A.J.P. committed a fourth violation of a
condition of his probation and by revoking his probation.