State of Minnesota, Respondent, vs. Chee Yang, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-605

 

State of Minnesota,

Respondent,

 

vs.

 

Chee Yang,

Appellant.

 

Filed September 9, 2003

Remanded Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. J296555297

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan E. Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Shumaker, Judge; and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            This appeal of appellant's extended juvenile jurisdiction (EJJ) probation revocation has been remanded by the supreme court for reconsideration in light of that court's decision in State v. B.Y., 659 N.W.2d 763 (Minn. 2003).  Because there are factors on which B.Y. requires a district court finding but none was made, we remand to the district court. 

D E C I S I O N

            Appellant Chee Yang, then 16 years old, pleaded guilty in 1998 to three counts of first-degree criminal sexual conduct.  The agreement provided that Yang would be placed on EJJ probation, with stayed adult sentences totaling 270 months.  Yang's probation was revoked, and his adult sentences executed, in January 2002.  Yang appealed, and this court affirmed in a July 23, 2002 opinion.  State v. Yang, No. C9-02-605 (Minn. App. July 23, 2002), review granted (Minn. Sept. 17, 2002) (stayed pending decision in B.Y.).

          The district court has broad discretion in determining whether to revoke probation and execute a sentence.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  That decision will be reversed only upon a finding that the district court abused its discretion.  Id.

            The supreme court in B.Y. held that an EJJ revocation must be based on the violation of a condition found in the disposition order, or at least imposed by the court at some point, not a condition later imposed by a probation officer.  B.Y., 659 N.W.2d at 769.  The supreme court also held that the three Austin factors must be applied in EJJ probation revocations.  Id. at 768-69.  The supreme court thus rejected the view expressed in this court's earlier opinion, and reflected in the district court's order, that the third Austin factor need not be addressed.

            Yang argues that the revocation could not properly be based on his violation of the conditions that he have no contact with known gang members and that he remain law abiding because the initial disposition order did not order either that Yang have no contact with gang members or that he remain law abiding.  Yang's case plan included both conditions, but was not signed by the court or imposed directly by the court.  Nevertheless, following Yang's first probation violation, the court signed an order requiring him to remain law abiding and to avoid association with "anyone involved in illegal activity."  This order satisfies the requirement of B.Y. that revocation of EJJ probation be based on a violation of a condition imposed by the court.

            To revoke probation, the district court must "(1) designate the specific condition . . . that [was] 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. 

            The district court did not make a finding on the third Austin factor.  This court has held that explicit findings on the Austin factors are required.  State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995).  And the supreme court has held in B.Y. that the third Austin factor must be addressed in an EJJ probation revocation.  B.Y., 659 N.W.2d at 768-69.

            Yang's violation, a contact with known gang members in an attempt to complete an illegal gun sale, committed while Yang was in the Red Wing correctional facility, is far more serious than the curfew violation in B.Y.  And Yang has had a prior probation violation.  Furthermore, the district court found that the juvenile system "has exhausted [its] efforts to rehabilitate this child."  But an appellate court cannot weigh the competing interests in a case and determine in the first instance whether the need for confinement outweighs the policies favoring probation.

            Yang also argues that there are mitigating circumstances that would weigh against executing the adult sentence.  This issue, however, must be decided by the district court on remand.

            Finally, Yang argues that B.Y. requires that the district court make a finding that the offender "cannot be counted on to avoid antisocial activity" before revoking probation.  B.Y., 659 N.W.2d at 772 (quoting Austin, 295 N.W.2d at 251).  Yang argues that the finding is also required in this case, and necessitates a remand.  But the supreme court in B.Y. required the "antisocial activity" finding only when "a court revoke[s] probation and execute[s] a previously stayed adult sentence for technical violations of EJJ probation . . . ."  Id. (emphasis added).  Yang's EJJ probation was not revoked based on "technical violations"; therefore, the district court is not required to find that Yang "cannot be counted on to avoid antisocial activity" before revoking probation.  Id. (quoting Austin, 295 N.W.2d at 251).

            Remanded.

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